Volume 15 — Oregon Reports

<p>Roads, Pbivate. — A petitioner having pursued the mode pointed out by the Code Act of 1876 (Sess. Laws), becomes entitled to the road as a matter of right.</p> <p>Same. — A bond exacted by the County Court to indemnify the county against the expenses of location, and damages assessed, is void as being contrary to public policy.</p> <p>Same. — The County Court has no authority to take such a bond under section 1, Mise. Laws. That section refers only to corporate affairs.</p> <p>Same. —The power of locating a private road is entirely of a public nature.</p>

Facts are stated in the opinion of the court. 1. A voluntary conveyance by an insolvent debtor imports fraud. (Bump on Fraudulent Conveyances, § 265.) 2. If the voluntary deed operated to hinder creditors the fraudulent intent will be conclusively presumed. 3. Bigelow v. Stringer, 40 Mo. 195; Greens v. Tantum, 19 N. J. Eq. 109. 4. The purchaser should prosecute inquiry where circumstances are suspicious. (Bartlett v. Gibson, 17 Fed.

<p>Appeal from Multnomah County.</p> <p>The facts appear in the opinion of the court,</p> <p>1. Indicia of fraud. O’Connor was a man of no financial ability to purchase. (Glen v. Glen, 17 Iowa, 498-; Seymore v. Lewis, 13 N. J. Eq. 457.)</p> <p>2. The price was inadequate. (Seymore v. Delaney, 6 Johns. Ch. 222; Bump’s Fraudulent Conveyances, p. 43; Kemper v. Churchill, 8 Wall. 362.)</p> <p>3. The consideration was fictitious. (Bank v. O’Rouke, 40 N. J. Eq. .98.)</p> <p>4. The grantor remained in possession. (Bank v. Fink, 7 Paige Ch. 94; Jackson v. Mather, 7 Cowen, 301; Hildreth v. Sands, 2 Johns. Ch. 35.)</p> <p>5. The transaction was conducted out of the usual course of business, which raises a presumption of fraud. (Bump’s Fraudulent Conveyances, p. 52, and notes.)</p> <p>6. The omission of the grantee to produce the debtor and other important witnesses is ground for an unfavorable presumption. (Bump’s Fraudulent Conveyances, 52, and cases cited; Bowden v. Johnson, 107 U. S. 262; Glen v. Glen, 17 Iowa, 498.)</p> <p>7. Evidence arising from surrounding circumstances may be stronger than the testimony of any single witness. (Clark’s Ex’r v. Van Ramsdyk, 9 Cranch, 153; Bowden v. Johnson, 107 U. S. 262; Gallan v. Statham, 23 How. 477.)</p> <p>8. Notice may be inferred from surrounding circumstances. Knowledge of facts sufficient to put a prudent man upon inquiry, or the means of kuowing by the use of ordinary diligence, amounts to notice. (Bump’s Fraudulent Conveyances, 200, and note 1; Jackson v. Mather, 7 Cowen, 301; Hoosier v. Hunt, 65 Wis. 71; 2 Pomeroy’s Equity Jurisprudence, § 579; Tantumv. Green, 21 1ST. J. Eq. 364; Sayre v. Fredricks, 16 N. J. Eq. 205; Hopkins v. Langton, 30 Wis. 382; Holliday’s Case, 27 Fed. Rep. 809; Wait’s Fraudulent Conveyances, §§ 224, 373, 382; Pomeroy’s Equity Jurisprudence, § 600; Billings v. Bussell, 101 N. T. 226; Rogers v. Evans, 56 Am. Dec. 537; Bump’s Fraudulent Conveyances, p. 53; Godfrey v. Germame, 24 Wis. 416; Van-dall v. Vandall, 13 Iowa, 247; Gallan v. Statham, 23 How. 477; Pwrkett v. Pollack, 17 Cal. 327-332; Hildrdh v. Sands, 2 Johns. Ch. 35; Glen v. Glen, 17 Iowa, 498.)</p> <p>1st. Actual notice of the fraudulent intent of the grantor must be established. (§§ 54, 55, Gen. Laws Code, 523; Goolidge v. Henelcy, 11 Or. 327; Parker v. Connor, 93 N. Y. 118; Starin v. Kelley, 88 N. Y. 418; Bonser v. Miller, 5 Or. 110, 111; Crawford v. Beard, 12 Or. 453, 454; 124 Mass. 120; 2 Pomeroy’s Equity Jurisprudence, § 970; 50 Cal. 132, 140.)</p> <p>2d. The extent of the grantor’s indebtedness is immaterial. (2 Pomeroy’s Equity Jurisprudence, § 972.)</p> <p>3d. The burden is on those alleging fraud to prove it. (Kruse v. Prindle., 8 Or. 162; Field v. Goslin, 12 Iowa, 218; Evans v. Bugee, 57 Wis. 623, 625.)</p> <p>4th. An honest intent is to be imputed to the transaction. (75 Ill. 143, 147; 25 Iowa, 218; 27 N. W. Rep. 779.)</p> <p>5th. The intent to defraud must exist both on the part of the grantee and of the grantor. (20 Ill. 449-462; 24 N. W. Rep. 609.)</p> <p>6th. The difference between the market price and the value is immaterial, unless so gross as to create the impression of bad faith. (Bump’s Fraudulent Conveyances, 45; Wadhams v. Humphrey, 22 Ill. 661; Bort v. Cook, 81 Ill. 260; Jamison v. King, 50 Cal. 132; Hunt v. Hoover, 34 Iowa, 81; Jaeger v. Kelley, 52 1ST. Y. 274; Day v. Cole, 44 Iowa, 452.)</p> <p>7th. Grantee must have actual notice; reasonable cause to know is not sufficient. (Carrol v. Hayward, 124 Mass. 120; Parker v. Connor, 93 N. Y. 118.)</p> <p>8th. Intent must be shown. (2 Pomeroy’s Equity Jurisprudence, §§ 970, 971; Starin v. Kelley, 88 N. Y. 418; Brown v. Forree, 7 Mon. B. 357; 46 Am. Dec. 519.)</p> <p>. 9th. Insolvency of grantor nor mere inadequacy of price not sufficient to establish fraud. (Kinder v. Maey, 7 Cal. 206; 2 Pomeroy’s Equity Jurisprudence, 972; Jaeger v. Kelley, 52 1ST. Y. 274.)</p> <p>10th. Deed constructively fraudulent may be permitted to stand as security. (Crawford v. Beard, 12 Or. 447.)</p>

The appellant demurred to the complaint upon the ground that the claim upon which the action was founded had not been presented to the County Court for allowance, after it had been disallowed by the executrix, before this action was brought. The overruling of this demurrer was one ground insisted ou by the appellant.

<p>Iedicimeht — I’obm or. — Upon a motion in arrest of judgment, an indictment charging the defendant, “that .... and being a room in which personal property of said county and State was kept, did then and there the room aforesaid unlawfully break and enter with the intent the goods, etc., there situate, to steal,” etc., sufficiently avers that there was property of the county kept in the room at the time of entry.</p> <p>Same. — The sentence is ill-arranged, but objection should have been made before trial.</p>

1. The contract is entire, not severable. It in effect provides that the respondents shall, at the end of the term, receive the full sum of $5,133, and that appellant will make up any deficiency, together with damages, if any. 2. The former recovery is a bar. (Fish v. Foley, 6 Hill, 56; Atwood v. Norton, 27 Barb. 647; Colburn v. Woodworth, 31 Barb. 384.) 3.

1. An insolvent debtor has no right, pending a creditor’s suit, to prefer one creditor by giving him a mortgage or assignment. But where the receiver is appointed simply to preserve the estate pendente lite, and not for an equitable distribution of the assets among the creditors, a creditor may enforce a demand by suit. (Ellieot v. U. 8. Ins. Co. 7 Gill, 807.) 2. There was no reason why Holladay could not make the mortgage to Thompson while the latter was receiver. 3.

The burden is upon the plaintiff to show his right to the office. (High on Extraordinary Remedies, § 713; People v. Clayton, 11 Pac. Rep. 206.) The terms of the statute all imply that it is the duty of the person elected to enter upon his office at the commencement of the term. In the construction of the statute the intention of the legislature is to be pursued if possible. (Code, § 685, p. 248; Sedgwick’s State and Const.

Facts are stated in the opinion of the court. 1. The court erred in allowing witness, T. J. Blair, to testify that the wheat was shipped to defendants. It is a presumption of law that the ordinary course of business was followed, and the shipping receipts were the proper evidence of the shipment. ( Young v. Miles, 20 Wis. 646; Code, 261.) 2. It was error to allow Blair to testify as to what he wrote defendants without producing the letter or accounting for its absence.

Facts are stated in the opinion. The general rule of the law is that the party in the wrong must pay the costs. (5 Wend. 507.) Costs are a mere incident to the judgment, and it is not necessary or proper to stipulate in regard to costs. (McDonald v. Evans, 3 Or. 475; Wing v. N. F. & Erie E. E. Co. 1 Hilt. 235; Eoberts v. Garland, 1 Or. 332.) 1. The stipulation fixed the amount of the judgment, and the court has no power to vary the terms of their judgment.

<p>Ckiminal Law — Indictment, Poitra ok. — In an indictment for tailing money by force from tbe person of another, it is not necessary under our statute to allege that the money taken was the property of another than the defendant.</p> <p>Evidence — Practice.—Where on a trial the State proved that the tracks of a horse ridden by the defendant were similar to those of another horse owned by tlie defendant, upon the direct testimony, and the defendant introduced testimony showing that the horse was shod, and the State in rebuttal introduced witnesses to show that the horse was not shod; held, that it was error to exclude evidence offered by the defendant after the rebuttal by the State, that the horse was shod the day after the commission of the .crime.</p>

The facts are stated in the opinion. 1. The indictment does not state facts sufficient to constitute a crime. 2. The testimony shows no bailment. (Bishop on Statutory Crimes, § 423.) 3. The court had no jurisdiction to try the case. 4. The property, if stolen, was stolen without the State. 5. It is presumed the common law is in force in British Columbia. 6. Bank-notes not larceny at common law. (Whartoffis Com. Law, § 1758.) 7. There is no larceny by bailee at common law. 1.

<p>Appear from Jackson County.</p>

<p>New Tbiae — Appeal erodi Obder Geahting. — An order of a trial court granting a new trial is not appealable. There is no final judgment, and therefore no appeal.</p> <p>Motion fob New Tbiai and fob Judgment, Notwithstanding the Yebdict— Effect of. — When the defendant filed a motion for a new trial and a motion for judgment non obstante verdicto at the same time, which latter motion is allowed by the court, and final judgment rendered for the defendant, which judgment was reversed on appeal; held, that the motion for a new trial had not thereby been disposed of; that it was not waived, and the trial court might in its discretion allow such motion after the reversal of the judgment given, notwithstanding the verdict.</p>

<p>Assignment of Stock. — S. being the owner of certain shares of stock assigned said shares to R. by an absolute transfer, embodying an absolute and irrevocable power of attorney, authorizing R. to transfer the stock from the name of S. to that of R. on the books of the company. The assignment was accompanied by a written agreement of the same date between the parties, providing that upon default in the payment of a note from S. to R., R. might sell or dispose of the stock npon such terms as he saw fit. Before the maturity of the note Ii. caused the stock to he transferred to his own name. Held, that the transfer and the accompanying agreement should be considered together in fixing the rights of the parties. A pledgee of stock given as security for the payment of a note, and who is authorized by the assignment to cause the stock to be transferred to his own name upon the books of the company, has no right to cause such transfer to be made before the note matures, and an attempted transfer of that nature would not divest the pledgor of his right to vote the stock.!.</p> <p>Same. —It is immaterial that in such cases the by-laws of the corporation limit the right of voting the stock to stockholders, and provide that transfers shall be made only on the books of the company, and that a certified transcript thereof shall be prima facie ovidence of the right to vote.</p> <p>Same. — Where the pledgor cast the vote of such stock and it was refused by the president, who was by the by-laws tñe inspector of elections of directors, and the president certified to the election of other persons than those voted for by the pledgor; held, that the votes should be counted as cast by the pledgor, and that the persons for whom he voted were the elected directors; that the votes, when cast, and not the certificate of the inspector, constituted the election; that the election was not affected by proceedings had at the stockholders’ meeting after the president of the meeting had declared the same adjourned.</p> <p>Transfers of Stock_The owner of stock in a corporation has an untrammeled right to dispose of it, and the by-law providing that shares of stock shall be only transferred upon the books of the corporation is void in so far as it attempts to limit the right of the owner to transfer his stock. Such a by-law is to be construed as simply providing for proper registration of the transfer of stock for the convenience and information of officers of the corporation.</p> <p>Directors. — A bona fide owner of shares of stock is qualified to be a director, although the transfer has not been registered on the books of the company as provided by the by-laws.</p> <p>Directors, Residence op. — Where the objects of the corporation, as expressed by the charter, are to build and construct “railroads, canals,” etc., and the eor-■poration has already done so to a limited extent, the court will not inquire into the length, extent, or magnitude of the canals or roads in order to ascertain whether a non-resident of the State is qualified to be a director of such corporation, under the statute allowing non-residents to constitute a minority of the board of directors of corporations engaged in the construction or operation of railroads, canals, etc.</p> <p>Board op Directors — Irregular Proceedings op. — Where a number of directors immediately after their election, which was contested and disputed by the president of the corporation, proceed in his absence, and without any notification to Mm — he being a member of the hoard — to organize and elect a president, held, that the proceedings were irregular and void, and were not remedied by a subsequent action of the board ratifying and confirming the irregular proceedings. (By Lord, C. J., dissenting.)</p> <p>Rights op Pledgee op Stock. — Stock having been assigned by S. toR., coupled with an irrevocable power of attorney authorizing R. to transfer the shares to his own name, R. had the right so to do before default was made in the payment of the note, and R. can'vote such shares as are incident of such holding while they stand in Ms name and the debt is unpaid.</p>

Bigne could not act as administrator of the partnership estate without giving an undertaking. The decedent could not dispense with this security, which is for the benefit of creditors of his estate and surviving partners. (Cook v. Lewis, 36 Me. 340; Buffum v. Buffum, 49 Me. 100; Hill v. Treat, 67 Me. 501; Putnam v. Parker, 55 Me. 235; Bredon v. Muí. Sav. Inst. 28 Mo. 181; Grow v. Weidner, 36 Mo. 412; Collier v. Cairns, 6 Mo.

<p>undertaking in Proceeding por Contempt.- — Where the appellant had given an undertaking to appear and answer in criminal proceedings for contempt, and did not appear in person, but when the proceeding was called for trial appeared by counsel and contested the proceedings, and subsequently failed to pay the fine imposed and was arrested by the sheriff, and then paid the fine; held, that an action could not be maintained against him to recover the sum specified in the undertaking.</p> <p>Same. — Warrant of arrest, in proceedings for contempt, should have a return day, and require the defendant to appear at a specified time.</p>

1.There can be no recovery based upon the net profits of the farm. (Rhodes v. Baird, 16 Ohio St. 573; Griffin v. Golver, 16 N. Y. 489; Barnard v. Poor, 21 Pick. 381; De La Zerda v. Korn, 25 Tex. Sup. 188.) ' 2. -The general damages laid in the declaration in the ordinary form is distributable over the general counts in the declaration. (1 Sutherland on Damages, 760.) 3. It was error to render a judgment larger than is recoverable under the allegations of the complaint. 1.

, Appeal from Douglas County. 1. The summons requires the defendant to appear at an earlier day than allowed by law, and a judgment given in such a case will be set aside. (Hunsueker v. Coffin, 2 Or. 107, 111.) 2. In this case the justice’s docket shows no return, and the return on the summons does not show that a certified copy of the complaint was served.

<p>Pleading — Conversion.—It is not necessary to allege in express terms in complaint for conversion of property that plaintiff is the owner of the property, provided that fact appears from the complaint conclusively, when the objection is not taken until after the verdict.</p> <p>Value. —A pleading will not be deemed deficient, after verdict, which does not state the value of the property.</p> <p>Same. — The defendant could by motion have compelled the complainant'to have made his complaint more definite and certain, and this course should have been pursued.</p> <p>Judicial Notice. — The court may take judicial notice that merchantable products, such as hay and potatoes, in Oregon liavo a value.</p>

{Moore v. Ellis, 18 Mich. 77; Damp v. Town of Dana, 29 VVis. 419; United States v. Arredonda, 6 Peters, 709; Fleiehmanv. Wallc-er, 91 Ill. 318; Phipps v. Kelley-, 12 Or. 213.) A judgment coram nonjudiee is void. A person not a party to a judgment or decree cannot proceed against it, if it did not at rendition affect bis rights. Having taken the land subject to a decree to which his grantor did not object, the grantee must abide by the lien.

Appear from Crook County. Statement of facts: Action upon an official undertaking of-Bushnell as county treasurer, made to the State of Oregon. Complaint alleges that the sum of money came into his hands as treasurer, and has not been turned over to his successor in office. The complaint did not allege that leave had been obtained to bring the action, nor that the money was the property of the county.

<p>Counties — Powee to take Real Pbopeety. — By general statute, -“leach county has power to purchase and hold for the use of the county lands lying within its own limits.” Held, that under this statute the county of ümatilla had the capacity to take and acquire the legal title to the premises in controversy.</p> <p>County’s Capacity to take cannot be Attacked by Gbantoe oe his Heies.— By tl>e delivery of the deed to the county, the grantor divested himself of title. Whether by taking such title the county violated or abused its powers does not concern the grantor or his heirs. If raised at all, that question must be made by the State, and not by a private party.</p> <p>Condition Subsequent — Defined.—To create a condition subsequent in a deed, apt words are necessary, such as “on condition,” “provided always,” “if it shall so happen,” and the like.</p> <p>Case in Judoment. — A deed to the defendant made by Aura M. and her former husband, which contained the following clause: “The parties of the first part covenant to and witli the party of the second part, that they will warrant and defend the same against all claims whatsoever to the use and benefit of the parties of the second part, for the special use and none* other of educational purposes, and upon which block shall be erected a college or institution of learning free from all sectional or political influences; ” held, not to create an estate upon condition subsequent.</p> <p>Remedy in Case of Condition Broken_If a condition subsequent be broken, the party entitled may re-enter, and if necessary, regain his estate by action, but equity will not aid him.</p> <p>Tbust, Uncertainty of Beneficlyries in Case of Charitable. — In case of a public charitable trust, it is not necessary to its validity that the beneficiaries should be known. It is the use to which the property is to be_applied and not the particular persons to be benefited which the law regards.</p> <p>Public Charitable Trusts. —Such trusts are generally favored and liberally construed by the courts.</p>

Unless a disqualification of the regular judge of the district exists another judge cannot be substituted. (Act, 1880, p. 48; State v. Roberts, 8 Nev. 24; People v. O’Neil, 47 Cal. 109.) This statute does not authorize the holding of a separate-and distinct department of the Circuit Court. The power of substitution must be strictly construed. (Clays v. State, 24 Wis. 462.) Consent of the parties cannot confer jurisdiction.

<p>Appeal from Multnomah County.</p>

The matter in explanation set out in the docket is no part of the verdict. (Code, § 210, p. 147.) Jury must be kept together until they agree upon a verdict. (Code, § 200, p. 146.) There is no authority for sending the case back for trial. (Code, § 575, p. 229.) Respondent is entitled to a judgment for $18.99 upon the original verdict. filed a written argument;

The verdict is fatally defective, in that it does not specify the degree of the crime of which the defendant is convicted. (Code, 363; People v. Campbell, 40 Cal. 129; Bishop on Criminal Law, § 797; State v. Dowd, 19 Conn. 388; Oliver v. State, 17 Ala. 587; People v. Marquis, 15 Cal. 38; 3 Graham & Waterman on New Trials, 1378; Dick v. State, 3 Ohio St. 89; Parle v. State, 4 Ohio St. 234.) There is no valid death warrant.

A grant of a right to kill and take game on the lands of the grantor is a grant of an interest in the land itself, and is within the Statute of Frauds. (Webber v. Lee, Law It. 9 Q,. B. I). 315;. Wielcham v. Hawker, 7 Mees; & W. 63.) The grant is a license of a 'profit a prendre. {Ewart v. Graham, 7 H. L. Cas. 331.) One who takes game on another’s premises gains no title,, if a trespasser. (Schouler on Personal Property, § 49; Blades v. Higgs, 13 Com.

<p>Railroad Company — Responsible fob Acts of its Aoents, When. — One Blackburn was employed by P., an employee of the defendant, to go upon an engine attached to a passenger train “to learn the road” to “Summit station with the regular engineer.” At the Summit, B. was to take charge of the engine and then “receive his running orders.” Before arriving at the Summit, the train being stopped, the engine was detached by one of the employees of the company, and without the regular engineer, the engine was taken to the Summit by B., accompanied by the brakeman of the engine and other servants of the company. In bringing the engine back, it ran into the train and caused the accident complained of. The company denied that P. had any authority to employ any one, and claimed that B. had no connection with the company. The plaintiff was a passenger on the train and was injured. Meld, (1) That whether B. was legally employed or not, yet so long as he was acting in subordination to the agents of the company, and in the capacity of an employee, and the company through its regular agents acquiesced in it, the company was responsible for his acts while so eihployed. (2) That the contract of a railroad company is to safely carry peoplo to their several destinations, and that to this end the company is liable for all tlio acts and omissions of its agents connected with, or in the line of their duty. That a distinction is to be made between the “ scope of employment” of servants of the company, in its dealing with passengers, and the common-law rule as to the same subject in dealings with strangers. That the “scope of employment” of the servant of a railroad company in such cases is as broad as. the contract with, and obligation to the passenger entered into and assumed by the company, and is not regulated by the specified duties of his employment. That if the engine was moved by employees of the company, though without the consent of the engineer, an instruction that “the company is liable for any damages that might arise from such moving, whether within the scope of their employment or not," was not error, although it was inaccurate.</p> <p>Evidence. —A defect of a car or an engine cannot be shown in an action where the damage is alleged to have accrued through the negligence of employees, and the defects of the engine or machinery are not relied upon as a cause of action. But there is no error committed where a witness, detailing the circumstances of the accident, testifies that the engine was “leaking steam,” the jury having been instructed by the court to disregard that part of his evidence. That the judgment would not be reversed because a witness in describing the accident testified to the mode of arrangement of the seats upon a car, where such evidence is merely incidental to his description.</p> <p>Contelbutoby Negligence. —It is not contributory negligence on the part of the plaintiff where sho — the cars being stopped for dinner — alighted from the train and subsequently resumed her place without direction so to do from the train men, and was then injured by a collision of the engine with the cars.</p>

The statement of deceased that the defendant had used instruments on her was inadmissible; nota dying declaration. (See People v. Lee, 17 Cal. 76; People v. Vincent, 24 Cal. 17; State v. Garrand, 5 Or. 216; Vass v. Corwmonw. 3 Leigh, 786; 24 Am. Dec. 695; Anthony y. State, Meigs, 265; 33 Am. Dec. 143; Dunn v. State, 2 Ark. 229; 35 Am. Dec. 54; McDaniel v. State, 8 Smedes & M. 401; 47 Am. Dec. 93; The People v. Perry, 8 Abb. Pr.

The map of McClure is a nullity, in so far as it attempts to dedicate land between high and low-water mark. [Heiple v. City of E. P. 13 Or. 103; Hinnan v. Warren, 6 Or. 408.) When Olney made his maps, no lots or blocks had been sold according to the McClure plat except to Monteith, and no acceptance of the street had ever been made by the public, and Olney had the right to make the map he did.

<p>Appeal from Clatsop County.</p>

<p>Appeal from Multnomah County.</p>

<p>Breach of Promise — Evidence—Relations of Pasties. — Upon the trial of an action for breach of promise, to enable the jury to understand the relations between the parties, their acts and feelings toward each other during the entire existence of the contract, as well as the canses and circumstances which attended the breaking of the engagement, evidence may be given of the declarations of the parties on those subjects.</p> <p>Bill of Exceptions — What it most Show. —A question to a witness, and the ruling of the court refusing to allow it to bo answered, and the exception, present no question for review. The bill of exceptions ought to disclose the particular facts sought to be elicited by the question.</p> <p>General Reputation — How Proven.— Witness must first be asked touching his knowledge of the party’s general reputation, and he may be then asked whether it is good or bad, if found to possess sufficient knowledge on that subject.</p> <p>Professional Witness — Disclosure of Pacts Learned Professionally. — A physician cannot without the consent of his patient bo questioned concerning any facts learned by him in the course of his professional employment.</p> <p>Argument of Counsel Before Jury — Not to Comment on Pacts Excluded by Court. — Upon the trial beforo the jury, it is improper for counsel to refer to or in any manner animadvert upon the plaintiff’s refusal to consent' that her physician be examined. It is a privilege which the law secures, and it is not to be questioned.</p> <p>Knowledge of Lewdness — Its Effect upon the Contract. — If á man knowingly entor into a contract of marriage with a lewd woman, he is bound to perform Ms contract or pay such damages as a jury may deem proper under all the circumstances.</p> <p>Good Eaith of the Defendant — Effect of Pleading.Want of Chastity as a Defense. — When the court in effect told the jury that if the defendant made the charges set up in his answer in good faith, believing that there were grounds for it, and the conduct of the plaintiff had been so imprudent as to furnish him grounds for it, and this conduct had come to his knowledge after tho renewal of this contract with her, and he repudiated it by reason of this conduct of hers, of this belief that he had entertained, then you should not allow the circumstances to weigh as much in the assessment of damages as if he. had made the charges recklessly, wantonly, and wilfully; but you will take the circumstances all into view, and inquire “ How has he made the charge ? Has it been a reckless, wanton, or malicious charge, or has it been done in good faith? You will determine the manner and animus of this defense, as well as the question of the amount of damages.” Held, not error.</p> <p>Measdbe of Damages in Actions fob Ebeaoh of Peohise. — In such case there is no fixed rule of damages, 'other than tho sound discretion of the jury, under all the circumstances. They may allojv punitory damages in their discretion.</p> <p>INSTEUCTION MUST NOT WlTHDEAW PACTS IN EVIDENCE FBOM THE JuBY.— A hypothetical instruction which fails to notice material facts in evidence, and which attempts to submit the case to the jury on tho assumption that such facts were not in evidence, is erroneous, and -the court did not err in refusing it. The effect of such an instruction is to withdraw material facts from the consideration of the jury.</p> <p>Damages — Effect of Answee Setting tjp Want of Chastity. — The defendant by his answer alleged that the plaintiff was unchaste, but offered no evidence tending to prove such allegations, other than his own criminal conduct with the plaintiff. Under such circumstances, there is nothing upon which the claim of good faith can be predicated.</p>

<p>Tbust, Resulting — Evidenoe to Establish. — The court will not declare a trust where one of the parties to the transaction is dead, and the evidenoe of the other —the only witness — is uncertain and unsatisfactory, and a long time is suffered to elapse before the-commencement of the suit.</p>

Chapter 20 of the Miscellaneous Laws of Oregon is derogatory of the common law, and should be strictly construed. (Houser v. Reiser, 8 Cal. 499; 52 Barb. 198; 58 Barb. 270.) Forcible entry and detainer and forcible detainer only are separate causes of action (Valence v. Couch, 32 Cal. 341); and the issues raised by these pleadings are the latter only, and the court should have charged in reference to that issue.

When it appeared that plaintiff was intoxicated, the burden is on him to show that he did not contribute to his injury. (Cramer v. City of Burlington, 42 Iowa, 315; Burns v. lown of Elba, 32 Wis. 605; Shearman & Redfield on Negligence, § 45.) If a witness has testified falsely, his testimony should be totally disregarded.

<p>TJhdebtajuho — Liability ob Sureties bob Costs. — A surety in an undertaking, “ for the payment of such sum as may from any cause be adjudged against the plaintiff,” is liable for the costs of the action. (Following Garitón v. Dixon, 14 Or. 294.)</p>

<p>Appeal from Multnomah County.</p>

<p>Appeal — Adverse Party. — L. & Co., having obtained a decree declaring a mortgage executed by V. 0. to be fraudulent and void, and fixing the priority of certain lien holders, appealed from the latter portion of said decree, and did not make the fraudulent mortgagee a party to the appeal, nor did the latter take an appeal. Held, that mortgagee in such case was not an adverse party within the meaning of section 537 of Hill’s Code, requiring the adverse party to be served with notice of appeal, the appeal being only to settle the priority of the liens of the creditors.</p> <p>Notice — Acknowledgment oe Service. — whore an attorney acknowledges service of a notice of appeal as follows: “ State of Oregon, county of Multnomah. Service of the within notice by certified copy is hereby admitted in Portland, Oregon, June 1, 1887. Alex. Bernstein, attorney for defendants,” — held, that the service was sufficiently proven.</p>

Eeview is the proper remedy. (Rhea v. Umatilla Cownty, 2 Or. 698; Poppleton v. Yamhill County, 8 Or. 338.) Deposits are indebtedness of the bank. (Marine Banh v. Fulton, 2 Wall. 252; Graves v. Dudley, 20 N. Y. 80.) If petitioner’s statement of indebtedness came within the statute (Hill’s Code, § 2752), it was the duty of the board of equalization to allow the same. (Hill’s Code, § 2778.) The statement was properly verified.

Facts are stated in the opinion. The pendency of a prior suit will be cause for abatement without inquiry. (State v. Dougherty, 45 Mo. 294; Gransby v. Ray, 52 N. H. 513.) This is a suit in equity and not an action at law; and the same rule governing au action at law does not obtain in equity in matters of abatement.

<p>Appeal from Multnomah County.</p>

We contend that the promise, founded upon a new and original consideration, moving directly between the respondent Lewis and appellants, made and created an original agreement between the respondent Lewis and appellants, and under the classifications laid down by Chancellor Kent, is not within the Statute of Frauds, and need not be in writing to be enforced against the promisor. {Leonard v. Vredenbergh, 8 Johns. 29; Farley v. Cleveland, 4 Cowan, 432; I/udwieh v. Watson, 3…

Facts are stated in the opinion. Proof in order to reform a contract must be free from all doubt. (3 Greenleaf on Evidence, § 360; 2 Pomeroy’s Equity, § 859; 1 Story on Equity Jurisprudence, § 157; Shiveley v. Welch, 2 Or. 288; Newsome v. Greenwood, 4 Or. 123; JRemillard v. Prescott, 8 Or. 43; Stephens v. Murtón, 6 Or. 196.) These last two eases as to the necessity of. a mutuality of mistake.

The acts of the respondents who had obtained judgments were subsequently fraudulent, and the fraud tainted the whole proceeding. (Gibbs v. Neeley, 7 Watts, 307; Serfoss v. Fisher, 10 Pa. St. 184, 185.) The judgments of respondents were paid by the note. (Freeman on Judgments, §§ 463-468.) The reply introduces a new cause of action, and the demurrer thereto should have been sustained.

<p>Appeal from Multnomah County.</p>

<p>Praudulent Conveyance— Ageeement to Reoonvey. — Where at the time of the execution of a deed for the expressed consideration of two thousand five hundred dollars, an agreement is made to reconvey in a year for the same amount, and the property was of the value of six thousand dollars, such deed and agreement create a trust in favor of the grantor, and is as against the grantor’s wife, who is about to prosecute a suit for a divorce and alimony, fraudulent.</p> <p>Purchaser from Praudulent Grantor— How Protected_A purchaser from a fraudulent grantor can only protect himself when the transaction is assailed for fraud, by alleging and proving that he paid a valuable consideration for the property, giving the facts; that at the time of such payment he had no notice of the outstanding equity or fraudulent intent, as the case may be, and that he acted in good faith.</p> <p>Code — Pleading- under — Equity Pleading. — The Code has abolished forms; it has not destroyed substance. Therefore a plea of bona fide purchaser, for value and without notice, must be as full under the Code as under the former system of equity pleading.</p> <p>Bora Pide Purchaser— Burden oe Prooe. — A party pleading that he is a bona fide purchaser for value and without notice has the burden of proof on that issue. It is an affirmative defense.</p> <p>Burden oe Prooe. — When a fact is more particularly within the knowledge of one party than the other, the burden of proving such fact is on such party.</p> <p>Practice — Answer to Original Complaint — When Treated as Answer to Amended Complaint. — Upon the trial and after the evidence was all in the plaintiff amended her complaint touching causes of divorce so as to conform the pleadings to the facts proved, and the defendant E. S. R. did not amend his answer nor apply to the court for leave to do so, and his answer was treated as an answer to the amended complaint in the court below and in this court. Held, that E. S. R. not having been prejudiced in any manner could not be heard to complain in this court for the first time that he had not answered said amended complaint.</p> <p>Praudulent Conveyance. — Held, under the particular facts disclosed by the evidence in this ease, that the defendant W., at the time he conveyed the property in controversy, intended to hinder, delay, and defraud the plaintiff in the prosecution of her contemplated suit for a divorce, and for a recovery of alimony and one third of Weber’s land.</p> <p>Praudulent Conveyance — Answer—Bona Pide Purchaser. — To constitute a good answer that defendant is abona fide purchaser for value and without notice, it must be alleged: (1) Seisin of the grantor in fee, or a pretended seisin and possession at the time of the conveyance, if it pretended to confer immediate possession. (2) A conveyance and not articles merely. (3) The consideration and actual payment of the same.</p> <p>Reply Unnecessary, When. —If the answer is wholly lacking in substance as to these essentials no reply is necessary.</p> <p>Onus Probandi — When upon the Defendant. — When it appears that the grantor in a deed intended to defraud his wife out of alimony in a suit for a divorce which she was about to commence, and that he made the deed for that purpose to E. S. R, held, that E. S. R. can only protect his title by alleging and proving that he is a bona fide purchaser for value and without notice; held, also, that the facts of the payment of value, and when paid, as well as the want of notice, are facts lying peculiarly within the knowledge of the defendant E. S. R., and that for that reason the obligation of proof lies with him.</p>

<p>Appeal from Multnomah County.</p>

<p>Eobmeb Appeal — Latv op the Case. —The ruling of this court on the former appeal has become the law of the ease.</p> <p>Remedy — Action at Law will not Lie, When. — An action at law will not lie to recover tho possession of a franchise. It is not tangible or capable of any kind of physical identification or delivery.</p> <p>Remedy — Action to Recover Damaues. — At common law, an action on the case would lie to recover damages for the disturbance of the plaintiff in the enjoyment of a franchise; but in such case the party recovers damages, and not the possession of the particular franchise.</p> <p>Estoppel. — When the plaintiff was the efficient cause of the defendant making large expenditures of money, and he was one of its officers at the very time and superintendent of the work, he is estopped, and could not set up his own acts, as such superintendent, as the identical wrong committed by defendant, of which he now complains.</p> <p>Grant to D. E. Budd and such Person as he may Associate with Hebrew Therein. — Effect of such grant considered, but not expressly decided.</p>

<p>Appeal from Multnomah. County.</p>

The affidavit does not show that defendants in the foreclosure suit had any property in the State.

<p>Mttokney’s Eee in a Pbosetssoey Note. — A provision in a promissory note for a stipulated attorney’s fee of ten per cent upon the amount found due is of no legal effect, and the court will not enforce it.</p> <p>Modified Allowance — Offeb to Pay_The court will not modify the amount and then enforce it as modified, except so far as offered or admitted by the defendants.</p>

<p>Appeal from Multnomah County.</p>

The appellant was in possession of the premises at the time respondent acquired his pretended title, and demand was necessary. (Wright v. Lewis, 13 East, 210; Noe v. Jackson, 1 Barn. <& C. 448; Dennis v. Wardner, 3 Mon. B, 173; Stakehouse v. Doe, 5 Blatchf. 570; Oostigan v. Wood, 5 Cranch C. C. 507.)

<p>Appeal from Klamath County.</p>

<p>Appeal from Klamatb County.</p>

<p>MoBTGAGEE OF CHATTEL — CONVEESION MAI EE MAINTAINED BY, WHEN. — It ÍS not necessary that a chattel mortgage should have been foreclosed in order that the mortgagee may maintain an action for the conversion of the mortgaged property. Taking possession of the property hy the mortgagee is sufficient to entitle him to recover against one having no title.</p> <p>Pebsonal Pbopeety — Pboof of Conveesion of. — The proof of the identity of the property in actions for a conversion thereof must be reasonably certain.</p> <p>Chattel Mobtga&e most Desobibe with Reasonable Cebtaintt. — The description of property in a chattel mortgage must be reasonably certain, or the instrument will he inoperative and void.</p> <p>Evidence. — In proceedings to foreclose a chattel mortgage, oral proof may under proper circumstances be resorted to, to show what property was intended to be affected by the instrument.</p>

<p>Appeal from Jackson County.</p>

<p>Deobee — Appeal—Eeeect Theeeoe. — An appeal from a decree does not break it np. Until annulled or reversed, it is binding upon the parties as to every question directly decided.</p> <p>Section 514 oe Hill’s Code. — The effect of this section upon an action while an appeal is pending, considered hut not decided.</p> <p>Torn? — Malice—Measube oe Pautases. — The usual and ordinary measure of damages in an action for a tort is that sum which will fully compensate the plaintiff for the actual injury he has sustained; but when the wrong is committed with a bad motive, or so recklessly as to imply a disregard of social obligations, or that the act was done wantonly, maliciously, or wickedly, the jury may, in their discretion, give exemplary damages.</p> <p>Evidencie to Rebut Malioe. — Where the injury complained of is alleged to have been done maliciously, or under circumstances which would authorize the jury to give more than the actual damages, it is competent for the defendant to prove any facts which tend to show he did not act maliciously or with a bad motive.</p>

<p>Deed — Geantee. — In every deed or grant there must he a grantee named, or be ascertained by description, so as to distinguish him from all others.</p> <p>Pabtneeship Consedeeed and Deeined. — A partnership is a combination by two or more persons of capital, labor, or shill for the purpose of business, for their common benefit.</p> <p>Case in Judoment — Pabtnees Intee se_The parties signing the agreement creating the “ Grant’s Pass Beal Estate Association” became partners inter se, for all the purposes stated in the writing.</p> <p>Pabtneeship Name. —Every partnership should have its proper name or style. It may be whatever name the partnership chooses; and this name need not be prescribed in the articles, or determined upon by express agreement.</p> <p>Deed in Pabtneeship Name. —A deed to a partnership by its firm name is not void.</p>

<p>Appeal from Douglas County.</p>

<p>Negotiable Paper — Defense to Actions upon. — The maker of a negotiable promissory note cannot defend against an action thereon in favor of an indorsee for value, on the ground that it was paid to a former indorsee, even though the transfer to the plaintiff in the action was made after the note was due.</p> <p>Same. — The rule that the transfer of an overdue note is made subject to all equities existing between the original parties does not extend to matters arising subsequent to the making of the note, and not affecting the contract, as originally made.</p> <p>Same. — A note once negotiable remains so until it is paid; the fact that it becomes overdue does not destroy its negotiability.</p> <p>Same. — It is the duty of the maker of such paper to see to it that the payee has it in possession, and to take it up when he pays it.</p>

<p>Appeal from JDouglas County.</p>

<p>Counteb-claesI, What is. — In an action upon a contract for money expended by a tenant in repairing a hotel, the owner of-the building may defend by showing that the building was burned in consequence of the carelessness of the tenant.</p> <p>Evidence. — It is reversible error to exclude testimony tending to establish-that fact.</p> <p>Pbactice--Nonsuit — Motion Km. — In tho absence of a motion for a nonsuit by tho defendant, or an instruction asked to that effect, the question as to the right of action by the plaintiff cannot he considered.</p>

<p>Appeal from Douglas County.</p>

<p>Appeal from Douglas County.</p>

<p>Appeal from Douglas County.</p>

<p>Appeal from.. Douglas County.</p>

<p>Possession — Dewv^by oe — What is. — The agent of appellants bought wheat in a warehouse and left orders for its delivery on board the oars, which was done, and the cars placed on a side track awaiting transportation. In this condition the defendants, being a sheriff and his deputy, seized the wheat by virtue of a writ of replevin sued out by B. & B., who asserted title thereto. Held, the delivery was complete.</p>

<p>Gaenishee — Answeb oe. — The answer of a garnishee which simply denies in liceo verba the allegations of the complaint does not raise an issue, and the complaint will be taken as confessed, and judgment rendered against the garnishee, where it appears that such denials were deliberately made.</p> <p>Same. — Doubtful and evasive answers should be taken against the garnishee. (Drake on Attachment, g 377; Wade on Attachment, § 633.)</p>

<p>Appeal from Multnomah County. •</p>

<p>Appeal from Linn County.</p>

<p>Appeal from Linn County.</p>

<p>Appeal fbom Assessment of Damages — When it Lies. — Under section 4069 of Hill’s Oodo, an appeal lies to tlie Circuit Court from the assessment of damages, within twenty days after the report is adopted hy the County Court.</p> <p>.Obdeb oe Counts Couet — Effect Thebeof.— The legal effect of the order of the County Court adopting tho report, but refusing to establish the road as a public highway, unless the petitioners first paid the damages, was to declare in effect that such road was not of sufficient public utility to require the county to pay such damages. ■</p> <p>Reasonable Time — Compliance by Petitionees. — After the making of such order the petitioners had a reasonable time within which to comply, but the appellant’s right of appeal was in no way dependent thereon.</p>

The complaint charges damage by overflowing the banks of Mill Creek; but the court below permitted testimony against the objection of the defendants, that the land of plaintiff was overflowed by a certain slougb.

<p>Wbiting — Contents on — When Pboven by Pabol. — Before oral evidence can be received of tbe contents of a written instrument, it must be shown to the satisfaction of the trial court that an honest and diligent attempt had been made to obtain the writing itself, and that such attempt was unsuccessful, or proof be made that it had been destroyed.</p> <p>Instbuction. —Tbe effect of such evidence, improperly admitted, is not cured by an instruction, “ that if the contract was in writing, the jury was not at liberty to consider such oral evidence,” there being po contention as to the fact of the contract being in writing.</p> <p>Appeal — Error—Effect of, When not Material. — An error in the admission of evidence that does not effect an injury to the material rights of the appellant is not sufficient ground upon which to reverse a judgment.</p>

<p>Peaoticee — Costs on Appeal. — The prevailing party is entitled to costs in this court in equity cases, unless equitable considerations arising out of the facts of the particular case should render a different rule necessary.</p>

<p>.Review' — Appeal. — A demurrer to the complaint was filed in a Justice’s Court, which being overruled, no other pleading was filed, and final judgment rendered. An appeal lies from such judgment, and therefore a writ of review cannot bo sustained.</p>

<p>Justice’s Court — Juey Trial in — Pabty Calling fob, Concluded by the Verdict oe, when. — The party calling for a jury in a Justice’s Court is concluded by the verdict thereof, unless the fine or judgment be for an amount of money not less than fifty dollars. (Hill’s Code, g 2170.)</p> <p>Judgment in, as to Costs in Criminal Case. — A judgment of a justice of the peace, that a defendant convicted of a petty offense pay a fine of thirty dollars and costs, taxed at fifty-four dollars, and that in default he he imprisoned until such fine and costs are paid, not exceeding forty-two days, is without warrant of law. (Overruling State v. Crowley, 11 Or. 512.)</p>

<p>Receives— Compensation oe_The fact that a receiver may perform duties from which others may derive a benefit, or which he may not be required to perform, hut may employ others to do, yet if he chooses to perform such services, and his authority to do it is derived from his office, it furnishes no basis for an extra charge, hut is included in his compensation as receiver.</p> <p>"When Same Pixed be the Court. — When such services are necessary and a part of the duties of his office, the fact that others may he benefited cannot affect his obligation to perform them, or give him any claim in his own right to any other pay than that fixed as the measure of his compensation for discharging all the duties of his office.</p> <p>Extra Allowance— When may be Granted. — Where areceiver performs duties in addition to those ordinarily required, it may form the basis of an application for an extra allowance, which the court may grant.</p> <p>Nominal Services oe. — Where the facts showed that the plaintiff owned no stpct in his individual right; that it was only in an official capacity that he was known to the corporation, or eligible to hold its offices; that the services rendered were performed in connection with his receivership for which he had been paid; that such services were merely nominal, the actual duties being, in the main, performed by the vice-president; that it was by virtue of such connection and title that the corporation gave him the presidency, and thereby the power to act for it; held, that the corporation’s liability for such service was not to him in his own right, but to him in right of the estate to whom he owed, or such service belonged.</p>

<p>Real Pbopeety — Fixtuees—Relaxation of Common Law. — When and under what circumstances and conditions a chattel becomes annexed to land, so as to subject it to the same conditions in every respect, is frequently difficult to determine; but with the growth and development of trade and manufactures, much of the strictness of the common law on this subject has been relaxed.</p> <p>Fixtuee — What is. — To give a chattel the character of a fixture, and render it immovable, three things are necessary: (1) Actual annexation to the realty, or some appurtenant thereto; (2) application to the purpose or use to which that part of the realty with which it is connected is appropriated; and (3) the intention of the parties making the annexation to make a permanent accession to the freehold,</p> <p>Ageeement that Ohabaoteb of Chattels shall be Unchanged by Annexation —Effect of. — When before annexation parties agree that things personal in their character shall continue to be personalty, or retain their character as chattels though annexed to the realty so as to become a part of it without such agreement, they will continue to be chattels if they can be removed without material injury to the articles themselves, or to the freehold.</p> <p>Facts of Paetioulab Case. — Considered and held that the machinery in question was not so annexed to the freehold as to become a part of it.</p>

<p>Appeal from Clackamas County.</p> <p>Pacts are stated in the opinion.</p>

<p>Divorcie — False Accusations of Adultery. —Such charges according to the settled law of this court entitles the injured party to a divorce.</p> <p>Condonation — Efeect of. — Cohabitation after knowledge of such injury is a con-donation of the offense.</p> <p>Condonation — Beketition of the Offense. — Condonation is a conditional forgiveness of the offense, the condition being that the offense shall not he repeated. If repeated, the condonation is to be deemed withdrawn or avoided, aud the party may rely upon the facts alleged to have been condoned.</p> <p>District Attorney — Pleadino.—In a suit for a divorce, when the district attorney intervenes in behalf of the State and files a pleading therein, such pleading is governed by the same rules, so far as applicable, by which the defendant’s pleading is governed.</p> <p>Answer — Bab to Suit. —To render any of the matters enumerated in subdivision 4 of section 498, Hill’s Code, available as a bar to plaintiff’s suit, the answer must expressly “admit the charge,” and they cannot be joined in an answer which denies all of such charges.</p> <p>TteartmBER — Admissions by, not Enough. — Eor the purposes of the suit, all facts well pleaded are admitted by a demurrer; but such admission is not enough under this section. The admissions required must be Try answer.</p>

<p>Pleading — Evidence.—In an action to recover damages fora trespass alleged to have been committed on the south half of a certain land claim, evidence of the wrong must he confined to the particular tract of land described in the complaint.</p> <p>Evidence — Titee by Advebse Possession. — In such case, it is not competent to prove title to another parcel of land outside of the lines of the particular donation claim, by proving an adverse possession for more than ten years next before the commencement of the suit.</p> <p>Evidence — Pleading.—Where the plaintiff by her pleading limited her claim to the south half of tho donation land claim of herself and husband, it is not competent to prove a trespass committed on the Rinearson donation claim, though the plaintiff may have acquired a title to the particular place where the trespass was committed by adverse possession.</p>

<p>Appeal from Umatilla County.</p>

<p>Purchaser at Foreclosure Sale — Evidence.—The title of a purchaser at a foreclosure sale, v/ho is a stranger to the decree, may he proven by the decree the order confirming the sale, and the sheriff’s deed.</p> <p>Pleading — Evidence—Variance.—An allegation of a purchaser at a foreclosure sale that the mortgage was given to the hoard of commissioners for the sale of school lands, etc., and thereafter foreclosed, is sustained hy proving a decree in favor of the State of Oregon foreclosing the same mortgage, and such variance ÍB not material.</p> <p>Equitable Estoppel — Legal Title. — In an action at law to recover possession of real property, an equitable estoppel cannot prevail against the legal title. The equity could only be brought before the court in such ease by cross-bill, as provided in section 381 of Hill’s Code.</p>

<p>Appeal from Clackamas County.</p>

<p>Appeal from Union County.</p>

<p>Appeal from Lane County.</p>