Volume 22 — Oregon Reports

Multnomah, county: L. B. Stearns, Judge. Defendant appeals. After al|eging that the plaintiff is doing business under the name of C. H. Dodd & Co., and the defendant is a coi’poration, the complaint proceeds: “ That on the twenty-eighth day of May, 1889, the defendant issued to the plaintiff its policy of insurance, numbered 805,900, wherein and whereby it did insure the plaintiff against all direct loss or damage by fire to the amount of one thousand dollars upon his stock…

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This action is founded upon two counts for damages to two lots of goods alleged to have been shipped over the defendant’s line, one lot marked “S. W. Miller,” and another lot marked “ H. D.,” the value of the S. W. Miller lot being charged at one thousand four hundred and eight dollars and twenty-nine cents, and that of the H. D. lot as of the value of two thousand one hundred and twenty-five dollars and…

<p>Fraud — Addegata and Probata — Failure or Proof.—Where a party seeks relief on the ground of fraud perpetrated by another, he must not only allege, but must also prove, that he relied upon, and was innocently, on his part, misled by the fraudulent statements of the other party; and unless the evidence shows this, there is a failure of proof.</p> <p>Equity—Mistake—Restoration of Cancelled Mortgage.—If a holder of a mortgage take a new mortgage as a substitute for a former one, and cancel and release the latter in ignorance of the existence of an intervening lien upon the mortgaged premises, although such lien be of record, equity, looking to substance rather than form, will, where the rights of third parties have not been prejudiced, disregard the cancellation of the former mortgage and restore it to its original priority.</p>

<p>Multnomah county: E. D. Shattuck, Judge.</p> <p>Defendant appeals.</p>

<p>Union county: James A. Fee, Judge.</p> <p>Plaintiff appeals.</p>

Coos county: M. L. Pipes, Judge.. Defendant appeals. The questions of law argued upon this appeal arise upon the findings of the court below, which findings are .as follows: “The above-named action came on to be heard at the regular term of said court, the plaintiffs appearing by their attorneys, J. M. Siglin and S. H. Hazard, and the •defendant by its attorney, John Gray; and the parties consenting and agreeing, a trial by jury was waived, and the trial was had before the…

Jackson county: L. R. Webster, Judge. Plaintiff appeals. This is a proceeding by writ of review to reverse the action of the county court of Jackson county in the matter of laying out a public road in said county. The court below dismissed the writ and rendered judgment against the plaintiff for costs, from which this appeal was taken. The notice of appeal is addressed to Jackson county and to Wm.

<p>Evidence—Boundaeies—Coueses and Distances—Monuments.—The location of a disputed boundary is a question of fact to be determined from the evidence, wherein the object is to follow in the “footsteps of the surveyor” who established the original line; and, in so doing, courses and distances must yield to monuments, such as marks and blazes on trees and other like indicia of the line.</p>

Lane county: M. L. Pipes, Judge. Defendant appeals. The complaint alleges in substance that tbe plaintiff was on tbe fourteenth day of March, 1890, the owner and in the possession in Lane county, Oregon, of 1,300,000 feet of good merchantable saw logs, branded as follows, to-wit, about 700,000 with the figure “7,” and about 600,000 feet with the figure “ 2,” and that said logs were of the value of $4.50 per thousand feet, and of the aggregate value of $5,850; that on said…

<p>Benton county: M. L. Pipes, Judge.</p> <p>Plaintiff appeals.</p>

<p>Estates—Fobeclootbe of Moktgage— Deceased Mobtgagok.—The death of a mortgagor and proceedings in the county court concerning the settlement of his estate do not prevent or suspend foreclosure of the mortgage. The only consequence of a failure to present the claim to the executor or administrator before bringing suit is, that a personal judgment cannot be rendered for a balance of the debt remaining unpaid after the security is exhausted. Verdier v. Signe, 16 Or. 208, followed and approved.</p>

<p>Tillamook county: R. P. Boise, Judge.</p> <p>Defendants appeal.</p>

<p>Multnomah county: L. B. Stearns, Judge.</p> <p>Defendants appeal.</p>

<p>Descent—Heirs.—Where a party claims as heir, he must first establish affirmatively his relationship with the deceased; and, second, that no other descendent exists to impede the descent to the plaintiff.</p> <p>Wills—Testamentary Capacity—Stare Decisis.—In respect to testamentary capacity it is sufficient if the testator knew and understood what he was doing, and to whom he was giving his property when he executed his will. Clark v. Ellis, 9 Or. 128, and Chrisman v. Chrisman, 16 Or. 127, followed and approved.</p>

<p>Municipal Corporations—Officers and Agents—Excess of Authority— Ratification.— A municipal corporation, like a private person, is liable for services performed for it under direction of its officers or agents, but in excess of their authority, provided it ratifies and accepts the same after they are brought to its official knowledge through proper channels; but mere silence or acquiescence will not amount to ratification; there must be some affirmative action in that respect, or action from which ratification would be necessarily inferred.</p> <p>Idem—Common Council—Official Meetings.—Where the liability of a municipal corporation depends on the action of its common council, such action, to be binding, must be had by ordinance, resolution, or other equivalent proceeding at a meeting of such body regularly convened, and cannot be based on acts of individual members of the council not at an official meeting.</p>

Clatsop county: F. J. Taylor, Judge. Plaintiffs appeal. The court below first struck out a part of plaintiffs’ complaint and then sustained a demurrer to the residue and entered a final decree in favor of the defendants, from which this appeal is taken. The great prolixity of t « complaint almost forbids its insertion in this statement, but the points decided by the court below will be best understood by its insertion.

<p>Equity—Cloud on Title—Statute of Limitations.—A suit by the owner in fee to determine an adverse claim to, or interest in, real property, oi to remove a cloud from the title thereof, cannot be barred by the statute . of limitations while the adverse claim or cloud exists, because the right to have the same removed is a continuing right.</p> <p>Judgment Lien—Hostile Equities—Reformation of Mortgage.—A judgment lien attaches only to the actual and not to the apparent interest of the judgment debtor in land, and is subject to any equitable estate therein hostile to the judgment debtor existing at the time the judgment was rendered, whether know to the judgment creditor or not; and for the purpose of protecting such equitable estate, courts of equity will correct a mistake in a mortgage upon which the equitable estate depends, and, as corrected, give it priority over a subsequently acquired judgment, so that the judgment lien will be confined to the actual interest of the judgment debtor in the land.</p> <p>Unrecorded Conveyances—Judgment Lien—Equitable Titles.—Section 271, Hill’s Code, which provides that a conveyance of real estate, or any interest therein, shall, as against the lien of a judgment, be void unless recorded, applies to conveyances which, if recorded, would give notice, but does not apply to the equities of plaintiffs, which require the aid of a court to establish.</p>

Multnomah, county: E. D. Shattuck, Judge. Plaintiff appeals. This was a proceeding in the nature of a quo warranto brought by the state upon the relation of D. F. Sherman, a citizen and taxpayer, to try the title of the respondents to hold the office of bridge committeemen, under the act of the legislative assembly, commonly known as the Meussdorffer Act.

Multnomah county: L. B. Stearns, Judge. Defendant appeals. The defendant was jointly indicted with one Chung Foo, for being armed with a dangerous weapon, and assaulting Sue Bing therewith, and upon a separate trial was convicted from which judgment of conviction this appeal was taken.

<p>False Imprisonment—Void Process—Irregularities—Waiver.—A void process is no justification for an arrest, but one merely irregular or voidable is a complete defense until set aside; and where a defendant appears and puts in bail without moving to set aside such irregular or voidable process, he waives all defects in the manner of its issue.</p> <p>Arrest—Regular Process—Irregular Service.—The process of arrest being sufficient, the party who in good faith upon proper cause sues it out, is not responsible for irregularities in the manner of its execution, unless it affirmatively appear that the officer so acted by direction of the person suing out the writ.</p> <p>False Imprisonment—Pleading—Variance.—Where the complaint charges false imprisonment by an arrest void ab initio, it is a material variance to admit evidence of an arrest lawfully made, but which afterward became unlawful imprisonment by reason of a refusal to receive bail.</p>

<p>Multnomah county; E. D. Shattuck, Judge.</p> <p>Defendant appeals.</p>

Multnomah county: E. D. Shattuck, Judge. Defendants appeal. This is an action originally commenced before a justice of the peace to recover one hundred and sixty-two dollars ¡alleged to be due from the defendants to the plaintiff as commission for selling for defendants certain real property in the city of Portland. The answer denies the allegations of the complaint.

Multnomah county: L. B. Stearns, Judge. Defendant appeals. This litigation was originally commenced by the present defendant against the plaintiff herein, and was in the form of an action of ejectment to recover all of lot No. 37, and the south four-fifths of lot No. 13, in the city of Eastwood, county of Multnomah, state of Oregon.

Multnomah, county: E. D. Shattuck, Judge. Plaintiff appeals. This is an action to recover damages for libel.

<p>Multnomah county: E. D. Shattuck, Judge.</p> <p>Defendants appeal.</p>

<p>Klamath county: L. R. Webster, Judge.</p> <p>Plaintiff appeals.</p>

<p>Multnomah county: L. B. Stearns, Judge.</p> <p>Plaintiff appeals.</p>

Multnomah county: E. D. Shattuck, Judge. Defendants appeal. The defendants are sued as partners under the name and style of the Himes Printing Company.

Multnomah county: E. D. Shattuck, Judge. Defendant appeals. This is an action to recover damages for negligence.

Multnomah county: L. B. Stearns, Judge. Plaintiff appeals. This proceeding involves the construction of the will of Levi C. Millard, deceased. Those clauses of the will, the construction of which are involved in this suit, are set out in heec verba.

<p>Washington county: Frank J. Taylor, Judge.</p> <p>Defendant appeals.</p>

<p>Possession of Land—Notice to Subsequent Purchasers.—A person taking a conveyance of, or incumbrance upon, land when another is in the actual and visible possession thereof, will be affected with notice of everything in relation to the title which could be known on diligent inquiry; and where a party has notice of such facts as should put a prudent man on inquiry, a failure to make such inquiry is visited with all the consequences of actual notice. Wood v. Rayburn, 18 Or. 1, followed and approved.</p> <p>Principal and Agent—NoTfoE to Agent.—If information received by an agent, acting within the scope of Sis authority, be of a character which makes it his duty to communicate the same to his principal, the latter is bound by the notice arising from the information, although it was not received by the agent in the identical transaction to which the notice relates.</p> <p>Practice on Appeal—Defective Denials—Waiver of Objection.—Where the evidence has all been taken, and the case has, without objection, been heard to a final decree on an issue that is defective by reason of argumentative denials in the answer, neither party will be heard to complain cf the error for the first time in the supreme court.</p>

<p>Equitable Lien—Prior Equity—Dormant Judgment.—A party in possession of land under a defective deed, and having an equitable lien thereon for the purchase price paid by him, being otherwise without notice, is not affected by a subsequent suit to subject the land to the payment of a judgment against one who is alleged to have advanced the money for the conveyance to the grantor in the defective deed, but who by the record is a stranger to the title, especially where the judgment was dormant when the possession began under the defective deed.</p>

Linn county: R. P. Boise, Judge. Plaintiff appeals. The substance of the amended complaint alleges: “That the plaintiff, on the first day of October, 1888, was, ever since has been, and now is, doing business in the state of Oregon, with headquarters at Portland, Oregon, under the firm name and style of Charles H. Dodd & Co., and that the sole and only member interested in and composing the said firm known as Charles H. Dodd & Co. is now and at all times since January…

Linn county: R. P. Boise, Judge. Flaintiff appeals. The plaintiff’s cause of action grows out of the following facts: That early in the year 1883, one E. E. Luce and the defendant Charles J. Stewart were partners in the business of banking, under the name of the Bank of Breckinridge, at the town of Breckinridge, state of Minnesota; that they were desirous of securing the public funds of Wilkin county in said state to be deposited in their bank; and for that purpose they, as…

Marion county: R. P. Boise, Judge. Plaintiff appeals. This is a proceeding by writ of review to inquire into the regularity and sufficiency of certain proceedings had in the county court of Marion county, Oregon, in the matter of laying out a certain county road, and also vacating a portion of a county road in said county.

<p>Mutual Benefit Societies—New Legislation—Exercise of Powebs.—The right of mutual benefit societies to alter, amend, or repeal their laws, or to enact others consistent with the purpose for which they are organized, is well recognized; but this right must not be so exercised as to operate as a repudiation of their obligations, or to work a forfeiture of rights previously vested in their members.</p> <p>Idem—Retroactive Laws—Impossibility of Compliance.—New legislation of mutual benefit societies will not be construed as retroactive if such a result can be avoided; but even if such construction be inevitable, the law will not be allowed to apply to a case where, without any fault of his own, it is impossible for a member to comply with its requirements.</p>

<p>Constitutional Law—Statutory Construction—Subject oe Act.—If all the provisions of a statute relate directly or indirectly to the same subject, are naturally connected and are not foreign to the subject expressed in the title, they will not be held to violate the requirement of the constitution of Oregon, that the subject of the act must be expressed in the title; and in applying this rule, every doubt will he resolved in favor of the validity of the statute.</p> <p>Criminal Law—Indictment—Words oe Statute.—In indictments for statutory misdemeanors, it is sufficient to charge the offense in the words of the statute, provided the crime is thereby set forth with such certainty as will apprise the accused of the offense imputed to him.</p>

Tillamook county: R. P. Boise, Judge. Defendant appeals. This controversy arises out of an application to vacate a certain county road in Tillamook county. The petition among other things states in effect that the petitioners are householders in said county and state, and reside in the vicinity of the road proposed to be vacated. Said petition contained about two hundred names. The notice is in proper form, and has appended to it the same names that appear on the petition.

<p>Abstract or Title—Object and What to Contain.—The object of an abstract of title is to enable the purchaser, or his counsel, to determine the sufficiency of the titie. It should contain whatever concerns the source of the title and its condition.</p> <p>Abstract, Admissible as Evidence, When.—It may be admissible in evidence, not for the purpose of proving title, but to show that the abstract furnished to show title did not disclose such evidence of title as the defendants had agreed to convey by their contract.</p>

Jackson county: L. R. Webster, Judge. Plaintiff appeals. This is the second appeal in this cause. On the first, the opinion of the court is reported ante, 296, to which reference is made for a statement of the pleadings. The cause was re-tried in the court below without a jury and again resulted in a judgment for the defendants, from which this appeal was taken.

Polk county: R. P. Boise, Judge. Defendant appeals. The plaintiff alleges in her complaint that she is the owner for her lifetime of, and a tenant in common with the defendant in the real property in controversy; that the defendant owns the said real property in fee simple, subject to the life estate of the plaintiff therein; that the plaintiff and defendant are unable to agree as to a division of the above described property, and prays that the court determine the…

<p>Polk county: R. P. Boise, Judge.</p> <p>Plaintiff appeals.</p>

<p>Per Strahan, O. J.; Bean, J., concurring:</p> <p>Common Law—Counties—Defects in Highway.—At common law, a county was not liable for an injury resulting from a defect in one of its highways, or roads.</p> <p>Constitutional Law—Territorial Statute—Remedy Against Counties.—</p> <p>The repeal of the territorial statute making counties liable in actions at law for injuries to the rights of persons arising from acts or omissions of such counties, is not in conflict with section 10 of article 1 of the state constitution, which provides that every man shall have a remedy by due course of law for injury done him in person, property, or reputation.</p> <p>Per Lord, X, dissenting:</p> <p>Counties—Implied Liability—Common Law Remedy.—When the legislature by statutory provision organizes a county into a body politic and corporate, with power to contract and be contracted with, to sue and be sued, and devolves on it the duty to keep in repair the highways within its jurisdiction, and provides it with the means of enforcing the performance of this duty, there necessarily results, for the breach or non-performance of this duty, a liability against the county, for -which the common law will furnish a remedy whether one is expressly provided by statute or not.</p> <p>Constitutional Law—Former Remedies—Legislative Power.—The provision of the state constitution, to the effect that every man shall have a remedy by due course of law for injury done him in person, property, or reputation, places it beyond the power of the legislature to take away remedies as they existed when the constitution was adopted.</p>

<p>Divorce—Habitual Gross Drunkenness.— Occasional acia of intoxication are not sufficient to make one an habitual drunkard; there must be the involuntary tendency to become intoxicated as often as the temptation is presented, which comes from fixed habit acquired from frequent and excessive indulgence.</p>

<p>non of Successor.—Section 2 of the act of February 21, 1891, creating the office of attorney-general, provided that that officer shall be elected at the general election held in June, 1894; that he shall hold his office for the term of four years, and until his successor is elected and qualified; and that his term shall commence on the same day as that of the secretary of state, as now provided by law. Section 5 of the same act provides that in case of a vacancy in that office, the governor shall appoint a suitable person, who shall hold the office until the next general election, when his successor shall be elected and shall qualify; held, that the successor to the person appointed by the governor when the act took effect, must be elected at the general election to be held in June, 1892, that being the next general election occurring after the vacancy in the office happened. •</p> <p>Strahan, C. J., dissents.</p>

<p>Statutory Construction—Railroads—Long and Short Haul—Repeal by Implication.—The provisions of the act of February 20, 1885, making it unlawful for persons engaged in the transportation of freight to charge more for a shorter than for a longer haul of a similar kind or amount of property, etc., are by necessary implication repealed by the terms of the act of February 20, 1891, which empower the board of railroad commissioners to establish freight rates subject to revision by the courts in a procedure provided for in the-latter act.</p> <p>Legislative Journals—Validity op Statute—Presumption.—When it affirmatively appears from journals of the legislature that a bill as filed in the office of the secretary of state did not in fact pass the legislature, the courts will pronounce it invalid; but every reasonable presumption is to be made in favor of legislative proceedings; and when the constitution does not require certain matters to be entered in the journal, the absence of such a record will not invalidate a law.</p>

Umatilla county; James A. Fee, Judge.” Defendants appeal. Held: and now holds in their entirety, and both of which appropriations are prior in time and right to any other appropriation for like purposes, made from said streams, or either of them, or from any tributary of the Umatilla river; nevertheless, the defendants, the Umatilla Improvement Company, the Umatilla Meadows & Butter Creek Canal…

Umatilla county: James A. Fee, Judge. Defendants appeal. This is an action to condemn the riparian rights of the appellants in a portion of the waters of Umatilla river under the provisions of the act of the legislative assembly, passed at the session in 1891. (Laws, 1891,52.) The action was tried by the court without the intervention of a jury.

<p>State Boaed of Equalization—Classification of Real Peopeety.—Under the law of this state, there are, for the purposes of assessment and taxation, but three kinds of real property; hy this classification the state hoard of equalization is bound, and cannot, either on the basis of present ownership, source of title, or otherwise, change the same so as to add new kinds or increase the assessments of individuals or classes of people holding lands of the kinds thus invented.</p>

<p>Assignments—Secured Claims—Dividends.—A creditor whose claim is secured by mortgage may prove the entire claim against the estate of an insolvent debtor, and receive from the assignee a dividend accordingly, like other creditors, irrespective of his security, because the courts will not disturb the contractual relations assumed in good faith by the debtor and creditor.</p>

Clatsop county: Frank J. Taylor, Judge. Defendants appeal. This is a suit to quiet title.

<p>Tide Lands—Titde of State—Stabe Decisis.— On the authority of Bowlby v. Shively, ante,'410, it is held, that the title to the tide lands in the state vested in the state when it was admitted into the union.</p>

<p>Wasco county: W. L. Bradshaw, Judge.</p> <p>Defendant appeals.</p>

Lake county: L. R. Webster, Judge. Defendant appeals. The object of this suit is the specific performance of a certain agreement between the parties, and also an accounting between the plaintiff and defendant as partners. Both causes of suit arise out of the same agreement. The answer alleges performance of that part of the agreement which is sought to be specifically enforced, which performance occurred after the commencement of the suit, and this is admitted by the reply.

Polk county: R. P. Boise, Judge. Defendants appeal.. This suit is brought by the plaintiff against her daughter, Mary E. McCauley, and her husband. Its alleged object is to ascertain and settle a disputed question of boundary between the lands of plaintiff and defendants. E. C. Dice in his lifetime settled upon a tract of land in Polk county, Oregon, as his donation land claim. The plaintiff was his wife. One-half of said claim inured to her under the donation law.

<p>Marion county. R. P. Boise, Judge.</p> <p>Plaintiff appeals.</p>

<p>Wasco county: W. L. Bradshaw, Judge.</p> <p>Defendants appeal.</p> <p>This is an action of ejectment. The substance of the plaintiff’s complaint is as follows: That the plaintiff is and at all the times hereinafter stated has been the owner in fee simple of that certain tract or parcel of real property described as lots one and two and the south half of the southeast quarter of section thirty-four in township three north, range eight east; Willamette meridian; that the Oregon Railway & Navigation Company is and at all the times hereinafter stated was a corporation existing under the laws of, and doing business in, the state of Oregon; that heretofore, to wit, about the- day of-, 1881, the defendant, the Oregon Railway & Navigation Company, unlawfully entered upon and took possession of that certain portion of the tract hereinbefore described, consisting of a strip through said premises one hundred feet wide, lying along the present line of the Oregon Railway & Navigation Company’s line of railroad track, where the same crosses the said premises, and being and extending fifty feet on each side of said track, and ousted the plaintiff from the possession of said last described premises; that ever since said time, the said defendant, the Oregon Railway & Navigation Company, and the defendant, the Oregon Short Line & Utah Northern Railway Company, have unlawfully withheld and detained the possession of the said premises from the plaintiff, and still unlawfully withhold and detain the same, wherein and whoreby the plaintiff has been damaged in the full sum of one thousand dollars. Then follows a prayer for the recovery of said premises and one thousand dollars’ damages. The defendants severally demurred to the complaint, but the record fails to disclose what disposition was made of the demurrers. The answer denies an entry in 1881, but alleges an entry in 1880 by the Oregon Railway & Navigation Company and continuous and exclusive possession and occupation since that time by the defendant and its co-defendant, which last-named defendant entered as the tenant of the Oregon Railway & Navigation Company about the first day of August, 1889. Said answer alleges an adverse holding by the said first-named defendant and its tenant for more than ten years next before the commencement of the action. The answer also denies the plaintiff’s title, and also the unlawful entry or possession by defendants, and pleads title in the Oregon Railway & Navigation Company. The answer also alleges that the Oregon Railway & Navigation Company acquired said strip of land under the act of congress granting the right of way over the public lands of the United States to all railways complying with said act. The reply denied the new matter in the answer.</p> <p>Upon the trial, the plaintiff introduced his patent from the United States covering said land, and gave some evidence tending to show the value of the use and occupation, and rested. The defendants then undertook to show that while the land in controversy was yet public land of the United States, the Oregon Railway & Navigation Company-surveyed its line of road across the same, and thereafter in all respects complied with the act of congress granting the right of way to all railroads afterwards constructed over the public lands. The principal exceptions relied upon were taken to the ruling of the court excluding from the consideration of the jury certain documentary evidence offered on the part of the defendants, which will be more particularly noticed in the opinion. The plaintiff recovered judgment for the recovery of the land and a judgment against the defendant, the Oregon Railway & Navigation Company, for six hundred dollars, damages. From this judgment this appeal is taken.</p>

<p>Impeachment op Witness—Weight op Evidence.—To show that the reputation of a witness for truth and veracity is bad, does not of itself entirely destroy his testimony where it is intrinsically probable or is corroborated by other evidence. Under such circumstances it must be considered for what it is worth with other evidence; but where it is not supported, it may be utterly disregarded.</p> <p>Weaker Evidence—Presumption op Distrust.—If weaker and less satisfactory evidence be offered when it appears that stronger and more satisfactory was within the power of the party, the evidence offered should be viewed with distrust.</p> <p>Fraud—Fadse Representations—Judgment op Purchaser.—A party seeking relief on the ground of fraud perpetrated upon him by means of false ' representations, must not only clearly prove the fraud, but must also show that he relied upon the false representations; and although such false representations were made as alleged, yet, n, having full means of knowing the truth, he acted on his own judgment m the transaction from which he seeks relief, he cannot complain. v</p>

<p>Estates—Foreclosure of Mortgage—Deceased Mortgagor.— The death of a mortgagor and proceedings in the county court concerning the settle* ment of his estate do not prevent or suspend foreclosure of the mortgage-The only consequence of a failure to present the claim to the executor or administrator before bringing suit is, that a personal judgment cannot be rendered for a balance of the debt remaining unpaid after the security is exhausted. Verdier v. Bigne, 16 Or. 208, followed and approved.</p>

Grant county: James A. Fee, Judge. Plaintiff appeals. This action was commenced in justice’s court for Long Creek precinct, Grant county, Oregon. After the service of summons, the defendant appeared in said justice’s court and filed his answer denying each material allegation of the complaint.

<p>Appeals — Bills op Exceptions.—In formulating a. bill of exceptions, it is necessary that the point of each exception be particularly stated; but it is contrary to the statute to state more of the evidence or other matter than is necessary to explain each exception.</p>

Union county: Jas. A. Fee, Judge. Defendant appeals. The object of this suit is to redeem certain mortgaged property.

Baker county: M. D. Clifeokd, Judge. Plaintiff appeals. This is an action commenced by the plaintiff against the defendants to recover for work, labor, and services, alleged to have been performed by plaintiff and his assignors for the defendants in the construction of what is known as the “ Seven Devils wagon road,” amounting to eight hundred and four dollars and eighty-seven cents and interest.

<p>Contracts—Guarantor—Surety.—A guarantor, like a surety, is bound only by the strict letter or precise terms of the contract of his principal whose performance he has guaranteed.</p>

Baker county: James A. Fee, Judge. Plaintiff appeals. The complaint is in substance as follows:— First—That on the thirty-first day of December, 1877, the defendant Peter Mann, for a valuable consideration, executed to plaintiff his certain bond for a deed wherein and whereby in consideration of the covenants and agreements on the part of the plaintiff to be kept and performed, he, the said Peter Mann, agreed and bound himself that within three months from said date,…

<p>Union county: J. A. Fee, Judge.</p> <p>Defendant appeals.</p>

<p>Union county: James A. Fee, Judge.</p> <p>Plaintiff appeals.</p>

<p>Wills—Testamentary Capacity.—A testator was paralyzed and unable to make any communication to those about him except by signs; but it appeared that at the time his will was executed, his mental faculties were unimpaired; that he perfectly understood his business affairs and the terms of the will; and that the will correctly represented his wishes as to the disposition of his property; held, that he was possessed of sufficient testamentary capacity.</p>

Union county: James A. Fee, Judge. Defendants appeal. This is an action to recover a balance of two thousand dollars, alleged to be due from the defendants to the plaintiff on account of the sale and conveyance by the plaintiff to the defendants of three hundred and forty acres of land situated in Union county, Oregon, for which the defendants agreed to pay him at the rate of fifty dollars per acre.

<p>Vendor and Vendee—Contbact for Sale of Chattels.—Where, by the terms of an agreement for the sale of chattels, the vendor is to do anything with the property for the purpose of putting it into the condition in which the vendee is bound to accept it, or anything remains to be done to ascertain the quantity, where the goods are sold by weight or measure, the performance of these things, in the absence of circumstances showing a contrary intention, is a condition precedent to vesting the title in the vendee.</p> <p>Idem—Breach of Contract—Damages—Replevin.—A vendee may recover damages for the breach of a contract for the sale of chattels, in case the vendor violates the contract by delivering only a part of the goods, and refusing to deliver the remainder; but replevin will not lie to recover the undelivered goods.</p> <p>Practice in Supreme Court—Bill of Exceptions.—This court will not strike from the files a bill of exceptions containing all the evidence given in the court below, instead of only so much thereof as may he necessary to explain the exceptions, but will decline to examine the questions sought to be presented in that irregular manner.</p>

Umatilla county: M. P. Clifford, Judge. Plaintiff appeals. This is an action of replevin to recover a stock of goods, wares, and merchandise.

<p>Baker county: M. D. Clifford, Judge.</p> <p>Plaintiff appeals.</p> <p>It appears from the complain,, that on June 10,1890, the defendants leased of the plaintiff a certain building situated in Baker City, Oregon, for the term of three years, for which they agreed to pay one hundred dollars per month, payable on the first day of each month during the continuance of the lease; that defendants entered into the possession of said premises, and continued to occupy the same under said lease, and paid the rent therefor until the thirty-first day of January, 1891, at which time the defendants abandoned said premises, and thereafter refused to pay the rent or any part thereof agreed in said lease to be paid. The action is for the recovery of the rent for the months of February, March, and April, 1891.</p> <p>The answer admits the leasing, and the non-payment of the rent; but alleges that on the thirty-first day of January, 1891, said lease was cancelled and surrendered, and that on said day the plaintiff entered into and took the actual possession of said premises, and received the keys thereof, by and through the mutual understanding and agreement of the respective parties thereto, that said lease was cancelled, surrendered, void, and of no effect; and that in pursuance of said agreement the plaintiff has been at all times since and is now in the actual and exclusive possession of said premises, and at all of said times has been offering the same to rent to other parties.</p> <p>The reply denied the new matter contained in the answer. The jury returned a verdict for the plaintiff in the sum of one dollar, upon which judgment was entered, and from • which the plaintiff has brought this appeal. The questions argued here arise entirely on the exceptions taken to the instructions given upon the trial, which are stated at large in the opinion.</p>

<p>Baker county: M. D. Clifford, Judge.</p> <p>Defendant appeals.</p> <p>This action was originally commenced in the name of I. II. Dawson, as plaintiff, but while it was pending, the plaintiff died, and the present plaintiff was substituted, having succeeded to Dawson’s interest in the action. The complaint charges that at all times therein alleged, the defendants E. Silver and S. B. Baisley were partners under the firm name of E. Silver & Co. The complaint then charges that between the first day of April and the first day of November, 1890, I. Lang, E. Lang, L. Lang, and -Lang, who were then and are now partners under the firm name of Lang & Co., sold and delivered to the defendants, at their special instance and request, goods, wares; and merchandise, of the reasonable value in the aggregate of three thousand and eighty-five dollars and twelve cents. This was followed by other necessary allegations, and then various payments were alleged. The complaint contains several other counts, but each was in substance of the same tenor, varying as to time and amount. The defendant Baisley answered separately, but the only issue tendered by him was a denial that he and Silver were partners at the times charged in the complaint, or at any time. These denials were repeated as to each count. A jury was called, and the plaintiff having introduced his evidence rested his case. The bill of exceptions recites that the defendant S. B. Baisley was called as a witness to prove certain facts tending to show that a partnership did not exist between the defendants. This was objected to by the plaintiff, for the reason that the answer tendered no material issue, which objection was sustained by the court, to which an exception was taken. The defendant Baisley then asked for leave to amend his answer so as to deny all the material allegations of the complaint, which the court refused, but no exception was taken to this ruling of the court. Thereupon, under instructions by the court, the jury returned a verdict for the plaintiff for two thousand and eleven dollars and one cent, upon which judgment was duly entered, from which this appeal was taken.</p>

<p>Morrow county: W. L. Bradshaw, Judge.</p> <p>Plaintiff appeals.</p>

Baker county: M. D. Clifford, Judge. Defendant appeals. The complaint in this case is in substance as follows: That on the seventeenth day of August, 1891, at Baker county, state of Oregon, the plaintiff was owner, and ever since has been entitled to the possession as owner, of a certain milch cow, of the value of thirty dollars; of a certain account due her for board from J. H. Agee, of the value of fifteen dollars; of a certain account due her for board from W. R. Grimes,…

<p>Jurisdiction—Parties and Subject Matter—Validity op Decree.—A judgment, or decree, rendered by a court having jurisdiction of the parties and of the subject matter, although erroneous, is not void, but, at best, is only voidable; and is conclusive on the parties until reversed by some direct proceeding.</p>

<p>Criminal Law—Insanity.—In criminal actions, if it appear from the evidence, to the satisfaction of the jury, beyond a reasonable doubt, that at the time of the commission of the criminal act charged in the indictment, the defendant was laboring under such a defect of reason, from disease of his mind, as not to know the nature, quality, or consequences of the act he was committing, and was unable at the time to distinguish between right and wrong, he is entitled to be acquitted on the ground of insanity.</p> <p>Idem—Drunkenness—Motive and Intent.—Drunkenness of the defendant in a criminal action does not excuse him, but may be considered by the jury in determining the purpose, motive, or intent with which he committed the criminal act charged against him.</p>

<p>Criminal Law—Murder—Deliberate Use of Deadly Weapon— Presumption.—The conclusive presumption of an intent to murder arising from the delibera+e use of a deadly weapon causing death within a year, standing alone, will only sustain a conviction for murder in the second degree; and there must be some other proof of the deliberation and premeditation necessary to constitute murder in the first degree, before a defendant can be convicted of the latter crime.</p>

<p>Counties—Limit oe Indebtedness.—An indebtedness incurred by a county in excess of five thousand dollars is void, unless incurred to suppress insurrection or repel invasion, and its payment will be enjoined at the suit of a tax-payer of the county.</p>