Volume 18 — Oregon Reports

<p>Defective Deed—Power to Convey—Specific Performance.*—'Where a party to a deed labors under no disability, and by reason of some defect or technical informality his deed fails to pass title according to the intent of the parties, in a proper case, a court of equity will treat such defective or irregular deed as an agreement to convey and enforce it specifically on the same terms and conditions that other agreements in writing to convey real property are enforced. This is the general rule.</p> <p>Complaint—Alternative Relief.—Where a complaint is framed with a view to alternative relief, and upon the trial in this court the plaintiff presents only one aspect of his case, the other will be treated as waived and will not be pasted upon or considered.</p> <p>Notice—Bona Fide Purchaser—What will put a Party on Inquiry.—Where a party has notice of such facts as ought to put an ordinarily prudent man on inquiry, a failure to make inquiry is visited with all of the consequences of actual notice.</p> <p>Notice—Agent.—It is a general rule that notice to an agent is notice to the principal. The test is whether the information was of a character which it was the duty of the agent to communicate. If so, it binds tbe principal.</p> <p>Bona Fide Purchaser for Value—Pleading—Proof.—To give a defendant the status of a bona fide purchaser of land for value and without notice, it must be 'alleged and proven, amongst other things, that the person who conveyed to the defendant was seized in fee or pretended to be so seized and was in possessimt if the conveyance purported an immediate transfer of the possession when he executed the deed to such purchaser.</p> <p>Same—Payment of Purchase Money—Notice of Claim.—To constitute one a bova fide purchaser, he must actually have paid the purchase money before he received notice of the claim.</p> <p>Recital in the Deed—Consideration.—It must be proved independently of the recital in the deed that the consideration was paid before receiving notice, and it is not enough to show that it was secured to be paid by mortgage or otherwise.</p>

<p>Municipal Corporation—Corporate Powers op the City op East Portland.— By g 1. Art. 6, of the chaiter of the city of East Portland the common council of said city has full power, amongst other things, to improve the sidewalks, pavements, streets and all parts of streets within the limits of the city, making full or partial improvements thereof, to determine and provide for everything necessary or convenient to the exercise of the authority therein granted.</p> <p>Municipal Corporation—Power to Contract.—The power to contract inheres in every corporation and is co-extensive with its corporate powers.</p> <p>Municipal Corporation—Ultra Vires.—The plea of ultra vires should not, as a general rule, prevail, whether interposed for or against a corporation, when it would not advance justice, but on the contrary would accomplish a legal wrong.</p>

<p>The rule of the common law, that every man’s land was inclosed, either by a material fence or by an ideal invisible boundary, and that every unwarrantable entry thereon by a person or his cattle is a trespass by breaking his close, was not founded on an arbitrary regulation, but was considered as incidental to the ownership. It resulted from the principle that the owner had a right to the enjoyment of his land free from molestation or interference by others, whether its boundary consisted of an artificial structure only in contemplation of law; and the rule need not be adopted, in order to be in force wherever the principles of the common law are extended. It is in force in all places where the right of private dominion over things real is recognized; it attaches to the ownership of property.</p> <p>The legislature has authority, under the police power of the State, to require every man to inclose his land by a fence built in a prescribed manner, and it may refuse him a remedy for a trespass by cattle entering upon it in consequence of his neglect to comply with such requirements, but it cannot, authorize one man to pastu/e his stock upon the land of another, whether fenced or not; it may withhold the remedy, but it cannot grant the right.</p> <p>The statutes of Oregon, which require fields and inclosures to be inclosed with certain kinds of fence, and provide a remedy in case stock or swine shall break into the same when so fenced, do not apply to ditches constructed across public lands in the State for mining purposes.</p> <p>Hence the owner of sheep may be held in damages for injuries by reason of the sheep running over the same, in the absence of proof that they were purposely or negligently driven thereon, although the ditches were unfenced.</p> <p>Where the plaintiffs, in an action to recover damages done to ditches used for mining purposes, in consequence of sheep running over the same, proved that they were engaged in mining, and had been using the ditches in the prosecution of their businevss during the two previous mining seasons. Held, that it was such a possession of the premises as would enable them to maintain trespass against the entry of one having no right.</p> <p>Whether the manager of sheep, who is not the owner of them, is responsible to a third party or not for any acts of the herders, which are done without his knowledge or authority, and contrary to bis directions, depends upon his relations with the owner in regard to the matter.</p> <p>If be is a mere intermediate agent between the master and the direct agent, be cannot be held constructively responsible for the acts of the latter; but if he is intrusted with the direct charge and control of the sheep as a bailee, and employed the herders to assist him in the performance of his trust, and they are subject to his control and direction, then he would be so responsible for their acts, done within the scope of their employment, although done without his knowledge or authority, and contrary to his direction.</p>

The appellant, on the 18th day of October, 1886, executed to the defendants, Jeff. Mundy and Nick. Johnson, an instrument in writing, of which the following is a copy: Pomona, Kansas, October 18, 1886. For and in consideration of the sum of one hundred and thirty-five thousand dollars, in hand paid by Jeff. Mundy and Nick. Johnson, of Pomona, Kansas, the receipt whereof is hereby acknowledged, I hereby sell and agree to deliver to said Jeff. Mundy and Nick.

<p>In dedicating lands to the public, the dedicator may attach such reasonable restrictions to its-use by the .public as he may see fit, but he cannot dedicate to the public the lands of another person, for public use, without the latter's consent.</p> <p>Where L. S. C. & W. W. C. were joint occupants of a tract of public land which had been settled upon under the regulations of the provisional government, and upon which they had laid off a town, which became the city of Portland, made a plat thereof, . sold lots to eaeh other, and to third persons, with covenants for further assurance* and had referred to such plats for a description of the lots sold, but which plat was unrecorded at the time; and subsequently, ascertaining that they could not enter the land under the provisions of the Donation Act of September 27,1850, said parties made an agreement, under their hands and seals, in which they designated a part of the tract which should belong to each, and covenanted therein that each should fulfill and perform all contracts and agreements he had theretofore entered into with others, or with either of them, or of other persons, respecting the said tract of land, or any part thereof; and subsequently, and on the sixteenth day of December, 1852, the said L. caused the said plat to be recorded, with a dedicatory writing, under his hand and seal, attached, which was to the effect that a'ny public square on the plat shoi Id be subject to the by-laws of a city corporation for ornamental purposes, and not otherwise; and one-half of the public square shown upon said plat was upon the part of the tract agreed to be set apart to the said W» W. C. •</p> <p>Held, in view of the said agreement, and of the facts that the parties were jointly engaged in the enterprise of laying out the town, and had a common interest in its growth and development, and the recording of the plat and dedicatory writing feeing in furtherance of their common design, and the plat and writing having stood upon the record for more than thirty-six years, and no dissent thereto on the part of the other parties, or of the city, appearing to have been made, that the act of L. should be considered as the act of all, and that the writing should be regarded as cogent proof of the conditions upon which the public squares were dedicated.</p> <p>Held, further, that the building of a city hall upon such public squares, to be used for the transaction of city business, with a jail in the basement thereof, would be a use of them foreign to the purpose for which they were dedicated; and that the owners of a lot which had been purchased from the town proprietors, or either of them, and which would be affected by such appropriation, had a remedy in equity to inhibit such use.</p> <p>Held, also, that a general dedication of the land for public squares implied that they were to be enjoyed by the public at large, and could not rightfully be appropriated by the city authorities for the use of the city in the management and conduct of its economic affairs.</p>

The appellant is a railroad corporation, engaged in the transportation of freight and passengers upon its line of railroad in this State. The action was for personal injuries received by tbe respondent while a passenger upon tbe appellant’s railroad from Smock’s station to Portland, in consequence- of its cars being thrown from tbe track.

<p>Charter of the City of East Portland—Opening Streets.—The charter of the city of East Portland requires that “whenever the common council shall deem it expedient to lay out, establish, widen, or extend a street or alley, the council shall direct the city surveyor to survey such proposed street or alley, and to mark the boundaries thereof, and to make his report to the common council, containing the plat of such survey of such, street or alley, and the portion of each lot, or part thereof, required to be appropriated for such street or alley.”</p> <p>Held, that a vote of the council whereby the city surveyor was required to make a survey and report on Eleventh street from Division street to the county road, was not a sufficient compliance with the charter.</p> <p>Charter of the City of East Portland—City Surveyor's Report.—When the common council of the city of East Portland attempts to open a street through the lands of another, under the charter, the report of the city surveyor must contain the plat of such survey of said street. A statement in such report that the plat of such survey “is shown on the plat on file with the recorder” is insufficient.</p> <p>City Surveyor— Survey—Report.—Where, by an order of the common council, the city surveyor was directed to make a survey and report on Eleventh street, from Division street to the county road south, a survey “from the south line of Division street to a point twenty feet south of the 0. & C. railroad track” is not a compliance with the order of the council.</p> <p>Ordinance—Approval by the Mayor.—An ordinance passed by the common council of the city of East Portland could not take effect until approved by the mayor, and all proceedings had under such ordinance before its approval are nullities.</p>

<p>The acts and declarations of parties to an action are not competent evidence in their behalf, unless they constitute a part of a transaction which bars or disproves the claim made against them, or are a part of a material fact in the case.</p> <p>In an action against a party, to charge him with a debt as a co-partuer, it is competent for him to prove that at the time the debt was contracted tbe partnership had been dissolved; but, in order* to render the proof admissible, it must tend to show an actual dissolution of the partnership relation.</p> <p>"Where, in- an action against one N. and P. for goods sold to the latter, the complaint alleging that they were co-partners at the time, N. denied in his answer, and in his testimony upon the stand, that he and P. were ever partners at any time, and offered in evidence a writing, purporting to have been signed by himself and P. at a time prior to the sale of the goods, to the effect that all partnership that may have existed between them, either express or implied, was that day at an end, which he testified was signed by himself and P. at the time it bore date, but which P. denied ever having signed, or having been asked to sign, or that any conversation had ever been,had upon the subject; and no evidence was offered showing that the writing was executed as corroborative of or as a part of any transaction between the parties, or in accordance with any mutual understanding between them.</p> <p>Held, that the writing was not admissible as evidence “tending to show that no partnership in fact existed between N. and p. at the time the merchandise was sold, or that any partnership that might have existed between them had been dissolved.”</p> <p>Held, further, that the facts and circumstances of the case, together with N.’s testimony, to the effect that, having heard that P. had represented to several parties that he was interested with him, as a partner, to protect himself, he prepared the writing, and had it signed, negatived any inference that it was intended as part of a transaction to dissolve a co-partnership between them, or corroborative of any such transaction.</p> <p>Per Lord, J"., on Re-Hearing.—Filed November 11, 1889.</p> <p>"Where, on an issue whether a partnership did or did not exist, the record disclosed that one of tbe defendants, “having heard his co-defendant had reported that he was a partner with him, and to protect himself, prepared a writing” to the effect that all partnership which may have existed between them, express or implied, was at an end, which was signed by them, and offered such writing as evidence tending to show a partnership dissolution;</p> <p>Held, (1) that the writing was not prepared and executed on the assumption of the existence of any partnership, but as a contradictory statement by the author of such reports; and that it could only he used as evidence to effect the credibility of such co-defendant.</p> <p>Held, (2) that as the writing was prepared to protect the defendant from the declarations of his co-defendant, but that as such declarations could not bind him, or create the relation of partners, the writing could not operate as a dissolution agreement.</p> <p>Held, (3) that, within the purview of the facts for which the writing was prepared, it was not done to dissolve a partnership which was supposed to exist; but, to give it that effect, it would place the defendant in the position of preparing his own and co-defendant’s written declarations to serve that purpose, which was inadmissible.</p> <p>"When a bill of exceptions states that the court “instructed the jury upon all the issues involved in the case, and upon matters properly for their consideration,” but such instructions were oral, and no part of the same are incorporated therein, and certain instructions asked and refused are set out and excepted to, whether, upon such a record, the court will presume that the instructions asked and refused, if good Jaw, and applicable to the facts, were covered by the instructions giyeu, not decided; but suggested that the rule as to such presumptions ought to be confined in its operations to the case in which written instructions have been required and given by the trial court, and that then, if a party complains that instructions asked have been erroneously refused, and fails to bring the written instructions given, it is right that such presumption should be indulged.</p> <p>Strahan, J., dissenting.</p> <p>Partnership—How Formed.—A partnership is formed by contract entered into between two or more competent persons.</p> <p>Partnership—Dissolution.—Inasmuch as a partnership is formed by the mutual consene of the parties, it may be dissolved in the same way. Hence, a paper signed by the members oí a firm, declaring, in effect, that any partnership that might theretofore have existed between them was at an end, is competent evidence in favor of a retiring partner, as tending to prove that the remaining partner had no power to bind him by contracts for goods, made after the date of such writing.</p> <p>Partnership—Evidence.—A paper, signed by the members of a firm, declaring a dissolution, is competent and material evidence on the issue as to the non-existeuce of the partnership after that time. If made at the time,, it is evidence, of the highest character, tending to prove the fact of dissolution.</p> <p>Partnership—Pleading.—A person sued as a member of a firm, at a particular time, may deny that he was a member thereof at the time alleged, and i>rove upon the trial a dissolution of said firm prior to the time charged in the complaint, without alleging affirmatively in his answer the fact of such dissolution. The dissolution is not new matter, constituting a defense, but a fact which may be shown under the denial of plaintiff’s allegations.</p> <p>Dormant Partner—Notice op Dissolution.—Upon the dissolution of a partnership having a dormant partner, such dormant j»artner need give no notice ot his retiriug, except to persons who knew of his previous connection with the firm. As to all others, he owes no such duty, and cannot be made liable for debts contracted by the remaining member of the firm after he had retired.</p>

The respondent commenced an action against the appellant to recover the possession of certain real property, which is described in the complaint by metes and bounds, and is also referred to therein as lots 1 and 2, block 3, of the town of Brookland. The complaint was in the usual form. The answer set up a title to the premises by adverse possession, which was denied in the reply.

<p>Appeal from circuit court for Multnomab county.</p>

<p>Appeal from the circuit court for-Multnomah county.</p>

<p>Action to Recover Damages—" Open Mutual Acccount"—Costs.—In an action to recover damages for the breach of a contract, if* the plaintiff recover less than $50 he cannot recover costs under subdivision 3, l 549, Hill's Code, although the defendant's answer may contain a counter-claim for more than $150, which coun terclaim is founded on an account.</p> <p>Accounts—Mutuality.—Where, in such a cose, the plaintiff recovers less than $50, he cannot recover costó unless there be open mutual accounts involved, which, taken together on both sides, shall exceed 8150.</p>

The appellant instituted the proceeding in the justice’s court to remove the respondent from certain premises, consisting of real property situated in the city of Portland, county of Multnomah; claiming that the latter unlawfully withheld the same from him. The justice of the peace gave the appellant judgment for the restitution of the premises; from which the respondent appealed to the said circuit court, where the case was tried without a jury.

The respondent commenced an action against the connty to recover pay for bis services for tbe time during which he was held in order to compel his appearance as a witness in the case of State v. Cody.

<p>Executor—Ditties of His Office—Redemption of FropeiutY of the Estate.—An executor is not bound by the duties of his oiiico to pay bankers, brokers and other persons a bonus above legal interest to secure a loan of money to redeem property belonging to the estate of his testator ■which has been sold under the decree of a court having jurisdiction to order the same, nor is he bound to pledge his own securities or use his own credit to secure such loan.</p> <p>Executor—Duty of—To File an Inventory.—Section 1112, Hill's Code, makes it the duty of an executor, or administrator, within one month from the date of his appointment, or such further time as the court or judge may allow) to file with the clerk an inventory, verified by his own oath, of all the real and personal property, of the deceased which shall come to his possession or knowledge; and section 1114 makes it his duty, before the inventory is filed, to cause the property to be appraised at its true cash value by three disinterested persons; and for a failure to discharge these duties he is liable to removal.</p> <p>County Courts—Jurisdiction—Removal.—In the nature of things, county courts are vested with a very large discretionary power over the conduct of executors and administrators, and its exercise will not be interfered with on appeal unless plainly required by some principle of law.</p> <p>Executor or Administrator—Duties Active and not Passive.—The duties of an executor or administrator are active and not passive. He cannot be permitted to neglect to do those things which aré plainly required at his hands by law or the order of the court, and when complaint is made of such neglect, excuse himself by alleging that such delay or omission was for the benefit of the estate.</p> <p>Per Thayer, C. J., Dissenting.—Filed November 7,1889.</p> <p>Where a county court determines on the removal of an executor or administrator of an estate, upon the application of an heir, legatee, devisee, or creditor thereof, and the petition contains several grounds upon which the removal is sought to be procured, the court should indicate the particular ones it sustains.</p> <p>A county court has jurisdiction in probate matters, but the mode of its procedure is specifically pointed out in the statute, and it has no discretion other than to strictly observe its provisions.</p> <p>A county court has no authority to remove an executor or administrator except upon some one of the grounds laid down in the Civil Code, and, if it is upon the ground that the executor or administrator “ has been unfaithful to or neglected his trust,” it must appear expressly or by necessary inference that the applicant has sustained a probable loss in consequence thereof.</p>

The respondents filed a complaint in the said circuit court, in which they alleged that the appellants and L. Rosenthal, between the first clay of January, 1885, and the first day of October, 1888, wrongfully took and carried away from the respondents’ land, situated in said county of Multnomah, certain fir timber, to the extent of 3,976 cords of wood and 1,520 railroad ties, of the aggregate value of $2,064, which taking and carrying away of said timber by appellants were…

<p>Where a passenger riding on a car with his elbow resting on the window-sill, and slightly projecting out of the window, but his hand and wrist were inside, and a stick of cord-wood fell from the pile corded or stacked near the track, through the open window at which he sat, striking in the palm of the hand, or near it, catching in the mouth of the coat sleeve, and jammed the arm backward, and injured it.</p> <p>Held, that the facts were not such as the court could decide to be negligence in law by allowing a nonsuit, but were for the jury.</p>

<p>In an action to recover the possession of real property, under the Code of this State, it is necessary that the plaintiff allege in his complaint that he is entitled to the possession of the property. Section 318 of the Code peremptorily makes such an allegation material to the plaintiff’s cause of action.</p>

This is an action founded upon the following instrument in writing. “Co,000. Portland, Oregon, 3dFeby., 1883. “On demand, after date, without grace, I promise to pay to the order of-, at the office of the Portland Savings Bank, in Portland, Oregon; five thousand dollars, with interest at the rate of ten per cent, per annum until paid. Principal and interest payable in U. S. gold coin.

<p>It is a rule of law founded upon the theory of implied contract between the master and servant, that when the latter enters the service of the former, he takes upon himself all the ordinary risks of his employment.</p> <p>A part of this implied contract is that the master shall provide a reasonably safe place for the servant in which to perform his work ; yet the servant may dispense with this obligation. When the servant consents to work, at a place which will expose him to danger, knowing and understanding what such danger is, and the risks he incur* thereby, he cannot complain, in the event of an injury on that account, that the place where he worked might have been made safe by the exercise of reasonable care. Having consented to serve in the way and the manner in which the business was being conducted, he has no proper ground of complaint, even if reasonable precautions have been neglected.</p> <p>When it is not unlawful and does not interfere with the rights of others, it is the legal right of every person to carry on a business which is dangerous in itself, or in the manner of conducting it, nor is he bound to box or fence machinery in running his mill unless required to do so by statute.</p> <p>A servant that is acquainted with that danger and fully understands the risks to which he is exposed when the place prepared for him to work is near or about machinery which is not boxed or covered, and chooses to contract to do it, then he assumes such risks and the master is under no obligation to indemnify him against the consequences of such risks.</p> <p>On the other hand a servant that is ignorant and inexperienced and does not know and understand the risks to which he is exposed in working at such place, and an injury happens to him without any negligence on his part and without the master warning or pointing out the danger, he would be guilty of a breach of duty and liable to the servant for the injury he sustained.</p> <p>Where the service required to be performed is rendered dangerous by reason of tbe master's failure to provide a place where the servant may do bis work with safety, but which, by the exercise of due care and reasonable expense on the part of the master might have been made safe, such failure will be regarded as a breach of duty and render the master liable, unless the servant has knowledge and comprehends the nature of the risks to which he is exposed at the place provided, or unless the master, if the servant is ignorant and inexperienced, point out or give him full notice of the risks attending such service at the place to be performed, and thereby enables him to appreciate such risks and to avoid them.</p> <p>The distinction rests on knowledge, but there is a difference between knowledge of the facts and knowledge of the risks which they involve. One may know the facts and yet not understand, or be totally ignorant of the risks.</p> <p>The rule is well established that it is not error for the oourtto refuse to give instructions asked upon propositions which have been elsewhere covered in its general charge. Kor will the court reverse a judgment for the refusal of instructions if it can see that the case was placed fully, fairly and properly before the jury by the instructions which were given, although the requests refused may have been correctly drawn in point oi law and in tbeir application to the evidence.</p>

<p>Contract.—Special and Unique Personal Services.—When Equity will Exercise Its Preventive Powers.—Where a contract stipulates for special, unique or extraordinary personal services, such as involves special merit, skill, knowledge, or ability, so that in case of default, the same services could not be easily obtained from others, nor be compensated in damages at law, a court of equity would be warranted in applying its preventive remedy by injunction; otherwise, if such service were ordinary and without special merit and such as could be easily supplied without, much difficulty or expense, the principle is that contracts for such services are personal and peculiar, because oí their special merit or unique character, and the inadequacy of the remedy at law to compensate in damages for their breach.</p>

The defendant was indicted and convicted of the crime of perjury, and sentenced to the penitentiary for five years, from which judgment he has appealed to this court.

<p>Appeal from the circuit court for Multnomah county.</p>

The appellant commenced an action against the respondent, a private corporation formed under the laws of the State, to recover damages caused by its constructing and operating a railway in certain… Held: in the absence of a statute like ours- that, without reference to the fee, the highway is subject for use for the purposes of a railway. Button v. Short Route Ry. Go.. 4 N. W. Rep. 332; Attorney Generate. Metropolitan By. Co., 125 Mass. 515; Morris & Essex Ry.

Appeal, from the circuit court for Multnomah county. This proceeding commenced in the justice court of South Portland precinct, in Multnomah county, by the filing of a complaint charging the defendant with the crime of unlawfully giving away, to one Theodore Davis, morphine in the form of pills, without a prescription for the same from a physician or a regularly qualified pharmacist. A trial before the justice resulted in his conviction, and a fine was imposed of §50.

<p>Contract of Marriage—Its Nature.—The contract of marriage, unlike ordinary contracts, the State is specially interested in preserving unbroken, and the contracting parties cannot annul it, nor the court, except for the causes specified in the statute, and only then upon satisfactory evidence that such cause or causes exist.</p> <p>Divorce—Recrimination.—Where the party asking for a divorce is liable to a charge which is a cause for divorce, it will prevent him from obtaining such divorce, although the wife may have misconducted herself.</p>

<p>Appeal, from the circuit court for Douglas county.</p>

<p>The principle is well settled in equity that when one purchases an estate and pays for it and takes the title in the name of another, or when one purchases an estate with the money of another and takes the title to himself, there arises by operation of law a resulting: trust in favor of the owner of the money.</p> <p>This is founded upon the presumption that the party paying for the estate intended it for his own benefit; but this presumption does not arise in some excepted eases, where, by reason of the relation of the parties, the payment of the consideration may be supposed to be a gift to the nominal purchaser.</p> <p>Whether a purchase in the name of a wife or child is an advancement is a question of intention, though presumed in the first instance to be a provision or settlement.</p> <p>A resulting trust may be established by parol evidence, but the law for the safety of titles requires that, the proof shall be of the most reliable and satisfaced y land. The onus of establishing a resulting trust rests upon him who seeks its enforcement, and before a court of equity will be warranted in making a decree therefor the evidence must be clear, definite, and free from doubt.</p>

It appears that an application was made to the count3?’ court for said county of Jackson, to lay out a county road, between certain points in said county, which, for a considerable distance, ran across the lands of the appellant. That the latter filed a complaint for damages for ibe opening of the road. That said court thereupon appointed viewers to view the route and assess, in favor of the appellant, any damages to which he might thereby be entitled.

This is an action to recover damages arising from the alleged negligence of the defendant.

<p>Vendor and Vendee—Statute of Limitations—Adverse Possession.—Where a purchaser enters into the possession of land under an executory contract, which leaves the legal title in his vendor, and contemplates a further conveyance of the complete title, such entry is in subordination to the legal title, and where one is in under the owner of the legal title, a privity exists which precludes the idea of a hostile or tortious possession that could silently ripen into an adverse possession under the statute of limitations.</p> <p>Aliter.—When the vendee pays the purchase money, from that time his possession is adverse to the vendor.</p> <p>Adverse Possession.—Joy v. Stump, 14 Or. 361, approved.</p> <p>Permissive Occupancy—Not Hostile.—A permissive occupany of another’s land is not hostile, and no difference how long continued, it must be deemed to be in subordination to the title of the true owner, and will never bar his entry.</p> <p>Calls in a Deed—Courses and Distances—Fixed Monuments.—Courses and distances must yield to fixed monuments, and where they are inconsistent the monuments called for in the deed are paramount.</p>

<p>Appeal from a judgment of the circuit court for the county of Multnomah, entered upon the verdict of a jury.</p> <p>The respondent commenced an action against the appellant in said circuit court to recover damages for alleged malpractice as a surgeon and physician. The complaint contains the usual allegations of negligence and unskillfulness charged in such cases, which are denied in the answer, and the denials followed by a statement claimed to be the facts concerning the affair. This statement was treated as new matter and denied in the reply. The case was tried by a jury, who returned a verdict for the respondent in the sum of one thousand dollars, upon which the judgment appealed from was entered. The appellant seeks to have this judgment reversed, upon exceptions taken at the trial, which are shown in the opinion of the court as far as necessary to an understanding of the case</p>

This is a suit to quiet the title to certain parcels of land situate in Multnomah county, Oregon. The plaintiff pleads the necessary facts to bring his case within § 504, Hill's Code. The defendants all made default except Margaret and Patrick Holland. Their answer denies the plaintiff’s allegations, and then alleges that the defendant Margaret Holland is the owner and in the possession of said premises.

The circuit court dismissed the appeal from the justice court on the grounds of the alleged insufficiency of the undertaking given upon the appeal. The amount of the undertaking was fixed by the justice’s court at the sum of §500.

It appears that the said proceedings were instituted on the twelfth day of June, 1889, by the filing of a petition, on behalf of the Woman’s North Pacific Presbyterian Board of Missions, for the arrest and surrender to said board of two Chinese children, under and in accordance with the provisions of said Act; that a warrant of arrest was issued, and the children taken and given to said board; that Yum Chung, claiming to be an uncle of said children, filed an answer to the…

<p>Private Corporation—Attorney in Fact.—When a corporation is made the agent of another to sell and convey real properly, it acts through the same instrumentalities as when acting for itself, and the relation between it and its instrumentalities are as one legal entity or artificial person in the performance of its engagements, and involves no delegation of powers, held, therefore, that corporation has capacity to execute a deed as attorney in fact for another.</p>

This is an action brought hy appellant,1 who is sheriff of Multnomah county, and the keeper of the jail, against that county, to recover for the actual cost of some blankets furnished to the prisoners while confined under criminal process in the jail of that county. The county demurred to the complaint and had judgment in its favor, from which plaintiff has appealed.

The defendant was convicted of the crime of incest under an indictment, the charging part of which is as follows: “ The said Frank Jarvis, on the first day of April, A. D. 1889, in the county of Multnomah, and State of Oregon, was the father of one Josephine Ross, and so being and knowing himself to be the father of the said Josephine Ross as aforesaid, and for that reason and on account of that relationship prohibited by law to intermarry with her, the said Josephine Ross,…

The facts- are these: It is hereby stipulated and agreed by and between the parties herein to submit this cause to the court for trial upon the following statement of the facts herein, to-wit: (1) That Sampson Smallman and Margaret Smallman, now both deceased, were, at and prior to their death, seised in fee simple of the following described real estate, to-wit: The donation land claim of Sampson Smallman and Margaret Smallman, his wife, the same being notification No.…

The defendant was indicted by the grand jury of Marion county for the crime of selling and giving intoxicating liquors to a minor.

The assessor of the county of Yamhill applied to Edgar Popple ton, the appellant herein, for a list of his taxable property- for the year 1888. That thereupon the appellant furnished him a list purporting to be all of such property. Subsequently the board of equalization of the county caused a notice to be served upon appellant requiring him to appear and show cause why his assesment should not be increased.

<p>Railroads—Depot Grounds—Fencing.—The provisions of our statute, H 4044 and 4045, providing that if a railroad fails to fence its road against live stock, and creating a liability therefor, etc., does not extend or apply to depot grounds, and, in the absence of negligence, the company aie not liable for stock killed thereon.</p> <p>Stock Running at Large—Common Law In this State the common law rule requiring every man to keep his stock witmn his inclosure is not in force, and from its early settlement all kinds of stock have been allowed to run at large upon uninclosed. lands.</p> <p>Common Law—Cattle Straying on Railroad Track.—In those jurisdictions in which the common law rule prevails that the owner of cattle is bound to keep them in his own inclosure, it is generally held, though with some exceptions, that if he suffers them to go at large, and the cattle stray upon the railroad irack and are injured or killed, the company is not liable, unless the conduct of its agents in the management of the train ivas wanton or wilful.</p> <p>Stock Straying Upon Railroad Track Not Contributory Negligence.—On the other hand, in those jurisdictions in which the common law rule as to the duty of the owner of cattle to keep them within his own inclosure is not in force, it is held that a plaintiff in allowing his stock to run at large commits no unlawful act, nor is guilty of an omission of ordinary care, and if such stock stray upon an uninclosed railroad track and are injured or killed, whether they are rightfully there or hot, he is not guilty of contributory negligence, but the company is liable, unless it or its agents exercised ordinary care or skill, in the management of its train, to prevent their injury or destruction.</p> <p>Railroad Company—Liability.—The principle is that a railway company is liable in damages for injuries to stock, through its negligence, where the plaintiff contributed to the injury no further than permitting his stock to run at large.</p> <p>Negligence—Proximate Cause.—Such negligence—if U may be called negligence—is not the proximate cause of the injury, and, in the sense of the law, does not constitute contributory negligence</p>

The only question in this case is which party is entitled to costs. A brief statement of the issues is therefore necessary.

<p>Property in hands of Carrier—Seizure of by Legal Process—Custody of the Law.—When property is in the hands of a carrier for transportation, and in the course of transit is seized upon legal process sued out against the owner of the property, and taken out of the carrier’s possession, such property is placed iu the custody of the law, and is so placed by a superior power, the power of the State, and excuses the carrier from liability for not delivering the goods.</p> <p>Common Carrier—Goods taken from His Possession—His Duty.—When goods are taken out of the possession of the carrier by legal process, he should give notice forthwith to the parties interested.</p>

The defendant was indicted for the crime of grand larceny, and convicted by a jury, and by the court sentenced to the penitentiary, from which judgment he has appealed to this court. There was some conflict in the evidence as to the manner of the commission of the larceny; the prosecuting witness, one Morris Baillon, testifying, in substance, that he met the defendant on the morning of the twenty-seventh day of May, 1889, and went with him to several saloons.

<p>A municipal corporation upon whom its charter imposes the duty to keep its streets in a reasonably safe condition for travel is liable to persons for injuries caused by neglect to keep proper lights and guards at night around an excavation which it has authorized to be made in the street, although it has provided in its contract for such precautions with the contractor.</p>

It was alleged in the complaint that the respondents were, respectively, the sheriff and the assessor of Marion county, Oregon; that on the twenty-sixth day of May, 1888, Elias Eberhard, a resident of said county and State, made a general assignment for the benefit of his creditors, under the statute, to the appellant; that prior to making said assignment said Eberhard had been carrying on a general merchandise store at the town of Champoeg, in said county and State, keeping…

<p>Criminal Law—Evidence—Cross-Examination.—In a criminal case the district attorney has the right to cross-examine a witness ior the defendant as to anything that wonld show his interest in the result of the trial, and anything he did in aid of the defendant about the trial, for the purpose of enabling the jury to properly weigh the evidence of such witness, and to intelligently pass upon his credibility.</p> <p>Evidence—Materiality of.—The first rule in the production of evidence is that the evidence offered must correspond with the allegations, and be confined to the point in issue. This rule excludes all evideuee of collateral facts, or those which are incapable of affording any reasonable presumption, or inference, as to the principal fact, or matter, in dispute.</p> <p>Case in Judgment.—Where the defendant called a witness who gave evidence material to the defense, and then testified, on cross-examination,’that he gave money himself to assist the defense, and procured moneyfrom others in Portland, Tacoma and Seattle, for the same purpose;</p> <p>Held, it was not competent, either on the cross-examinaton of the same witness, or by making him the State’s witness, to prove the names of the particular persons who were not witnesses in the case who contributed money, or that they were saloon-keepers or gamblers.</p>

This suit was brought against the administrator of J. H. Whitsett, deceased, the heirs at law of said deceased, and Samuel Marks and Hyman Wollenberg. The object is to correct a mistake in the description of the property in each of two mortgages,—one given to the plaintiff in the lifetime of the deceased for §2,740, and the other to Solomon Abraham for §2,004.85, and to foreclose such mortgages.

<p>Eqoity-^Turisdiction—Money Demands—Conflicting Evidence.—Where a plaintiff in a suit to foreclose a junior mortgage upon real property entered into an agreement with the defendant therein, whereby he agieed, for a valuable consideration, to dismiss the suit at his own costs, and after realizing the benefits of the agreement and receiving the surplus funds arising from a sale of the mortgaged property, under a decree of foreclosure of the senior mortgage, procured in violation of the agreement, a default and decree to be entered by the court in his favor for affirmative relief, which was afterwards set aside by an original suit brought by the defendant, but the • court retained jurisdiction of the plaintiff’s suit, and allowed the defendant to file an answer therein, and it appearing that there was nothing between the parties to litigate, except mutual money demands, which were strongly controverted, and the proof of them depended upon conflicting oral testimony; held, that the case was a proper one to be submitted to a jury, and, that in view of the facts and circumstances, the complaint should be dismissed without prejudice, and the parties remanded to their legal rights in a court of law. Held, further, that the rule that a court of equity, having acquired jurisdiction of a suit for one purpose, may retain it for all purposes necessary to do complete justice between the parties in the cause, was adopted for the same object for which other equitable principles were established,—to prevent a failure of justice.</p>

<p>Appeal from the circuit court for Josephine county.</p>

<p>The common law did not recognize the right of either parent to appoint a testamentary guardian- for his children. The right was conferred on the father by the statute, 12 Chas. II, and the statute, shorn of its verbiage, has been substantially re-enacted in this State. This statute did not impose or recognize any civil disabilities in the wife, nor create any civil disability in her which did not previously exist, but was a new or added right conferred upon the father, and left the mother 'where she was before its enactment; held, therefore, that the want ot capacity in the wife to make such an appointment is not a civil disability created by g 2S85. and is not repealed by said section.</p> <p>As the father enjoyed the right to the full and complete control of his children before the enactment of the statute giving him the light to appoint a testamentary guardian, and as such right to the custody of the children and management of their estates is not dependent upon it, or essential to its existence, and as g 2878 does not refer in terms or otherwise to g 2S85; held, that the effect of g 2878 is to so modify or repeal, in whole or in part, so much of g 2885 as is incompatible with the mother’s right to the full and complete control of the children and their estate at the father’s death, as the father has at the mother’s death, but does not confer upon the mother the right to appoint a guardian.</p>

<p>A. successor in interest of a judgment debtor may redeem after confirmation of the sale. Under our statute the right to redeem is not merely a privilege personal to the debtor, but is a right of property and subject to bargain and sale.</p>

The merits of the said suit were determined upon appeal to this court. The case will be found reported in 16 Cr. 153.

The defendant was indicted for the crime of murder in the first degree. A trial resulted in his conviction of murder in the second degree, andhaving been sentenced to the penitentiary during his natural life, he has brought •Khis appeal. The points relied upon to reverse the judgment will be no ticed in the opinion.

On tbe twentieth day of February, 1886, tbe respondent recovered a judgment in said circuit court, against said Ben Holladay, for the sum of $18,900, to bear interest at the rate of 10 per cent, per annum, and for the further sum of §375 costs and disbursements. Execution was duly-issued upon said judgment, on said twentieth day of February, 1886, and afterwards returned wholly unsatisfied.

<p>Parol Lease for Term Exceeding One Year.—Under g 785, subdiv. 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>Parol Agreement—Specifically Enforced in ICqdity.—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 be specifically enforced in equity.</p> <p>Specific Performance—Lease for 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 ease, may be specifically enforced in equity on the same terms and under the like circumstances that any agreement concerning lands is or may be specifically enforced.</p>

Tbe appellant was indicted in said court for feloniously cutting, slitting and mutilating tbe lip of one Joseph Morin. He pleaded not guilty to tbe indictment, was tried thereon by jury, found guilty as charged, and sentenced to imprisonment in tbe penitentiary of tbe State for one year. From which sentence this appeal was taken. Tbe facts of tbe case appear in tbe opinion of tbe court.

, The defendant was convicted of the crime of perjury, from which judgment he has appealed.

The plaintiff brought this action to recover $7,000 damages for injuries alleged to have been received through the negligence of a servant of the defendants, and she recovered a verdict and judgment for $118.

<p>Municipal Corporation—Failure to Qualify—Vacancy.—Sections 24 ana 27 of the charter of the city of Albina (Session Aots, 1889, pp. 240, 241), when construed together, require a person elected as councilman of the city to qualify on or before the first Monday in July next after his election, and a failure to do so may work a forfeiture of his office; but forfeitures are never favored, and before such forfeiture could be claimed or enforced by the city, its officers must have performed all the duties imposed by the charter in relation to such election and qualification ; held, further, in case of a tie vote for councilman on the face of the return, the duty to qualify does not arise until the result of the election shall be finally determined in some mode provided by law.</p> <p>Election—Tie—Illegal Votes.—When on the face of the returns of an election for councilman of the city of Albina two candidates had an equal number of votes, if such votes were all legal, there was a tie and no election; but if illegal votes were cast for both or either of the candidates the election was not thereby vitiated, but the true result could only he known by deducting the.illegal votes, and in such case the person elected is not bound to anticipate the result of an investigation by taking the official oath before it could he ascertained whether he was elected or not.</p> <p>Municipal Election—Power of Council—Cumulative Remedy.—Where the charter of a municipal corporation makes the common council the judges of election and qualification of its members, but not the final or exclusive judges, the jurisdiction of the courts remains, and the remedy conferred on the council is eircumulative. But quere: Is not such legislation prohibited in the State by Art. VII, Section 9, of the Constitution?</p> <p>Ballot—Secrecy—Evidence.—The secrecy of the ballot is for the lawful voter only and not for the spurious. The public policy involved does not extend to the voter who has voted illegally. He may be required to disclose for whom he voted; and in any case the exemption from obligation to disclose the character of his vote can be claimed only by the voter himself. If, when the question is put to him as a witness, he sees fit to answer it, there is no objection to his testimony.</p> <p>Harmless Error.—Where the trial court erred-in the admission of evidence, and the appellate court can clearly see that it was impossible for such evidence to have injured the appelláut, the judgment will not he reversed.</p>

The suit was against the defendant as sheriff of said county to enjoin him from selling certain real property belonging to the plaintiff situated in the city of Portland, under and by virtue of an execution issued upon a judgment recovered in an action brought by Rosenfeld, Smith & Co., a coiqooration formed under the laws of the State, and against one F. M. DeWitt.