Volume 2 — Oregon Reports

This action was brought by defendant in error against Schlussel & Rosen, as indorsers on a promissory note, executed by N. Wright to them, which is in these words-: “ Albany, February 1st, 1855. “ On demand, I promise to pay to Schlussel & Rosen the “ sum of sixty dollars and sixty-three cents, with interest. “N. WRIGHT. “ (Indorsed.) Schlussel & Rosen.” On. the back of which are indorsed these words : “ I agree to pay two per cent interest per month on the “principal and…

Benton County. This action was commenced by Fargo against Wren, for the usurpation of the office of sheriff of Benton county, and for the recovery of the fees and emoluments of the office during the usurpation thereof.

The complainant filed Ms bill in chancery in the Circuit Court for Multnomah county, and shows the following state of facts: The respondents, E. B. Pressey and Penna Pressey, Ms Wife, in 1859, executed a mortgage upon lot number four in block number , in tbe city of Portland, Oregon, to one ’William O’Neill, to secure the payment of five hundred dollars with interest, for which there was also a note executed by E. B. Pressey andoneLathrop.

Sarah Loomis sued the plaintiff in error, for an assignment of dower in a lot in Portland, claiming that her late husband, James Loomis, was seized of an estate of inheritance in the lot during coverture. The lot is embraced in the donation land claim of Benjamin Stark, who entered upon his claim in September, 1849, completing his necessary four years’ residence and cultivation in September, 1853.

<p> Error to Multnomah County. </p> <p>The statement of the ease is sufficiently made in the opinion of tbe Court.</p>

On the 9th day of October, 1857, D. C. Ingles, being insolvent and largely indebted, purchased of one Perkins, lots 1 and 8 in block 25, in Portland, and caused them to be conveyed by deed to W. S. and B. E. Ingles, his sons, at that time minors.

Multnomah County. This cause, tried in the Circuit Court of Clackamas county, at the March term, A. D. 1861, was a proceeding on behalf of the city of Portland, to recover from the plaintiffs in error a certain block of lots in said city, which is claimed by the city as a public market square dedicated by the proprietors of the town site of said city for that purpose.

The facts .of this case are these : It. was an action for work and labor; the answer of the defendant sets up a defense to the merits, and also, in the same answer sets up as a farther defense, that, at the time of the commencement of this action, there was another snit pending for the same cause of action; but does not state that said former suit was still pending at the time of filing the answer.

This was an action on a promissory note, given by one E. N. Blanchet to the defendant, G. C. Bobbins, and after-wards indorsed by the defendant, Bobbins, to the plaintiff, Baker, who brings this suit against Blanchet and Bobbins, charging Bobbins as indorser. Bobbins answers, denying due demand for payment of the note from the maker, Blanchet, and also denying due notice to himself of non-payment.

Morehouse sued Gird in the County Court for a balance due. on a promissory note. Gird filed an answer in the nature df. recoupment, setting up that the note had been executed by him to one Stark for a piece of landj which Stark had sold and conveyed to Gird, representing himself as owner thereof' in fee simple, whereas a part of the land belonged then to another person.

Noland sued Costello on contract, before a justice of th& peace, to recover one hundred and fifteen dollars and interest. Costello appeared and demurred to the complaint, on the-ground that the justice had no jurisdiction of the subject of the action, because the claim exceeded one hundred dollars. The demurrer was overruled, and judgment rendered against him for want of answer.

A. Holland and S. S. White, partners in trade, under the name and style of Holland & White, were the original makers .of a note to plaintiff Kamm for a valuable consideration, and, before it was delivered to the payee, defendant, F. S. Holland, signed his name on the back of said note, with the addition thereto of the word “ seev/rityf and when the note became due there was no demand upon makers, and no notice, of course, served on him.

<p>The sheriff having sold lands under an execution, regular on its face, presented to the Circuit Court, for its approval, a deed of premises sold; to which approval, defendant in'execution objected, and moved to set aside the sale for reason that the judgment was void, and that there was no judgment roll on file — Held, 1. That this court will not go behind the execution, and, on mere motion, inquire into the validity of the judgment recited; 2. Section 20, page 124, Statutes of 1855, provides that, “ When the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately,” — held, that this provision is directory and not peremptory in its application; 3. That, in the absence of other evidence, or setting forth of fraud, injury, mistake or illegality! than the mere return of the sheriff, it is too late for the judgment debtor to come in, after the time for the redemption has passed, and address to the court a mere motion to void a sale, for the reason that two or more adjacent parcels of land were sold in gross.</p>

At the September Term, A. D. 1862, of the Circuit Court for Marion county, an indictment was preferred against Palmer, charging him with having unlawfully kept open a house, in which intoxicating liquor was kept for retail, on Sunday, and alleging that the house was in the city of Salem.

— Section 22, Article 4, of the Constitution of Oregon construed. M. Stock, defendant below, was brought before the recorder of the city of Portland, upon a charge of violation of city ordinance No. 141, committed by unlawfully carrying on the business of a retail dealer, without first having, under that ordinance, obtained a license.

Error to Douglas County. So many of the facts as are necessary to be stated in this case will appear in the opinion of the Court.

On the loth day of November, A. D. 1862, an indictment was preferred against Charles Burchard, and filed in the Circuit Court for Multnomah county, charging said Burchard with the offense of selling intoxicating liquor, the body of which indictment is as follows: “ The said Charles A. Burchard, on the 14th day of September, A. D. 1862, it being the first day of the week commonly called Sunday, and on divers other of said days, between said day and the finding of this…

Under the provision of the charter granted, to the city of. Portland, June 24th, 1854, the city government had authority to levy and collect taxes not to exceed one-half of one per centum per annum, upon all real and personal property made taxable by law for county' and State purposes.

The complaint charges that the defendant, Moore, “ maliciously intending to injure the plaintiff, did, in certain conversations or discourses, utter, publish and declare, of and concerning the plaintiff, these false, scandalous and defamatory words, to wit: ‘ Hurd ’ (the plaintiff meaning) burned my house,’ referring to a certain dwelling house of the defendant which had previously caught fire and burned; the’ (the plaintiff meaning) ‘ set my house on fire;’ Hurd is a d — d…

The condition of this recognizance is that “John Harrison shall appear in the Circuit Court” at a certain time and place “to answer a charge of adultpry, and not depart without leave of said court, and abide the judgment thereof in all things.” The respondents insist that no breach of this condition is charged, inasmuch as it is averred that the said Harrison did appear in said court, at the term specified in the recognizance, and by order of the court the cause was…

<p>A voluntary appearance in court does not waive defendant’s time to plead.. It only waives informality of process and service.</p>

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

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

Respondents declared in the court below, m form, against appellants, upon a judgment rendered in favor of respondents and against Benjamin Stark, appellant, and E. S. Sherman and J. S. Sherman, in the Supreme Court of the State of New York, for the city and county of New York, in January, 1863. Stark only appeared in the comt below. The Shermans did not appear, being non-residents, and not having been served with process.

For a clear understanding of the questions decided by the court it will be necessary to state those facts in the case which are involved in the questions passed upon in this court. In 1862 the plaintiff was the owner of a band of cattle and horses then kept and running in Clickitat county, Washington territory.

On the 12th day of January A. D. 1853, the legislature of the territory of Oregon appointed commissioners to locate a road from near Astoria to the Willamette valley, and authorized them to procure all necessary assistance, &c., and promised to pay such aid at the rate of five dollars per day.

On the 24th day of July, 1855, Hunsaker obtaiued a judgment in the District Court of Oregon territory, for Multnomah county, against Coffin, in the sum of $2,097.30. The complaint was filed July 24th, 1855. Summons was issued on same day, and personally served. The summons required Coffin to appear in that District Com-t forthwith, and answer the complaint, or the plaintiff would take judgment.

Mosseau sued Yeeder, before a justice of the peace, to recover the value of certain baggage, alleged to have been entrusted to defendant, as a hotel beeper, and which had been lost. Yeeder appealed from a judgment had against him there to the Circuit Court of Multnomah county; and from a similar judgment in that appellate court, Yeeder has appealed his case into this court.

<p> Venue'. </p> <p>Respondent stole a horse in Washington territory, and' with it crossed the Columbia river into Wasco county, Oregon. He was there apprehended’, indicted for larceny in that county at the December term,, MSB’,, and on trial-was con-yicted and sentenced.</p> <p>His counsel at the trial asked this instruction: “ If the jury 'believe that defendant stole tbe horse in "Washington territory, they could not find him guilty of a larceny in Oregon.” Tbe court refused, and instructed tbe jury that “ it was a -continuing offense; and if tbe property was stolen in Washington territory and brought into Oregon, it was a larceny in •Oregon.”</p> <p>Defendant’s counsel excepted to tbe refusal of tbe one and tbe giving of tbe other instruction, and appealed.</p>

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

Benjamin Stark claimed a part of the town site of the city of Portland, as a donee under the act of Congress of 21th September, 1850, donating lands to actual settlers in Oregon. * The fourth section of that act provides that, in order to obtain a patent from the United States, the settler shall first reside on and cultivate the tract claimed for four years continuously.

John B. Garrison brought this action to recover damages from the city of Portland, for injuries sustained by him in consequence of falling into a pit or unfinished cistern, the work being recent, unknown to him, and negligently left by the defendant’s servants without guard, fences or lights to prevent passers by from falling into the excavation. There was a verdict for the plaintiff for §4,875. Defendant appealed.

Henry Benjamin was indicted for violating the ninth section of the statute, page 773, fifth section of the act of January 18th, 1854, regulating licenses to sell spirituous liquors, which section provides: “No person shall keep open any house, or room, in which intoxicating liquors are kept for retail, on the first day of the week commonly called Sunday.” The trial resulted in the conviction of defendant.

Ansel W. Sweet was an attorney at law, and in that capacity collected some nine hundred dollars for a client, Reuben Breed. This money so collected, Sweet embezzled, converted to his own use, and failed to account therefor.

On the 11th of January, 1865, plaintiffs, appellants, residents in and tax-payers of Lane county, Oregon, tendered to respondent, then sheriff of Lane county, and tax-collector therein, the sums of money assessed against each of plaintiffs for State, county and school’ taxes for the year 1861. The sheriff had a properly certified tax list and warrant. The tender was made in H. S. treasury notes, commonly known as “ legal tender” currency.

<p> Appeal from Multnomah County. </p> <p>This action was brought to. recover $500, the penalty of a bond executed on the 6th day of December, 1864, by F. Patterson, as principal, and -A. D. Shelby, as •surety; conditioned for the appearance of Patterson before J. F. McCoy, recorder of the city of Portland, to answer a charge of commission of assault upon, with intent to disfigure, one Kate Mason.</p> <p>The charter of the city of Portland gives to its recorder the jurisdiction and authority of a justice of the peace, for the county of Multnomah, within the limits of the city in both civil and criminal matters. Patterson having failed to appear, the bond was declared forfeited and judgment had in the lower court for the penalty.</p>

<p> Appeal from Multnomah Country. </p> <p>On the 15th day of June, 1865, the mayor aud common council of the city of Portland, for the purpose of making improvements on Front street, in said city, passed ordinance 210, declaring the cost of said improvements, and that each city lot, abutting on Front street, was liable for tbe full cost-of improving one-balf of said street, immediately adjacent to each lot, and of one-half of the intersections, where such exist. The amount for which each lot became liable, under that ordinance was entered, as provided by law, upon the docket of city liens of the city of Portland. Plaintiff being the owner of lots five and six, in block one hundred and eight, upon Front street, and the other persons, plaintiffs, availing themselves of a joining in this suit, being severally possessed of one or more lots upon Front street, were liable to pay said assessments made and entered on the lien docket, or have the lots sold upon' default in payment. The time within which, by the ordinance, the payment should be made had expired, and the lots were ordered to be sold for the amount of assessments. Plaintiff and others filed- a complaint, at the June term, 1865, setting forth the facts, asking that an injunction might issue restraining the city of Portland and its agents from proceeding farther in enforcing sale of lots; claiming that the tax assessed was an illegal one, without authority of law, and that the acts of the city and its officers were improper for that reason. To this complaint the city, by its attorney, demurred, and the demurrer was, by the circuit judge, sustained; the bill of complaint was dismissed, and costs adjudged against plaintiffs. Plaintiffs appealed from this ruling, and claim it was erroneous, and should be reversed on two grounds:</p> <p>1st. That the same was against law, and contrary to equity.</p> <p>2d. That the court erred in sustaining the demurrer, and in refusing to grant an injunction, and in dismissing the bill, and in rendering a decree for costs against plaintiffs.</p> <p>insist:</p> <p>1st. That the Circuit Court had full jurisdiction over the subject matter of suit. (5 Minn., 54; 4 Kernan, 9; 8 Mich. 275; 19 Ohio, 418; 10 Wis., 242.)</p> <p>2d. That the rule of taxation in this case is in contravention of section 33, article 1; of section 1, article 9, and of section 5, article 11, Constitution of Oregon.</p> <p>3d. That this assessment was a tax; and cite, as leading case, 4 Comstock, 419, where such assessments were held as taxes, and overruling previous decisions. (36 Barb., S. C., 179, 193; 19 N. Y., 116-18; 2 Black, S. C. R., 310.)</p> <p>4th. Can a law authorizing specific assessments or taxes stand in view of the Constitution ? (5 Ohio S. R., 243; 10 Wis., 242, 282; 9 Dana, 513; 25 Missouri, 271; 8 Mich., 275.)</p> <p>1st. That before a court should declare an act of the legislature unconstitutional, a case must be presented in which there could be no rational doubt, and cites 1 Ohio S. R., 82; 1 Cowen, 450; 24 Barb., 446; and construction should be liberal; 27 Barb., S. C., 575; 17 N. Y. E. Smith, 235. It may be antagonistic to certain constitutional provisions, and, if not in direct or necessary conflict, is still constitutional. (24 Barb., S. C., 232; 3 Denio, 281.)</p> <p>2d. State legislatures are sovereign over general and local taxation, unless their power is limited by the Constitution. (Smiths Com. on Constitutional Lorn, 261-266.)</p> <p>3d. Claims there is no limitation in the Constitution of Oregon; and if not limited, then courts cannot review whát is a matter of discretion of the legislative authority. (Bank of Rome v. Village of Rome, 18 N. Y., 39; 3 Kernan, 378; 24 Barb., 446; 4 Peters U. S. C, 514; 4 Wheaton, 428; 1 Ohio S. R., 137.)</p> <p>4th. That the act of the legislature complained of, is an exercise of the power of taxation; but that the term taxation in the sections of our Constitution cited, refers wholly to general taxes. Cites many authorities, some already referred to : 24 Wendell, 65 ; 7 Mill, 23; 19 Ohi , 518; 11 Ohio S. R., 637; 25 Missouri, 593-505; 27 Mississippi, 222; 12 Cal., 477; Ib., 83; 8 Mich., 275, 286, 298; and, as a leading case, Emery v. San Francisco Gas Co., California Sup. Court, July term, 1865.</p>

<p> Appeal from Douglas County. </p> <p>In the cases of Crawford v. S. Abraham, and of Crawford v. H. Abraham, at tbe October term, 1865, of tbe Circuit Court for Douglas county, judgments of nonsuit were taken. In each case a bill of disbursements was filed, specifying tbe mileage and attendance, severally, of numerous witnessesTbe verifications are tbe same, except tbe name of the affiant, and are in these words: “--, being duly sworn, says that the above amount of disbursements, except the fees of officers, is just and correct; and that the said disbursements were necessary for his defense in the above action, as he is informed and believes.--Plaintiff filed objections to certain items in each of said bills, specifying those items of attendance and mileage of witnesses, and stated, as the reason, “ that said witnesses were not subposnaed or sworn in said cause,” and to the claims of three witnesses for mileage, objection was made, for the reason that, being served with subpoena at the place of trial, they could not claim for more than two miles each. One of these latter lived at Folsom, California, and the others at great distances from Roseburg, the place of trial. Subpoenas were issued but in one case, and to the mileage and attendance of those witnesses no objection was made, except to the mileage of the three witnesses above. The clerk, under..the Code, allowed in one case $403.30, and in the other $433.90. Additional affidavits of L. F. Mosher and J. F. Gazely, Esqs., counsel for defendants, were filed below, stating substantially that the whole of the witnesses were necessary for the defense, and .as to the correctness of the mileage charged generally. The original bill of disbursements and proofs had been lost, and. upon supplied papers, the judge below, on appeal made, allowed in one case $6.60, and in the other $128.30. Defendants appealed. The causes being similar are consolidated .here, both for argument and opinion.</p> <p>claims that no other .affidavits can be used on appeal than were before the clerk, and cites 11 How. Pr. R., 160; 16 Ib., 91; How., N. Y. Code, 578. That affidavits to justify the clerk in allowing witness’ fees must state the actual time spent in attendance, and mileage actually traveled, for the express purpose of being witnesses, citing additional, 5 How. Pr. R., 458; 4 Hill, 595, 6; 6 Hill, 376.</p> <p>claimed errors by the court below, in refusing mileage and attendance for witnesses attending at request of defendants; in refusing mileage of witnesses residing beyond the reach of process, but attending at request of defendants. Counsel claimed first allowance under section 543, page 288, of the Code, that a subpoena is only necessary as determining what witnesses had been summoned, but of no moment when attendance was not denied. That when the personal attendance of a witness is necessary, the party has a right to have him present and to recover at least legal fees, citing 1 Greenleaf Ev., sections 320, 323; U. S. An. Dig., vol. 1, page 140.</p>

<p> Appeal form Douglas County. </p> <p>The respondent, a married woman, brought suit before a justice of the peace of Douglas county to recover possession of three horses of which, she alleged, she was the owner in her own right, and which she had registered as her separate property. The case was appealed to the Circuit Court, where answer was filed denying her title. The issues were tried by a jury in the Circuit Court, and verdict and judgment had for respondent, and "Weaver appealed to this court.</p> <p>Assignment of errors. — That the court erred :</p> <p>1st. In admitting in evidence a record of the registration of plaintiff’s separate property, which showed that the property was acquired by purchase, and not by gift, devise or inheritance.</p> <p>2d. In refusing to instruct the jury “ that the registration of a married woman’s separate property, is not notice to a stranger of any property not mentioned in said registration.”</p> <p>3d. In instructing the jury “that a married woman may sell and dispose of her separate registered property, and invest the proceeds in other property, which would still be covered by the registration.”</p> <p>4th. In instructing the jury “ that the registration made previous to the second marriage, uncanceled, is sufficient to hold her separate property.”</p> <p>claims:</p> <p>1st. That a married woman cannot hold as her separate property, other than such as is acquired by gift, devise or inheritance. (Code of Oregon, page 786; 7 How. Prac. R., 105 ; 10 Ib., 109.)</p> <p>2d. That a registration "of a married woman’s separate property is not notice of her intention to hold separate any property not described in said registration. (Code, pages 786, 787; sections 1, 2 and 4.)</p> <p>3d. That a married woman cannot trade in her registered property, and hold the property thus acquired under the one registration. (Code,pages 786, 787 ; 7 How. Prac. R., 105; 10 How. Prac. R., 109.)</p> <p>4th. When a constitution gives a general power, it gives by implication every power necessary for the exercise of it; if the means for exercising the power be also granted, no other or different means can be implied. (1 Kent's Com., 465, note b.)</p> <p>5th. A declaration made prior to marriage is not sufficient to protect the rights of a married woman to hold separate property under statutes. (1 Pars, on Cont., 283, 286, note 10 ; 2 Kent's Com., 130.)</p> <p>6th. A married woman may exercise, under this statute, such rights and privileges as are expressly given, and none other. (1 Kent's Com., 464.)</p> <p>1st. An examination of the deed of registration in this case will show that the plaintiff originally acquired the property by gift from the United States government as a land claim, although, at the time of registration she had exchanged the land for the personal property described therein.</p> <p>It is admitted that the property belonged to the plaintiff at the time of the marriage proven by defendant. Under the provision of the Constitution, then, such property is exempt from the husband’s contracts, no matter how acquired, or whether registered or not. (17 How. Pr. R., 413, 414, 415, and 417.).</p> <p>2d. The respondent,' and not her husband, had the right to change the shape'or charactér of her separate property, or dispose of it.</p> <p>3d. The respondent while a married woman filed a registration which has never been revoked. The fifth section of act of 1859 provides for the solemn revocation of such registration. No such revocation has been made. A valid declaration was on record, and thei’e was no necessity for a second recording thereof.</p>

On the 6th. day of October, 1865, Ryan sued Harris, in a civil action, before J. J. Hoffinan, recorder of the city of Portland, and ex officio justice of the peace. Summons and service was duly made, and defendant failing to appear and answer on the day fixed for trial, the plaintiff had judgment, for failure to answer, against defendant for $98.50. From that judgment defendant appealed to the Circuit Court.

On the 16th day of March, 1867, in vacation, Henry Martin made a confession of judgment in behalf of himself and P. H. Martin, doing business in the name of H. Martin & Co., to L. C. Fuller and J. P. Smith, doing business under the firm name of L. C. Fuller & Co., for the sum of $3,904.67, in gold coin.

<p> Appeal from, Jackson County. </p> <p>In the year 1860,1. D. and R. H. Haines were partners in trade, doing business under the firm name and style of “ I. D. Haines & Bro.” They were also tenants in common of a lot of land in that town, which they occupied for partnership purposes. On the 30th of March, 1860,1. D. Haines, managing partner, executed a promissory note in the name of the firm to the respondent, to secure the payment of which there was, at the same time, a mortgage given on the property above named. The mortgage was executed by I. D. Haines, who signed it with the firm name, “ I. D. Haines & Bro.,” and himself acknowledged it before the proper officer. It was duly witnessed; another certificate of acknowledgment was in due form. It was filed for record on the 17th of July, 1860. The consideration of this note and mortgage was $1,721, money loaned by respondent to the firm. R. H. Haines, the other partner in the' concern, knew of the loan, and of the execution of the note and mortgage, and assented to the whole transaction. On the 12th of November, 1860, the two partners, both in their individual capacity, executed a mortgage upon the same property to the appellant, Wood. This mortgage was executed, acknowledged and recorded with all the formalities required by law. The date of its record is November 13th, 1860.</p> <p>Chavener brought suit in the Circuit Court of Jackson county against the two Haines to foreclose his mortgage, and made Wood a party according to the provisions of statute; Wood filed his answer, setting out his mortgage, claiming a priority over the mortgage to Chavener as to the entire lot and the interest of both the Haines, and praying a decree of foreclosure on his own behalf, and a distribution of the proceeds accordingly. The Circuit Court held Chavener’s mortgage to be a good legal mortgage as to I. D. Haines, and a valid lien upon the legal estate of I. D. Haines in the property. It was also held that as to the interest of R. H. Haines this mortgage was only an equitable one, and that so far it should be postponed to the mortgage of Wood; but, that as to the interest of I. D. Haines it was a lien prior to that of Wood. In conformity with this decision it was decreed that the property be sold, and the proceeds applied, first to pay the costs, and the remainder in equal shares upon the mortgages of Wood and Chavener. Sale of the property was made, and distribution of the proceeds according to the decree. Chavener was the purchaser. After sale, and within the time for redemption, Wood proceeded in dne form to redeem, claiming a right to the whole property. The sheriff received the money, and executed to Wood a certificate of redemption. Chavener denied the right of Wood to redeem upon the terms allowed by the sheriff, and applied to the court to set aside the proceeding before the sheriff, and to annul the certificate of redemption. The court sustained the petition, and set aside the proceedings concerning the redemption. From the original decree of sale and distribution, and from the supplemental order Wood appealed.</p> <p>claims as errors :</p> <p>1st. In finding that Chavener’s mortgage is a legal mortgage as to the interest of I. D. Haines.</p> <p>2d. In finding that Chavener’s mortgage was first duly recored, and was constructive notice to Wood as to the interest of I. D. Haines.</p> <p>3d. In decreeing one-half only of the proceeds of sale to Wood; and,</p> <p>4th. In denying to Wood the right to redeem. (9 Cal., 365;, 21 Cal., 108.)</p> <p>claims:</p> <p>1st. That Chavener’s mortgage is a legal one as to I. D. Haines. 2 Hilld. Real Est., 350., secs. 10, 12, 13 ; 9 Johns., 285; 4 Mass., 438; 6 Pick., 86; 9 Mass., 218, and other authorities.</p> <p>2d. That it was a legal mortgage as to R. H. Haines. (Story's Agency, sec. 51; 11 Pick., 400 ; 19 Johns., 546 ; 4 Met., 548.)</p> <p>3d. That Wood was not a subsequent lien creditor on any property separately sold; and,</p> <p>4th. That Chavener was a prior lien creditor and a purchaser, and Wood could only redeem by full payment of Chavener’s lien. (Code, secs., 297, 8.)</p>

Judgment was rendered against the defendants in November, 1853, for $725, in the District Court of the United States for Washington county, and in April, 1865, the plaintiff filed his motion under the statute for leave to issue execution for the amount then due upon the judgment. Notice was duly served upon the defendants, who filed their objections, alleging: 1st. That payment had been made. 2d. That the proceeding was barred by the statutes of limitation.

Smith loaned to defendant, Case, $300, for which Case executed and delivered his promissory note on Sunday; and on a week day he afterwards made a promise to pay plaintiff the money so received at the making of the note. The defendant demurred to the complaint, because it appeared that the note was executed on Sunday. The Circuit Court sustained the demurrer, and plaintiff appealed. 1st. Subsequent promise need not be in -writing; no statute requiring it.

This action was brought in the Circuit Court for Marion county, to recover the value of a flat boat and skiff, which plaintiff alleged had been destroyed while lying at the bank of the Willamette river at Fairfield, through the carlessness of defendant’s agent in the management of its steamer, the Fannie Patton. In answering, the defendant denied the allegation of negligence, and averred negligence on the part of plaintiff as the. cause of injury.

<p> Appeal from Multnomah County. </p> <p>The sheriff of Multnomah county made return of service of notice of appeal, thus: “ I hereby certify that I served the within notice, within said State and county, on the 23d day of •February, 1867, on the within named J. N. Dolph, by leaving a copy, prepared and certified to by me as sheriff, in a conspicuous place in his office in the city of Portland, said county and State, between the hours of 6 a. m. and 9 p. m. of said day.” (Signed.)</p>

The sheriff of Lane county served the notice of appeal in this cause and made return thereof as follows: “ I, Joseph Meador sheriff of Lane county, Oregon, served the within notice of appeal by delivering a copy hereof prepared and certified to by me, and by attorney for appellant, to Emmeline Wallis, one of the respondents, and by leaving a copy hereof, prepared and certified in like manner, at the residence of Matthew Wallis, the other respondent, with a white member of…

At the November term, 1866, of the Circuit Court for Multnomah county, MitcheU & Dolph obtained a judgment .against Coffin. After giving due notice of an appeal, Coffin applied to respondent Coulson, the clerk of said court, for a transcript in the case, at the time tendering to respondent payment for making the same; the tender was made in legal currency.

The assessor of Wasco county, in August, 1866, appraised the real and personal property of respondent, assessable in his county, at $319,200, and entered that amount on the assessment roll. Due notice having been given on the last Monday in August, the assessor and county clerk met and publicly examined and corrected the assessment roll; and no correction or alteration was made in the assessment of plaintiff.

On the 15th day of July, 1866, wishing to procure a license for the retailing of spirituous liquors, Trainor deposited with the treasurer of Multnomah county, the sum of fifty dollars as payment for a license. Subsequently he applied for said license which was refused him, and he then demanded a return of said sum of money which was also refused.

The complaint alleges that a properly established highway runs through plaintiff’s premises, and that the Umpqua river crosses said highway on those premises; that defendant properly obtained a license to keep a ferry across that river, and the injuries complained of are that defendant used the banks of the TJnxpqiia river, within the lines of the public road, as places for landing from his ferry boats, and for tying’ up the same, without first obtaining permission; and…

In June, 1867, in Clackamas county, Dorville Brown was indicted and tried for having unlawfully and feloniously in his possession, moulds adapted and designed for coining and making counterfeit coin in the similitude of coin of the United States, &c. No question was raised as to the sufficiency of the indictment, and after trial and verdict of guilty, the counsel for respondent filed a motion in arrest of judgment on the ground that the indictment charged no offense…

<p>1. Construction of section 64, page 595, of the Code.</p> <p>2. Appeals do not lie from a judgment, by a justice of the peace, given for an amount less than twenty dollars, exclusive of costs.</p>

This case was tried at a special term of the Circuit Court for Douglas county, held January 28th, 1867. The defendants were indicted for the murder of one D. F. Barringer, on which charge they were found guilty of manslaughter.

The bill of complaint alleges that the plaintiff is running a ferry from the foot of Stark street, in the city of Portland, across the Willamette triver to the terminus of the base line and Sandy road, by virtue of a ferry right purchased of James B. Stephens, who claimed under a charter from the legislature, and that the defendants are running a ferry between the same points without authority of law, and to the injury of plaintiff.

This is a criminal action for a violation of section 667, of the Code of Criminal Procedure.

Plaintiffs, appellants brought an action of ejectment, claiming to have the legal title to the lands described in the complaint, and demanding the possession thereof as against the defendant, Chapman, and his tenant, who are in the possession.

The relator Rosenheim complains of defendant Hoyt, that he, Rosenheim, on the 31st day of July, 1867, was duly elected marshal of the city of Portland, by the common council of said city; that he duly qualified as such officer, and offered -to perform the duties of such office; and he complains that the defendant, Hoyt, unlawfully holds the office of marshal and unlawfully refuses to give up the books, papers and property belonging thereto.

Appeal from Marion County. The points made on argument upon the cross motions are sufficiently designated in the opinion of the justice.

On the 27th day of June, a. d. 1868, a petition was presented to the judge of the third judicial district, by Joseph Gaston, upon which the prosecuting attorney and petitioner asked leave to bring an action, in the name of the State, against the Oregon Central [Railroad Company, for the purpose of avoiding the charter of that company, because, as alleged, it had offended against the law of its incorporation in electing officers before sufficient subscription had been made to…

<p> Appeal from Douglas County. </p> <p>Respondent moved to dismiss the appeal because no notice-of appeal was filed within sixty days. Appellant interposed a motion asking that an order issue, directed to the clerk below, to certify the time when such notice was received by him and placed among the papers in the case.</p>

Appellant was prosecuting witness in a preliminary examination of persons charged with felony, before respondent, a justice of the peace, August 25th, 1865, and on the dismissal of the persons so charged', judgment was rendered against appellant for costs, &c. The justice then threatened to issue an execution, unless the costs, &c., amounting to $129.85, were immediately paid; and the constable took into his possession, then and there, property belonging to appellant, and…

This suit is instituted to compel defendant to execute a conveyance of the premises in controversy.

This is a suit to set aside a decree of foreclosure. After replication filed, the defendants moved for a decree upon the pleadings. The motion was granted and the plaintiff’s appeal. The complaint states that in 1863 James Heatherly was indebted to sundry persons to the aggregate of $12,110 on promissory notes, and defendants, one or both of them, were sureties on the notes.

This is a suit to restrain the defendants from selling certain real estate upon an execution, then in the hands of the defendant, Harvy D. Smith, sheriff of Linn county, sued out of the Circuit Court in favor of defendant, Monteith, against a corporation called the Linn County Woolen Mills Company. From 1861 to 1863 there existed a partnership firm called by the same name, viz.: Linn County Woolen Mills Company.

The history of the case is fully set forth in the' opinion of the justice, Jurisdiction of courts of equity over questions of mistake. (Story Eq. Jur., volume 1, sections 151, 152, 155, 159; Story Eq., volume 2, sections 783, 784, 790, 1040, 1057.) On same point. (Hunter v. Bilyew, 30 Ill., 248; Lawyer et al., v. Hovey, 3 Allen, 331.)

On the 2d day of July, A. D. 1867, the Bank of British Columbia commenced an action in the Circuit Court of the - State of Oregon, for Multnomah county, against A. I. Bloch and the Oregon City Paper Manufacturing Company, upon a promissory note for $10,000.40, dated Portland, Oregon, March 19th, 1867, executed by said manufacturing company,. and payable to tbe order of A. I. Blocb, and by bim indorsed to tbe Bank of British Columbia.- Tbe summons was served on A. I. Blocb…

This is an action to recover money, claimed to have been deposited with defendant by the plaintiffs, a part in gold coin, and the remainder in legal tender notes.

In June, 1865, appellant was the owner of 350 head of live stock in Lane County, Oregon, which stock, on the 29th day-of June, 1865, was assessed in that county, and the taxes paid by appellant, and a receipt of tbe sheriff taken therefor. About tbe first of August, 1865, tbe said band of stock was taken to Umatilla county, Oregon, and kept there for purposes of increase and sale, and were assessed there.

On the 23d of August, 1866, Patrick Hogan, the respondent, being, in possession of lot six, in block twenty-four, in the city of Portland, filed his complaint against the appellants to quiet his title to said lot, as against the appellants.

In March, 1861, Stephens was the owner of a ferry franchise across Willamette river at Portland, in Multnomah county; which franchise he then sold to Knott, reserving in the indenture of sale, signed by both parties, the right of ferriage to himself and family, on the boats of Knott, the grantee,, free of charge forever.

This action was brought to set aside a school district corporation, No. 38, on the relation of school district No. 29, and to have its corporate existence declared void, for certain irregularities alleged to exist in the proceedings, by which said district No. 38 was laid out and organized. allege as error below: 2d. The action is commenced against the clerk and directors of school district No. 38, contrary to law, as will appear from the answer of defendants below,…

Partlow commenced this action in the County Court of Clackamas county, against defendants, on a promissory note executed by defendants to him on the first day of April, 1859. The complaint sets out a payment of ten dollars on said note, March 25th, 1861; the suit was commenced March 25th, 1867.

In 1864, respondent and one A. A. Durham were the owners of Sucker creek and Sucker lake, of which it is the outlet. Sucker lake is about two miles long and one-fourth of a mile wide. Sucker creek, flowing from the lake, empties into the. Willamette river at Oswego, in Clackamas county, and is a small stream in summer; and the distance from Sucker lake to the Willamette river is but a few hundred yards.

<p> Error to Lane County. </p> <p>This action is brought upon an alleged violation on the part of defendants of their undertaking as bail in a criminal action.</p> <p>The judgment of the Circuit Court was in favor of the plaintiff for the amount expressed in the undertaking ($150), and costs. The defendants appeal.</p> <p>One R. Gr. Fry, had been held to answer upon a charge of assault with a dangerous weapon. The defendants subscribed an undertaking which was in the form prescribed in section 267 of the Criminal Code. The undertaking was dated and subscribed by the defendants as sureties in the presence of the magistrate taking the bail. These defendants at the same time justifying as such bail by affidavit, duly subscribed and sworn by them before the magistrate and by him certified. The undertaking was received by the magistrate, and thereupon the defendant was discharged, and the magistrate transmitted the undertaking, with the other papers in the case, to the Circuit Court in accordance with section 411 of the Code.</p> <p>The magistrate neglected to certify in writing that the undertaking was taken and acknowledged before him, and he made no written order directing the sheriff to discharge the defendant.</p> <p>On tbe trial of the cause tbe Circuit Court permitted tbe plaintiff to prove by parol that the defendant was discharged at the time the undertaking was signed; this is assigned as error.</p> <p>The court in the course of the trial permitted the committing magistrate, who was present, to append to, or endorse upon the undertaking his certificate that the undertaking was taken and acknowledged before him, which is also assigned as error.</p> <p>The appellant also assigns as error the instruction to the jury that, “ if the undertaking was signed in the presence of The justice an acknowledgment was not necessary.”</p> <p>The undertaking, when filed in the Circuit Court, is a matter of record and cannot be amended in a collateral proceeding. (4 Denio, 534-5-8-9 and 44; 2 Johns. Chan., 205.)</p> <p>The gist of this action being matter of record, it must be proven in that form alone. (4 Met., 423.) Sections 267 and 268, ¶¶. 485 and 486 of the Code, require that the undertaking be signed by the sureties in the presence of the magistrate taking the bail and acknowledged before him, and he must append thereto his certificate, &c. (4 Denio, 437; 4 Iowa, 302 ; 3 Iowa, 189; 1 Oregon, 308.) The discharge of the prisoner, the allowance of bail and acknowledgment of the sureties are material facts, and must be alleged in the com'plaint and proven by record.</p> <p>The making of the indorsements is a ministerial act, not judicial; defendants have done all necessary acts. These acts are apparent from the complaint and bond, and the answer expressly admits the execution of the bond, and defendants are estopped. Issues raised by answer are immaterial. The bond shows defendant Fry was admitted to bail. (4 Iowa, 302.) Objection concerning justices’ entries immaterial. (Statutes, 585, sec. 5, sub. 12; Statutes, 478, sec. 215.)</p>

<p>When a hill of items of account is filed under section 82 of the Code, if the same he deemed insufficient or defective by the other party, the proper practice is to move that the same he made more specific or definite.</p>

Catlin, in his complaint, avers that Knott was indebted to one Lawrence, on a verbal contract, in the sum of one hundred and fifty dollars, for labor and services, and sues, as assignee of Lawrence, with a written order from him. The action is brought, both on an express contract for that sum, and a qua/ntum meruit, averring the services to be worth the sum of two hundred and fourteen dollars.

Craig sued Hosier on an account for thirty-eight dollars. The action was brought before C. N. Terry, recorder of the city of Salem, county of Harion, and ex officio justice of the peace. Craig resides within the city of Salem, Hosier within the precinct of Abiqua, in the same county. Service was executed by Wiley Chapman, as city marshal and constable. Defendant made default, and judgment was rendered for Craig for thirty-eight dollars.

Plaintiffs, as executors of the estate of ¥m. O. Demerit, iu 1867, had in. their possession $30,000 in the shape of notes and mortgages, upon which the city council of Oregon city caused, to be assessed and collected a tax amounting to $270. The appellants claimed that this property was not liable to assessment and taxation by the corporate authorities, and have brought this suit to recover back from the city the tax collected.

Motion on Appeal from Clackamas County. At the September term of this court in 1863, this suit stood for hearing on an appeal from the final decision of the Circuit Court of Clackamas county, and a revision of that •decision was then made in this court by rendering a final decree against the respondent, John B. McClane; from which decision he sued out a writ of error from the Supreme Court of the United States.

This suit in equity was instituted to quiet the title and possession of Stannis, the respondent, to a certain piece of land, containing about eighty acres, situated in Benton county, Oregon. In September, 1858, W. J. Robertson was the owner of this tract of land, and about that time respondent made a contract to purchase it for $180.

The complaint in this case, as a petition, was filed in the County Court of Multnomah county, sitting in probate.

Appellant commenced suit in the Circuit Court for Multnomah county, against James P. O. Lownsdale and others, including respondents, as heirs of Daniel H. Lownsdale, deceased, for the purpose of quieting his title to the north half of block “ G-” in the city of Portland. Emma Lamb was the granddaughter of said deceased, and, with her husband, John 3L, resided in Kentucky.