Volume 17 — Oregon Reports

On January 20, 1881, the respondents made a parol lease of certain premises to the appellant for the term of one year, to commence on March 1st, ensuing. Before the latter date, however, they disclaimed their agreement and refused to give possession. The appellant then brought this action for damages for breach of the agreement, alleging the foregoing facts in his complaint, and upon a trial by a jury, obtained a verdict for five hundred dollars.

<p>Railroad Companies — Injuries at Crossing — Contributory Negligence. — Plaintiff attempted to pass a railroad crossing with a team and wagon. She had just observed the passenger train pass, and was not expecting any other train at that time, although she had seen a freight train standing on the track, headed that way, in the town which she had just left. The railroad at that point cuts through a hill, so as to obstruct the view from the wagon-road. She was familiar with the crossing, having crossed there many times before, and had always used great care in looking for trains. On this occasion she did not stop to look or listen; her team came into collision with a passing engine, and one horse was killed and the wagon was overturned. Held, that plaintiff was guilty of contributory negligence.</p>

<p>Appeal from the Circuit Court for Lane County.</p>

<p>Equity — Purchaser of Interest of Partner in Copartnership Property may Maintain Suit To have Same Declared. —The purchaser of partnership property at a Sale upon an execution against an individual member of a copartnership firm is entitled to maintain a suit in equity, against the other member or members of such firm, to have the extent of his interest in the property purchased ascertained and declared, and to recover such interest, either by having a due part of the property set over to him, or a due proportion of the proceeds of the sale of it, paid over to him, or he may recover a personal decree in the suit in a proper case for the value of such interest.</p> <p>Attachment — Writ of — What Leviable upon. — A writ of attachment or execution against an individual member of a copartnership can only be levied upon his interest in the partnership property in the same manner as levies are made upon individual property by virtue of such writs.</p> <p>Id. — Effect of Levy Considered and Determined. — Where a sheriff, under a writ of attachment against an individual member of a copartnership firm, made .return to the writ that he had executed it by attaching all the right, title, and interest which the defendant had in and to the co-partnership property of the firm; that he also took into his possession certain described personal property of such copartnership, consisting of two thousand six hundred head of sheep, more or less, and certain other animals, and that he served a copy of the writ upon the defendant, upon which copy was inclosed a notice that he had attached all the right, title, and interest of such defendant in and to the copartnership property, and transmitted another copy of the writ, with a like indorsement to the other member of the firm: held, that such service and levy were only effectual as to the sheep and other animals which the sheriff seized and took into his possession; that it did not bind any other of the copartnership property o as to authorize a sale of it upon execution issued upon a judgment which directed that the property theretofore attached in the action be sold, as by law provided, to satisfy the plaintiff’s demand therein.</p> <p>On rehearing had in the above case the decree was changed and the opinion modified so as to allow the respondent three dollars per head for the old sheep and one dollar and fifty cents per head for the lambs, aggregating one half of $10,125. And also the court ascertained that the appellant should be allowed for one note due to him from Jones, and not considered in the first opinion, amounting, with interest, to §553.11, which, added to the §1,126, makes a total of §1,079.11 to be deducted from the half of §10,125, which leaves §3,383.39, the amount of the principal of the decree in favor of the respondent. The court allowed interest on this sum at eight per cent since June 17, 1881, which makes the total of the amount of the decree at the date thereof, to wit, April 11,18S9, computing §5,502.68. —Reporter.</p>

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

Action by V. K. Strode against Henry Washer et al., to recover possession of certain lands claimed under , a tax deed. Judgment for plaintiff, and defendants appeal.

<p>Statute of Frauds — Agreement to Answer for Another’s Debt, when New and Original, and when Collateral. — S. was indebted to M. in the sum of one hundred and sixty dollars, to be paid in rails at fifty dollars per thousand, to secure the performance of which agreement S. had pledged certain property to M. If the defendant agreed with the plaintiff to pay him the one hundred and sixty dollars which S. owed him, and that in consideration of such agreement the plaintiff discharged S. from all liability for said debt, and released the property which he held in pledge for its payment, the defendant’s agreement to pay the one hundred and sixty dollars to M. is a new and original agreement, and is not within the statute of frauds. Aliter, it is within the statute, and void.</p> <p>Statute of Frauds — Verbal Promise. — A verbal promise to pay the debt of another if the creditor will forbear to sue or discontinue a suit already begun, or release a lien on personal property held in pledge, unless the promisor derives a benefit therefrom peculiar to himself, are all collateral undertakings, and within the statute, unless in writing.</p>

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

<p>Insolvency — Discharge of Insolvent — Effect of as against Foreigner not Party to Proceedings. — A discharge in insolvency by an insolvent court of this state to one of its citizens is no bar to an action brought by a citizen of another state in the courts of this state when such creditor was not a party to the insolvency proceedings.</p>

<p>Administrator or Administrator, when not Liable to Account. — W. A. B. was administrator with will annexed of G. J. B., deceased. He filed his final account as such, but before he obtained an order discharging him from his trust, he died. Mary L. B. qualified as administratrix of W. A. B., deceased. E. C. C. qualified as administrator de bonis non with will annexed of G. J. B., deceased, and then filed the petition in this case. Held, that where it is not charged that any of the property or assets of G. J. B., deceased, came into the possession or under the control of Mary L. B., she cannot be called upon to file an account; that her trust as , administratrix of W. A. B., deceased, does not create the duty to file an account in the estate of G. J. B., deceased.</p> <p>[On Rehearing. — Filed March 12, 18S9.]</p> <p>Decree Approving Final Account oe Executor. — A decree approving the final account of an executor or administrator is only primary evidence of the correctness of the account as thereby settled and allowed. (1 Hill’s Code, secs. 674, 1175.) Such decree is not conclusive, but prima facie evidence only. •</p>

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

<p>Pleading — Construction of under Code. — The Civil Code of this state requires the allegations of a pleading to be liberally construed, in order to determine its effect, with a view to substantial justice between the parties.</p> <p>Id. — Ground of Demurrer to. — A pleading must contain facts sufficient to constitute a cause of action, suit, or defense, but a failure to state them with clearness and precision is not a ground of demurrer; if they are stated in such a vague and ambiguous manner that the precise nature of the charge or defense is not apparent, the remedy of the adverse party is by motion to compel the pleader to make it more definite and certain.</p> <p>Id. — Pre-emption Laws — Possession — Injunction. — Where a plaintiff alleged the filing of his declaratory statement,' claiming to pre-empt two subdivisions of land under the laws of the United States; that he was a legally qualified pre-emptor under said laws; that he had been in the peaceable and quiet possession thereof, complying with the requirements of said laws in doing all necessary acts of residence and cultivation; that the defendant unlawfully and wrongfully took possession of one of the subdivisions, and prevented and forcibly resisted the plaintiff from taking • possession thereof; that the defendant forcibly resists plaintiff from taking possession of the land in order to do the necessary acts of residence and cultivation thereon; and that the defendant was wholly insolvent: held, that the facts stated were sufficient to constitute a cause of suit for an injunction to compel the defendant to desist from doing such acts, and to admit the plaintiff " into the possession of the land; that the filing of the declaratory statement by the plaintiff entitled him to the possession of the land for the purpose of performing those acts required to be done by the pre-emption law; and that no other person had a right to enter the land or to interfere with the plaintiff’s occupancy of it so long as his entry remained uncanceled.</p>

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

<p>Support op Step-child — Step-pather. — The law does not impose upon a step-father the duty of supporting a step-child, nor is he by virtue of such relation entitled to demand its services.</p> <p>Step-pather — In Loco Parentis. — If a step-father voluntarily assumes the care and support of a step-child, he stands in loco parentis to such child, and the presumption then is that they deal as parent and child, and not as master and servant.</p> <p>Step-pather — Guardian. — If a step-father never assumed said duty but qualified as the guardian of the step-child, and as such guardian furnished it with necessaries and charged for them in his accounts as such guardian, the presumption that he acted or intended to act in loco parentis is rebutted.</p> <p>Improvements on Minor’s Property — Claim op Guardian por. — The ordinary rule is, that a guardian will not be allowed for permanent improvements placed by him on a minor’s property without authority.</p>

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

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

<p>Adverse Possession must be Hostile to Other Use. — An adverse, exclusive, and uninterrupted use and enjoyment by one person, and those under whom he claims, of all the water of a creek taken therefrom by means of a ditch, and conveyed to certain mining grounds for mining purposes, for twelve years, or for any period beyond that of the statute of limitations prescribing the time in which entry shall be made upon real .property, will bar the owner of the land through which the creek runs of his riparian rights; but where the ditch was constructed, by means of which the water was originally appropriated, under a license granted by the owner of the land, in which he reserved the right to use the water a part of each year for his own purposes, such adverse use by grantees from the original appropriator cannot be established, unless it is shown that the use of the water by them has been in hostility to the use of it by the bwner of the land under such reservation.</p> <p>Id. —The users of the water, in such case, must show that their use of it was in defiance of any right upon the part of the owner to use it for any purpose; that they totally ignored his right to use it at all, and that he acquiesced therein.</p> <p>Forfeiture — Violation of Condition on Which Forfeiture Claimed — Must be Asserted Actively. — To authorize a person to claim a forfeiture of valuable property rights on account of the violation of a condition upon which they are granted, he must proceed to enforce it at once. He cannot remain passive for a long time after acts have transpired upon which others have relied in matters of importance to them, and then insist upon the forfeiture in consequence thereof.</p> <p>Running Water — Use of for Irrigating Land, etc.— After Use — Contract Construed. — Where a certain stream of water ran across the land of B., which he was accustomed to use for the purposes of irrigation, for watering his stock, and for domestic use, and which was valuable and necessary for such uses, and he was applied to by one S. for permission to dig a ditch across his land, in order to conduct the water of the stream to certain mining grounds below, upon which S. was engaged in mining, and B. granted the permission upon the promise of S. that the former should have the exclusive use of the water flowing through the ditch at any point on said lands where he might desire to turn it for irrigating purposes during the spring and summer months, and that S. would not sell or dispose of the ditch and water right to any one else, but that they would revert and become the properly of B.: held, that by a fair construction of the arrangement between B. and S., in view of the circumstances of the transaction, the former was to have the use of the water whenever required. for the use of his premises for the purposes mentioned, and the latter was to have the use of it at all other times for the purpose of working his mining ground.</p> <p>Id. —Held, further, that S. having subsequently sold his mining ground and. interest in the ditch, and H. having, by mesne conveyances from S., succeeded to the same, and he and his grantors having used the water conveyed through said ditch for the purpose of operating in the said mining ground with the knowledge and acquiescence of B., that the latter was not entitled to claim a forfeiture of the said ditch and water right on account of the said sale by S.; that B. ’s acquiescence in the sales and transfers of the ditch and water right must be deemed a waiver of the condition that S. would not sell them.</p> <p>Id. — Held, also, that the use by H. and his grantors of the ditch and water to operate the mine, although it extended beyond the period of the statute of limitations, would not constitute such an adverse possession against B. as would bar his fight to the use of the water, under the reservation in the license to S. to construct the ditch, unless H. and his grantors had wholly excluded B. from the exercise of such right during such period; and that evidence of B. having used the ditch and water a portion of each year during the whole time referred to, for irrigating his land, and for the other purposes mentioned, disproved any such exclusive use thereof as suggested, or any use inconsistent with said license and reservation.</p> <p>Id. — Held, too, that B. and H., and those holding under H., had coexisting rights in the ditch and water; that B. had the preference during the season when the condition of his premises were such as to require the use of the water for the purposes mentioned, but that he had no right to waste it at any time, or to use it extravagantly or imprudently; that H. had the full and free right to use it at all other times, and that each was required to respect the rights and interests of the other regarding the matter, in every particular.</p>

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

<p>Navigable Stream — What is. — The doctrine that a stream of water is navigable if of sufficient extent and capacity to float logs and timber from mountainous regions to market, and may thereby be utilized for the benefit and advantage of the community at large, cannot be extended so as to include small streams of only a few miles in length, although they rise during a few weeks in the year sufficiently high to be used to a limited extent, by the application of artificial means, to float logs and timber a short distance.</p> <p>Equity — Cognizance oe in Case op Trespass. — Equity will not take cognizance of an ordinary matter of trespass, or of the violation of any legal right, unless the circumstances are of such a character as to bring the case under some recognized head of equity jurisdiction. Equity will, however, afford a remedy in such cases where the remedy at law is incomplete and inadequate to give such relief as the nature of the case demands.</p> <p>Navigable Stream — Case in Judgment. — Where a small stream of water only about twenty feet in width where confined within its banks, and about thirty-five in other places, ran across the farm of W. F. H. and emptied into another stream two miles below, which during four or five weeks in the year increased in volume, by the melting of snows in its vicinity, sufficiently to enable T. H. to float logs down it by stationing a large number of men along its banks “to break jams,” by arranging logs along the stream so as to confine the water in a narrower channel at points where the banks were not sufficient to prevent its spreading out, and by constructing reservoirs above and opening them so as to make a greater flow in a given length of time: held, that the stream was not navigable in the sense which made it a public easement. And where it appeared that the attempted use by T. H. of the stream as mentioned resulted in destroying its banks, extending it in width, in diverting its waters from the channel, and causing them to overflow the land of W. F. H., which was in cultivation, and wash off the soil of a material part of his lands, and that T. H. claimed the right, and threatened to continue such practice, and it further appearing that W. F. H. had already sued a former party in an action at law for attempting to exercise a similar right, and had recovered the sum of fifty dollars as damages on account thereof: held, further, that equity should interfere and prevent T. H. from carrying his threats into execution.</p> <p>Strahan, J., dissenting.</p> <p>Stream' — Test as to its Navigability. — A stream which has sufficient capacity during seasons of high water continuing for a sufficient length of time to enable a person to float some logs to market, or to a place where they may he manufactured into lumber, is subject to the public easement as a passage-way for such logs. To the extent that it is useful for that purpose, it must be deemed navigable.</p> <p>Id. — Capacity — Test op. —;The actual capacity and utility of a stream for the purpose of commerce, or the floating of logs or other commodities to market, is the test of the public right of passage.</p> <p>Public Right —Limited to Stream. — The public right is confined to the stream and measured by its extent, and does not extend to the shore.</p> <p>Driving op Logs — Use op Shore. —The right to float logs on a stream does not include the right to occupy the shore for the purpose of aiding in driving them, or of dislodging those which have become jammed.</p> <p>Usp. OP Shore. — One floating his property down a stream has no right, without a license from the riparian owner, to use the banks of the stream to aid him.</p> <p>Mere Trespass not Enjoined. —The ordinary rule is, that a mere trespass will not be enjoined. Sofnething more is necessary before equity will interfere, such as preventing irreparable injury, avoiding multiplicity of suits, and the like.</p> <p>•Torts — When not Enjoined. — Ordinary wrongs or torts are never enjoined. The damages or injury sustained from them are not generally irreparable, and a party will be left to his remedy at law. Semble, when the injury complained of reaches the very substance and value of the estate and goes to the destruction of it, in the character in which it is enjoyed.</p> <p>Lord, J., concurring.</p> <p>Navigable Stream. — A stream which has floatable capacity at certain periods, recurring with regularity, and continuing a sufficient length of time to make it useful as a highway for floating logs, is navigable; but, to be navigable in this sense, it must be capable of such floatage as is of practical utility and benefit to the public as a highway for trade and commerce.</p> <p>Navigable Stream. — Where the facts show that a stream is not navigable for floating logs without doing irreparable injury to the estate through which it flows, and the defendant claims a right to use such stream for that purpose, not only for himself, but for the public, and threatens to commit and claims the right to repeat the numerous trespasses which the exercise.of such right necessarily involves: held, that the plaintiff was entitled to an injunction to prevent irreparable injury and to avoid a multiplicity of suits.</p>

<p>Evidence — Election Contest — Onus Probandi. — The law is well settled that the burden of proof is on the plaintiff, when he seeks to introduce the ballots to overturn the official count, to show affirmatively that the ballots have not been tampered with, and that they are the genuine ballots cast by the voters.</p> <p>Id. — Ballots Best Evidence of Intention of Voter — Identity of must be Fixed beyond Reasonable Doubt. — While the ballots when identified are the best evidence and are to prevail over the official count, yet to entitle them to be resorted to and be recounted, the facts going to show their preservation must fix their identity beyond all reasonable doubt.</p> <p>Ballots Proof of Identity — Character of Evidence to Entitle Same to be Received. — But this does not require that they must be proved genuine beyond all possible doubt, or beyond a mere possibility that they might have been interfered wtih. All that is required is that they be proved intact and genuine with a reasonable degree of certainty, and to the full satisfaction of the court.</p> <p>Evidence — Ballots, Proof of Identity of. — Where the faet3 found dp not disclose affirmatively that the ballots have been so safely preserved as "to satisfy the trial court, beyond reasonable doubt, of their integrity or identity, and as a legal consequence refuses to recount them to overturn the official count: held, that their rejection was no error.</p> <p>Voter — Intention of. — Where a ballot discloses a name written opposite to a printed name erased, the intention of the voter is to substitute the written for the erased name.</p> <p>Id. — Where .upon a Ballot the Names of Two Representatives were erased, and opposite, but slantingly in consequence of the narrow margin upon which to write, two other names are written, and one of the names so written was a candidate for county judge on another ticket, but the printed name.of the county judge on such ticket was not erased: held, that the facts did not disclose a case within the provisions of section 2528, Oregon Code.</p>

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

<p>County Court — Jusísdiction — What Necessary. — To give a decree of the •county court adopting.a. child any- validity, such court,must have acquired jurisdiction (1) over the parties seeking to adopt, such child, and (2) over the child to he adopted, and (3) over the parents of such child.</p> <p>Non-resident^No Presumption of Jurisdiction where the Record is Silent. —Whera.it affirmatively appears that, an adverse party to a decree was a non-resident of the state at the time of its rendition, and the record is silent as to his appearance or notice, there is no presumption that such court acquired jurisdiction over his person.</p> <p>Decree without Jurisdiction. —No person shall be personally hound by a decree until he has had his day in court, by which is meant until he has been duly cited to appear, and has been afforded an opportunity to be heard. A judgment without such citation and opportunity, wants all the attributes of a judicial determination.</p> <p>Court — General Jurisdiction — Summary Powers Conferred by Statute. — Where a court of general jurisdiction has summary powers conferred upon it, which are wholly derived from statute, and not exercised aeeoi'diug to the-course of the.common law, or are no part of its general jurisdiction, its decisions must he regarded and treated, like those of courts of limited and special jurisdiction.</p> <p>Estoppel — Mutuality. —Estoppels to be binding must he mutual.</p> <p>Adoption of Child — Statutory Requirements. —A child by adoption cannot inherit from the parent, by adoption unless the act, of adoption is done in strict accordance with the statute.</p> <p>[On Reblaring. — Filed March 12, 1889.]</p> <p>The Right of Adoption was Unknown to the common law, and repugnant to its principles. Such right, being in derogation of the common law, is a special power conferred by statute, and the rule is, that such statutes must he strictly construed.</p> <p>Consent Lies at the Foundation op Statutes op Adoption, and when it is required to be given and submitted, the court cannot take jurisdiction of the subject-matter without it.</p> <p>Under our Statutes, when the Parents are Living and do not belong to the excepted classes, such consent must be given, and is a prerequisite to jurisdiction.</p> <p>There is a Marked Distinction between jurisdiction and the exercise of jurisdiction. When jurisdiction has attached, all that follows is but the exercise of jurisdiction, but jurisdiction does not attach until the conditions upon which it depends are fulfilled. Hence a decree rendered without jurisdiction does not estop any one, and may be collaterally assailed in any action.</p>

<p>Partnership — Suit to Dissolve — Prior Partnership — Evidence oe— Its Eppeot. —In a suit by a partner to compel a copartner to account for partnership profits received by him, and the partnership has been of long standing, and was formed by written articles, the plaintiff will not be permitted to claim that prior to its formation another partnership had existed between the parties, and that the defendant retained the profits realized therefrom, and included them in the part of the capital stock which the articles of the subsequent partnership specified that he had invested therein, where said articles are silent as to any prior partnership, and as to any profit having been realized therefrom.</p> <p>Articles op Copartnership — Contemporaneous Parol Agreement.— Where N. L. and A. L., on the twenty-seventh day of February, 1869, entered into written articles of copartnership which specified that they had respectively invested certain amounts: held, that it was not competent for N. L. to prove a contemporaneous parol agreement between them, to the effect that the parties were to put into the copartnership the stock and profits of an alleged previous copartnership transaction, and that it constituted a part of the amount invested by A. L. And where the alleged previous partnership transaction of a government contract, taken in the name of J. L., the father of N. L. and A. L., who, long prior to the commencement of the suit, had died, and there was no memorandum or any date whatever showing what profits were realized therefrom beyond a mere conjecture, a court of equity will not attempt to take an account thereof.</p> <p>Partner — Duty to Account to Copartner. —It is the duty of a partner to account to his copartner for all funds arising from the sale of partnership property, which come into his hands. And where the partner, instead of paying over to the copartner his share of such funds, invests them in other property, the latter is entitled to claim a share of the property proportionate to his interest in the partnership. But where partnership transactions are various and multiplied, and have been of long standing, and no account has been kept of them by which it can be ascertained in what property the funds have been invested, or to what extent investments thereof have been made, courts will not attempt to trace the complainant’s share of the funds into other property, but adjust the matter upon the basis of the amount of funds received by the delinquent partner.</p> <p>Trust — A Trust must be Pleaded in Order to be Available. — In order to unite a claim to recover back an estate, or to have a trust therein declared, with a claim for an accounting, it must be pleaded as a separate cause of suit. Nor will the plaintiff be entitled to such character of relief where he has conveyed the estate by voluntary deed, unless it was procured to be made by fraud, or unless subsequent circumstances of such a nature have arisen as would render the retention of the property by the grantee unconscionable and fraudulent.</p> <p>Pleading — Sufficiency of. — Where the plaintiff alleged in his complaint that, for the purpose of enabling the defendant to sell certain described lands, in which he (plaintiff) had an undivided half-interest, he gave the defendant a deed to his interest therein, and for no other purpose or consideration: held, that the allegation was not sufficient to entitle him to a reconveyance; that his remedy in such a case would be upon the obligation of the defendant to sell the land and account for the proceeds; and that a promise to do so, and a refusal to comply therewith, would he material allegations in order to establish the liability.</p>

<p>Seduction — Previous Unchastity — Reformation. —A woman may be unchaste, and then reform and lead a virtuous life, and if she is then seduced, her seduction ought to be visited with such damages as a jury would think, under all the circumstances, the defendant ought to pay; but to justify a recovery there must be a reformation.</p> <p>Seduction Defined. — The word “ seduction,” when applied to the conduct of a man toward a woman, means the use of some influence, artifice, promise, or means on his part, by which he induces the woman to surrender her chastity and virtue to his embraces: therefore, held, that criminal indulgence with a woman who was at the time leading a lewd and lascivious life does not constitute seduction.</p> <p>Effect of Evidence —Province of the Jury. —’It is the right of the jury, and not of the court, to determine the effect of evidence, unless in particular cases where its effect is declared by law.</p>

<p>Statute of Frauds — Agreement — Part Performance of — What is.— The marriage alone of parties is not such a partial performance of an agreement made between, them regarding pecuniary rights as will be sufficient to take it out of the operation of the statute, which requires such agreements to be in writing.</p> <p>Contract — Specific Performance of Marriage Settlement. —A court of equity will not decree a specific-performance of an oral agreement to make a marriage settlement, unless the party to be charged has given countenance to the doing of acts- by the adverse party, upon the faith of the agreement, of such a nature that the latter would be materially injured if the agreement were not carried out. In such a case, the court, in order to avoid a fraudulent use being made of the statute, will onforce a specific performance of the agreement.</p> <p>Marriage Contract — Inducements to Make Representations concerning Property. — Where W. A., in proposing marriage with L. A., held out inducements that he was able to support her; that he expected to keep control of certain premises owned by him during his lifetime, and have them for a home, and that she should share them with'him, and in case she survived him, should have the use and control of them during her lifetime, and after their marriage the parties occupied the premises as ahorne, the said W. A. assuring the said L. A. that it was their home: held, that the facts did not prove an agreement upon the part of W. A. to give to L. A. the use of the property for her home during her life, in consideration of her marrying W.‘ A.; that such an agreement, if not in writing in some form, would be void by the statute of frauds, and that the said facts did not show a sufficient partial performance of the agreement to take it out of the operation of the statute.</p> <p>Id. — Costs oe Litigation — Discretion of Court over in Equity Cases. — Held, further, W. A. having, in about two years from the time of the marriage, sold the premises to his brother, C. H. A., evidently for the purpose of ejecting L. A. therefrom, that L. A- had no standing in court to impeach the transaction as fraudulent in a suit to enforce a specific performance of the alleged agreement; but the court, having authority to direct as to the payment of costs- in suits, will, where the conduct of a party has been shown to be unjust and oppressive, require him to pay the costs of the litigation.</p>

<p>JBBBBI BBBB</p> <p>Transitort1 Actions — Jurisdiction. — All actions not required tobé commenced and tried in the county in which the subject' of the action or some part thereof is situated, or which are not for a penalty or forfeiture imposed by statute, or are not against a public officer or person appointed to execute his duties for an ret done by him in virtue of his office, etc., must be commenced in the county in which the defendants or either of them reside or may be found at the commencement of the action, and the court will not acquire jurisdiction over the person of the defendant unless so commenced.</p> <p>Partnership — How Impleaded. — A partnership cannot be sued as such. The names of its members must be set out in the complaint and summons, and a service upon a person not named therein, although certified by the sheriff in his return to be a member of the partnership, is a nullity.</p>

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

<p>Assignment by Debtor — Effect of on Legal Title of Assignee to Property. — An assignment whereby a debtor conveys all his property for the benefit of his creditors amounts to a complete cession or surrender of his property to his creditors. It operates to vest in the assignee the legal . title to the property, but the beneficial interest is in the cestui que trust for the creditors. He is seised for them, not for himself, and the moment he is seised the substantial interest passes out of him to them.</p> <p>Id. —Resulting Trust as to the Residue or Proceeds. —After the assignment the assignor has no legal or equitable rights in the assigned property until the purposes of the trust are satisfied, when a trust results in his favor in the residue, if any there should be, of the unappropriated property or its proceeds.</p> <p>Assignor — Effect of his Contracts on the Assigned Property. — Until the debts are paid and the trust fully performed, the assignor has no interest, legal or equitable, upon which to base a contract in the assigned property, and consequently, any contract made in relation thereto is without validity, and cannot be enforced.</p>

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

<p>Appear from the Circuit Court for the county of Benton.</p>

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

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

<p>Pleading — Construction. — A party’s pleading is to be construed most strongly against himself, for the purpose of determining its sufficiency.</p> <p>Statutory Construction — Section 154, Hill’s Code. — The word “may’ in this section held to be equivalent to the word ‘1 must, ” and therefore when a sufficient undertaking is tendered to the sheriff under this section by a claimant of the property attached, it is his duty to accept it, and to deliver the attached property to such claimant.</p> <p>Statutory Construction — “May.”—When the word “may” is used in a statute in conferring power upon a court officer, or tribunal, and the public or a third person has an interest in the execution of the power, the exercise of the power becomes imperative.</p> <p>Undertaking — Lien of Attachment. —By the execution of the undertaking provided for by section 154, Hill’s Code, the lien created by the attachment is not vacated or destroyed.</p> <p>Sheriff — Neglect — Action — Pleading. — In an action against a sheriff for a neglect of an pfficial duty, the complaint must allege the particular neglect or omission upon which the plaintiff relies.</p> <p>Sheriff’s Duty — Execution.—After receiving an execution in an action where property has been attached and delivered to a claimant upon executing the usual undertaking, the limit of the sheriff’s duty is to make a demand for the property bonded, and if the same is not delivered to him, to make a return of all of his proceedings to the court.</p> <p>Failure of the Claimant to Deliver the Property — Plaintiff’s Remedy. — If the claimant fail to deliver the property attached according to the terms of his undertaking, the plaintiff may bring an action on such undertaking in his own name. He is the person for whose benefit such undertaking was executed, and is the real- party in interest.</p>

<p>Appeal — Notice of Specification of Errors to be Relied upon in. — In an appeal from a judgment of the circuit court to the supreme court, rendered upon a writ of review issued out of the former court, the appellant is required to specify in his notice of appeal the grounds of error with reasonable certainty upon which he intends to rely upon the appeal; but his failure to do so will not preclude the supreme court from examining the transcript and reversing the judgment if it should find that the circuit court had no jurisdiction to render it.</p> <p>Id. — Jurisdiction to Hear. — Specifying the grounds of error in such a case is not essential to give jurisdiction to hear the appeal, but is required in order to inform the adverse party as to the points he will be expected to controvert in the appellate court.</p> <p>County Court — Jurisdiction of in Establishing Public Road. — In order to confer upon a county court jurisdiction to lay out a county road, application by petition must be made to the court, signed by at least twelve householders of the county where the road is laid out, which petition shall specify the place of beginning, the intermediate points, if any, and the place of its termination so definitely and certainly that a person of ordinary intelligence need not mistake their location.</p> <p>County Road — Terminal Point — Description of. — Where in an application to a county court to lay out a county road, the terminal point was described in the petition as the point of intersection of the last course with the present C. V. and R. C. road, between the residence of C. L. P. and O. B: held, that it did not answer the requirements of the statute in that particular, and consequently did not vest the county court with jurisdiction to lay out and establish the proposed road.</p> <p>Jurisdiction of Circuit Court — Writ of Review. — Held, also, that the circuit court, upon a writ of review to review the proceedings in laying out and locating the said road under the said application and petition, had no jurisdiction to adjudge that said writ should be dismissed and said proceedings should be in all things affirmed.</p>

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

<p>Motion for leave to file transcript upon an appeal from the Circuit Court for the county of Wasco.</p>

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

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

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

<p>Gambling — Indictment — Names or Participants. — In an indictment for betting at a game played with cards called “stud-poker,” it is not necessary to allege the names of other persons who bet at the game at the same time, or to allege that they are to the grand jury unknown.</p> <p>Indictment— Statutory Offense. —In an indictment fora statutory offense, it is generally sufficient to follow the descriptive words of the statute defining the crime.</p> <p>Dealer — Accomplice. —The dealer of a game of stud-poker is an accomplice with those who bet money or value at such game. Both are necessary to complete the offense, — each performing a separte and necessary part in the violation of the statute. The fact that each is punishable for the part he performs can make no difference as long as the concurrent acts of both are necessary to complete the violation of the statute.</p>

<p>Practice — Long and Complicated Accounts. — Where it becomes neces-sary to examine long and complicated accounts, an order of reference, in addition to directing the referee to take the evidence, ought also to direct him to find the facts and state the effect between the parties.</p> <p>Decree Aeeirmed. —Upon consideration of all the facts, held, that the decree of the court below ought to be affirmed.</p>

<p>Former Adjudication — Estoppel.—Where a faet has been once litigated in a court of competent jurisdiction, the judgment rendered therein forever estops the parties and their privies from again litigating the same fact.</p> <p>Verdict. —In an action where there are numerous issues and a general vervict, it must be intended that the verdict is as comprehensive as the issues, and concludes every question of fact at issue.</p> <p>Its Eeeect. —Where some specific fact or question has been adjudicated or determined in a former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties, its determination in the former suit, if properly presented and relied on, will be held conclusive upon the parties in the latter suit, without regard to whether the cause of action is the same in both suits or not.</p>

<p>Motion to Affirm Judgment of Circuit Court — When Appeal Abandoned__A motion to affirm the judgment of a circuit court, when the appeal has been perfected and abandoned, will only be allowed on notice to the opposite party in accordance with the rules of this court. Such motion is not ex parte.</p> <p>Filing of Transcript on Appeal — Time for Same — Discretion of Court. —The transcript on appeal must be lodged with the clerk of this court by the second day of the term next following the perfection of the appeal. The court has no discretion to permit it to be filed thereafter.</p>

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

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

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

<p>Written Contract — Extrinsic Evidence. — Extrinsic evidence is not admissible, either to contradict, add to, subtract from, or vary the terms of a written contract. All antecedent or contemporaneous negotiations or agreements are merged in the writing.</p> <p>Note. —A reargument was allowed in this case on the question, “Did the written agreement .merge the antecedent parol agreement?” On May 3, 1889,-the court announced that it adhered to its first opinion. — Rep.</p>

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

<p>Partnership Accounting — Burden of Proof. — In a suit for a partnership accounting, -where there are issues as to the existence of the partnership and the state of its affairs and business, or the state of the accounts between the partners, the burden of proof is on the plaintiff; and if he cannot furnish sufficient evidence to enable the court to state a partnership account, his suit necessarily fails to that extent.</p> <p>Partnership Accounting — Failure of Proof. —In such case, if necessary to close up the business, the court will determine that the accounts are closed, and that neither party shall recover anything against the other on account thereof, and that the property of the firm he sold, and after paying the costs, the proceeds he divided according to the interests of the members of such firm.</p>

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

<p>Malicious Prosecution — Complaint for — Must Show Termination of Prosecution. —An action for malicious prosecution, where the court in which the prosecution occurred had jurisdiction of the subject-matter and of the person, cannot be maintained unless the prosecution has been terminated by the acquittal of the plaintiff in the action. The principle which requires the prosecution to have been terminated favorably to the plaintiff before he can maintain an action therefor Í3, that while the prosecution is pending undetermined, or when it has been determined adversely to the plaintiff in the action, the want of probable cause therefor cannot be shown in a collateral suit. The proceedings in the prosecution are evidence of their own rectitude until set aside in the due course thereof.</p> <p>Malicious Prosecution and False Imprisonment Distinguished. — The same principle which is applicable to actions for malicious prosecution applies also to actions for malicious arrest issued in a civil action; hence where F. commenced an action against O. for having falsely and maliciously, and without any reasonable or probable cause therefor, procured a writ of arrest to be issued in an action brought by O. against F., whereby the latter was arrested and imprisoned, and the proceedings were regular on their face: held, that the failure of the complaint to show that the writ of arrest had been vacated or set aside by the court in the action in which it was issued was a fatal defect, and that the complaint was insufficient to sustain a recovery had thereon. Held further, that an allegation in the answer, to the effect that the plaintiff, after being arrested upon the writ of arrest, paid the defendant’s demand on account of which he was arrested, and the disbursements of the proceedings against him did not aid the complaint in respect to such defect, but on the contrary, showed that the arrest was acquiesced in by the plaintiff. And the plaintiff not having denied in his reply the said allegation in the answer, held, that under the pleadings he had no cause of action.</p>

. At the special session, of the legislative assembly of the state, held in November, 1885, it was enacted that a certain portion of territory should be taken from Grant County and annexed to Lake County. The act was approved November 21, 1885, and took effect at that time. Section 2 of the act provides as follows:— “Sec. 2.

<p>Deed Intended as a Mortgage. — A party who takes a mortgage in the form of an absolute deed is bound to observe the most scrupulous good faith; and if questioned by a creditor of the mortgagor, or other person having an interest in knowing the fact, he must carefully and truly disclose the true nature of his security. An untruthful statement touching a material fact in relation to such security, or a failure to make a full and true disclosure when required, will postpone such security to that of a subsequent attaching creditor.</p> <p>Id. — A deed intended as a mortgage, while good between the parties, is to some extent a questionable security when the interests of third parties are concerned. It tends to cover up and keep concealed the real nature of the transaction between the parties, and will therefore be closely scrutinized.</p>

<p>A General Appearance waives all questions as to the service of a process, and is equivalent to a personal service.</p> <p>A Special Appearance, designating the particular purpose for which the party appears, limits the appearance to that particular matter.</p> <p>Where the Service op a Summons is Illegal and fatally defective, a defendant may appear therein specially for the purpose of having such service set aside, and there is nothing in the Oregon code restrictive of such rights.</p>

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

<p>Parol Lease for Term Exceeding One Year. — Under section 785, subdivision 6, Hill’s Code, an agreement for the leasing of land for a longer period than one year is void, unless the same or some note or memorandum expressing the consideration be in writing, and subscribed by the party to be charged, or his lawfully authorized agent.</p> <p>Parol Agreement — Part Performance. — But where such parol agreement was made, and the same has been partly performed, it is taken out of the operation of the statute of frauds, and a court of equity has power to specifically enforce the same.</p> <p>When the Plaintiff Partly Performed a Parol Agreement for a lease for more than one year, incurred expenses, and changed her circumstances and condition to such an extent that a refusal on the part of the defendant to perform such parol agreement would operate as a fraud on the plaintiff, such agreement will he specifically enforced in equity.</p> <p>Specific Performance — Lease fpr More than One Year. — An agreement for a lease for more than one year is an agreement for an “ estate or interest in real property,” and in a proper case may be specifically enforced in equity, on the same terms and under the like circumstances that any agreement concerning land is or may be specifically enforced.</p>

The appellants alleged in their complaint that the respondents, the city of Albina, is a municipal corporation created by an act of the legislative assembly of the state of Oregon, approved February 4, 1887, and was vested with the usual and ordinary powers of a body corporate, and that the other respondents were its mayor, common council, and recorder; that among the powers to be exercised by the said officers was the authority to grade, improve, and keep in repair…

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

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

<p>Appeal, from. Lirm County.</p>

<p>Appeal from the Circuit Court for the county of Clatsop.</p> <p>The respondent commenced an action in said circuit court against the appellant, a private corporation, ostensibly to recover the possession of real property. He alleged in his complaint that he was the owner in fee and entitled to the immediate possession of all the tide-land, water frontage, wharfing rights and privileges, north of, in front of, and adjacent to the north line of lots 4, 5, and 6, in block 149, of the town of Astoria, as .laid out and recorded by J. M. Shiveley, in Clatsop County, Oregon. Said tide-land, water frontage, wharfing rights and privileges, being bounded on the north by the ship’s channel of the Columbia River; that the north line of said lots 4, 5, and 6 is parallel to and three hundred feet north of the north line of Hemlock Street, in said town of Astoria; that more than six years ago, appellant wrong-. fully, and against the consent of respondent, entered into the possession of said premises, and wrongfully withholds them from respondent. The appellent filed an answer to the said complaint, denying the respondent’s ownership of the premises therein described; denied that there was any tide-land whatever north of, in front of, or adjacent to the north line of said lots 4, 5, and 6, or either or any part thereof; denied that the north line of said lots was only three hundred feet north of the north line of said Hemlock Street, but alleged that it was in the ship’s channel of the Columbia River; denied the wrongful entry, possession, and withholding of the premises. The appellant, for a further answer, alleged that the south line of lots 4, 5, and 6 was north of and beyond the line of extreme low tide in said river; that all the land lying between ordinary high and low tide line of said .river, at said point, was between the south and north lines of lots 7, 8, and 9 of said block 149, and appellant, during all the time alleged in the complaint, was the owner in fee-simple of lots 4, 5, 6, 7, 8, and 9, and in possession thereof, occupying the same for a salmon cannery; and being such owner of said lots, it had the right and did extend its wharf out beyond the north line thereof, into said channel of said river, to enable' boats to land thereat. The respondent filed a reply denying the new matter, except as to the appellant’s ownership of said lots-, which ownership he tacitly admitted. The parties to the action having waived a jury trial, the case was tried before the court without a jury, and the following conclusions found: 1. That respondent is the owner of the wharfing rights and privileges north of, in front of, and adjacent to the north line; of lpts,4, 5, and 6, in block 149, of the town of Astoria,, as laid out and recorded by J. Id- Shiveley, in Clatsop County, Oregon, and that said wharfing rights and privileges, extend to the ship’s channel of the Columbia River; 2. That, respond-, ent is. entitled to the, immediate possession of the same, and that appellant wrongfully, withholds the, same from respondent; 3. That respondent is damaged hy such wrongful withholding, in the sum of twenty-five dollars. Upon which conclusions the said court adjudged that the respondent have judgment, against the appellant for the possession of the wharfing rights and privileges,, and land covered with water, between the north, line of said lots,4, 5, and 6, and the. south side of the. ship’s channel of the Columbia River on the- north, and for costs and disbursements, and said sum of twenty-five dollars, from, which judgment said appeal is taken, It appears from the, plafs of the said tpw-n of Astoria, which is. and has. been for several years, an incorporated city, that said block 149, as indicated thereon,, is situated betw.een Hemlock Street on the south, East Eighth Street on the east, East Seventh Street on the west, and a lipe parallel on the north line of Hemlock Street and three, hundred feet north thereof on the. north; that the, blpck consists of twelve, lots, numbered consecutively from one to. six-, In the north half of the hlpck, and fromt seven, to twelve, in the. south half thereof, the northeast, lpt bping- No.. 1,. and the southeast, lot being No. 1-2; and the bill of exceptions shows that nearly the, entire, blpck i? belp.w high-water mark on the Columbia. Riyer, and. about, half of it below low-water mark. The counsel for the respect? iye parties admitted on the hearing- that; at the. north. line of lots 7, 8, and 9, and the south line of lots 4, 5, and 6, the water was two feet and six inches in depth at low tide; and eight feet and six inches in depth at high tide; and that at the north line of said lots 4, 5, and 6, — the north line of the block, — the water at low tide was six feet in depth, and at high tide, twelve feet in depth. It also appears from the bill of exceptions that the portion of the block above high-water mark is a part of the donation land-claim of John M. Shiveley, who platted the said block, and a number of other blocks similarly situated, and duly recorded such plat. It appeared, also, that the board of commissioners of the state of Oregon for the sale of school and university lands, on the twenty-eight day of September, 1876, executed to the said John M. Shiveley a deed in the name of the state conveying to him, among other tide-lands, all the tide-land embraced in said block No. 149, and extending to the centers of the streets east and west thereof. It further appeared that on the seventh day of August, 1879, the said J. M. Shiveley and Susan L. Shiveley, his wife, P. Cyrus Shiveley, and Milton Elliott duly executed a deed to one A. W. Cone, whereby they conveyed to the said Cone all their right, title, and interest in and to lot 7, in said block 149; that said deed contained the following clause: “And it is hereby stipulated and agreed by and between the said John M. Shiveley and A. W. Cone that all the hereditaments, appurtenances, franchises, and wharfing privileges fronting on the north of the northern boundary line of said lot 7 are expressly reserved out of this conveyance.” And it further appears that said Shiveley and wife, on the twenty-third day of October, 1879, executed a deed to August Olsen, purporting to convey to him lots Nos. 8 and 9, in said block 149, which deed contained a like clause of reservation as that in the former one. It further appears that on the thirtieth day of October, 1879, the said Shivelev and wife executed a deed to the appellant, conveying to it their right, title, and interest in lots Nos. 4,5, and 6, in said block 149, which also contained a like clause of reservation. It further appeared in evidence that the said Shiveley, on the twenty-fourth day of September, 1887, executed to the respondent a deed purporting to convey to him lots 1, 2, and 3, in said block 149, together with all the tide-land, water frontage, wharfing rights or privileges, in front of said lots, and northerly thereof to the ship’s channel of Columbia River; and also all the tide-land, water- frontage, wharfing rights or privileges, in front of said lots 4, 5, and 6, in said block 149, northerly thereof to said channel of said river. It was admitted by the respondent, at the trial in the circuit court, that said lots 7, 8, and 9, described in the deed to Cone and Olsen, were subsequently conveyed by them to the appellant, and that the appellant owned all of said lots 4, 5, 6, 7, 8, and 9 in said block 149, and which constitutes the west half thereof;</p>

<p>Teacher — Contract for Compensation of — School—Suspension of — For What Reason mat be Done. — Where under a contract between the directors of a school district there was a clause to teach a definite period unless the school was discontinued by order of the directors, and the directors, in consequence of the prevalence of diphtheria, stopped the schools, but reopened them when the danger had passed, and before the expiration of such contract: held, that the discontinuance of the school was for good cause, and authorized under the contract, but that it did not operate to annul such contract and discharge the teacher, but that it did relieve the district from liability during such period, but not from liability for the unexpired portion of such contract after the schools were reopened.</p>

<p>Account Stated — What is. — An account stated is an account which has been rendered by the creditor, and assented to by the debtor as correct, either expressly or by implication of law from the failure to object within a reasonable time.</p> <p>Id. — When Account Rendered Becomes Such. —Merely rendering an account does, not make it an account stated, but an account rendered and delivered to the debtor exhibiting the demand of the creditor, unless objected to within a reasonable time, becomes an account stated.</p> <p>Id. — Testimony to Sustain. — When the action is strictly on an account stated, to maintain such action the plaintiff must prove an account stated, as that, and nothing else, will support his allegations.</p>

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

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

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

The appellant commenced a suit against the respondent in said circuit court, to have a resulting trust declared in his favor in a certain parcel of land, consisting of 160 acres, situated in what is known as Sam’s Valley, Jackson County, Oregon, and designated as the Hyde ranch. The land is the northeast quarter of section 36, township 35 south, range 3 west, and was formerly school land belonging to the state of Oregon.

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

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

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

<p>Under the Laws op This State, an Appeal prom a Judgment op Conviction for the violation of a city ordinance, rendered by a tribunal of the city, does not lie unless expressly given by the city charter, or by some statute. Where a right of appeal in such a case is not given, as mentioned, a writ of review will lie to examine the proceedings had on the conviction, in order to ascertain whether or not the tribunal before whom they were had exercised its functions erroneously, or exceeded its jurisdiction to the injury of the plaintiff in the writ. A writ of review in such a case, like a common-law certiorari, only brings up the record, which ' includes the complaint and proceedings had thereon; and no question of fact determined by the tribunal, or any ruling made by it in the admission of evidence upon an issue of fact, can be considered.</p> <p>A Complaint under a City Ordinance, which provides that any person or persons who shall be guilty of any violent, riotous, or disorderly conduct, or who shall use profane, abusive, or obscene languge, in any street, house, or place within the city, whereby the peace or quiet of the city is or may be disturbed, shall, upon conviction thereof before the recorder, pay a fine, will not be sufficient to constitute an offense under such ordinance, unless it shows that the act was committed in a street, house, or similar place within the city.</p> <p>The General Word “Place,” as Used in the Ordinance, must be construed to mean a definite locality within the city, of the same kind or nature as a street or house.</p> <p>In Accordance with These Views, held, that the charter of the city of La Grande in the county of Union, Oregon, does not confer a right of appeal upon a party convicted of a violation of an ordinance of the city, and consequently that a writ of review will lie in such a case. Also, that where the complaint charged that the acts constituting the disorderly conduct prohibited by the ordinance were committed within the city, against its peace and dignity, but did not specify any definite locality therein where they were committed, that the complaint was not sufficient to support a - conviction for a violation of such ordinance.</p>

<p>Appeal, from Wallowa County.</p>

<p>A Will is Defined to-be the Legal Declaration'of-a man’s intention which he wills-to he performed after,his’death.</p> <p>In Construing Wills, the Rule is, that the Intention must .Govern, provided it he consistent with law; but in ascertaining what the intention ” is, the words used.are tó he taken aocording to their meaning, as gathered from the consideration of the whole instrument-and a comparison of .its various parts; and this is often aided by extrinsic .circumstances surrounding its execution, in revealing more clearly the motive or intention which may be reasonably supposed to have influenced ¡the testator in the disposición of his property.</p> <p>Where a Will Provided .that, after the, Payment of the Debts and Legacies Specified, the residue of all the testator’s property was to be held in trust for a-certain period, and out of the rents and profits to he collected therefrom the executors.were to pay.to'the widow such sum or sums as may he necessary for the support of such widow and .the support and education of the niinor children,.and the county court; before such debts were paid, and while the estate was-still unsettled, ordered the executors to pay a certain sum for such support land-maintenance: held, that as .under ¡the will .the executors were not to pay such sum .or sums for that purpose until the residue was ascertained and the trust invested, the court was not authorized to make the order. Held further (by Lord, J., ‘Thayer, C. J.,.concurr’-'g), that the duty to pay debts and legacies was strictly executorial, and that when this was done, .and the property taken on trust for the purposes specified, the executors became trustees exclusively, and the jurisdiction thereafter was in equity.</p>

<p>Whenever It is Proposed to" Appropriate the Lands of the Citizen to A Public Use, the'proceeding by which it is to be done must conform to the requirements of the statute, and contain- such a description of the lands to be so taken as may be ascertained from the record.</p> <p>In a Petition to Lay out a Road, the beginning, the intermediate points, if any, and the termination, must be certain; otherwise, the county court will not acquire jurisdiction.</p> <p>Where the Course of the Road from the last point to its termination is described as “thence northwesterly,” it is not meant that the road must run in a direct' line to the point of ending, hut that the route of the proposed road will be in a northwesterly dirfection; and so long as this is preserved by the viewers, though there be some deviation from a direct line, the description is sufficiently certain to give the requisite information to those liable to be affected by its- establishment.-</p>

<p>Where One Deals with the Agent of assignees for the benefit of creditors, with full knowledge of the true relation which such agent occupies to the property and the outstanding equities, he does so at his peril.</p>

The respondent herein commenced an action in the justice’s court for Baker precinct, Baker County, against the appellant, a private corporation engaged in operating certain railroads in this state, to recover damages.

<p>In a Complaint against a Party Charging Him with an Offense for an alleged violation of a city ordinance, made before a city tribunal authorized to take cognizance of such matters, the facts constituting the offense must be set out in the complaint as fully and completely as they are required to be stated in an indictment for a similar offense against the state.</p> <p>In a Complaint Chabging the Defendant with having Sold Whisky in Milton City in less quantities than one quart, and. which complaint contained a statement that the selling was contrary to the force and effect of a certain section of a certain ordinance approved by its board of trustees, but did not contain any allegations or charge that the defendant sold the whisky without having first obtained a license, agreeably to the provisions of the ordinance: held, that the complaint did not state facts sufficient to constitute an offense. Held, also, that the charter of said city, within the rule laid down by this court in Barton v. City of La Grande, decided -at the present term thereof, did not authorize an appeal from a judgment of conviction rendered by the recorder of the city, and that consequently a writ of review was the proper remedy to revise such judgment.</p>

The appellant commenced an action against the respondent in the said circuit court, to recover a claim for work, labor, and services alleged to have been performed by the law firm of McDougall & Bower, as attornejTs, between the second day of Februar}q 1882, and the first day of September, 1887, for the respondent, upon its retainer, and for money paid and agreed to be paid by said firm in the prosecution of the respondent’s business, at its request, which claim the…

<p>Matter, Which Constitutes No Part of the Record Proper cannot he considered on appeal, unless incorporated in a bill of exceptions.</p> <p>Until Such Matter is Put into a Bill of Exceptions, and is authenticated as required by law, the court cannot receive it, because there is no legal evidence before the court that it contains a correct record of the proceedings.</p> <p>Whether a Witness may be Asked concerning Any Serious Charge brought against him rests in the sound discretion of the court to allow or exclude such inquiry as the ends of justice may seem to require.</p> <p>The Distinction between a Map or Plan not admitted in evidence, but used only to enable the witness to explain the different points, location, etc., as to which he testifies, and such a map admitted as evidence of the locus in quo noted.</p> <p>The Allowance of Leading Questions rests in the sound discretion of the trial court.</p> <p>When the Charge is the Killing with a Knife, and all the evidence, taken together, tends to identify the knife used in evidence as the one used by the prisoner, the question of the identity of the knife is exclusively for the jury.</p>

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