Volume 16 — Oregon Reports

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

<p>Labceny—Evidence.—Appellant was placed on trial for the larceny of a steer. The evidence showed that his employer ordered him to go and got a certain steer belonging to him, then on the range, and take it to 0., to whom he had sold it; that he found the steer in question where he had been directed to get the one belonging to his employer; that he drove it to O.’s slaughter pen and left it there. O. testified that he butchered the steer, and after spreading the hide on the ground ho saw the letters “S. G.” branded on the hips; that he left the hide in that condition, with the head of the animal near it, when he left the place on the evening the animal was killed. On being asked what condition he found things in the next morning, he answered, over proper objections from the defendant’s counsel, that “the brand was cut out from the hide, and the head was about one hundred yards from where he left it.” Held, there being no evidence tending to connect defendant with these acts, it was incompetent to show the mutilation of the hide after the animal was delivered to 0.</p> <p>Same—Instbuction—Bubden of Peoof.—The defendant claimed that he took the animal—for the larceny of which he stood indicted—by order of his employer, and that he believed it to be the property of his employer. The court instructed the jury that the defendant “must establish that he took the steer under claim of right, color of title, or by mistake.” Held, error, because it placed the burden of proof on the defendant.</p> <p>Witness—Examination of—Juboe.—On a former trial of this cause, S., a co-defendant, was acquitted, the jury disagreeing as to the appellant herein. S. was a witness in said former trial, and ponding the re-trial of the appellant, S. died. H. was a juror on the first trial, and in the second trial was called to prove the statements sworn to by S. in the first trial. On cross-examination the court allowed the district attorney to ask the witness, under proper objections, if he did not hang the first jury for thirty-six hours, and other questions touching his conduct as a juror in said cause. Held, error.</p> <p>Instbuctions__The court has no right to direct as to the credence the jury shall give to any evidence submitted to them.</p>

<p>Paetnees—Sale of Paetneeship Intebest by One—Effect of__A sale by one partner of Ms interest in a concern dissolves it; and the assignee or purchaser becomes a tenant in common with the other partners, and such assignee or purchaser may maintain a suit for an accounting against the other partners, and the persons to whom they have transferred their interest.</p>

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

<p>Bonds, Joint—Makers of—Action Against—Failure of Same to Appear— Judgment.—Several parties executed a joint bond aud were jointly sued on tbe same. One appeared and answered for all. Subsequently some of them withdrew tlieir appearances, and the court rendered judgment against those withdrawing. Held, that the judgment was improperly granted and should be vacated on motion of tbe plaintiff.</p> <p>Motion—Notice of—Withdrawal of Appearance—Effect of.—Whoro a defendant entered bis appearance and afterwards withdrew the same, held, that section 530 of Hill’s Code was applicable to bis case, and that no notice upon him of tbe after proceedings therein was requisite.</p>

<p>Habeas Corpus—When Lies—Akbest in Cito Action—Voidable Pbocess.— The writ of habeas corpus will not lie to procure the discharge of a person detained by process issued in a civil action. On an affidavit which merely alleges in the statutory language that “the defendant fraudulently contracted the debt sued on,” without alleging the facts which constitute the fraud, such defect in the affidavit made the process voidable only, not absolutely void.</p>

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

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

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

<p>Constitutional Law—Eminent Domain—Public Use. —It is not for the courts to say in what particular instances or for what particular purposes the power of eminent domain may be exercised. That belongs exclusively to the legislature, limited only the by Constitution, and that is the use must be public, and just compensation must be made.</p> <p>Public Use—Question foe the Legislatuee—Whethee. — If the public interest can be in any way promoted by the tailing of private property, it is in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the power of eminent domain, and to authorize an interference with the private rights of individuals for that purpose.</p>

<p>Peesonal Pbopebti—Sale of, when Leased—Effect of.—The sale of a band of sheep leased by the owner to W. does not per se transfer to the purchaser such lease, nor the right to any advances made by the lessor to the lessee. (Following Beezley v. Crossen, 14 Or. 473.)</p> <p>Evidence—Weiting.—Where the terms of a contract are in writing, oral evidence of what the parties thereto intended is not admissible.</p> <p>Action foe Toetious Taking of Peesonal Pbopebti—When Maintainable.— Where a complaint counted on a tortious taking of personal property, and there was evidence tending to show that it was seized by the defondant 0., who was a sheriff at the time, and that he so took it under a writ of attachment against the property of W., and that W. then owned a leviable interest in the same, held, that the taking was not tortious, and the complaint could not be upheld. Meld, also, that an action for the interest of the respondent would arise only on a sale of his said interest by the person making the levy, when an action for the conversion thereof would lie.</p>

<p>CoIweyahoe—Tetjst—Resuming.—In 1865, one Coffin executed a deed of “the levee ” to the City of Portland without consideration, and in trust for a public “levee” or “landing.” In 1871, he executed a second deed in consideration of two thousand five hundred dollars, reciting the former one, and also releasing a ferry privilege which Coffin held on the premises. Meld, (1) That the latter deed conveyed from Coffin to the city the reserved rights of Coffin, and operated as a confirmation of the prior conveyance, and no resulting use or trust could arise in favor of Coffin’s heirs, whatever disposition the city made of the premises. (2) A condition subsequent in a deed that will under any circumstances defeat the title conveyed must provide that the conveyance is upon condition, and that the failure to perform it will operate as a forfeiture of the estate. (3) Equity will not decree a forfeiture. The remedy is by re-entry for condition broken.</p>

<p>Hobtgages— Mobtgagee’s Name leet Blank.—An instrument purporting to be a mortgage, but containing the name of no mortgagee, cannot be rendered valid hy filling in of the name of a mortgagee by an agent to whom the mortgagor had delivered the paper, with instructions to fill in the blank and obtain money from whomsoever would take it and advance the money thereon.</p> <p>Same—Delivery.—Where the person named as payee in a note and accompanying mortgage never had any interest in the same and knew nothing of the transaction, and the said papers wore not delivered to him but were delivered to another; held, that the mortgage was void for lack of delivery.</p> <p>Fictitious Pebson Named as Moetgagee__Where the evidence disclosed that a person of the same name as the mortgagee named in the mortgage lived in the city where the loan was negotiated, but that such person disclaimed any knowledge of or connection with the transaction; held, that the payee and mortgagee are fictitious.</p> <p>Same—Fobeclosube.—A court of equity will not decree foreclosure of a mortgage void in law for want of a proper mortgagee, even though the plaintiff has been imposed upon by fraudulent acts of a broker, and all the acts of the plaintiff were in good faith.</p> <p>Objections—When Waived—Appeal.—An erroneous decree will not be disturbed by an appellate court where no objection thereto is made by the party to be affected thereby.</p>

<p>Contract—Guaranty—Construction.—In a contract to fit up a flouring mill with “improved mill machinery,” for the manufacture of flour therein, it was agreed, among other things, that when the mill had been changed in accordance with the plans and specifications agreed upon, it should have a given capacity, and that the quality of the flour to be therein manufactured should be equal to that made by “any mill in Eastern Oregon.” Held, that this guaranty was made upon the basis of the water-power formerly used in operating the mill, and that a failure to comply therewith was a good defense to an action for a deferred payment to be made upon competition and acceptance of the mill.</p> <p>Same—Condition Preoedent—Waiver.—Where a contractor agrees to make alterations in a mill for the purpose of putting improved machinery in the same, the owner of the mill does not, by continuing the use of the mill, waive the performance of conditions precedent to a payment to be made by him for such services.</p> <p>Same_Action on—Defense—Damages.—Where one defends an action to recover a deferred payment to be made by him upon the completion of the mill, upon the ground of a failure to comply with the contract under which the mill was constructed, he cannot recover general damages for such failure.</p>

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

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

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

<p>Verified List of Taxable Peopebty—Hill’s Code, Section 2769. — The verified list required under this section to be furnished the assessor by a tax-payer does not constitute an assessment when received by the assessor. It simply aids him in obtaining a true description of taxable property, and is evidence from which the assessment may he made.</p> <p>Assessment—What is. — Property is not assessed though on a verified list until it is set down in the assessment roll as required by section 2770 of Hill’s Code.</p> <p>Boaed of Equalization—Its Powees and Duties.—The board of equalization, in making the proper corrections under section 2779 of Hill’s Code, may place on the assessment roll property of a taxpayer which had been omitted by the assessor, or not assessed, and this without tbe three days’ notice to such tax-payer. Notice is requisite only when tbe valuation of property already assessed is raised.</p> <p>Taxation—Jurisdiction of Equity.—Before equity will interfere to enjoin the collection of a tax, the facts presented must disclose a case falling under some recognized head of equity jurisdiction, such as the preventing a multiplicity of suits, removing cloud from title, or the like, or it seems illegality of the tax.</p> <p>Assessob—Acts Judicially in Valuation of Property, and their determinations are binding in cases where they have jurisdiction until reversed or set asido by some tribunal having authority to review their action.</p> <p>Remedy of Tax-payer.—The remedy of the tax-payer in all ordinary cases for errors in his assessment is to go before the board of equalization, and failing to obtain redress, to seet it by writ of review. (Ehea v. Umatilla Gounty, 2 Or. 298, and Poppleton v. Yamhill Gounty, 8 Or. 338, approved.)</p>

<p>'Rtt.t. of Exceptions—Motion fob Nonsuit—Evidence.—Unless it affirmatively appears from the hill of exceptions that it contains all the evidence offered upon the trial, this court will not review the action of the trial court in refusing to order a nonsuit.</p> <p>Vebdict—Pbesumption—Evidence__Unless the contrary is made to appear affirmatively, this court is hound to presume there was evidence sufficient to authorize the verdict.</p> <p>Vebdict—Effect of.—A verdict conclusively settles every issue in favor of the party in whose favor it is rendered.</p>

<p>A Peivate Cobeoeation being the creature of the statute may be sued in such manner as the legislature may provide. The statutes of Oregon prescribe a mode for the commencement of an action against parties, including corporations, and it must be pursued in order to confer jurisdiction upon the court over the person of the defendant.</p> <p>Coeeobation—Wheee Suable Section 44 of the Civil Code of the State, which provides that “ the action shall be commenced and tried in the county in which the defendants, or either of them, reside, or may be found at the commencement of the action,” applies to corporations as well as to natural persons, except so far as the former are affected by subdivision 1 of section 55 of the Code.</p> <p>Domicile.—The residence of a corporation is deemed to be in the county where it has its principal office or place of business.</p> <p>Venue.—A corporation organized under the laws of the State must be sued in the county where it has its principal office or place-of business, or in the county where the cause of action arose.</p>

<p>Win, Capacity—PEEsnarpTioN.—When a will is shown to have been duly executed, there arises a presumption of sanity in favor of the testator, which, at this stage of the proceedings, unless rebutted or overcome by counter-evidence, will bo sufficient to authorize the probate of the will.</p> <p>Insanity—Burden of Proof.—When in a civil proceeding the question of sanity and insanity is directly in issue, while giving to the general presumption in favor of sanity all that may fairly be claimed for it, the burden of proving sanity is upon the party who asserts it.</p> <p>Testaiientaky Capacity.—Testamentary capacity is mainly a question of fact, to be determined from a consideration of all the evidence. The testator must have sufficient capacity to comprehend the conditions of his property, his relation to the persons who were should, or might have been the objects of his bounty, and the scope and bearings of the provisions of his will. In deciding upon the capacity of iho testator to mahe his will, it is the soundness of the mind and not the particular state of bodily health that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how bis property shall be disposed of. Old ago, sieltnoss, distress, nor debility of body do not incapacitate provided the testator has possession of his mental faculties and understands the business in which he is engaged. The real point in issue is testamentary capacity or incapacity at the precise date of the transaction. What his mental condition was before and after executing the will is only important, as it throws light upon his mind, and shows its actual condition when the will was executed.</p> <p>Will—Power to Mare.—The law gives to every man of sound mind the right to dispose of his property hy last will, and this is regarded as one of the most efficient means which he has in protracted life or old age to command the attention due to his infirmities.</p>

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

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

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

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

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

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

<p>Statute of Fbauds.—The evidence of an acceptance and receipt of a part of the property, under a parol agreement for the sale of personal property for the price of fifty dollars or upwards, when no part of the price was paid at the time of making it, though insufficient to preclude the defendant from claiming that the agreement had not been fulfilled, and its terms complied with, yet may bo sufficient to answer the requirements of the Statute of Frauds in that particular.</p> <p>.Stare.—Where T. D. & Co. made a parol agreement to purchase from M. W. & Go. a cargo of the best Lancashire steam coal, then on board of a certain vessel bound to P„ at a certain price per ton, amounting to several thousand dollars, and M. W. & Go., in an action against T. D. & Co. for damages for refusing to take and pay for the coal in accordance with the agreement, gave evidence tending to show that when the vessel arrived at P. with the coal on board, an agent of the plaintiffs telephoned from their place of business to the defendants, at their place of business, notice of its arrival, and inquired of them where they wished to have the coal, and the defendants answered,' that if the vessel could discharge it where she was without incurring expense or charge to them, they would take it there, but if not, to send the vessel up to their dock; and in pursuance of which the plaintiffs sent the vessel to their dock, which their dock-master had prepared to receive the coal, and discharged thereon thirty or forty tons of the coal; and the defendants’ drayman, whom they had instructed the previous night to be at the dock the next morning, ■when the coal was expected to arrive, to haul it. took from eleven to fifteen tons of the coal to defendants’ coal yard, back on another street, which their yard-master by their order had prepared to receive it; that the defendants did not see the coal, or come to the dock where it was being discharged, until after a considerable portion of the thirty or forty tons had been discharged, and the eleven to fifteen tons had been hauled over to the coal yard, and then refused to receive it. JTeZd, that the evidence if accredited by the jury would have justified them in finding that there had been such a delivery and acceptance of a part of the coal under the agreement as would take it out of the Statute of Frauds; and that the court should have instructed the jury that if they found the state of facts which such evidence tended to prove, they should find the agreement valid.</p> <p>"Ohaboe to Juby.—Under the statute of this State, it is error for the court to charge the jury as to the effect and value of certain of the evidence given at the trial.</p>

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

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

<p>Bill of Exceptions—Time of Signing.—There is no statute in this State fixing the timo within which a circuit judge may sign a bill of exceptions.</p> <p>Bill of Exceptions—Power of the Circuit Judge.—If during tho progress of a trial a party tooli exceptions which wore reduced to writing or noted on the judge’s minutes, and for any satisfactory cause he was unable to have his bill of exceptions drawn out in form and signed during tho term, the judge who presided at the trial has the power to sign the same afterwards, and it becomes a part of the record with the samo effect as if signed during the term.</p> <p>Hogan v. Thompson, 13 On. 230. — This case, so far as it is in conflict with this opinion, is overruled.</p> <p>Mandamus—Power of Supreme Court.—As incident to and in aid of its appellate jurisdiction, this court has tho power by writ of mandamus to require a circuit judge to settle and allow a bill of exceptions.</p>

<p>At Common Law, a Married Woman could not Convey Her Real Estate, neither separately nor in conjunction with her husband. The effect of the marriage was to destroy her legal identity, and to confer on her husband the ownership of her personal property, the rents and profits of her real estate, and curtesy. As a result of this principle, the corpus of her realty was beyond the reach of either husband and wife, and it descended to her heirs until the origination of fines and recoveries, whereby, with the consent of her husband,' she was enabled to alien her lands.</p> <p>Whenever a Married Woman was a Party to a Fine, it was necessary that she should be examined apart from her husband to ascertain whether she joined in the fine of her own free .will or was compelled to do it by threats and menaces. In lieu of the conveyance by fine, the less expressive and more convenient mode by deed has been substituted by statute in this country without dispensing with any of the guards designed for the protection of married women.</p> <p>Where the Statute Requires the Husband to Join with the Wipe in the execution of a deed to convey her lands, held, that a joint signing, etc., of the wife’s deed was a sufficient assent to comply with the requirements of the statute. His assent to the act of his wife is all that the policy of the law requires, and this is signified by a joint signing.</p>

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

<p>A Weit of Review under the Code of this State is the proper remedy to obtain a review óf a judgment of a justice of the peace, rendered against the plaintiff in the writ, for the want of an answer.</p> <p>Seevioes Peefoemed by a Paety, at the Request of a Judge of a Couhty, acting as a committing magistrate in talring testimony in a case of the State against another party, do not constitute a claim against the county; and a judgment rendered against the county in a Justice’s Court upon such a claim, where it has not appeared and answered in the action, will be reversed upon writ of review.</p>

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

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

<p>Appeal—Neglect to Pile Tbanscbipt.—When a party perfecta an appeal and then abandons it, his right of appeal is exhausted, the power over the subject is functus officio, and cannot be exercised the second time.</p>

<p>District Attorney—Pees oe—Allowance oe, by Circuit Court.—It is the duty of the respective Circuit Courts at each term thereof to ascertain the fees to which tho district attorney is entitled for the term, and direct an order to be entered upon the journal that the same be paid.</p> <p>Bail Bond—Forfeiture oe—Payment by Sureties—District Attorney— Pees eor Collecting—When Allowed.—Where a defendant in a criminal action, who had been admitted to bail, failed without sufficient excuse to appear for arraignment, and the undertaking of bail was declared forfeited, and the sureties therein consented that judgment for the amount thereof be rendered against them at the time the forfeiture was declared, and they paid the amount to the district attorney, who paid it over to the treasurer of the county entitled thereto, and filed a receipt therefor with the county clerk of the county; held, that it was not error for the Circuit Court in ascertaining the fees to which the district attorney was entitled for the term, to allow him ten per centum on such amount so received and paid over.</p> <p>Oedeb oe Court, Appealable—What is .—Semble, per Thayer, J.—An appeal to this court from an order in such case is not provided for in the Code. Such order is not an order affecting a substantial right, and which in effect determines an action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree. (Per Lord, C. J., concurring.)</p> <p>Bail Bond—Recognizance— What is.—Under the Code a bail bond in criminal cases is designed to serve the same purpose, and is in effect like a recognizance at common law. A recognizance is an obligation of record entered into before a court or officer duly authorized for that purpose, with a condition to do some act required by law which is therein specified. When forfeited it is made absolute, and some of the authorities indicate that it has the force and effect of a judgment.</p>

<p>Second Appeal—Law op the Case.—Upon a second appeal, if the facts are the same, the former opinion is the law of the case, and must govern it in all of its subsequent stages.</p> <p>Specific Pebfoemance—Compensation in Damages.—When the defendant inherited an equitable interest in lands, and was entitled to have his title perfected upon the payment of one hundred and sixty dollars, and then sells said lands for eighteen hundreds dollars, and agrees to perfect the title and refuses to do it, the purchaser may elect to specifically enforce the agreement by acquiring the defendant’s equity through the decree, and have compensation in damages for the amount necessary to be paid to perfect the title.</p>

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

<p>Foe its Own Convenience and that op the Public, a railroad company may make reasonable rules and regulations for the management of its business, and the conduct of its passengers. It may prescribe, as a rule, and require all persons before taking passage on its passenger trains to procure tickets to enable them to ride, and in default thereof to pay an additional sum, when it has furnished proper conveniences and facilities to travelers for procuring tickets.</p> <p>Company which has Pbovided a Station without a Ticket Obetoe, and at which its passenger trains stop, has not put. it in the power of the traveler to comply , with such rules, and such rule would be unreasonable as applied to such stations, or to such traveler, when he offered to pay the usual fare. If the railroad has failed or neglected to furnish the traveler the opportunity to procure a ticket, and he applies for a passage, or enters their train without having such ticket, hut offers to pay the regular fare, it cannot lawfully eject him.</p>

<p>Appeal pbom a Justice op the Peace—Emma Notice—Pbooe op Seevice,— Section 2119 of Hill’s Code requires the notice of appeal to be filed with tbe justice, “with the proof of service indorsed thereon.” The filing of notice without such proof of service is ineffectual for any purpose. (Briney v. Starr, 6 Or. 207, approved and followed.)</p>

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

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

<p>Appeal from a judgment of the Circuit Court for the county of Multnomah.</p>

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

<p>Pleading—Constbuction. —In the construction of a pleading, the ordinary rule is that it is to be construed most strongly against the pleader.</p> <p>Dormant Judgment—Motion fob Leave to Issue Execution.—If five years are allowed to elapse after the entry of judgment without an execution having been issued thereon, no execution can thereafter issue on such judgment without leave of court.</p> <p>Leave to Issue Execution—Motion — Summons.—To obtain such leave, the party must file his motion properly verified with the clerk, and cause a summons to bo served on the judgment debtor in like manner and with like effect as in actions at law.</p> <p>Summons—Publication__“If a cause of action exist against the defendant,” and the other requisite facts mentioned in section 56 of the Code, the court or judge may order a summons to be served by publication.</p> <p>“Cause of Action.”—The right of a judgment creditor to obtain leave of court to issue an execution on a judgment that has become dormant by lapse of time is “a cause of action,” within the meaning of section 56 of the Code.</p> <p>Parti—Action Relating to Real Pbobebty in this State.—A proceeding to obtain leave to issue execution upon a dormant judgment is not “an action relating to real property in this State,” within the meaning of section 56 of the Code.</p> <p>Vacating Shebiff’s Retubn.— If the court below acted irregularly in vacating the sheriff’s return on execution, it furnishes no ground of complaint to the plaintiff unless he can show he was injured in some way.</p>

<p>Fbaudulent Conveyance—Evidence oe Intent.—In a suit by a judgment creditor against a defendant to subject real property to tbe payment of tlio judgment, upon the grounds that tbe debtor purchased tbe property, and caused a deed thereof to be made to the defendant with intent to hinder, delay, and defraud the creditors of the debtor, the question of fraudulent intent is one of fact and not of law; and in order to entitle the plaintiff in the suit to the relief, he must establish such fact, either hv direct proof, or by the proof of facts and circumstances from which the intent- may reasonably be inferred, and he must also allege and provo that he was so hindered, delayed, or defrauded. In suits of the character referred to, the question of fraudulent intent must be determined from the facts and circumstances of the particular case decided. The law furnishes no test by which it can be determined further than it adjudges what acts are indicia of fraud, or which constitute badges of fraud.</p> <p>Advancement—Fbaudulent Intent.—Where it appeared that one 0. bought a house and two lots at the price of eight hundred dollars, and had the deed executed to his daughter, a girl fifteen year’s of age, who was residing with her father and being supported by him; that O. was largely indebted at the time; that among his liabilities was one in favor of W. on account of the latter becoming security for him upon a bond of ten thousand dollars executed to tbo bank, to enable 0. to obtain a credit for such amount; that 0. bad drawn from tho bank nearly seven thousand dollars more than bis deposits at tbe time tbo deed was executed; that about a month and a half thereafter 0. gave a new bend to the hank for the sum of fifteen thousand dollars for the like purpose, upon which W. also became security, and the ten-thou sand-doll ar bond was surrendered; that.O. continued his account at the bank for more than a year and a half after the execution of tho deed, -when his business collapsed and ho suddenly died; that during the time referred to his indebtedness greatly augmented; that the day before he died he executed his promissory note to AY. for the snm of three thousand dollars, supposed to have been on account of the latter’s liability as such surety for him; that W. commenced an action against 0. r.pon tho said note on the day on which the latter died, and subsequently recovered a judgment against his administrator for the amount. And it appearing also, that O. was extensively engaged in business at the time of tho execution of the deed, was receiving and paying out- large sums of money, was the owner of lands and live stock, notes and accounts, appraised at his death at more than twenty-five thousand dollars; that his account at tho bank, debit, and credit, between tbe time of tbe execution of tbe deed and of bis death, amounted to fifty thousand dollars; that the balances against him at the latter time was on account of checks, drafts, and orders drawn by him upon the hank within the three or four months next prior to his death; that during the same period he received from and paid to other parties various sums of money amounting to many thousands dollars; that he promptly paid demands against him, and maintained his credit to within three months of his death; that he paid off all indebtedness against him existing at the time the deed was executed, excepting one note of twelve thousand dollars, and he paid four thousand dollars upon that; but that he incurred other indebtedness, and died hopelessly insolvent. It also appeared that he purchased the house and lots subject to a mortgage of two hundred and fifty dollars, and that he turned in as part payment of the purchase price a plow and wagon. It further appeared that the conveyance of the property to the daughter was intended by 0. as an advancement to her, similar to one he previously made to her elder sister; that the deed was not filed for record until the day before his death, but that he made no effort to conceal the fact; nor did it appear but that W, was cognizant of it when he signed the second bond; nor did it appear that he attempted to dispose of any of ids other property in order to evade the payment of his debts. Bold, by the majority of the court in a suit by the administrator of W. to subject the house and lots to the payment of the judgment upon the note, that such facts did not warrant the inference that 0. caused the deed to he made to the daughter with intent to hinder, delay, or defraud his creditors, or that W. was so hindered, delayed, or defrauded in consequence thereof; that if the conveyance had included a considerable portion of O.’s property, thereby having the effect to deprive creditors of a material part of their security, or have crippled him in the prosecution of his business, such an inference might reasonably be deduced; hut the advancement in view of all the facts and cii cumstances of the case was too insignificant to justify it.</p> <p>Per Strahan, J., disseuting.</p> <p>Voluntary Conveyance by One Who is Insolvent. —A voluntary conveyance to a child by one who is an insolvent, where he continues in the possession of the property and fails to put the deed on record unexplained, evinces a fraudulent purpose and design to keep the state of the title to the property concealed, and mislead those with whom the party had dealings.</p> <p>Voluntary Conveyances—Fraudulent Intent.—When a party conscious of his insolvent condition, causes the title to a piece of real property to he vested in his minor daughter, with the intent of placing it beyond the reach of his creditors, and fails to record the deed, and continues in the possession of the property, such transaction is fraudulent in fact, and a creditor may attack it for that reason.</p> <p>Subsequent Creditor—Who not Deemed.—When a party is insolvent and continues in business, and is constantly contracting new debts and paying off old ones, and makes a voluntary disposition of his property, such new creditors are not to be deemed subsequent creditors within the meaning of those authorities holding that a subsequent creditor cannot attack a conveyance for fraud.</p> <p>Statutory Construction.—The statute prohibiting fraudulent conveyances ought, for the purpose of accomplishing its objects, to be liberally construed.</p>

<p>In the Constbuotion of a Deed to land, the intention of the grantor, ascertained from the various parts of the instrument, taken as a whole, will control the inference to be drawn from general language employed in the description of the courses and distances of the boundary, as to the premises conveyed.</p> <p>Botjndaby in Deed.—Where a grantor in a deed clearly evinced an intention to convey the one half of a distinct tract of land, which bordered on tidewater, and the boundary of the moiety was described in the deed as commencing at a certain stake on the south, and running duo north to a stake on the north line of said tract; thence west along said line to the corner; thence south to the southwest corner; thence east to the place of beginning; and it appeared that said southwest corner was at the meander line of such tidewater ; held,, that it must be presumed that the beginning point of the boundary was upon said meander line, and that the course from the southwest corner to that point was intended to bo along such meander line, and not on a direct line between those points, the said meander line being the south boundary of such half.</p> <p>When the Boundabies in a Deed abe Inconsistent, the uncertain must yield to the certain description; but when the doubt is as to the accuracy of the particular description, the use which is general often becomes important, and renders that clear which without it would be obscure and uncertain. (Per Loed, C. J.;</p> <p>Bodndaey—Measurement.—In taking distances from one point to another on navigable water, the measurement is by its meanders, and not in a direct line. (Per Loed, C. J.)</p>

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

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

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

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

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

<p>Exeoutob and Admtnistbatob.—At common law, a general judgment against an executor wlio did not plead plene administravit or prater, is conclusive evidence of assets in a second action of debt suggesting a devestavit, the only qualification being that a matter arising subsequent to the former action, show1-ing a destruction of the assets or removal of them from the hand of the executor without fault, may be set up.</p> <p>Equitable Belief. — A party can come into a court of equity for relief after a judgment at law only when he has been deprived of a legal right by fraud, accident, or mistake, unmixed with negligence or fault on his part. An executor or administrator in founding a right to such relief must exhibit a case free from negligence or misconduct.</p> <p>Exeoutob, Judgment Against.—Where an executor pr administrator, believing that he has assets sufficient to pay all debts, suffers judgment against himself, he will be relieved in equity; if the assets become insufficient through an unexpected depreciation of their value, the reason is that the defense arises subsequently to the judgment, and without fault of the administrator. But if an executor or administrator confesses judgment against himself for a debt of his testator or intestate, upon a miscalculation of assets in his hands, and it appears afterwards that the assets are insufficient to satisfy it, he will not be relieved in equity against the judgment.</p>

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

<p>Mechanics’ Lien. — Where a statute which gave to mechanics and others a lion upon buildings and other structures for work done and material furnished in the construction thereof was repealed by another statute which also gave such lien, and provided that nothing contained therein should affect any lien theretoiore acquired, but that the same should be enforced by the provisions of the repealing act; and parties had furnished such work and material during the existence of the repealed statute, and were engaged in furnishing such work and material at the time of the repeal, and continued thereafter so to do, and would have had such lien to the extent of the original contract price, or of any installment thereof, to become due thereon in accordance with the terms of the original contract, by giving written notices to the employer of the nature and extent of their claims against the original contractor; and the repeal of the former statute and adoption of the subsequent one took place before such an installment became due; held, that notwithstanding such written notice had not been given, the lien provided in the repealing act would, upon a compliance with its provisions, attach in favor of such parties to the extent of such installment. Held, also, that as the later statute had dispensed with the necessity of giving to the employer the written notice, the lien would attach without it. Reid, that under section 5 of the act of the legislative assembly of the State, entitled “An act for securing liens for mechanics, laborers, material men, and others, and prescribing the manner of their enforcement,” approved February 14, 1S85, parties claiming the benefit of said act, on account of labor performed or material furnished in the construction of a building, except the original contractor, were only required to file their claims within thirty days after the completion of the building, when the labor was performed or material furnished for the purpose of completing it. Held, that requiring a claim to bo filed containing a true statement of the demands as provided for in said section 5 is not to be construed as necessarily meaning an itemized statement; nor that the provision in said section 5, requiring to be filed a claim containing a true statement of the demand, “after deducting all just credits and offsets,” is to be construed as meaning that the statement shall contain those veritable words; nor that the requirement in said section 5 that the claim shall be verified by oath of the claimant, or some other person having knowledge of the facts, is to be construed as meaning that such verification shall be signed by the claimant or such other person, and that if the statement of the demand was true as a matter of fact, and was shown to have been verified by the oath of the claimant or other person having knowledge of the facts before an officer authorized to administer an oath, it would be entirely sufficient.</p>

<p>Instbtjotions—Bill of Exceptions—Assignments of Eebob.—No assignment of error can be made or will be considered, unless tbe error appear from the bill of exceptions, or some other part of the judgment roll.</p> <p>Chattel Mobtgage—Fotube Advances.—A chattel mortgage may be made to secure future advances, but if no advances be made under such mortgage, it cannot he enforced by the mortgagee.</p> <p>Same. — As between the parties to such mortgage, if no advances be made, it never becomes a lien on tbe property described therein for any sum because there was nothing due, and an attempted sale of the property by the mortgagee, and purchase thereof by him, does not divert the title of the mortgagor.</p> <p>Replevin—Damages.—In an action of replevin, if the plaintiff prevails, he is entitled to recover damages for the wrongful taking and detention of the property from the time when taken to the rendition of the judgment.</p> <p>Replevin—Measure op Damages__The jury may consider the nature and character of the property in controversy, and if the plaintiff prevails in the action, award him such damages as the use of the property was worth' during the time of the detention.</p> <p>Instructions — Peesumpuon.—When the record is silent as to what instructions the court gave the jury, the legal intendment is that they were properly instructed. He.who alleges error must make it affirmatively appear from the record.</p>

<p>Agbeement—When Oblígatoby.—Where an order sets forth the terms of a complete agreement, and it is signed by the party to be charged, it is not essential that the writing should bear the signature of the other party; but to mate it obligatory, it is necessary that the other shall have accepted or assented to the terms of the agreement it contains.</p> <p>Execdtoby Conteaot.—An executory contract, in which the plaintiff has obtained the note or memorandum essential to charge the defendant, but has not given a corresponding one itself, may enforce it, although the defendant cannot, and the former having secured, while the other has not, the evidence, which the statute has made indispensable to its enforcement.</p> <p>Same. —In such case the order or contract is a necessary part of the plaintiff’s case to show its acceptance of the order and compliance with the terms, but the defendant could not set it up as new matter, for he lacked the evidence which the statute has made indispensable to charge the plaintiff and prove his allegations.</p> <p>Replevin.—When in an action of replevin the plaintiff had simply proved orally that his agent had sold a machine and taken an old one in part payment, and was content thus to establish his title to it, the defendant had the right to meet and rebut this, by showing upon the case made that there was an implied obligation which the law imposed to furnish a machine reasonably fit to serve the purposes to which it was to be applied, and that the plaintiff had not performed such obligation when he had delivered a machine that would not do ordinary good work.</p> <p>Sake.—Where to obviate this the plaintiff procured such order or contract to be admitted as part of the evidence of the defendant and against his objection, in order to avail itself of the benefit of its provisions and to deny the debt, the provisions in his favor on account of his failure to settle on delivery did not relieve the plaintiff of proving that he furnished the machine ordered, and which was reasonably fit for the purpose intended, or the defendant of showing his non-compliance therewith, because such undertaking was a part of the contract precedent, to be performed by the plaintiff before any obligation devolved upon the defendant under such contract.</p> <p>Condition Pbeoedent.—The reason is that such facts constitute a part of the contract of sale itself, and operate as a condition precedent and not as a warranty or agreement collateral to the sale.</p>

<p>Congressional Grant to Aid in the Construction op 0. & G. It. R. Land “Pre-empted.”—By tlio terms of the Aot of Congress of July 25,1886, granting lands to aid in the construction‘of the 0. & C. Railroad, lauds on odd sections within the twenty-mile limit- which had been pre-empted, did not pass to the company by tlie terms of the grant, but were excepted out of such grant.</p> <p>Evidence—Pre-emption.—A paper certified hv the register of the land office to bo a correct copy of the form of pages 160 and 1G1 of the register of declaratory statements on file in said office, and which is headed, “ Register of declaratory statements under Act of Congress of September 4,1841, and amendments thereto,” and which contains a description of the land in question, etc., is not sufficient proof that the land described therein had been pre-empted at the time the railroad grant attached.</p> <p>Pre-emption—How Acquired.—A pre-emption is a right derived wholly from statute, and a substantial compliance with the statute is necessary to its acquisition, which compliance must be shown by competent evidence.</p> <p>Same— What Evidence Necessary to Prove.—The evidence offered must show that the conditions existed which would enable the pre-emption, or to acquire the land under the law, and that he had performed at least enough to give him some inchoate right to the land.</p> <p>Covenant oe Warranty—Breach—Evidence.—In an action founded on a covenant of warranty in a deed where the grantee surrenders to another, title without judicial process, he must prove the existence of such paramount outstanding hostile title, and that it was asserted.</p>

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

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

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

<p>Appeal from a judgment of conviction of the Circuit Court for the county of Multnomah.</p>

<p>Replevin__It is not necessary in a complaint in replevin to describe specifically the character of the property, as that it is exempt from sale upon execution, any more than it is an action of trespass or trover.</p> <p>Same—Allegations on.—The cause of action is complete without any statement of the reason or authority for taking the property and its exemption. Such allegations are no part of the gist of the cause of action, and are not necessary to be proved in the first instance to entitle the plaintiff to recover.</p> <p>Pamties—Recobd of Foemee Action__Where the record of a former action is offered in evidence, it cannot be objected that the former action involved other parties, when the person making that objection was one of such parties though in connection with other persons; but this has no application to a nominal party to the record, as an officer, without any beneficial interest in the subject-matter of the litigation.</p>

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

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

<p>Sewers—Collection of Assessments. — Where the common council of the city of Portland, by ordinances duly adopted, caused a certain sewer in the north part of the city known as Tanner Creek Sewer to be constructed at a cost of over thirty-five thousand dollars, which it directed to be assessed on property it declared to be directly benefited thereby under the authority contained in section 121 of the city charter,providing, “that the common council of the city shall have power to lay down all necessary sewers and drains, and cause the same to bo assessed on the property directly benefited by such sewer or drain, and to estimate the proportionate share of cost thereof to be assessed to the several owners so benefited.” Held, in a suit brought by a number of the owners of the property to enjoin the collection of the assessments, upon the grounds of the charter not requiring notice of the proposed construction of such works to be given, and of the assessment having been arbitrarily levied, without regal'd to the value of the benefits conferred by the improvement, that such owners were properly united as plaintiffs in the suit, if such ordinances were void. That although the interests of such owners were distinct, that they differed in extent, and were not similarly affected, yet the cause being common to them all, and each having the same character of remedy, they had a sufficient community of interest to entitle them to join as such plaintiffs. Held, however, following the decision of this court in Strovibridge v. City of Portland, 8 Or. 67, which the court under the particular circumstances of this case regards itself as bound to do, that the failure of the charter to require such notice to bo given does not render section 121 void; nor do the proceedings had under it have the effect to deprive such owners of their property “without due process of law.” Held, that where a question has been decided by this court, and parties, relying upon the decision as a settled rule of law, have transacted important affairs which would he seriously affected by a change of the rule, the court will adhere to it in subsequent cases, however it might be inclined to hold if the question were res integra. Held, that the assessment of a proportionate share of the cost of a local improvement by the officers of a municipal corporation, upon parties .specially benefited thereby, cannot be made in excess of the value of tho benefit conferred; but where the improvement directly benefits the property of such parties, the question of the extent of the value thereof must he determined by the proper officers of the corporation. The courts will not interfere in such a case, unless the property assessed is so situated as to render it physically impossible for the improvement to benefit it; or where the mode of levying the assessment excludes the consideration of the question of value of the improvements. Held, that as said section 121 of the city charter of the city of Portland only empowers the common council of the city to lay down necessary sewers and drains, it is a limitation upon the power of the council to establish the same, unless the benefits to the property accommodated thereby will be equal to or in excess of the cost of their construction. Held, that where an assessment is levied upon property for a share of the cost of a local improvement, which is so situated that it cannot possibly be benefited thereby, the owner of the property may maintain a suit to prevent the enforcement of the assessment; but that different owners of distinct parcels of property so assessed have no right to join as plaintiffs in such suit.</p>

<p>Deed—Qohstbuction—Natube oe Estate. — Defendant agreed to convey land to the plaintiff, and plaiutiff agreed that one fourth of the land should he used as a cemetery, and to expend four hundred dollars in building a road to the same; that the proceeds of the sales of burial lots should be used in improving the grounds, and that one burial lot be conveyed to each of the grantors. A deed was executed pursuant to this agreement upon the “expressed terms, conditions, and reservations,” and in consideration that plaintiff perform such stipulation; but no right of entry was reserved, nor was it provided that said estate should cease on non-performance. The grantee was put in possession. Held, that such deed conveyed an absolute estate.</p> <p>Same—Bbeach oe Condition—Cits Oedinaitoe.—Such stipulations are not violated by a city ordinance prohibiting the burial of the dead within the corporate limits of plaintiff, which was made operative over such cemetery by a legislative act enlarging the boundaries of the city so as to embrace the same.</p>

<p>Appeal from the Circuit Court for the county of Marion.</p>

<p>Appeal from the Circuit Court for the county of Multnomah,</p>

<p>Constitution—Pinal Decision op Circuit Court—How Reviewed.—Under the Constitution of this State, the Supreme Court has jurisdiction to revise the final decisions of the Circuit Courts in all cases, whether rendered in the exercise of common-law jurisdiction, or in the exercise of jurisdiction derived wholly from the statute, and whether the statute has given the right of review or not.</p> <p>Statute Peovides Means op Reviewing such Pinal Decisions.—Where the mode of review of final decisions of the Circuit Courts is not specifically pointed out, the Code authorizes any suitable process or mode of proceeding to be adopted, conformable to its spirit.</p> <p>Appeal—When Lies.—In pursuance of which authority rule 14 of this court was adopted, providing that the mode of revision of final decisions of the Circuit Courts in such cases shall be by appeal, as in cases of appeal in judgments at law; and questions of fact shall not be considered upon such appeal unless made a record in the form of a bill of exceptions. In view of these premises, queere, has this court the right to consider intermediate proceedings under the insolvent act of this State, unless authenticated in accordance with said rule?</p> <p>Bill op Exceptions—When Necessary—Queue.—Where in an appeal from the decision of the Circuit Court in proceedings of insolvency, the record fails to disclose that any final decision was made therein, this court will not consider the same until the record is completed in that particular.</p>

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

<p>Witness—Impeachment.—Before a party against whom a witness is called can impeach him by proving contradictory statements of the witness, he must, while the witness is on the stand, call his attention to such statements, reminding him of the time, place, and persons present, and give him an opportunity to explain them.</p> <p>Evtdenoe in Chief—Rebuttal.—In a criminal case the State cannot be permitted to withhold a part of its evidence in chief, and then introduce it in rebuttal after the defendant had rested his ease.</p> <p>Evtdenoe.—Power of the court to examine in criminal cases far enough to see whether or not there is any evidence to sustain a conviction stated but not decided.</p>

<p>Appeal from a judgment of the Circuit Court for the county of Multnomah.</p>

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

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

<p>Weitten Documents in Evidence.—Before written documents can be introduced in evidence against a defendant on trial for crime, which tend to prove his guilt or to cast suspicion upon the good faith of his defense, they must be proved to be his production, or that he personally, or by another, attempted to 'use them to Ms advantage. Held, therefore, that where C. G. and F. L. D. were on trial charged with the crime of murder, and tho trial court ruled that certain papers containing requests to other parties to testify in their behalf were admissible in evidence, upon a showing that the papers had been delivered by some one, it not appearing to whom, to intermediate parties for transmission to the parties upon whom the request was made, and there was no proof of the defendants having prepared the papers, it was error.</p> <p>Evidence in a Ceiminal Peosecution.—Evidencoof an alibi in a criminal prosecution is not such a defense as admits guilt upon the part of the defendant for any purpose; it merely tends to refute the testimony of the prosecution that the defendant did the act charged. It is evidence in the case which the jury are to judge the effect and value of, and the court has no right to comment upon it. Held, therefore, where the court instructed the jury upon the trial of two defendants charged with the crime of murder, that an alibi was very often resorted to by guilty persons as well as innocent ones, and one in which perjury, mistake, and deception are often committed, that it was error. Held, further, that an instruction to the jury that the burden of proof was on the defendant to make out the defense of an alibi, the State having first introduced proof and shown that the defendants were present at, and committed the alleged fatal assault, was also error.</p>

<p>Gaekishment —Allegations aed Ietebeooatoeies.—Section 1G-1 of Hill’s Code requires that plaintiff, after obtaining the order on the garnishee to answer, and before such garnishee is required to appear, or -within a time to be specified in the order, shall serve on such garnishee -written allegations and interrogatories, and the plaintiff cannot, after such time has expired, file such allegations and interrogatories, nor can the affidavit, used before the judge to obtain the order on the garnishee to answer, be treated as such allegations.</p>

<p>Appeal from the Circuit Court of Klamath County.</p>