Volume 23 — Oregon Reports

<p>Jackson County. Defendants appeal.</p>

Clackamas County. Defendant appeals. Suit by C. W. Noblitt against Charlotte Beebe to quiet title. A demurrer to the complaint was overruled, the title was quieted by decree, and defendant appeals.

<p>1. Change op Venue — Code, § 45.— Subdivision 1 of section 45, Hill’s Code, providing for a change of venue when the action has not been brought in the proper county, does not apply to transitory actions, since in such actions any county where service of summons may be had is a proper county. *</p> <p>2. Transitory Actions — Jurisdiction—Code, § 62. — In all transitory actions service upon the defendant within the county where the action is brought is essential to the jurisdiction; service in any other county is a nulity, but a voluntary appearance is equivalent to personal service.</p>

<p>Husband and Wife — Liability of Wife on Mortgage Covenants.— The wife’s covenants, where she binds her property as security for her husband’s debts, should not be construed to create a personal liability beyond the. property mortgaged, unless she is a party to the contract of indebtedness.</p>

<p>,1. Probate Practice — Sale of Real Estate to Pay Debts — Code, §§ 1142-49. — Where a petition is presented for tbe sale of real property of a decedent to pay debts, the only proper inquiries are (a) whether there are legitimate claims unpaid, and (6) whether the proceeds of the sale of personal property have been exhausted. The question of heir-ship does not arise until the final distribution of the estate: Code, H 1142-49.</p> <p>2. Probate Practice — Time foe Presenting Claims.— In Oregon there is no limitation to the time within which a claim may be presented against an estate, and delay in the proceedings is not a ground for refusing an application by the administrator to sell real property. The county court will hasten proceedings in proper cases and on a proper showing.</p> <p>3. Partnership Estate — Claim of Administrator. — The administrator of an estate may, before he has filed his bond, present his claim to the county judge for allowance; and the fact that he is not able to -actively discharge the duties of administrator because his bond is not filed, does not affect his right to have his claim allowed, or affect the right of the county judge to allow it.</p>

Multuomah County. Defendant appeals. This is a proceeding in mandamus instituted by Richard Everding in the circuit court of Multnomah County to compel Henry E. McGinn, who is the district attorney of the fourth judicial district, to institute a proceeding to try the title of the office of police commissioner of the city of Portland, to which office the plaintiff claims to have been elected.

Wasco County. Defendant appeals. The Lost Lake & Columbia Manufacturing Company, a corporation organized under the laws of this state, on or about the twenty-third day of September, 1887, made a general assignment for the benefit of its creditors.

Multnomah County. E. D. Shattuck, Judge. Defendants appeal. Suit by Joseph Liggett and others, members of the Methodist Episcopal Church South, against W. S. Ladd and others, regents of the agricultural college of the state of Oregon, and against Corvallis College, to set aside a deed. An amended complaint changed the Corvallis College from a defendant to a plaintiff.

<p>Evidence.— One sued on a written contract, who claims that it does not contain the terms of the actual agreement, and was executed by him through fraud and mistake, must sustain his allegations by clear and satisfactory testimony.</p>

<p>1. Equity — Settled Accounts — Mistake—Proof.—When a settlement of accounts has been deliberately made and a note voluntarily given for an ascertained balance, a court of equity will not re-examine such accounts except on precise allegations of error or mistake and on clear and satisfactory proof of the same.</p> <p>2. Settled Accounts — Promissory Note — Presumption.—The giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties to that date, and the note is presumed to express the ascertained balance. Matasche v. Hughes, 7 Or. 39, approved and followed.</p> <p>3. Settled Accounts — Evidence—Pleading Fraud or Mistake. — It is a general rule that settled accounts will not be opened on mere conflicting evidence, and if opened only errors particularly and fully alleged will he considered. Fraud or error must be precisely pleaded, so that issue may be joined and the adversary may be prepared. Fleischner v. Kubli, 20 Or. 328 (25 Pac. Rep. 1086) approved and followed.</p>

<p>Gilliam County: W. L. Bradshaw, Judge.</p> <p>Defendant appeals.</p>

<p>1. Appeal — Parties—Jurisdiction.—All parties to a judgment or decree whose interests may be substantially affected by the adjudication of the appellate court must be included in the appeal. Without all such parties before it, the appellate court has no jurisdiction.</p> <p>2. Appeal and Error — Parties.—All depositors of grain in a warehouse are necessary parties to an appeal in a suit in equity to determine their respective rights, especially one against whom, with the appellants, a judgment has been rendered because of the removal of more than his share of the grain.</p>

Multnomah County. E. D. Shattuce;, Judge. Defendant appeals.

Multnomah County: Loyal B. Stearns, Judge. Defendant appeals. Appellant R. H. Randolph was indicted hy the grand jury of Multnomah County, for the crime of practicing medicine without first having obtained a license to so do, and in violation of the act of the legislature of the state of Oregon, passed February 28, 1889, and as amended by act of legislature passed February 21,1891. (Sess. Laws, 1889, 144; Sess.

<p>Multnomah County : E. D. Shattuck, Judge.</p> <p>Plaintiff appeals.</p>

Multnomah County: E. D. Shattuck, Judge. Action by Wm. B. Johnston, administrator of the estate of David H. Cope, against the Oregon Short Line & Utah Northern Railway Co. for damages for negligently killing said Cope. Judgment of non-suit, and plaintiff appeals.

<p>Multnomah County: E. D. Shattuck, Judge.</p> <p>Plaintiff appeals.</p>

Multnomah County. Loyal B. Stearns, Judge. Defendant appeals. This was a proceeding originally commenced in the county court of Multnomah County to have a claim for money against the estate of Wesley Jackson allowed, which the defendant, as administrator of such estate, had disallowed and rejected.

<p>1. Landlord and Tenant — Notice to Quit.— Leasing a building at a monthly rent, without specifying the term, does not create a tenancy by the month which may be terminated by ten days’ notice, but a tenancy at will, or from year to year, according to the circumstances, necessitating thirty days’ notice for its termination.</p> <p>2. Instructions to Jury.— It is the duty of the court to confine its instructions to the particular facts in evidence, since these are all the jury have a right to consider.</p>

<p>1. Carriers — Coupon Tickets — Continuous Passage. — A coupon ticket issued by a railroad company over its own and connecting lines is an entire contract as to each line but severable as between the different lines. When the passenger enters on his journey over any one of the lines he is bound to continue without stop to the end of his ride thereon, he may, however, stop over at the end of each line.</p> <p>2. Coupon Ticket — Transferability — Reduced Rate.— The ordinary coupon ticket is transferable even though it may have been sold at a reduced rate, and have been partly used, unless prohibited by some condition on the face thereof.</p> <p>3. Carriers — Ejection of Passenger. — A coupon ticket over several lines, not limited on its face as to ownership or continuousness of passage, is transferable, and a purchaser from the original buyer is entitled to ride thereon. If he is ejected because he presents a transferred ticket he is entitled to damages.</p> <p>4. Evidence — Declarations of Agent. — The declaration of a ticket inspector on examining a ticket, that he rejected it on the ground that it was not presented by the original purchaser, are admissible against the company as evidence that, not being objected to otherwise, it was genuine.</p> <p>Note.— The assignability of a railroad ticket is the subject of a note to the aVve case, reviewing the few cases touching that question: 18 L. R. A.-55. — Reporter.</p>

Multnomah County. Loyal B. Stearns, Judge. Plaintiffs appeal. In 1890 Samuel Coulter began actions of ejectment against several persons to recover possession of sundry parcels of land, and at the trial was defeated. On appeal the judgments were reversed: Goulter v. Portland Trust Co. 20 Or. 469 (26 Pac. Rep. 565), because the authority given by a certain power of attorney in defendant’s chain of title had been exceeded.

<p>Mechanics’ Lien — Notice—Description of Land.— The proof on the trial for the enforcement of a mechanics’ lien must show that the description of the land in the notice is the same as the description in the complaint.</p> <p>Idem.— The notice of lien must contain a description of the land on which the lien is claimed.</p> <p>Enforcement of Mechanics’ Lien — Description of Property — Evidence. — In an action to foreclose a mechanics’ lien, the complaint described the property by metes and bounds. The notice of lien introduced in evidence described it by referring to the date and record of a certain deed of the land. The answer admitted that the house was built on the land described in the complaint, but no evidence was introduced to show that the land described in the lien was the same as that described in the complaint: held, that there was no evidence on which to establish a lien ■ on the land in question.</p>

<p>Multnomah. County: Loyal B. Stearns, Judge.</p> <p>Plaintiffs appeal.</p>

<p>Multnomah County: Loyal B. Stearns, Judge.</p> <p>Defendant appeals.</p>

<p>Multnomah County: Loyal B. Stearns, Judge.</p> <p>Defendant appeals.</p>

<p>Multnomah County: E. D. Shattuck, Judge.</p> <p>Plaintiffs appeal.</p>

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

<p>1. Mechanics’ Lien — Notice — Amount Due. — While the mechanics’ lien law will be liberally construed, it is essential to the validity of a lien that the notice or claim filed shall on its face show a substantial compliance wiih the provisions of the law, and none of the essential requirements .of the statute can be dispensed with. Kezartee v. Marks, 15 Or. 529 (16 Pac. Rep. 407), and Gordon v. Deal, 23 Or .post, 153 (31 Pac. Rep. 287), approved and followed.</p> <p>2. Idem. — Under section 3673, Hill’s Code, the notice or claim of lien must contain a true statement of the amount actually due; and a mistake in that statement will render the lien void, unless the mistake is one about the amount or price of labor, or the quantity or value of material furnished, in regard to which there might be an honest difference of opinion.</p>

<p>1. Mechanics’ Liens — Notice—Requirements oe Statute.— The statutory-requirements of a notice of lien are mandatory. Under section 3673, Hill’s Code, the name of the owner or reputed owner of the building or improvement upon which a lien is claimed must be stated in the notice or it is void. Kezartee v. Marks, 15 Or. 529 (16 Pac. Rep. 407), cited and approved.</p> <p>2. Idem. — It is not sufficient that the name of the owner appears in the notice incidentally or as part of the description of the property; but the iact that he is the owner of the building sought to be charged must appear as an independent matter on the face of the notice, either directly or by necessary inference.</p> <p>3. Mechanics’ Liens — Construction.— The right to a lien is purely of statutory creation. Whatever the statute makes necessary to its existence ■ must be complied with, and one claiming the benefit of that statute must bring himself clearly within its terms. Pilz v. Killinjsworth, 20 Or. 432 ( 26 Pac. Rep. 305), approved.</p> <p>4. Mechanics’ Liens — Notice—Ownership oe Building.— Anoticeoflien which states merely the lease to a certain person of the ground on which is situated the building sought to be charged, and, after describing the building and ground, and mentioning the owner of the ground, declares ■ the first-named person to be lessee of “ said property,” does not show either directly or by necessary inference who is the owner of the building, and does not therefore comply with section 3673 of Hill’s Code. Kezartee v. Marks, 15 Or. 529 (16 Pac. Rep. 407), distinguished.</p>

<p>Costs — Offer of Judgment — Code, § 520. — The offer of compromise, which Hill’s Code, § 520, declares may be served on plaintiff by defendant at any time before trial, and which if accepted is to be filed with the clerk, thereby stopping further costs, except in case of a more favorable judgment, may be made as well in the answer filed by defendant as in a separate writing; and, if so made, service thereof is not necessary, plaintiff being presumed to take notice of all matters contained in the pleadings.</p> <p>Idem. — The offer of compromise need not provide for costs at all, it is enough that it contains a sum for which judgment is to be entered; if the offer is accepted, it carries all the costs of the action by force of other provisions of the statute provided it be for more than fifty dollars.</p> <p>Idem. — The fact that such an offer provides only for accrued costs, and not for costs of entering the judgment, does not render it ineffectual, and the limitation thereby attempted to be made is void, as, under the above statute, an offer merely “ for the sum * * * specified ” is sufficient. Leslie v. Walrath, 45 Hun, 18, distinguished.</p> <p>Offer of Compromise — More Favorable Judgment. — A judgment for a sum less than, or equal to, the amount offered, is not a “ more favorable” judgment within the meaning of section 520, Hill’s Code.</p>

Multnomah County: E. D. Shattuck, Judge. Plaintiff appeals. This is an action at law to recover the possession of certain real property described in the complaint. The pleadings are in the usual form, and present the issue sought to be tried in such actions. The parties waived a trial by a jury and consented to try the issue before the court. After trial the court found and filed its conclusions of fact and law, which are set out in the record.

Multnomah County: Loyal B. Stearns, Judge. Plaintiff appeals.

<p>Curry County: Martin L. Pipes, Judge.</p> <p>Defendant appeals.</p>

<p>Josephine County: Lionel R. Webster, Judge.</p> <p>Defendants appeal.</p>

<p>Multnomah. County: E. D. Shattuck, Judge.</p> <p>Plaintiff appeals.</p>

Multnomah. County: Loyal B. Stearns, Judge. Defendants appeal.

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

Multnomah County: E. D. Shattuck, Judge. Defendants appeal. Held: in Carter v. Koshland, supra, that a garnishee’s appearance was equal to service, it would seem superfluous to refer to decisions in other states, but one or two are so strong in the facts that we name them: Woodfalk v. Whitworth, 5 Caldw. 564; Boy v. Heard, 38 Miss. 545; Freeman v. Miller, 51 Tes. 449; Frank v. Frank, 6 Mo. App. 528.

<p>Appeal prom County Court' — Locating Road. — A county court in locating and establishing highways, is transacting county business, and its proceedings can be reviewed only by a writ of review: Code, g 902.</p> <p>Idem — Sections 902, 4069. — Section 4069 giving to any complainant who may conceive himself aggrieved by the assessment of damages by the county court in locating a road the right to appeal therefrom to the circuit court, modifies section 902 only to the extent of allowing an appeal from the order of the county court adopting and approving the report of the appraisers; it does not allow an appeal from the entire proceedings in locating the road, hence on such an appeal no questions of petition or notice can be considered.</p>

Multnomah County; E. D. Shattuck, Judge. Application by J. B. •Slemmons for a writ of mandamus to compel the Clarnie Land & Improvement Company to transfer to him certain shares of its stock which he had purchased. Writ denied, and plaintiff appeals.

<p>Douglas County: Martin L. Pipes, Judge.</p> <p>Plaintiff appeals.</p>

<p>Multnomah County: E. D. Shattuck, Judge.</p> <p>Plaintiff appeals.</p>

<p>Columbia County: Frank J. Taylor, Judge.</p> <p>Defendants appeal.</p>

Multnomah County: E. D. Shattuck, Judge. Action by N. J. Blagen against D. P. Thompson and J. H. Smith for damages. Plaintiff had judgment for $25,000 and defendants appeal. This is an action to recover damages for breach of contract.

Multnomah County: E. D. Shattuck, Judge. Plaintiff appeals. This was a suit brought by Amos N. King against J. R. Bingham and C. H. Carey (who was substituted for A. D. Tufts), to quiet title. Plaintiff claimed by adverse possession for the statutory period.

Multnomah County: Loyal B. Stearns, Judge. Suit against Penumbra Kelly, sheriff, and Tatum & Bowen, judgment creditors of Margaret Carmack, to enjoin the enforcement of an execution against certain property of plaintiff, and to quiet title against Margaret Carmack and Tatum & Bowen. The case was referred to F. D. Chamberlain, who reported in favor of plaintiff, and a decree was entered accordingly in the circuit court The defendants Tatum & Bowen appeal.

Yamhill County: Reuben P. Bqise, Judge. Defendants appeal. This action was brought to recover $1,000 on a preliminary oral contract for insurance. A policy was issued, but it was claimed that the building had not been properly classified, and plaintiff gave up the policy to the local agent, who promised to have a corrected policy issued at once.

<p>1. Disputed Boundaries — Equity Jurisdiction — Questions op Title.— Under sections 506 and507, Hill’s Code, allowing a suitin equity to determine disputed boundary lines between adjoining landowners, the court has no jurisdiction to determine the title to land; and therefore it cannot determine a claim of title by adverse possession to the land between the lines claimed by the respective parties to be the correct lines: Love v. Morrill, 19 Or. 545 (24 Pac. Rep. 916); Miner v. Capíes, post (31 Pac. Rep. 655), and King v. Brigham, 23 Or. 262 (18 L. R. A. 361; 31 Pac. Rep. 601), approved and followed.</p> <p>2. Appeal and Error.— In a suit to fix a boundary line, where the decree is reversed because the evidence is largely directed to the issue of title which could not properly be tried in such a suit, the cause will be remanded to enable the parties to segregate the evidence, where it is so intermingled that the reviewing court cannot do so, and, if necessary, to adduce new evidence bearing on the proper issue.</p>

Marion County: Reuben P. Boise, Judge. Plaintiff appeals. On January 23, 1892, the Wheeler & Wilson Manufacturing Company commenced an action at law in a justice’s court against the appellant to recover the sum of $106 and interest on a promissory note executed by appellant on the twentieth day of November, 1890.

<p>Multnomah County: Loyal B. Stearns, Judge.</p> <p>Defendants appeal.</p>

Lane County: Martin L. Pipes, Judge. Action by S. O. Garrison against J. C. Goodale on an oral agreement to pay a chattel mortgage. From a judgment for plaintiff, defendant appeals. This is an action brought upon a complaint which, in substance, shows that on.

Jackson County: Lionel R. Webster, Judge. This is a proceeding under section 295, Hill’s Code, for leave to issue execution on a dormant judgment, and was commenced in 1889. On the first trial the court di* rectecl a verdict for the plaintiff, and defendant appealed. The two opinions reversing that ruling are reported in 19 Or. 383 (24 Pac. Rep. 195), and 20 Or. 352 (25 Pac. Rep. 672). On a second trial judgment went for the defendant, and plaintiff appeals.

Polk County: Reuben P. Boise, Judge. Action by W. H. Holmes, administrator of the estate of Robert Ford, deceased, and J. M. Leavens & Co. against George Whitaker and R. H. Bone. ■ Judgment for defendants. Plaintiffs appeal.

<p>Josephine County: Lionel R. Webster, Judge.</p> <p>Plaintiffs appeal.</p>

<p>Mandate — Payment op Costs. — Where a case has been reversed but no effort made for a new trial during three years, the respondent ought to pay the costs in the supreme court as a condition precedent to taking out the mandate, on motion for an order to take out a mandate.</p>

<p>Marion County: Reuben P. Boise, Judge.</p> <p>Action of replevin for an engine and boiler. These chattels were permanently affixed to the soil and constituted part of a sawmill built by a Mrs. Dennis, who afterward sold the land to the defendant’s grantor with a parol reservation of the mill. Defendant bought the ground without any knowledge of this parol agreement, and now claims the engine and boiler as appurtenances. The plaintiffs bought the mill from Mrs. Dennis after she had sold the land, and without any knowledge of the claim of defendant. The court instructed the jury that the mill was appurtenant to the soil, and if the defendant bought the farm on which the mill was situated without knowledge of the parol reservation by Mrs. Dennis, he could hold it. Judgment went for the defendant, and the plaintiffs appeal.</p> <p>The mill was attached to the freehold at the time of respondent’s purchase, and after paying full value and without notice of any latent equities, to be deprived of it would work a hardship which the law never sanctions. While there is a great deal of uncertainty on the subject generally, yet as between vendor and vendee the rules are more strict and their application much more certain. The rules are the same whether the sale is by the owner or a public officer under the law: Price v. Brayton, 19 Iowa, 309. In Farrar v. Stackpole, 6 Me. 154, it was held that by a conveyance of a sawmill with the appurtenances, the mill chains, dogs, and bars, being in their appropriate places at the time of the conveyance, passed to the grantee. In Fairis v. Walker, 1 Bailey, L. 540, it was held that a cotton-gin attached to the gears in a ginhouse, on a plantation, passed by a conveyance of the land.</p> <p>In Stillman v. Flenniken, 58 Iowa, 450, it was held that a smutter, which was placed in a mill in the usual manner, and for use of which rent was to be paid equal to ten per cent per annum on the cost of the smutter, the title to which was not to pass to the millowners, was a fixture, and would pass at a judicial sale, the purchaser having no notice of the agreement under which the smutter was placed in the mill. See also Soutlibridge Savings Bank v. Stevens Tool Co. 130 Mass. 547; Knowlton v. Johnson, 37 Mich. 47; Thomas v. Davis, 76 Mo. 72-78; Burnside v. Twitchell, 43 N. H. 390-393; Arnolds. Crowder, 81 111. 56; Harlan v. Harlan, 15 Pa. 507-513 (53 Am. Dec. 612); 8 Am. & Eng. Enc. Law, 50-57.</p>

<p>Benton County; Martin L. Pipes, Judge.</p> <p>Defendant appeals.</p>

<p>Benton County: Martin L. Pipes, Judge.</p> <p>Plaintiff appeals.</p>

Multnomah County: Erasmus D. Shattuck, Judge. This was an action of ejectment. The complaint is in the usual form, alleging title and right to possession in the plaintiff, and a wrongful withholding by the defendant. The answer denies the allegations of the complaint, and sets up title by virtue of adverse possession, which is denied in the reply. The trial resulted in a verdict for the defendant, upon which judgment was entered, and from which plaintiff appeals.

Douglas County; Martin L. Pipes, Judge. Bill in equity by W. R. Willis against S. C. Miller, sheriff, and S. C. Flint, personally and as administrator of the estate of Humphrey & Flint, to enjoin the sale of certain real estate belonging to plaintiff. The bill was dismissed on demurrer, and plaintiff appeals. Reversed.

Marion County: Geo. H. Burnett, Judge. Plaintiff appeals. The appellant Harry B. Miller applied to the circuit court of Marion County for a writ of mandamus to the respondents Sylvester Pennoyer and Geo. W. McBride, requiring the respondent Geo.

<p>1. Street Improvements — Notice to Bidders. — A posted notice of the letting of a contract to make a street improvement, stating that bids will be received by the street committee at the city recorder’s office until a specified date, according to an ordinance requiring such bids to be let to the lowest bidder, and that the grading is to be completed within sixty days, and the graveling within ninety days, from the date of letting the contract, sufficiently states the time when, and the place where, the con. tract is to be let, as well as the time within which it is to be performed, within a provision of a city ordinance requiring such statement in published or printed notices.</p> <p>2. Idem — Public Places.— A city recorder’s certificate, reciting that he posted copies of a notice of the letting of a contract for a street improvement on the bulletin board at the city hall, and at the court house, and on the northwest corner of a certain person’s brick building situated on the corner of two designated streets, sufficiently shows that copies of the printed notices were posted in three public places. This term is a relative one, but in general it is a place where a posted notice is likely to be seen and known by the community.</p>

Marion County: Reuben P. Boise, Judge. This is an action co recover damages for the removal by defendant of two water tanks which had been, with permission of defendant, erected by plaintiff on State and Court Streets in the city of Salem for the purpose of supplying sprinkling wagons with water for street sprinkling, and comes here on appeal from a judgment in favor of the plaintiff.

Lane County: Martin L. Pipes, Judge. Bill in equity by the Oregon & California Eailroad Company to enjoin Lane County and James E. Noland, its sheriff, from selling certain lands of plaintiff for delinquent taxes. From a decree dismissing the complaint on a demurrer plaintiff appeals. Section 2831 of the Code is void because it does not provide for notice to the taxpayer, and because the duties of the sheriff are purely ministerial.

Linn County: Reuben P. Boise, Judge. Action by A. E. Currie against the Southern Pacific Company, in a justice’s court, to recover damages for negligently killing one of plaintiff’s horses. On appeal to the circuit court an amendment was allowed, which changed the issues tried in the justice’s court, for which the case was reversed in the supreme court: 21 Or. 566 (28 Pac. Rep. 884).

<p>1. Appealable Oedee — Code, § 535. — An order dismissing an action against a party ceases to be appealable when the party dismissed, by permission of the court, and during the pending of the cause, again submits himself to the jurisdiction and files a new pleading.</p> <p>2. Plevding and Peaotice — Faildbe to Plead — Default. — When an answer is not filed within the time limited, the proper practice is to apply to the trial court for a default or judgment for want of an answer.</p>

Lane County: Martin L. Pipes, Judge. Defendant appeals. This was a suit to cancel a contract on account of the alleged false and fraudulent representations of the defendant made with reference to the character of the property which was the subject thereof, to recover $3,800 paid thereon, with interest, and $500 for labor performed by plaintiff while carrying out its terms.

Multnomah County: Erasmus D. Shattuck, Judge. Action by J. L. Bernard against Joseph Taylor to recover money bet on a foot race, and deposited with defendant. From a judgment for plaintiff defendant appeals. A wagering contract upon an indifferent subject is valid by the common law, and in this country, except where prohibited by statute. It is valid by the laws of Oregon, except in respect to those matters which come within the inhibition of the statute relating to gambling.

Marion County: Reuben P. Boise, Judge. Suit in equity under the statute of 1891 (Laws 1891: 23), by the state of Oregon, on the relation of Geo~ W. Colvig, Robert Clow, and A. N. Hamilton, composing the board of railroad commissioners, and Prank J. Miller, clerk of said board, to compel the Southern Pacific Company to adopt a schedule of rates promulgated by said board for use on the railroad lines of the defendant in Oregon.

Linn County; Reuben P. Boise, Judge. Prank S. Ingram was convicted of murder in the second degree for killing his brother, and appeals.

Benton County: Martin L. Pipes, Judge. Suit in equity by John Burnett, a taxpayer and resident of Benton County, Oregon, against J. R. Markley and Harry Dunstan, partners as Markley & Dunstan, and Benton County, and M. P. Burnett, as treasurer of such county, for an injunction to prevent Markley & Dunstan from collecting, and’M. P. Burnett from paying, certain county warrants.

<p>1. Criminal Law — Evidence of Other Crimes. — -It is a general rule, that evidence of a distinct crime other than the one laid in the indictment cannot he given in evidence against the prisoner, hut it is not error to admit evidence showing that property found in defendants’ possession at the time of their arrest, other than that described in the indictment, was stolen property, where such evidence is so intermingled and connected with the evidence tending to show that defendants committed the crime charged as to form one entire transaction. The purpose of such evidence should, however, be explained to thé jury.</p> <p>2. Criminal Law — Reading Papers Not in Evidence. — It is error in a criminal case to permit the district attorney in his closing argument to read an affidavit of defendant used on a motion at a previous term for a continuance to procure absent witnesses, and to comment upon the fact that these witnesses are not called on the trial, and to permit the jury to take the affidavit to their room, without its having been admitted in evidence.</p>

Polk County; Reuben P. Boise, Judge. Homer Hill was tried and convicted in a justice’s court on a complaint for trespass, and sued out of the circuit court a writ of review. Prom a judgment of the circuit court dismissing the writ for want of jurisdiction, defendant appeals.

<p>1. Nonsuit — Costs and Disbursements — Code, £ 246. — A court may in its discretion grant a nonsuit without requiring payment of the costs, but the rule is that the proper charges of the officers of the court must be paid as a condition precedent to voluntary dismissal; and if such charges are not paid, it is the duty of the court to render judgment against the plaintiff for their amount.</p> <p>2. Attachment — Sheriffs—Expense of Keeping Attached Property.— The expense of keeping attached property, under the Oregon Code, is neither a cost nor a disbursement; but the court should see that the reasonable charges of its officers are taxed in the cost bill against the plaintiff. The reasonableness of the charges should he determined by the court, upon notice to the plaintiff and upon proper proof. Schneider v. Sears, 13 Or. 69, cited and approved.</p> <p>3. Sheriff’s Expenses — Estoppel.— Where a sheriff claims ninety-four dollars fees, and the action is agreed to be settled on the basis of that charge, a larger amount ought not to be allowed on a claim put in after the motion to dismiss has been filed, without a trial by the court.</p> <p>4. Appeal — Motion for New Trial — Final Order — Code, £ 535. — While a motion for a new trial is pending, there is no “final order” from which an appeal can be taken. The six months limited for an appeal begins to run from the time the motion for a new trial is overruled.</p> <p>5. New Trial — Discretion of Court.— Amotion for a new trial is always addressed to the sound discretion of the trial court; but in this case the record shows excusable neglect, and the judgment should have been set aside.</p>

<p>Multnomah County: Loyal B. Stearns, Judge.</p> <p>Defendants appeal.</p>

Wasco County: W. L. Bradshaw, Judge. This is an action brought by George Herbert, sheriff of Wasco County, against E. B. Dufur to recover money for services performed and moneys advanced and expended at the instance and request of the defendant in a certain proceeding pending in the circuit court between S. C. Burton and John Coldwell.

<p>Probate — Code, ?¿ 1127 —Allowance to Widow. — Under Hill’s Code, % 1127, making it the duty of the count}' court, on filing the inventory of an estate, to make an order setting apart for the widow all the property of the estate exempt from execution, the court may appoint a commissioner, with the consent of the widow, to make a selection, and, on approval of such selection, it becomes the act of the court; and if the widow is satisfied, and the selected property is exempt from execution, the administrator eanilot complain.</p>

Marion County: Reuben P. Boise, Judge. Suit in equity by E. F. Parkhurst to enjoin the Capital City Railway Company from building or operating a street railway in or along certain streets in the city of Salem.

Multnomah County ; E. D. Shattuck, Judge. Election contest by Joseph A. Hughes against Edward Holman to determine who was legally elected coroner of Multnomah County at the election in June, 1892. Judgment for plaintiff and defendant appeals.

<p>"Wasco County: W. L. Bradshaw, Judge.</p> <p>Action by S. B. Gibson against the Oregon Short Line & Utah Northern Railway Company. Judgment for plaintiff.</p> <p>Defendant appeals.</p>

Washington County: Frank J. Taylor, Judge. Action by Francis Conlon against the Oregon Short Line & Utah Northern Railway Company to recover damages for personal injuries sustained in a wreck on February 2,1890, near Cascade Locks, on the line of plaintiff’s road. Judgment for plaintiff, and defendant appeals.

<p>Attorney’s Fees. — Where an attorney has recovered a judgment against a corporation for services in several very important and sharply contested cases, and the amount is shown by attorneys of high standing and long experience to be reasonable, and there was no agreement as to the amount of fees, the judgment will not be disturbed in this court.</p>

<p>Notice of Appeal — Assignment of Eeeoe — -Code, § 537. — An assignment of error which reads “ Error of the court at the trial of this cause in admitting testimony offered by the plaintiff and objected to by the defendant,” or “Error of the court, committed at the trial of this cause, in giving instructions to the jury which were excepted to by the defendant, and the exception allowed,” does not specify the error committed, or state the reason why it was error; it is insufficient to present any question for review.</p>

Wasco County: W. L. Bradshaw, Judge. Suit in equity under section 504, Hill’s Code, by Geo. Rowland and J. Barger against Geo. Williams, administrator of the estate of Louisa Goldstein (formerly Louisa Michelbach), deceased, and her children Clara A. Schütz, Chas.

<p>Multnomah County: Thos. A. McBride, Judge.</p> <p>This suit was brought by.appellant Ira Goodnough to restrain respondent T. C. Powell, as clerk of the county court of Multnomah County, from extending upon the assessment roll of said county any greater sum than thirty per cent increase upon the assessed valuation thereon, as fixed by the county assessor of said county, and furnished to the secretary of state and state board of equalization by said county clerk, the said board of equalization having raised the assessment of mortgages on said roll from an assessed valuation of fifty per cent of their cash value to one hundred per cent, or to their actual cash value; and also to restrain the governor, secretary of state, and state treasurer from apportioning to Multnomah County its proportion of state taxes to be levied and collected for the year 1893 at any sum greater than it would, be if the mortgages on said roll were assessed at sixty-five per cent of their face value, appellant claiming that real property is assessed on said roll at only sixty -five per cent of its cash value, and that the assessment of mortgages at their face value is in violation of section 32, article I. of the state constitution, requiring that ‘ ‘ all taxation shall be equal and uniform, ” and that “said assessment was made arbitrarily, and with the intent to discriminate against mortgages and in favor of other real estate, the said board of equalization well knowing that the assessment upon said mortgages was thirty-five per cent higher than the assessment on lots and agricultural lands.” A demurrer to the complaint was sustained and a decree entered dismissing the complaint, whereupon plaintiff appealed. Affirmed.</p> <p>We refer, in the first place, to the case of Cummings v. National Bank, 101 U. S. 153. In that case the state board of equalization of Ohio had discriminated against bank shares, and in favor of other personal property. The constitution of the state of Ohio, like our own, requires uniformity in the taxation of property. In the case cited, the supreme court of the United States, upon the application of a national bank, decided that the collection of the tax upon bank shares, in so far as it exceeded the tax upon other personal property, should be enjoined. The case, which is a leading one, decides these points: First, that a suit in equity will lie to enjoin the proceedings óf a board of equalization which are illegal and in conflict with the constitution of the state; second, that .a party has a right to complain when his property is taxed at its full cash value, and other property is assessed at a lower rate of valuation. The point upon which we mainly rely is that the plaintiff has the right to insist upon uniformity and equality of taxation, as required by tbe constitution; and that if the taxing authorities of the state disregard this requirement, he has the right to com- , plain and to call upon the courts to equalize the taxation. We do not. of course, claim that absolute equality in taxation is attainable; but we do claim that the constitution prohibits the taxing authorities from purposely and intentionally creating inequality of taxation by discriminating against certain classes of property and in favor of certain other classes, when all belong to the same general class, and are to be treated in the same manner for the purposes of assessment and taxation.</p> <p>Another point decided by the case last cited is that when a board of assessment or equalization adopts a rule or system of valuation which is designed to operate unequally, a court of equity will interfere to restrain the operation of such an exercise of power, on the ground that it is contrary to tbe constitution; and it appears from the same case that it is unnecessary, where such a rule of valuation has been adopted, to charge or to show that the board was guilty of any fraud in its proceeding. Our position in this case is that the state board of equalization adopted a rule valuation which was designed to operate, and did operate, unequally upon different kinds of real property; this rule being that that kind of real property known as mortgages should be assessed at one hundred cents on the dollar, while the real property known as city lots and agricultural lands was to be assessed at sixty-five cents on the dollar.</p> <p>In support of our position, we cite the following cases, that are directly in point: Dundee Mortgage Go. v. School District (Or.), 10 Saw. 52 (19 Fed. Rep. 359, and 21 Fed. Rep. 151); Dundee Mortgage Go. v. Parrish, 11 Saw. 92 (24 Fed. Rep. 201); Balfour v. Portland, 12 Saw. 124; Gal. & Or. Land Co. v. Goivan (Or.), 48 Fed. Rep. 771; Andrews v. King Go. 1 Wash. 46 (23 Pac. Rep. 409); Merrill v. Humphrey, 24 Mich. 170; G. B. & Q. R. R. Go. v. Cole, 75 111. 591; First National BanJcv. Lindsay (La.), 45 Fed. Rep. 619; Verdery v. Village of Summerville (Ga.), 8 S. E. Rep. 213; City of Savannah v. Weed (Ga.), 11 S. E. Rep. 235; Redmond v. Town of Tarboro (N. 0.), 10 S. E. Rep. 845; Manson Loan Co. v. Heston (la.), 49 N. W. Rep. 985; Parker v. North B. & M. Ins. Co. (La.), 7 So. Rep. 599; City of Chicago v. Burtice, 24 111. 492; Re Construction of Revenue Law (S. Dak.), 48 N. W. Rep. 418; Howard v. O'Bannon, 36 Fed. Rep. 584.</p> <p>Real property, for the purpose of taxation, is by the code of Oregon divided into three classes: First, city and town property; second, other real property; and, third, mortgages, deeds of trust, etc.: Code, §§ 2730-2773.</p> <p>If the assessment is uniform as to each one of the several classes into which the code divides property for the purpose of taxation, it is a substantial compliance with the constitutional provisions requiring uniformity of assessments and taxation, and if one of those distinct classes of property, either real or personal, is assessed proportionately higher than the other classes, still the uniformity is preserved, as all persons in like situation are assessed equally and bear their proportionate share of the public burden: Railroad Tax Cases, 92 U. S. 575; Spencer v. People, 68 111. 512; Railroad Co. v. Stoolcey, 122 111. 358; O. R. & N. Co. v. Croisan, 22 Or. 393; Porter v. R. I. etc. By. Co. 76 111. 561.</p>

<p>Wasco County: W. L. Bradshaw, Judge.</p> <p>This was originally a presentation to the county court of the claim of Jonathan Morrison against the estate of William McAtee, deceased, after the claim had been rejected by B. C. McAtee, the executor. The claim was presented on April 17, 1891, and, being disallowed, was then presented to the county court under the provisions of section 1134, Hill’s Code, and that court allowed the r.la.im in the sum of one thousand one hundred and twenty-five dollars, on September 16, 1891. The executor appealed to the circuit court, where the question was tried before a jury in November, 1891, and a verdict returned for Morrison for about fourteen hundred dollars. Judgment being given on the verdict, the executor appeals.</p>

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

<p>Polk County: Reuben P. Boise, Judge.</p> <p>This is a suit by Jacob Brown and another against the Farmers’ Supply Depot Company and one J. L. Hartman, to foreclose a mortgage. The complaint, in substance, alleges that the Farmers’ Supply Depot Company is a corporation, organized and existing under the laws of Oregon, and on the thirty-first day of December, 1888, it made, executed, and delivered to the plaintiffs’ assignor its promissory note for $1,500, due one year after date; the formal parts of which, as set out in the complaint, are: “We, the Farmers’ Supply Depot Company, promise to pay,” etc., and is signed “F. S. Barzee, pres., E. S. Cattron, sec. and treas.” That, at the same time, in order to secure the payment of the note, the corporation executed and delivered to the payee thereof a mortgage, the formal parts of which are: “This indenture witnesseth: That the Farmers’ Supply Depot Company, of Monmouth, Oregon, for and in consideration of the sum of ®1,500, to us in hand paid, the receipt whereof is hereby acknowledged, have bargained, sold, and conveyed,” etc., and is signed and executed as follows: “Witness our hands and seals this thirty-first day of December, 1888, F. S. Barzee, pres, (seal), E. S. Cattron, sec. and treas. (seal).” The certificate of acknowledgment states that “the within named F. S. Barzee, president of the Farmers’ Supply Depot Company, and E. S. Cattron, secretary of the Farmers’ Supply Depot Company,” personally appeared before the officer taking the acknowledgment, and acknowledged to him “that he executed the same freely for the uses and purposes therein named.” The complaint also avers that, by mistake, the corporation seal was not affixed to the mortgage. To this complaint a demurrer was filed, which, being overruled, defendant Hartman answered, denying the allegations of the complaint, and setting up some new matter not material to be noticed here. A trial resulted in favor of the defendant Hartman, and plaintiffs appeal.</p>

<p>Union County: Morton D. Clifford, Judge.</p> <p>Suit for an accounting and dissolution of a partnership. Plaintiff had a decree, and defendants appeal.</p>

Wasco County: Lionel R. Webster, Judge. This suit was brought by J. H. Coventon and Cincinnati, his wife, against F. A. Seufert, Anna Seufert, and T. J. Seufert to enjoin them from diverting the waters of an irrigating ditch.

Josephine County: Lionel R. Webster, Judge. Defendant appeals. The defendant was indicted for murder in the first degree of one Jacob Moll, and, upon his arraignment, pleaded not guilty. A trial was had before a jury, which, being unable to agree upon a verdict, was discharged by the trial court.

Multnomah County: Thomas A. McBride, Judge. Defendant pleaded guilty to a charge of forgery under section 1808 of Hill’s Code, and entered a motion in arrest of judgment because the indictment does not state a crime; The motion was overruled, and defendant appeals.

Multnomah County: Morton D. Clifford, Judge. Defendant appeals. The defendant was convicted and sentenced to imprisonment in the penitentiary for the crime of selling and conveying real estate without having title thereto, under section 1783 of Hill’s Annotated Laws of Oregon. The real estate which defendant is charged to have fraudulently so conveyed is situated in the town of Wheaton Heights, Du Page County, Illinois.

<p>1. Appeal— Referee’s Report — Weight of Evidence. — Findings of fact by a referee, on conflicting evidence, and having sufficient testimony to support them will not be disturbed on appeal, on the ground that the weight of the evidence is against them.</p> <p>2. Costs in Equity Cases — Code, § 554.— The discretion in the taxation of costs in equity cases, vested in the trial court by Hill’s Code, $ 554, will not be reviewed except on a clear showing of abuse; and it is not an abuse of this discretion to tax the costs against defendant upon a decree rendered in favor of plaintiff in a suit to redeem a contract for the purchase of land which had been assigned to defendant as security for a loan, where, although plaintiff did not tender any sum to defendant for the redemption of the contract, the latter did not admit that he held the property as security, or was ready or willing to re-assign the contract on payment of the amount due.</p> <p>3. Parol Evidence — Mortgage.— Parol evidence is admissible to show that an assignment of a contract of sale of realty was in fact a mortgage made to secure a loan. Swegle v. Belle, 20 Or. 323, approved and followed.</p> <p>4. Mortgage — Deed.—A mortgage created by an assignment of a contract of sale of realty to secure a loan, cannot be converted by the mortgagee into an absolute transfer of the contract without the mortgagor’s consent. Marshall v. Williams, 21 Or. 268, approved.</p>

<p>1. Agents’ Authority — Insurance.— The acts of an agent performed within the scope of his real or apparent authority, are binding upon his principal. The public have a right to rely upon an agent’s apparent authority, and are not bound to inquire as to his special powers unless the circumstances are such as to put them upon inquiry. * Hardwick v. State Im. Co. 20 Or. 547, approved.</p> <p>2. Agent — Evidence of Authority. — Where a person represented himself as the general agent of an insurance company, and the assured, without knowledge of any limitation on his powers, paid him the premium and left the city, entrusting the management of the whole affair to his hands, and afterwards received from him the policy which the company had made out and sent to him, the jury are justified in finding that the agent was a general agent, and not an agent with limited or special powers.</p> <p>3. Expert Testimony — Insurance Risk. — The question whether the risk was increased by changing a building which was used as a general merchandise store and lighted by coal-oil lamps, to a variety theater and lighting it with electric lights, relates simply to matters of common knowledge or observation, and is not the proper subject of expert testimony.</p> <p>4. Insurance Adjuster — Waiver of Proofs of Loss.— Preliminary'proofs of loss are waived by the fact that an adjuster of the company, with its approval, refused to adjust or settle the loss, and stated to the insured that the loss would not be paid.</p> <p>B. Insurance — Withdrawing Waiver of Proof of Loss — Failure to Present Proof. — Where an insurance company has waived the presentation of proofs of loss, it may, within a reasonable time, withdraw this waiver and require the proofs as prescribed in the policy. Thus, where the proofs of loss had been waived, bnt some time before the period for presenting such proofs had expired, the general agent of the company wrote to the attorneys for the assured, requesting them to furnish the proofs of loss in accordance with the terms of the policy, and enclosing blanks for that purpose, with an assurance that the matter would receive attention, the assured must present proofs of loss as required by the policy, or he cannot recover.</p>

Multnomah County: E. D. Shattuck, Judge. Action by the Portland and Fairview Railroad Company against Thomas Spillman to recover two hundred dollars because of a subscription for that amount made by the defendant, as an original subscriber to the capital stock of the plaintiff company. The subscription was made before the organization of the corporation.

Multnomah County: Loyal B. Stearns, Judge. This was a suit by N. K. Rankin against Charles A. Malarkey and wife, and D. C. McDonald & Co., to foreclose an alleged lien for materials furnished to McDonald & Co., and which were said to have been used in the construction of Malarkey’s house.

Multnomah County. Loyal B. Stearns, Judge. This is a suit by the partnership of Meier & Frank to determine the conflicting claims of the defendants Hess, Goldsmith & Co., and Sophia Schwab, to a fund in the hands of the plaintiffs, who bring the suit to obtain a judicial determination of the priorities of the respective claimants.

<p>Multnomah County: E. D. Shattuck, Judge.</p> <p>Action by J. Tolmie against J. E. Watson to recover rent for a building on First street, in Portland. Judgment for plaintiff and defendant appeals.</p>