Volume 21 — Oregon Reports

Defendants appeal. The complaint alleges that in the year 1877 the plaintiff and a grantor of the plaintiff, Mary H. Speake, appropriated sixty inches of the waters of Fox creek for mining, mechanical and agricultural purposes; that said appropriation was prior in time and right to all other appropriations, except to fifteen inches owned by the defendants Hamilton; that in the same year they dug a ditch of sufficient capacity to take and carry away said waters to the lands…

Plaintiff appeals. The object of this suit is to obtain a decree adjudging the plaintiff to be the owner of an undivided one-third of certain real property described in the complaint, situated in Umatilla county, and for a partition thereof, and for an account of the rents and profits.

<p>Keelevin — Pleading—Exhibit.—In an action of replevin, an exhibit containing a description of the property in order to become a part of the complaint must be annexed and attached thereto. It is not sufficient to file the same as a separate paper, although referred to in the complaint and alleged to be a part thereof.'</p>

Plaintiff appeals. The object of this suit is to enjoin the sale of certain real property upon execution owned by John P. Miller in his life-time.

Plaintiff appeals. This is a suit to enforce a grantor’s lien on real property for the purchase money. One Stansell in his life-time sold the real property in controversy to the defendant J. G. Berry, which was about June 17,1881. Afterwards said Stansell died intestate in Union county, Oregon, and the plaintiff was appointed his administrator.

<p>Defendants appeal.</p>

<p>Evidence — Recobd of Peivate Coepobation — Secondaby Evidence of Contents.— Before a party can give secondary evidence of the contents of the records of a private corporation, he must show that he cannot produce the original in a reasonable time and with reasonable diligence.</p> <p>Idem — Judgment and Execution — Paeod Evidence. — The existence of a judgment or execution cannot he proven by parol, but only in the manner provided in section 730, Hill’s Code.</p>

<p>Pleading — Denial on Information and Belief. — A denial of “any knowledge or information sufficient to form a "belief” as to certain material facts alleged, is a good denial and creates an issue to be tried.</p> <p>Summons — Publication—Affidavit.—An affidavit for an order for service of summons by publication must specify the property and show that the defendants have property within the state.</p>

<p>Defendant appeals.</p>

Plaintiff appeals. In order to make a valid appropriation of waters upon tbe public domain and to obtain the exclusive right to the water thereby, the appropriation must be made with a bona fide present design or intention of applying the water to some immediate, useful or beneficial purpose, or in a present bona fide contemplation of a future application of it to such purpose by the parties thus appropriating or claiming. (Pomeroy Rip.

<p>Plaintiff appeals.</p>

<p>Plaintiff appeals.</p>

Defendant appeals. This cause comes here on appeal from a decree of the circuit court of Union county in favor of the plaintiff and against the appellant requiring him to convey an undivided one-third of the land in controversy to the plaintiff within thirty days, or in default of such conveyance that the decree stand in lieu thereof and operate as such conveyance.

<p>Plaintiff appeals.</p>

Defendants appeal. This cause was finally tried upon the second amended complaint, which was filed by leave of the court after the evidence was all taken, apparently to conform the pleadings to the facts proved.

<p>State appeals.</p>

Plaintiff appeals. The object of this suit is the foreclosure of a lien alleged to exist upon a certain fund now in the hands of the defendant M. S. Bloch as administrator of the estate of A. Dray, deceased.

<p>Defendant appeals.</p>

Plaintiff appeals. This is an application for a writ of mandamus to the county court of Sherman county requiring said court to grant the plaintiff a license to sell spirituous liquors in quantities less than one gallon in Grant’s precinct in said county. The facts alleged in the petition for the writ bring the plaintiff within the law authorizing a license for such purpose.

Plaintiff appeals. The maxim of the law which this defendant and every riparian proprietor is bound'to respect, as regards his rights to the water, is to use it so as not to damage another. (Shrews-bury v. Smith, 12 Cush. 177; Ang. Waters and Water Courses, 7 ed. § 97; Davis v. Winslow, 51 Me. 291; 81 Am.

<p>Carrier — Duty of Passenger — Ticket.— It is the duty of a passenger, if he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained; and if he attempt to retain his seat without paying his fans, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion.</p> <p>Pleading — Admission — Presumption — Burden of Proof. — When it is admitted that a railroad company is the owner of a railroad then being operated, a presumption arises that the same is operated by the company owning it, and the burden of proof is upon such company to show to the satisfaction of the jury that such is not the fact.</p>

Defendant appeals. This is an action to recover damages for injuries received by plaintiff in a wreck on defendant’s road, caused by the giving way of a bridge near Cascade Locks and the falling through of a train on which plaintiff was being carried.

<p>Pleading — General and Specific Statements. — A general introductory statement or a general conclusion in a pleading, always yields to a specific statement of the facts.</p> <p>Pleading — Negligence—Fellow-Servant.—An allegation which directly imputes negligence and carelessness to the defendant in causing a locomotive to run against a car upon which the plaintiff was at work, causing it to move and himself to be thrown down whereby he was injured, is a charge of negligence made directly upon the defendant itself, and not merely upon its servants. The negligence of a co-servant with the plaintiff, engaged in a common service, cannot he said to be the negligence of the defendant.</p> <p>Pleading — Negligence—Evidence.—Where carelessness and negligence in causing and permitting a locomotive to run against the place at which the plaintiff was at work are directly imputed to the defendant whereby he was injured, such allegation is broad enough to admit evidence of all kinds and grades of negligence on the part of the defendant which resulted from causing and permitting the locomotive to run down on the place where the plaintiff was at work, and thereby rendering it unsafe and causing the injury.</p> <p>Negligence — Failure to Provide Rules. — This would include the failure to provide such rules or to adopt such precautionary measures as are needful to regulate or oversee the running of locomotives upon the tracks and switches of the yard as would render the place of employment upon cars on the tracks reasonably safe.</p> <p>Servant's Risk — Pellow-Servant—Duty oe Master. — While the servant assumes the risks ordinarily incident to his employment and all open and visible risks, including the negligence of a fellow-servant, yet he has a right to presume that the master will exercise due care for his safety by providing, when necessary, all needful rules for the conduct of its business, or such precautionary regulations as will not needlessly expose him to ■risks not necessarily resulting from his occupation.</p> <p>Defective Complaint — Sufficiency After Verdict. — Where it is not certain from the allegation in what the negligence imputed to the defendant consists, such defect is not fatal to the sufficiency of the complaint after trial, but it is to be corrected by a motion to make the allegation more specific.</p> <p>Questions of Pact — Effect of Evidence — Province of Jury. — Whether certain precautions taken were sufficient under the evidence, or whether under it there were ever promulgated or established any precautions designed to meet the exigency and dangers of the situation, as well as the care exercised by the plaintiff at the time of the injury, are questions of fact for the jury to determine under all the circumstances of the ease.</p> <p>Amendments During Triad — Removal to IT. S. Court — Where the plaintiff inadvertently omitted to insert an allegation of incmporation, but the existence of the corporation is not the substance or gist of the action, and its name is such as to import a corporation, and the defendant, appearing as such, filed an answer verified by its agent, such allegation being merely formal, the court committed no error, after the evidence for the plaintifl: had been submitted, in allowing the plaintiff to amend by inserting such incorporation, nor in refusing at such time to allow the defendant to file a new answer raising different issues, when there was no claim of surprise, inadvertence or mistake. Nor was it error to refuse the removal of the cause at such time to the United States court.</p> <p>Special Verdict — Discretion of Court. — The giving or refusing to submit special findings to the jury is in the discretion of the court.</p>

<p>Defendant appeals.</p>

Defendant appeals. On the fifth day of April, 1890, the Portland Cable Railway Company executed and delivered to the appellant the following writing: “Know all men by these presents: That the Portland Cable Railway Company (a corporation duly organized and incorporated under the laws of the state of Oregon), in consideration of twenty thousand dollars to it paid by J. P. Marshall, trustee, does hereby grant, bargain, sell and convey to said J. P. Marshall, trustee, and his…

Defendant appeals. If there is any one principle settled in the law, it is that a court of equity will not reform a deed or other instrument in writing upon the ground of mistake unless the mistake is established by clear and satisfactory evidence, and it be shown not to have arisen from the negligence of the party who seeks the relief.

<p>Defendant appeals.</p>

<p>Defendant appeals.</p> <p>This is an action to recover four hundred and twelve dollars and fifty cents, the value of a certain lot of cigars alleged to have been sold by the plaintiff to the defendant, at his request.</p> <p>The evidence offered tended to prove that one Ed. Kidder negotiated the sale to the defendant and billed the cigars to Perkins in his own name. The defendant was not present when the cigars were taken to his place of business, and his contention is that he bought the cigars of Kidder and paid him for the same without any notice that they were owned or claimed by the plaintiff. The plaintiff to sustain the issues on his part called one C. A. Smith as a witness, who testified that he was a drayman and delivered the cigars to the defendant. He was then asked by plaintiff’s counsel the following question: “Who did you deliver the cigars to, and who was present when you delivered them?” And he answered: “I delivered them to the porter at the hotel; I think it was Mr. Perkins’ son. There were present Ed. Kidder besides the porter and myself.” And this question: “What conversation took place when these cigars were delivered?” Proper objections were made to this question, but the same were overruled, and an exception taken, and the witness answered: “ The porter said to Mr. Kidder, ‘ I see you are in the cigar business now,’ and Mr. Kidder answered: £No; I am just helping out DuBois.’ ”</p> <p>A verdict and judgment were rendered for the plaintiff, from which judgment this appeal is taken.</p>

Plaintiff appeals. This proceeding was instituted by a petition filed by the appellant in the county court of Multnomah county as guardian of Linda and Ben Campbell Holladay, minor beirs of Esther Holladay, deceased. The object of the proceeding is to obtain a final settlement and distribution of the estate of said decedent, now in the hands of Bufus Ingalls, executor of her last will and testament.

<p>Defendants appeal.</p> <p>This is an action to recover damages for a breach of the following agreement between plaintiff and defendants:</p> <p>“This agreement, made the fourteenth day of August, in the year of our Lord one thousand eight hundred and ninety, between David W. Eaves and A. M. Plato, doing business as Eaves & Plato of the Metropolitan market, parties of the first part, and Peter Wilhelm, the party of the second part, witnesseth: That the said parties of the first part, in consideration of the covenants, promises and agreements on the part of the said party of the second part hereinafter contained, hereby covenant, promise and agree to and with the said party of the second part, that the said parties of the first part will as soon as they become possessed of the Metropolitan market, its lease, stock, fixtures and appurtenances, all in clear title from the administration or representative of Todd’s interest in said market, then the parties of the first part will and hereby agree to make said Peter Wilhelm the superintendent of said market with, such duties as will be hereinafter described. The said parties of the first part also agree, in consideration of the services of said Peter Wilhelm as superintendent, to give said Wilhelm the free and full use of the room known as the restaurant, in the east end of said market, for use as a coffee-room during the continuance of said lease and the faithful fulfillment of duties as said superintendent. And it is further agreed that whenever the rental income from stalls shall equal five hundred dollars per month, then said Wilhelm is to receive in addition to use of coffee-room the sum of fifty dollars per month; and when income from stalls shall equal or exceed one thousand dollars per month, said Wilhelm shall receive one hundred dollars per month for services as superintendent; and said Wilhelm agrees at such time to maintain a special nightwatchman in said Metropolitan market. And the said party of the second part, in consideration of said covenants, promises and agreements on the part of said parties of the first part hereinafter contained, covenants, promises and agrees to and with the said parties of the first part, that the said party of the second part will and hereby agrees to act as superintendent of said Metropolitan market, and the duties to be performed and accepted as share of the work are to see that the said market shall at all times be kept clean and in a wholesome sanitary condition; that he will have said market properly opened every morning at five o’clock, and that said market shall be kept open for the transaction of business until the hour of eight at night, excepting Saturday nights, when the market must be kept open until eleven o’clock at night. He agrees further to see that rules and regulations governing said market shall be strictly enforced; that all occupants of stalls are to keep their premises in good order; and the said Wilhelm agrees to obey the parties of the first part in all matters relating to the welfare of the said market, and in business it is understood that the said Wilhelm shall not contract any bills, order any labor performed, or do anything to bind or make the said party of the first part liable for money excepting.on the written order or authority of said party of the first part, nor shall the said Wilhelm collect any money unless authorized to do so. Said Wilhelm accepts as pay in full such sums as hereinbefore agreed. And for the true and faithful performance of all and every of the said covenants, promises and agreements, the said parties to these presents bind themselves each unto the other in the penal sum of two hundred dollars of the United States of America, as fixed, settled and liquidated damages, to be paid by the failing party to the other, their heirs or assigns, and if at any time either of the said parties shall be guilty of gross misconduct, drunkenness, or engaged in any dishonest or criminal matter, then this agreement shall be void. In witness whereof, the said parties to these presents have hereunto set their hands and seals the day and year first above written.</p> <p>“D. W. Eaves. [seal.]</p> <p>“Arthur M. Plato, [seal.] “P. Wilhelm. [seal.]</p> <p>“Signed, sealed and delivered in the presence of “Willie Gill.”</p> <p>The breach of the agreement complained of was the discharge of plaintiff by defendants. Without any proof of actual damages, a recovery was allowed of the stipulated sum of two hundred dollars, and hence this appeal.</p> <p>The interpretation must be guided by the actual intention of the parties so far as it can reasonably and fairly be ascertained from the whole language of the contract and the surrounding circumstances of the case, and such intention cannot be determined by the use of the words liquidated damages, or equivalent words. (Bagley v. Peddie, 16 N. Y. 469; S. 0. 69 Am. Dec. 714; Little v. Banks, 85 N. Y. 266.)</p> <p>Where the parties make this agreement, but not in such wise that the law adopts it, then the damages thus agreed upon are a penalty, or in the nature of a penalty, although they call it liquidated damages. ( Wibaux v. Grinnell, 9 Mont. 154.)</p> <p>The stipulation is to be treated as a penalty rather than as liquidated damages, if the intention of the parties appear at all doubtful, or be of equivocal interpretation. (13 Am. & Eng. Ency. Law, 860; Foley v. McKeegan, 4 Iowa, 1; 66 Am. Dec. 107.)</p> <p>When a party may thus be responsible for the whole amount of the damages for the breach of an unimportant part of a contract, and so be made to pay a sum by way of damages grossly disproportionate to the injury sustained, there is plausible ground for withholding the doctrine of liquidated damages. (Colwell v. Lawrence, 38 N. Y. 75, citing Kemble v. Farren, 6 Bing. 141; Morse v. Rathburn, 42 Mo. 594; 97 Am. Dec. 359; Long v. Fowl, 42 Mo. 545; 97 Am. Dec. 355; Cotheal v. Talmage, 9 N. Y. 551; 61 Am. Dec. 716.)</p> <p>Misrepresentation of a material fact, even though unintentional, is as much a fraud as though intended. (Mitchell v. Zimmerman, 4 Tex. 75; 51 Am. Dec. 717; Alvarez v. Brannan, 7 Cal. 503; 68 Am. Dec. 274; Munroe v. Pritchett, 16 Ala. 785; 50 Am. Dec. 203.)</p> <p>If certain facts be conceded to exist, the question of their sufficiency to indicate a fraudulent intent becomes a question of law which the court must determine. (Hedman v. Anderson, 6 Neb. 392; Davis v. Scott, 22 Neb. 154.)</p> <p>The use of the words penal sum followed by the words liquidated damages is not conclusive that the sum named is a penalty. (Orisd.ee v. Bolton, 3 Car. & P. 240; Sedg. Dam. 5 ed. 468; People v. Love, 19 Cal. 682; Pierce v. Fuller, 8 Mass. 223; 5 Am. Dec. 102.)</p> <p>Where an agreement is for the performance or non-performance of only one act, and there is no adequate means of ascertaining the precise damage which may result from a violation, the parties may, if they please, by a separate clause of the contract, fix upon the amount of compensation payable by the defaulting party in case of a breach. (Pom. Eq. § 442.)</p> <p>A contract may come within the scope and operation of this last rule, which includes various particulars differing in kind and importance, provided they are in effect one; all taken together only making up one whole, the violation of which is to be compensated by a fixed sum. (Pom. Eq. § 442.)</p> <p>Although an agreement may contain two or more provisions for the doing or not doing different acts, still where all of the provisions are of such a nature that the damages occasioned by their breach cannot be measured, and a certain sum is made payable upon a default generally in any of them, the sum so agreed to be paid may be considered as liquidated damages. (Pom. Eq. § 445; Mundy v. Oulver, 18 Barb. 336; Clement v. Gash, 21 N. Y. 253; Williams v. Green, 14 Ark. 320; Bagley v. Peddle, 16 N. Y. 469; 69 Am. Dec. 713; Cotheal v. Talmage, 9 N. Y. 551; 61 Am. Dec. 716; Galsworthy v. Strutt, 1 Exch. 659; Athyns v. Kin-nien, 4 Exch. 776.)</p> <p>The intention of the parties is the question to be determined, and to arrive at this, it is proper to consider the magnitude of the sum fixed in connection with the subject matter as well as the words used by the parties. It is proper, also, to look at the whole contract, its subject matter and the ease or difficulty in measuring the breach or damages. (Jaoquith v. Hudson, 5 Mich. 123; Matthews v. Sharp, 99 Pa. St. 560; Texas eta. jRy. Co. v. Bust, 19 Fed. Pep. 239; Wolf v. By. Co. 64 Iowa, 380; Noyes v. Phillips, 60 N. Y. 408; Leary v. Laflin, 101 Mass. 334; I/ynde v. Thompson, 2 Allen, 459.)</p> <p>When the injury is susceptible of definite admeasure-meat, the parties will not be allowed to stipulate for a greater amount; and it is in these cases only that the sum named is usually held to be a penalty. (Bispham’s Eq. 3 ed. 234.)</p> <p>Mere misrepresentations, unaccompanied by fraud, are neither a ground of action nor for rescinding an agreement. (Itolfes v. Russel, 5 Or. 400; Nicolai v. Lyon, 8 Or. 56; Smith v. Cox, 9 Or. 327.)</p> <p>Also, false representations must have been relied upon, and the one so relying upon them be without negligence himself. (Marx v. Schwartz, 14 Or. 180; Horrell v. Manning, 6 Or. 413; Dunning v. Cresson, 6 Or. 241; Finlay son v. Finlay son, 17 Or. 347; 11 Am. St. Hep. 836; Mill v. Rush, 19 Ark. 522.)</p>

Plaintiff appeals. On February 28,1890, the defendant E. J. Maxwell, who was a contractor for the improvement of certain streets in Portland, executed and delivered to the garnishee, the Commercial National Bank, an order on the auditor of the city of Portland, directing him to deliver to said bank any and all warrants drawn in his favor on account of said street improvement, and authorizing the bank to receipt for and endorse the warrants in his name.

<p>Foecibde Entry and Detainee — Gist op Action.— In actions of forcible entry and detainer, the gist of the action is force either in the entry or in the detention, or in both.</p> <p>Idem — Tenant—Trespasser.—Where the relation of landlord and tenant exists, the tenant is to be deemed holding by force when he refuses to vacate after notice and the expiration of his lease, or to pay rent due under the lease; while an intruder or trespasser enters or detains with actual force.</p>

Plaintiff appeals. Where an instrument is of no force or effect aside from a statute making it so, the instrument’must be executed in accordance with the statute. (Harty v. Ladd, 3 Or. 353; Silliman v. Cummins, 13 Ohio, 117.) The statute requiring assignments to be acknowledged a failure to so acknowledge makes the assignment void even as to personal property. (Hardmann v. Bowen, 39 N. T. 196; Britton v. Lorenz, 45 N. Y. 54.) A deed not acknowledged is void.

Defendant appeals. The following is a copy of the dedimus potestatem issued out of the superior court of Suffolk, Massachusetts, authorizing the taking of the deposition of Jonathan Bourne Jr.: “COMMONWEALTH OE MASSACHUSETTS. [ The superior court seal.] “To any commissioner appointed by the governor of said commonwealth of Massachusetts, or to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the state of Oregon,…

<p>Plaintiff appeals.</p>

Defendant appeals. This is an action commenced in justice’s court for East Portland precinct in Multnomah county, Oregon, to recover damages for alleged negligence.

Plaintiff appeals. This suit was brought for the purpose of restraining the defendants from issuing bonds and constructing or purchasing one or more bridges across the Willamette river at Portland, as contemplated by the act passed by the last legislature, and generally known as the Meussdorifer Act.

Defendants appeal. This is a suit to specifically enforce a written contract entered into between plaintiff and defendant Bigné in April, 1887.

<p>Defendant appeals.</p>

<p>Defendant appeals.</p>

<p>Sale op Chattels — Desceiption—Condition Peeoedbnt. — Where goods or chattels are sold by description, there is an implied condition that the goods or chattels delivered shall correspond to that description. By some authorities this is treated as a condition precedent, by others as an implied warranty.</p> <p>Idem — Executed Sale — Waeeanties.—When the sale becomes in part executed or consummated, the same facts which before constituted conditions precedent then become warranties.</p> <p>Idem — Implied Waeeantt — Fitness.—In the sale of goods or chattels by description, when the buyer has not inspected the goods, there is, in addition to the condition precedent that the goods or chattels shall answer the description, an implied warranty that they shall be fit for the particular purpose to which they are to be applied when that puipose is known to the vendor.</p> <p>Idem. — 'When a dealer undertakes to supply goods or chattels in which he deals that are to be applied to a particular puipose, and the buyer necessarily trusts to the judgment of the dealer, there is an implied warranty that they shall be reasonably fit for the purpose for which they are intended.</p>

Plaintiff appeals. ■ This is a suit for an accounting between the plaintiff and defendant growing out of an alleged partnership between them, the object of which partnership was to engage in the business of raising and marketing vegetables. It is alleged that this partnership was to be equal and to continue during the farming season of 1890.

Defendant appeals. This is a proceeding by writ of mandamus against the defendants, who constitute the Board of Medical Examiners for the state of Oregon, to compel them to issue to the plaintiff the proper certificate authorizing him to practice as a physician in this state or show cause for such refusal.

Plaintiffs appeal. It is error of tbe court to instruct a jury on a matter not made an issue by the pleadings. (Hayden v. Long, 8 Or. 247; Marx v. Schwartz, 14 Or. 178; Moorhouse v. Donaca, 14 Or. 434; Woodward v. O. R. & N. Co. 18 Or. 289; White v. Merrill, 82 Cal. 14; Albertoli v. Branham, 80 Cal. 631; 13 Am.

Plaintiffs appeal. The plaintiffs, mortgagees, are entitled to the possession of this property, and to recover it in this form of action. (Hill’s Code, § 3837; J. I. Case Machine Go. v. Campbell, 14 Or. 460.) Wells, at the time this action was commenced, had no interest in this property subject to levy or sale by his creditors. ([Lead-better v.Leadbetter, 125N. Y. 290; 21 Am. St. Rep. 738; Manchester v. Tibbetts, 121 N. Y. 219; 18 Am.

Defendant appeals. the plaintiff in this ease had a plain, speedy and adequate remedy at law on the allegations of his complaint either by an action for money had and received, or for damages occasioned by failure or negligence in the performance of the agreement declared on. The bill was bad on demurrer. {Frue v. Losing, 120 Mass. 507; Coquillard v. Suydam, 8 Blackf. 24; Or others v. Leo, 29 Ala. 337; Mo Calla v. Beadleston, (B. I.) 20 Atl.

Defendants appeal. This suit is brought to enjoin a sale of real property on execution.

Defendants appeal. This is a suit to foreclose a mortgage. The complaint alleges that on the twenty-fifth day of April, 1881, at Can-yonville, Douglas county, Oregon, the .defendants W. P. Briggs and Elizabeth Briggs made their promissory note of that date and thereby promised to pay to Dan A. Levens, or order, twenty-five hundred dollars, ten years after date, with interest thereon at the rate of ten per cent per annum from date until paid, the interest to be paid annually,…

<p>Defendant appeals.</p>

<p>Appeal from County Court — Jurisdiction ■ — Transcript.—To enable a circuit court to acquire appellate jurisdiction over a judgment of a county court, an appeal therefrom to the circuit court must be duly taken and perfected, and a transcript of the judgment and proceedings had thereon filed in that court.</p> <p>Idem — Claim Against Decedent — Support of Relative. — Where an appellant presented to a respondent, as executor of an estate, a claim against the estate, -which the latter rejected, and the county court of the proper county, thereafter, under Hill’s Code, § 1134, having heard the matter, allowed to the appellant the greater part of the daim, and caused an entry of such allowance to be made on the record, and the circuit court subsequently reviewed the case, and ordered and adjudged that the claim as allowed by the county court be disallowed, and that the judgment of that court be set aside, reversed, and annulled, from which adjudication the appellant took an appeal to the supreme court; and it not appearing from the transcript of the cause filed in the latter court how the case was gotten into the circuit court, — it containing no copy of any notice of appeal from the county court to the circuit court, nor of any proceedings showing that an appeal had been taken, and the certificate of the clerk of the circuit court, which was appended to the transcript, being to the effect that the copies of the papers constituting the transcript included all the papers in the ease, — held, that in the light of the record, the circuit court had no jurisdiction to attempt to interfere with the said judgment of the county court; held further, that an order of allowance or rejection of a claim against an estate made and entered of record by a county court in accordance with said section 1134 of the code should he regarded in the light of a judgment in an action for the recovery of money; and, if an appeal he taken therefrom to the circuit court, it will involve the trial anew of the matters in issue between the parties, to he conducted in the same manner as trials at law for the recovery of money are conducted in said counts, and that the parties will be entitled to a jury trial upon such appeal, which can only he waived as provided in section 218 of the code; held, also, that the furnishing support and maintenance to a near relative will be presumed to have been done gratuitously however valuable it may have been, and that such presumption can only he overcome by proof that there was some contract or understanding between the parties that compensation was to be made therefor. Proof of an express contract or agreement is not essential, but it may be shown from the circumstances of the case that it was the understanding of the parties that payment in some form was intended and expected.</p>

<p>Defendant appeals.</p>

<p>Defendants appeal.</p>

Plaintiff appeals. ■ The owner of the property is entitled to recover the manufactured value of the timber cut from the premises upon which the trespass was committed. (Wooden WareCo. v. U. S. 106 U. S. 432; Nesbitt v. St. Paul Lumber Co. 21 Minn. 491; Silsbury v. MeCoon, 3 N. Y. 379; 53 Am. Dec. 307; Letts v. Lee, 5 Johns. 349; 4 Am. Dee. 368; Curtis v. Gh'oat, 6 Johns. 169; 5 Am. Dec. 204; Palter v. Wheeler, 8 Wend. 505; 24 Am.

<p>Joky — Amendment op Verdict.— The common law right to amend a verdict after the jury is discharged, is not abrogated by sections 211 and 212 of Hill’s Code.</p>

Defendant appeals. The object of this suit is to declare a resulting trust in favor of the plaintiff in certain real property, consisting of a flouring mill, water-power, and fixtures, and the land on which the same are situated, all of which are particularly described in the complaint.

Plaintiff appeals. The respondent, Benjamin Windsor, commenced an action of ejectment against the appellant to recover an undivided interest in the land in controversy. The appellant at the time of filing his answer in that action filed his cross-bill under section 381, Hill’s Code.

Petitioners appeal. To be a valid marriage in 1860, at the time the respondents claim the pretended marriage of George R. Megginson and Julia Megginson, it was necessary that the marriage should have been solemnized by a minister of the gospel. (Stat. 1854,494; Stat. 1855,536.) One of two things to prevent the pretended marriage from being null and void must have existed at the time.

Defendant appeals. This is an action to recover seven hundred dollars on an agreement of compromise between plaintiff and the defendant Farra. The facts are these: On July 24,1888, defendant Farra and one Montieth, for three hundred and five dollars in cash, sold and conveyed to plaintiff, by deed containing covenants of title and warranty, lots 7 and 8 in block 4, in West Yaquina, Benton county, Oregon.

<p>Constitutional Law — Special Privileges. — Section 6 of the act of 1889, providing that no officer or seaman of a sea-going vessel, or ship, shall be arrested or imprisoned for debt, etc., is not in conflict with section 20 of the bill of rights, which provides that no law shall be enacted granting to any citizen or class of citizens any privilege or immunity which upon the same terms shall not equally belong to all citizens.</p>

Defendant appeals. This is an action for a writ of mandamus to require the defendant to supply the plaintiff with water by tapping a certain water-main on Tillamook street, and allowing him to connect a service-pipe therewith, etc. The facts alleged in substance are these: That the defendant is a corporation, the business of which, among other things, is to furnish the city of Albina, and the inhabitants thereof, with water; that it is operating under a franchise granted to…

ntiffs appeal. ^plaintiffs in this proceeding, sixty-four in number, tented a petition to the county court of Linn county, Oregon, praying that court to vacate a certain portion of a county road then recently located in said county. The road had been established by that court at the May term, 1890.

Plaintiffs appeal. On the seventh day of November, 1890, a petition was presented to the circuit judge of the third judicial district for a writ of review, for the purpose of reviewing the proceedings of the county court of Linn county in the matter of laying out a county road in said county; upon which application an order was made, directing the writ to issue.

Plaintiff appeals. This action was commenced in a justice’s court. The defendant appeared and demurred to the complaint, but the demurrer was overruled by the justice, and judgment rendered in favor of the plaintiff, from which the defendant appealed to the circuit court. That court reversed the ruling of the justice, and sustained the demurrer, and entered judgment in favor of the defendant, from which the plaintiff has brought this appeal.

Plaintiff appeals. (McKinley Fel. Serv. § 30; Bryant v. Burlington, etc. B. R. Co. 66 Iowa, 305; 55 Am. Rep. 275; Howland v. Mihvaukee, etc. Ry.

By the instruction, as given in this case, the jury was told, in effect, that although the deceased knew that the track of defendant was obstructed by slides and damaged by storms, and was not in a safe and proper condition for use, and with knowledge of that fact went out upon a train, with the express purpose of repairing such damages and removing the slides, or assisting others to do so; yet, nevertheless, the defendant was bound to furnish him exactly the same reasonably…

<p>Defendant appeals.</p>

Defendant appeals. This is an action to recover certain premiums paid by the plaintiff to the defendant for a policy of insurance upon his life with legal interest thereon.

Defendants appeal. The substance of the amended complaint is as follows: “ That between the twenty-fifth day of June, 1887, and the thirtieth day of September, 1889, the plaintiff sold and delivered to the defendants at their request, certain goods, wares and merchandise, on account of which the following are the debit items of said account, to-wit: 1887. June 25. 2 Benicia mowers @ $57.50 — $115 00 Sept. 14. 1 No. 101 wagon- 100 00 Orating- 3 00 1888.

Appeals — Damages on Abandonment — Practice in Supreme Court. — When an appeal is abandoned in cases where the judgment or decree is for the recovery of money or personal property or the value thereof, the respondent may, on notice to the appellant, under rule 7 regulating the practice in this court, file copies of the notice of appeal, undertaking, and decree or judgment, and will be entitled on motion to an affirmance of the judgment or decree appealed from; and in such…

Defendant appeals. The defendant was indicted with Harry Whalen and William Scott for the crime of larceny from the person of another, and having been convicted and sentenced to a term of five years in the penitentiary, he has appealed to this court.

<p>Defendant appeals.</p>

<p>Railboads — Injury to Animals — Unbended Track.— Under section 4044, Hill’s Code, a railroad company is liable for the death or injury of stock caused by a moving train upon or near its unfenced track, happening where the track is required to be fenced, whether or not the death or injury is caused by actual contact with the train.</p>

Plaintiff appeals. The amended complaint alleges, “that on and prior to the thirtieth of August, 1878, one Thomas Renton Morrison was the owner in fee simple and in possession of all that parcel of land in the county of Clatsop, state of Oregon, being in sections 15 and 16, of township 6 north, range 10 west, Willamette Meridian, known as the J. A. Cook donation land claim, and lying west of the east bank of Ohanna creek, and also of all the tide land west and in front of…

Defendant appeals. It is claimed by the plaintiff that one Fred Wellman was killed through and by the negligence of the defendant, and this action is prosecuted by his administrator to recover damages for such alleged negligence.

Defendant appeals. We claim that the possession of the premises in dispute, which was acquired by the respondent on the nineteenth day of December last, was a forcible and unlawful possession, and is • condemned as such by our code and by the great preponderance of modern decisions on the subject. (2 Hill’s Code, § 3509; Masony. Powell, 38 N. J. L. 576; Seitz y. Miles, 16 Mich. 470; Ainsworth v. Barry, 35 Wis. 140; Steinleiny. Halstead, 42 Wis. 422; AUeny.

<p>Defendant appeals.</p>

Defendant appeals. This action was commenced in a justice’s court.

Defendants appeal. A private corporation has the right and power at common law to make a general assignment for the benefit of its creditors, and this power may be exercised unless there is a statutory provision preventing it. (Burrill on Assignments, § 64; De Ruyter v. St. Peter's Church, 3 N. T. 238; Reichwald v. Commercial Hotel Co. 106 Ill. 439; Tripp v. Northwestern Nat.

Plaintiff appeals. When permanent and visible or ascertained boundaries or monuments are inconsistent with the measurement, either of lines, angles, or surfaces, the boundaries or monuments are paramount. (Hill’s Code, § 855; McClintocle y. Rogers, 11 Ill. 279; Martin v. Carlin, 19 Wis. 454; 88 Am. Dec. 696; Comegys y. Garley, 3 Watts, 280; 27 Am. Dec. 356; Riddlesburg I. Nothing can be tried in tbis suit except tbe location of tbe true line between plaintiff and defendant.

<p>Executors — Charge upon Lauds — Power op Sale. — The mere charging lands with specific debts does not give the executor of a will creating the charge power to sell the lands, but they descend to the heir or devisee subject to the charge.</p> <p>Child Not Named iu Will — Interest in Land. — A will which does not name or malie provision for a child of the testator although born after making the will, is void as to such child; and a sale of land by the executor under authority of the will, does not divest the child’s estate therein.</p>

<p>Defendant appeals.</p> <p>If the person for whose use the goods are furnished be at all liable, any promise by a third person to pay therefor must be in writing, as it is within the statute of frauds. (Wallaces. Wortham, 25 Miss. 119; 57 Am. Dec. 197; Leland y. Greyon, 1 McCord, 100; 10 Am, Dec. 654; Andre v. Bodman, 13 Md. 241; 71 Am. Dec. 628; Whittmore y. Wentworth, 76 Me. 20; Willard v. Bosshard, 68 Wis. 454; Gump y. Halber-stadt, 15 Or. 356; ."Reed, Stat. Frauds, § 31; Browne, Stat. Frauds, § 197; 8 Am. & Eng. Enc. Law, 678; Packer y. Benton, 35 Conn. 343; 95 Am. Dec. 246; Cole y. Hutchinson, 34 Minn. 410; Studleyv. Barth, 54 Mich. 6; Morrissey v. Kinsey, 16 Neb. 17; Bates y. Donnelly, 57 Mich. 521; Langdon v. Biohardson, 58 Iowa, 610; Welch y. Marvin, 36 Mich. 59; (Jlay y. Walton, 9 Cal. 329; Harris v. Frank, 81 Cal. 280.)</p> <p>The mere fact that the goods sold by Mackey to Malone were used by Malone in doing the work which he had contracted to do for them, does not constitute a consideration for the alleged promise of defendants. (Ellison y. Jackson, etc. Go. 12 Cal. 553.)</p> <p>The fact that Mackey may haye parted with the goods by reason of the alleged promise, is not a consideration to Smith, and will not support the oral promise. (Mallory y. Gillett, 21 N. Y. 412; Nelson y. Boynton, 3 Mete. 396; 37 Am. Dec. 148; Wills y. Broion, 118 Mass. 138; Furbish v. Goodnow, 98 Mass. 296; Robinson y. Gilman, 43 N. H. 491.)</p> <p>The law is well settled that a sale of goods to one at the request and on the sole credit of another, renders the promise to pay an original promise and takes the case out of the statute of frauds. {Hartley v. Varner, 88 Ill. 561; Morris y. Osterhout, 55 Mich. 262;' Calaban v. Ward, 45 Kan. 545; Baldwin v. Hiers, 73 Ga. 739; Clark v. Jones, 87 Ala. 474; Lance v. Pearce, 101 Ind. 595.)</p> <p>As to the charge on the books, that is sufficiently explained by the evidence; and the courts have always held that while such charges are evidence against the plaintiff, they may be explained, and it is for the jury to say to whom credit was given. {Larsen v. Jensen, 53 Mich. 427; Burlc-hcdter v. Farmer, 5 Kan. 477; Champions. Doty, 31 Wis. 100; Maurin v. Fogelberger, 37 Minn. 23; 5 Am. St Rep. 814; Wallcer v. Bichards, 41 N. H. 388; Hazen v. Bearden, 4 Sneed, 50; Barrett v. McHugh, 128 Mass. 165.)</p> <p>Where the leading object of the promissor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, the promise is not within the statute of frauds and need not be in writing. {Hind v. Holship, 2 Watt, 104; 26 Am. Dec. 107; Leonard v. Vredenberg, 8 Johns. 28; Greener. Burton, 59 Yt. 423; Lem-mon v. Box, 20 Tex. 329; Katzmeyer v. Ennis, 27 N. J. L. 376; Templeton v. Bascom, 33 Yt. 133; Hedges v. Strong, 3 Or. 18; Emerson v. Slater, 22 How. 43; Fitzgerald v. Mor-rissey, 14 Neb. 198; Willis v. Cutler, 61 N. H. 405; Clifford v. Luhring, 69 Ill. 401.)</p>