Volume 24 — Oregon Reports

<p>Multnomah County: E. D. S'hattuck, Judge.</p>

<p>1. Lien of Chattel Mortgage — Interest of Mortgagee. — In Oregon a chattel mortgage creates more than a mere lien; after condition broken, it gives a right to possession — a qualified ownership of the property mortgaged. Case Threshing Machine Co. v. Campbell, 14 Or. 460, approved.</p> <p>2. Chattel Mortgage — Pledge—Equitable Lien — Mortgage Lease.— A stipulation in a lease that “All personal property in said premises, including furniture and household goods of every description, shall be at all times liable for rent of said premises; and in case of the violation of any of the provisions of this lease by the lessee, the lessor may terminate this lease and hold any property found thereon for any arrears of rent or damages,” does not create a chattel mortgage, since the title to the property is not transferred; nor does it create a pledge, for possession was not delivered; it creates only an equitable lien.</p> <p>3. Equitable Lien — Fraud.1—The same rules that determine the priority and validity of chattel mortgages, apply with equal force and like effect to equitable liens; and therefore, under subdivision 40 of section 776 of Hill’s Code, an unrecorded lien created by a lease creates only a presumption of fraud, which may be rebutted. Marks v. Miller, 21 Or. 317, approved and followed.</p> <p>4. Description in Chattel Mortgage — “Furniture”2 and “Household Goods”2 Defined. — In a chattel mortgage, oran equitable lien, a description is sufficient if it will enable third persons to identify the property by inquiry or by location; thus a description of the chattels as “ all personal property, including furniture and household goods of every description,” is sufficient to create a lien on all personal chattels which may contribute to the use or convenience of the householder, or the ornament of his house, under the description of “ furniture,” and on every household article of a permanent nature which is not consumed in its enjoyment under the term “household goods”; but it will not cover wines, liquors, or groceries.</p> <p>5. Fraudulent Conveyance — Preferring Creditors. — A debtor, even in failing circumstances, may prefer a creditor, and may appropriate his property to the satisfaction of such creditor’s claim (Kruse v. Prindle, 8 Or. 163, approved and followed); nor is it material that the creditor knew his debtor’s financial condition.</p> <p>6; Evidence oe Ebaud. — -The mere fact that when an officer went to the debtor’s store for the purpose of levying an attachment, the debtor requested him not to close it, does not necessarily prove that any secret trust existed between the debtor and another to whom he had previously given a chattel mortgage on his stock of goods, even though the debtor was in failing circumstances.</p> <p>7. Evidence of Ebaud.— The fact that after an officer had executed an attachment on a debtor’s stock of goods, another creditor to whom the debtor had given a chattel mortgage thereon consented that the debtor’s employes might take some of the attached property in payment of the amount due them, does not, of itself; show an intent by the creditor to protect the debtor, where he gave such consent under advice that the debtor’s employes were preferred creditors.</p>

Multnomah County: Loyal B. Stearns, Judge. Suit by the Odd Fellows’ Hall Association of Portland, Oregon, against Charles Hegele, to rescind and cancel a party-wall agreement. From a decree for defendant, plaintiff appeals. This is a suit for the rescission and cancellation of a party-wall agreement, in writing, entered into by the plaintiff and the grantors of the defendant on the fifteenth day of May, 1876.

Multnomah County: E. D. Shattuck, Judge. This is an action by Charles E. Benn against Gustav Eutzschan as indorser on a promissory note of M. P. Mil-burn. Defendant moved to strike out of the complaint that portion thereof relating to attorney’s fees, and ' the motion was granted. Thereafter defendant suffered a default judgment for the amount of the note, and plaintiff now appeals from the order disallowing attorney’s fees.

Multnomah County: E. D. Si-iattuck, Judge. This action was brought by E. M. Aldrich and W. S' Dillon, partners, against The Anchor Coal & Development Company, a California corporation, and B. E. Loomis, one of its stockholders, in the Circuit Court of Multnomah County, to recover the sum of two thousand four hundred and two dollars and seventy-two cents upon a contract for work and labor performed for the corporation in building a railway in the state of Washington.

Multnomah County: Loyal B. Stearns, Judge. Suit in equity by the Willamette Steam Mills, a private corporation, against John F. Shea, the owner of certain lots in the City of Portland, against D. C. McDonald, the contractor for the erection of four houses on said lots, and against Dayton, Hall & Avery, who furnished to McDonald the builders’ hardware used in the houses, for the foreclosure of a lien for lumber furnished to, and used by McDonald, generally in carrying out his…

Multnomah County: Loyal B. Stearns, Judge. Suit in equity by the Portland Construction Company, as assignee of Messrs. Wolfe & Callahan, against the Sisters of Charity of Providence, the owners of St. Vincent’s Hospital, in Portland; J. R. O’Neil, the contractor for excavating for the foundations of the hospital; and J. S. McElvaine and others who performed work under Wolfe & Callahan, the sub-contractors. There was a decree in plaintiff’s favor from which it appealed.

Multnomah County: E. D. Shattuck, Judge. Action by the W. W. Kimball Company, a private corporation, against Theodore W. Bleick as principal, and Meyer and Lynch, as sureties, on a redelivery bond given under the provisions of section 137 of Hill’s Code, but made payable to the Kimball Company instead of to the sheriff. Judgment for plaintiff -and defendants appeal.

<p>íppeap — Ahstver—Cope, § 536. — An appeal may be taken from a decree rendered against a defendant standing on his demurrer and refusing to answer or plead further after it is overruled, at any time within six months from the date thereof. Kearns v. Kollansby. 15 Or. 596, approved and followed.</p>

<p>1. Homicide — Dying Declarations — Evidence.— On a trial for murder, declarations of the deceased as to the cause of his injury and the identity of the party who inflicted the fatal wound, shown to have been made under a sense of impending death, are admissible in evidence, although testified to in Chinese and translated into English by a sworn interpreter.</p> <p>2» Competency and Credibility oe Dying Declarations.— The competency of dying declarations is for the court; but, after they have been admitted, their weight and credibility are questions of fact for the jury. The facts that declarations made by the victim of a murder under sense of impending death, were the result of questions propounded by an attorney, the absence of cross-examination, the use of an interpreter, the presence of friends and prosecuting officers only, and that accused was unrepresented by counsel, are matters affecting merely the weight and credibility, and not the competency, of such declarations.</p> <p>3. Criminal Evidence. — A conviction of murder will not be reversed because a pistol not connected with defendant was introduced in evidence, where it was admitted only on the understanding that it should be so connected, and was withdrawn from the jury on failure of the state to show such connection.</p> <p>4. Appeal — Error—Bill oe Exceptions.— It is an invariable rule in Oregon that no objection to the rulings or proceedings of the trial court in either civil or criminal cases will be considered on appeal unless there was an objection, a ruling thereon, and an exception, all properly incorporated into a bill of exceptions. O’Kelly v. Territory, 1 Or. 59; State v. Abrams, 11 Or. 172, approved and followed. *</p> <p>5. Appeal — Error—Practice.—The fact that the whole record of the trial is before the appellate court upon some particular assignment of error, does not authorize the court to examine such record to see whether any other errors or irregularities than those noted in the conduct of the trial can be found, which, if properly excepted to, would justify a reversal. State v. Cody, 18 Or. 506, overruled on this point.</p> <p>8. Motion for New Trial — Discretion of Court. — A motion to set aside a verdict, or to grant a new trial, because of insufficiency of tlie evidence, in both civil and criminal cases, is addressed to the sound discretion of the trial court, and its ruling thereon cannot be assigned as error on appeal. State v. Maclcey, 12 Or. 154; State v. Olcmmens, 15 Or. 237; Beekman v. Hamlin, 23 Or. 313, approved and followed; State v. Olds, 19 Or. 397, overruled on this point.</p> <p>7. Verdict — Weight of Testimony.— The credibility of witnesses and the weight to be given to testimony are matters for the consideration of the jury, and when a verdict has been approved by the trial court, the appellate court will not review it merely on the weight of the testimony.</p> <p>8. Competency of Dying Declarations. — The test to be applied to dying declarations to determine their admissibility is whether the deceased, if living, would have been permitted to testify to the things contained in the declarations.</p> <p>9. Dying Declarations — Opinion Evidence. — A statement of a person shot, that he caught a glimpse, as he fell, of the person that shot him, and thinks he would know him if he saw him, followed by a 'statement on the following day, when the defendant was presented to him for identification, that he fully recognizes him as the one who shot him, — is not the expression of an opinion, and is admissible as a dying declaration.</p>

Multnomah County: Loyal B. Stearns, Judge. Suit by Eugene Garrow against Adolph Nicolai for dissolution of a partnership and an accounting. Decree for plaintiff and the defendant appeals. This is a suit by Eugene Garrow against Adolph Nicolai for an accounting.

Multnomah County: Geo. H. Burnett, Judge. Action by E. House against Ellen L. Jackson and William R. Jackson for the specific performance of a contract to convey certain land. From a decree dismissing the complaint, plaintiff appeals. The rule that a court of equity will not compel the specific performance of unilateral contracts is not applicable to a case of the kind before us.

<p>Clackamas County: Thomas A. McBride, Judge.</p> <p>William Henderson was convicted of murder and appeals.</p> <p>Attorney for the defendant excepted to the ruling of the court in refusing to strike out the following portion of witness J. L. Thomas’ testimony: “ I think he said, it seems to me he said, I will kill you, or made some threat; just what he said I wouldn’t be positive.” Thomas said he made some threat, he thought it was, “ I will kill you.” 'That he made the threat there was no doubt, and he thought the exact words were, “ I will kill you.” The witness was entitled, to give the substance of the words used by the defendant and his best recollection of what the words were, and was not required to exclude all doubt from his mind. This is all he attempted to do, and certainly the jury were entitled to take it for what it was worth: 1 Greenleaf, § 440, 14th edition; Wharton, Criminal Evidence, § 461, 9th edition; Boyer v. Teague (N. C.), 19 Am. St. It. 560; Printwp v. Mitchell (Ga.), 63 Am. Dec. 260.</p> <p>Defendant’s attorney also excepted to the ruling of the court in refusing to strike out the following testimony of witness Thomas: “Yes, he has cut me in the guts, he has killed me without a cause,” because the witness did not know whether the defendant was there or not. We think the testimony of other witnesses shows that defendant was 'in the room when the remark was made, but in any event it was admissible as a part of the res gestee and as a dying declaration: Code, § 686; 1 Greenleaf, Evidence, § 108 and n(a), 14th edition, Sullivan v. O. R. & N. Co. 12 Or. 397-401; State v. Garrand, 5 Or. 218; State v. Saunders, 14 Or. 305; Thomas v. Herald, 18 Or. 546.</p> <p>Also to instruction, as to deliberation and premeditation, we do not think the court erred: State v. Ah Lee, 8 Or. 215 (221); State v. Carver, 22 Or. 602 (604); 9 Am. & Eng. Enc. 543; State v. Garrand, 5 Or. 216; 1 Wharton, Criminal Law, § 116.</p> <p>That definition of cool blood was correct. See State v. Ah Lee, 8 Or. 215 (221); State v. Anderson, 10 Or. 463; State vl Abrams, 11 Or. 178.</p>

Multnomah County: E. D. Shattuck, Judge. This was an action of forcible entry and detainer by Thomas Hislop against W. J. Moldenhauer, and is now here on the third appeal. The first appeal is reported in 21 Or. 208, and the second in 23 Or. 119.

Multnomah County: Erasmus D. Shattuck, Judge. Gottlieb Weiss and Karl Kuch brought an action against Emanuel Meyer, which involved the question of how much land was included within a given description, and in preparing his case thé defendant employed a surveyor to examine and plat the ground. The plaintiffs having been nonsuited, the defendant filed his cost bill, and included therein an item of seventy-five dollars for the survey and plat.

Multnomah County: Loyal B. Stearns, Judge. Suit by Hannah C. Exon against Michael Dancke and Adelaide, his wife, to declare a deed to be a mortgage, and for leave to redeem. The matter was referred to Geo. A. Brodie, Esq., who reported in favor of the defendants, and a decree was entered accordingly, from which the plaintiff appeals.

Multnomah County: E. D. Shattuok, Judge. Action by Jacob A. Grafton and L. T. Proctor, partners as Grafton & Proctor, against the City of Sellwood, to recover damages for breach of a contract for the erection by plaintiffs of a city ball and jail for defendant. From a judgment for defendant, plaintiffs appeal.

<p>1. Pabties to an Appeal — Jueisdiction—Code, § 537. — Every party is “an adverse party,” within the meaning of section 537, Hill’s Code, whose interests in relation to the judgment or decree appealed from are in conflict with the modification or reversal sought by the appeal: Xdl-Kenthal v. Caravita, 15 Or. 341, cited and approved.</p> <p>2. Idem.— In an action to enforce a lien against a vessel, where the claimant files a bond with sureties to obtain its release, and judgment is rendered against both the claimant and the sureties, the claimant need not serve notice of its appeal on the sureties, since their interests are identical with those of the claimant.</p> <p>3. Constitutional Law — Jueisdiction op State Coubts to Enfoece a Lien fob Building Vessels — Code, $ 3690.— Under section 9 of the Judiciary Act of 1789, the district courts of the United States have exclusive jurisdiction of all maritime causes of action, but a contract for furnishing materials in constructing a domestic vessel is not a maritime contract: therefore, section 3690, Hill’s Code, is constitutional and valid in so far as it gives the state courts jurisdiction to enforce by a proceeding in rem the lien given by the state law for materials used in constructing domestic vessels, nor is it of any consequence that all or part of the materials were furnished after the vessel was launched.</p> <p>4. Statute of Limitations — Boat Liens — Accounts — Code, § 3706.— Where materials are furnished from time to time as they are needed in the construction of a vessel, and several payments are made on account, all the items constitute one continuous account, and the limitation of one year provided by section 3706, Hill’s Code, for enforcing a lien for such materials, does not begin to run against each item as it was furnished, but begins from the date of the last item.</p> <p>5. Frivolous Pleading.— The test of frivolousness in pleading is whether or not it introvertibly so appears from the mere reading of it; if so, then it is frivolous, but if argument is required to show that the pleading is bad, it is not frivolous.*</p> <p>6. Motion to Strike Out — Demurrer.— The proper way to test the sufficiency of a pleading is by a demurrer and not by a motion to strike out.</p> <p>7. Boat Lien — Payment to Contractor. — Under statutes like section 3690, Hill’s Code, providing that every vessel built in the state shall be liable to a lien for all debts due to persons on account of material used in the construction of the same, the right to a lien is determined solely by the furnishing of the material — and this is in no wise affected by the terms of the contract between the owner and contractor, or by the fact that the contractor may have been fully paid.</p>

Baker County: Jas. A. Fee, Judge. Action by the State of Oregon against Baker County to recover unpaid state taxes. Judgment for defendant on a general demurrer to the complaint, from which plaintiff appeals.

Multnomah County: E. D. Shattuck, Judge, This is an action brought by Mary Quinn against the Right Reverend Archbishop Gross, as executor of the last will of Terence Quinn, deceased, to establish a claim of seven thousand dollars against his estate, The record discloses that the plaintiff is the daughter of Terence Quinn and Mary Quinn, his wife; that on March 7,1854, Mary died intestate, leaving plaintiff her sole surviving heir; that at the time of her death she was seized…

<p>Mechanics’ Lien — Notice—Variance.— A notice of lien must correctly describe the property on which the lien is claimed. No lien can be enforced on lots in “Carter's Addition to Portland ” when the notice described the property as lots in “ Market Street Addition to Portland,” —there is a fatal variance between the claim and the proof.</p>

<p>An assignment of error that covered the entire charge to the jury, without specifying any particular sentence or proposition on whieh appellant proposes to rely, is too indefinite, and presents no question for review in the supreme court. Code, j! 537; Murray v. Mhirray, 6 Or. 17, and Swift y„ Mulhey, 17 Or. 532, cited and followed.</p>

<p>Multnomah County: Erasmus D. Shattuck, Judge.</p>

Multnomah County: Loyal B. Stearns, Judge. This is a suit brought by .William Masters, W. B. Preston, Annie Corbett, Julia D. Church, Annie F. Holland, Mary C. Roth, Jennie Porter, and Joseph Paquet to enjoin the City of Portland from collecting an assessment levied upon real property owned by them, to defray the cost of a sewer.

Multnomah County: Michael Gr. Munley, Judge. Defendant appeals. The defendant, John M. Lucas, who is an attorney of this court, was charged with the crime of larceny by bailee, on an indictment charging that on October 22, 1892, being the bailee of three hundred dollars, lawful money of the United States, the personal property of oue Ninta Parker, he feloniously embezzled and converted the same to his own use.

Multnomah County: Loyal B. Stearns, Judge. Proceeding by Anne E. Bain and others, children of Jacob Cline, deceased, to set aside and annul the paper purporting to be the last will of said Jacob. The will was sustained and contestants appeal.

Wasco County: W. L. Bradshaw, Judge. Z. F. Moody brought suit against Charles S. Miller, Mary E. Miller and others to foreclose a mortgage. Decree for plaintiff, from which Charles S. Miller and his creditors appeal. Respondent moves to dismiss the appeal.

Multnomah County: Loyal B. Stearns, Judge. This is a suit by D. S. Johnson to enjoin the Bridal Veil Lumbering Company from constructing its railroad across plaintiff’s land.

<p>Multnomah County: E. D. Shattuck, Judge.</p> <p>This is an action brought by the Commercial National Bank of Portland against the City of Portland for damages because of the non-payment of certain warrants issued by the defendant city upon a special fund to be raised by the levy and collection of assessments upon the real property affected by the improvement of Twelfth Street, in the City of Portland, from the south line of B Street to the north line of Montgomery Street. The complaint sets out in full the ordinance of the defendant, providing for the time and manner of improving the street named, and.also the contract under which the work was performed. It is shown that this contract was awarded to P. H. Schulderman & Co., on the eighteenth day of August, 1887. The contract contained a stipulation that upon the completion of the improvement according to its terms, and on the approval and acceptance of the same, the contracting firm would be entitled to certain specified sums of money for the various kinds of work done, and should be paid “ by warrants to be drawn upon the fund to be collected and paid into the city treasury for that purpose.” The contract contained the further stipulation that “it is expressly agreed, and this contract is made upon condition, that the parties of the first part [meaning the contractors] shall look for payment for said labor and material only to the aforesaid fund to be assessed upon the property liable to pay the said improvement, and collected and paid into the city treasury for that purpose, and that the said parties of the first part will not require the City of Portland, by any legal process or otherwise, to pay for the same out of any other fund.” The contract was properly executed, and the work thereunder was completed within the time therein limited and was duly accepted by the city. In the months of October and November, 1887, city warrants were duly issued to the contractors, and some of them, aggregating twenty-two hundred and two dollars and thirty-four cents were duly assigned to plaintiff. These warrants were drawn on the said fund for the improvement of Twelfth Street. The complaint further alleges that all the warrants enumerated therein were, prior to the bringing of this action, endorsed in blank by said P. H. Schulderman & Co., and assigned and transferred for value to the plaintiff, and that the plaintiff is now the owner and holder of all said warrants; that demand was made upon the city treasurer for the payment thereof, which was refused, and that there is now due and payable from the defendant to the plaintiff the full sum mentioned in said warrants, with interest at the legal rate from the date of issue. A demurrer to the amended complaint was filed, and, after argument, was overruled. Thereupon the defendant filed an answer in the nature of a plea in abatement, averring that certain' property holders on the line of said improvement had begun a suit to restrain the collection of said assessment for the improvement of Twelfth Street, upon various grounds. The city filed its answer to that suit, denying all the material allegations of the complaint, and pleading new matter by way of defense. On February 18, 1888, a temporary restraining order was issued as prayed for, which order is still in force, and it is now claimed by the city that by reason thereof it has been unable to collect the assessments necessary to meet the warrants of plaintiff. The plaintiff demurred to the plea in abatement, which was sustained, and judgment rendered in favor of the plaintiff for the full amount claimed, from which judgment an appeal is taken to this court.</p> <p>An agreement explicitly stating that a contractor shall look for payment “ only ” to a special fund, and that he “ will not compel the city, by legal process or otherwise, to pay for the improvement out of any other fund,” certainly should he held to mean something. We rely on the condition of the contract. The rights of the parties are fixed and determined by their own deliberate act. The court is construing an agreement and not dealing with any doctrine of implied liability. Where there exists a contractual relation, as in the case at bar, we are not aware of any legal principle justifying an abandonment of the contract deliberately made, and authorizing a general action for damages. The contractor, by his own act, circumscribed his right to recover. He cannot now forsake his express agreement and call upon the court to imply a broader, and, to him, better one. The position above outlined would seem to be sanctioned by the principles of law governing the construction and interpretation of contracts, and municipal powers and obligations, and is in accord with the decided cases: Frush v. City of East Portland, 6 Or. 281, 283; Lake et al. v. Irustees, 4 Denio, 520; Pettis Co. v. Kingsbury, 17 Mo. 479; Board of Commissioners v. Mason, 9 Ind. 97; 1 Dillon, Municipal Corporations (3d Ed.), §413; Campbell v. Polk Co. 49 Mo. 214; Boro v. Phillips Co. 4 DüIod, 216, 223; State ex rel. Zimmerman v. The Justices, etc. 48 Mo. 475; 1 Daniel, Negotiable Instruments, § 433; Baker v. Seattle, 2 Wash. St. 576 (27 Pac. Rep. 462); Trustees of Belleview v. Hohn, etc. 82 Ky. 1; Travelers Insurance Co. v. Denver, 11 Col. 434, 438, 440; Fuller v. Heath, 89 111. 296; Peake v. New Orleans, 38 Fed. Rep. 779, 782.</p> <p>The plaintiff seems to place reliance on the two Oregon cases of N. Pac. Lamber Go. v. East Portland, 14 Or. 1, and Portland Lamber Co. v. East Portland, 18 Or. 21, but the essential feature of the designation of a particular fund out of which the cost of the improvement only was to be made, was absent in both, of those cases, and its presence here makes a totally different case. The distinction between orders made payable out of a particular fund, and those which are issued as an evidence of general corporate liability, is well defined in the law.</p> <p>In the absence of fraud or dishonest intent, no responsibility would result from any failure to collect the money necessary. Nothing is due under the contract or warrants until the assessments are collected. The only proceeding furnished by the law is one to compel the levying and collection of a tax to pay a liquidated claim. Mandamus is the proper remedy: 1 Hill’s Code, §§ 592,593; Commonwealth ex rel. v. Pittsburgh, 34 Pa. St. 496; Commonwealth ex rel. v. Commissioners, 37 Pa. St. 277; Chapin v. Osburn et al. 29 Ind. 99; State ex rel. v. City of Keokuk, 9 Iowa, 438; Wilson v. Berkstresser et al. 45 Mo. 283; State ex rel. v. Justices, 48 Mo. 475; Whalen v. La Crosse, 16 Wis. 288; People v. Shearer, 30 Cal. 645; High’s Ex. Leg. Rem. § 139; Hyatt v. Allen, 54 Cal. 353; Commissioners of Columbia Co. v. King, 13 Fla. 451; People v. Mead, 36 N. Y. 224.</p>

Harney County: Morton D. Clieeord, Judge. This is an action brought by H. M. Drake against Sworts & Miller, and against J. C. Wooley and P. F. Steuger, their sureties on an attachment bond given in an action at law brought by Sworts & Miller against the plaintiff herein.

Baker County: Morton D. Clifford, Judge. This is a suit by H. Bamberger, M. L. Tichner, and Sol Tichner, partners, as Bamberber, Tichner & Co., against Daniel Entermille, Emma Geiser, Edward Geiser, and Frank Geiser, and also Albert Geiser and Louise Geiser, both individually and as administrators of the estate of John Geiser, deceased, to foreclose a mortgage. Decree for plaintiffs, and defendants appeal.

Union County: Morton D. Clifford, J udge. Action by D. Sommer against the Island City Mercantile and Milling Company, a private corporation, for converting certain lumber on which plaintiff held a mortgage. Judgment went for plaintiff, and defendant appeals.

<p>Writ of Review — Board of Equalization — Infeeioe Tribunals — Presumption of Regularity.— The proceedings of a board of equalization, after it has acquired jurisdiction of a taxpayer, will not be set aside on writ of review because the record does not contain the evidence on which its findings of fact were based, unless it affirmatively appears in the record that the evidence was insufficient to sustain them. This is in pursuance of the rule that when inferior tribunals have once acquired jurisdiction every presumption exists in favor of the regularity of their proceedings.</p>

Union County: Morton D. Clieeord, Judge. Suit to enjoin the prosecution of an action in trover against a sheriff for taking property of Bidwell and others on an execution against the Union Milling Company. The basis of this suit is the claim that the property belonged really to the corporation, and that the Bidwell claim is fraudulent as a matter of law. Decree for defendants, and plaintiffs appeal.

Grant County: Jas. A. Fee, Judge. This is a suit in equity by Edward C. Allen against James Dunlap to enjoin a trespass upon and waste of a quartz ledge, in a mining claim called the Black Butte lode or ledge, which plaintiffs claim to own by right of possession and location.

Baker County: Morton D. Clifford, Judge. This is a suit by Leonard Low against Logan and Amanda Schaffer to enjoin the defendants from diverting the waters of Hill Creek, in Baker County, Oregon.

Union County: Jas. A. Fee, Judge. This is an action brought by A. A. Van Voorhies against E. G. Taylor, E. E. Taylor, and G. G. Taylor to recover nine hundred and ninety-two dollars and fifty-seven cents upon three promissory notes. An affidavit for an attachment, alleging that the payment of said sum had not been secured by any mortgage, lien, or pledge upon real or personal property, was filed, together with an undertaking therefor.

Union County: James A. Fee, Judge. This is an action brought by Fred Nodine against J. Q. Shirley for an alleged balance due on account. The cause was referred to take the testimony, compute the account, and report the findings of fact and conclusions of law thereon. The referee found that there was due from the defendant to the plaintiff seventeen thousand three hundred and fifty dollars and sixty cents, and that said plaintiff was entitled to a judgment for this sum.

Union County: Morton D. Clifford, Judge. The object of this suit is twofold — First, to cancel and set aside a conveyance of certain lands by the plaintiff, Israel Thomas, to his son S. K. Thomas, and the deed from S. K. Thomas to his co-defendant, Delaney; second, for a decree making the deferred payments upon certain other lands sold by the plaintiff to' the defendants a lien upon the lands.

Union County: .Jas. A. Fee, Judge. This is a proceeding, by writ of review, prosecuted by Wm. H. Packwood, Jr., and others to reverse and annul the action of the justice’s court for Cove Precinct, Union County, in refusing to grant a motion for a change of venue, and proceeding with the trial of a criminal charge against the plaintiffs for trespassing upon enclosed lands, in violation of section 1794 of Hill’s Code.

Union County: Jas. A. Fee, Judge. This was an action originally brought by C. J. Duffy and M. J. Dray against W. A. Mix, L. B. Rinehart, and S. A. Mix, in a justice’s court for the recovery of the possession of a quartz mining claim known as the “Mayflower,” in which the plaintiffs recovered a judgment, from which the defendants appealed to the circuit court, where plaintiffs again recovered judgment, and from which defendants have appealed to this court.

<p>Baker County: Morton D. Clifford, Judge.</p> <p>Defendants appeal.</p>

Multnomah County: E. D. Shattuck, Judge. Action by Eugene Ahern against the Oregon Telephone & Telegraph Company to recover damages for personal injuries received by coming in contact with a telephone wire that had become heavily charged with electricity and was hanging down from a pole on which it had been coiled and hung. Judgment for plaintiff, and defendant appeals.

<p>1. Dying Declarations — Evidence.— To render dying declarations admissible in evidence they must appear to have been made under a sense of • impending death and when the deceased had no hope of recovery; but such a belief may be inferred from circumstances, and need not have been expressly stated by the deceased. Within this rule statements made by one in a semi-comatose but conscious condition, suffering from a mortal gunshot wound from which he never rallied, and which speedily proved fatal, who has declared at intervals that he cannot live, and has previously said that he could not, because he was “hurt too bad,” are admissible in evidence as dying declarations.</p> <p>2. Impeachment — Evidence—Harmless Error. — The exclusion of evidence tending to impeach a witness by showing inconsistent statements at other times, is harmless, where the witness himself admits having made such statements.</p> <p>3. Evidence oe Experiments.— The result of experiments with a pistol and some cartridges found on a defendant made for the purpose of showing that a ball from such pistol would penetrate further into the woodwork of the room where deceased was shot than would balls fired from the pistol with which the killing is claimed to have been done, cannot be admitted in evidence unless it is shown that the conditions of position, distance, etc., were the same in both cases. State v. Justus, 11 Or. 179, approved and followed.*</p> <p>4. Evidence — Statements oe Other Persons — Hearsay.— While it is admissible to show that another person committed the crime with which the defendant is charged, it must be by evidence directly connecting such person with the occurrence itself; but remote acts, disconnected and outside of the crime itself, confessions of others, and the like, are purely hearsay, and are inadmissible. Under this rule evidence is inadmissible on a trial for murder, that another person than defendant had threatened to kill the deceased, and that on the morning after the killing he said that he had killed him, that at the time he had on clothing corresponding to that worn by the murderer as described by a witness and was seen coming from that direction four or five hours after the crime was committed.</p>

Malheur County: Jas. A. Fee, Judge. J. L. Cole and B. F. Kendall sought to enjoin Wm. L. Logan from diverting the waters of Willow Creek. There was a decree dividing the water, and both parties appeal.

Baker County: Morton D. Clifford, Judge. Action by Patón Brown against tbe Oregon Lumber Company to recover damages for personal injuries. A nonsuit having been granted, plaintiff appeals.

Union County: Morton D. Clifford, Judge. Action by W. R. Johnson and George Hull, partners, against R. D. Hamilton, to recover the price of an installment of logs delivered under a contract. Judgment for plaintiffs, and defendant appeals.

<p>Umatilla County: Morton D. Clifford, Judge.</p>

Jackson County: W. C. Hale, Judge. Action by E. C. Kane against C. G. Rippey and Frank Amy to recover money paid on a contract for the sale of land. Judgment for plaintiff, and defendants appeal.

Coos County: Martin L. Pipes, Judge. Suit by Samuel Archer and Margaret, his wife, against the California Lumber Company for reformation of a deed. Decreed for complainants, and defendants appeal.

Marion County: Reuben P. Boise, Judge. This is a suit by Goodale & Wheeler against Coffee, Cragin & Stubbings, who are claimed to be partners, to forclose a lien for material furnished and used in the construction of a dwelling-house situate upon lot ten of block twenty-six in Highland Addition to the City of Salem, Marion County, Oregon.

Jackson County: W. C. Hale, Judge. This appeal is brought to reverse a judgment for five thousand dollars recovered by Emma Cooper in an action for libel against Calista Phipps and her son, Wm. Phipps.

Multnomah County: Michael G. Munley, Judge. These are cases against Vm. M. McGuire, F. C. Barnes, and G. Covach for violating the law regarding the having, or offering for sale, of fish during the close season on the Columbia River, and were tried as test cases. Defendants were convicted, and appeal.

Multnomah County: E. D. Shattuck, Judge. This action was originally commenced by J. M. Nickum on the fifteenth day of October, 1891, against Walter Danvers and Isabella Danvers to recover the possession of the northeast fractional quarter of section twenty, township one south, of range two east, containing one hundred and fifty-eight acres of land more or less. The complaint was in the usual form.

Coos County: Martin L. Pipes, Judge. Suit by Ming Yue, Ah Mung, and Ang Ark, partners as Kwong Lee Kee & Co., having their place of business in San Francisco, California, to foreclose an alleged lien on the railroad of the Coos Bay, Roseburg, and Eastern Railroad and Navigation Company. Defendant had a decree on demurrer to the complaint, and plaintiffs appeal.

<p>Coos County: J. C. Fullerton, Judge.</p> <p>Defendants appeal.</p>

Multnomah County: Loyal B. Stearns, Judge. Suit by the rector, wardens, and vestrymen of the Parish of St. David’s, a corporation, against Prank Wood, and Virgil E. Watters, the recorder of conveyances of Benton County, Oregon, to enforce the specific performance of a written contract under seal.

Douglas County: J. C. Fullerton, Judge. Defendant appeals. This is a special proceeding by C. H. Bitting, to review the action of the county court of Douglas County in the matter of changing a county road.

Douglas County: Robert S. Bean, Judge. This is a suit by Isaac Jones against Henry Gates and John Rast to enforce a vendor’s lien against certain real estate known as the Roseburg Mill Property, in Douglas County.

<p>1. Divokce — Evidence.— Evidence in a suit for divorce that defendant frequently charged plaintiff with unchastity, without stating the times, places, persons, or circumstances, is too indefinite and uncertain to warrant a decree.</p> <p>2. Divokce — Pleading Condonation.— In a divorce suit defendant may take advantage of the defense of condonation without pleading it.</p> <p>3. Divokce — Admissions in Pleadings.— Admissions in an answer in divorce proceedings do not warrant a decree, but plaintiff must establish a good cause of suit independently of them.</p>

Marion County: Geo. H. Burnett, Judge. This is an action by M. L. Crane against C. L. Jones. as endorser of a promissory note for one hundred and fifty dollars, dated the twenty-ninth of April, 1879, executed and made payable in the province of Ontario, Canada, due one month after date.

<p>1. Libel — Candidate for Office* — Malice—Privilege.— The fitness and qualification of a candidate for a public office may be subjected to the closest scrutiny and investigation, and charges affecting the fitness of such a candidate will not be actionable without proof of express malice; but when a crime is falsely imputed to a candidate, the utterance is actionable per se, the law implying malice. Such charges are in no respect privileged, and can be justified only by proof of their truth.</p> <p>2. Libel — Privilege of Newspaper Publishers* — Freedom of the Press. — The idea that the “ freedom of the press,” guaranteed by the constitution, gives newspaper proprietors a privilege to publish with impunity-charges for which others would be held responsible, is a very erroneous one; such persons have no more immunity from liability for libelous publications than other citizens. The publisher of a false and defamatory charge must always answer in damages to the injured party.</p> <p>3. Justification of Libel — Mitigation of Damages. — The fact that a defamatory publication was copied from another newspaper in the honest belief that it was true is not a justification, although it may go in mitigation of damages.</p> <p>4. Libel — Evidence of Other Charges — Malice—Damages.— In an action for libel, actionable words spolcen or published on other occasions than the one charged, can be given in evidence as tending to show express malice and to enhance the damages, when they impute the same crime, or are a renewal of the original charge, but not otherwise.</p> <p>5. Failure to Prove Truth of Libelous Charge — Justification — Malice— Code, 91. — The fact that a defendant in a libel action has failed to prove his plea of the truth of the charge, is not necessarily to be considered as evidence of malice and in aggravation of damages; it is for the jury to decide from all the evidence, and from the spirit of the defense, whether the plea was an honest one, or was simply an excuse to repeat the original charge.</p>

<p>Tillamook County: Geo. H. Burnett, Judge.</p> <p>Motion to dismiss an appeal.</p>

<p>Douglas County: M. L. Pipes, Judge.</p> <p>Plaintiffs appeal.</p>

<p>Yamhill County: Geo. H. Burnett, Judge.</p> <p>Action by W. E. Foshier against John Narver on a foreign judgment. Plaintiff had a judgment, and defendant appeals.</p>

<p>Clackamas County: Frank J. Taylor, Judge.</p> <p>Suit in equity by Edward T. Jennings against Addie C. Jennings and J. C. Ainsworth, to establish an interest in land. Decree for defendants, and plaintiff appeals.</p>

Multnomah County: E. D. Shattuck, Judge. Action of Frederick and Ludwig Westenfelder against Flora E. Green to recover possession of certain lots in the city of Portland, resulting in a judgment for defendant, from which plaintiffs appeal.

<p>Clatsop County: Thomas A. McBride, Judge.</p> <p>Suit in equity by Nancy Welch, G. Wingate, The Astoria Investment Company, Samuel Elmore, and G. W. Sanborn, partners as Elmore, Sanborn & Co., Samuel Elmore, J. G. Megler, A. J. Megler, W. E. Warren, M. S. Warren, and it. P. Elmore against Clatsop County and H. A. Smith, its sheriff, to restrain the collection of a tax. A demurrer to the complaint having been sustained, the plaintiffs appeal from the decree of dismissal.</p>

<p>Lane County: J. C. Fullerton, Judge.</p> <p>Defendants appeal.</p>

Marion County: Geo. H. Burnett, Judge. This is an action by Mary A. Ramp against Marion County to recover one hundred and forty-five dollars and thirty-three cents alleged to have been unlawfully collected by the county from the plaintiff as taxes for the year 1890, and comes here on an appeal by plaintiff from a judgment in favor of the county on a demurrer to the complaint.

Multnomah. County: Loyal B. Stearns, Judge. This is a suit by J. E. Smith against Multnomah County and Penumbra Kelly, its sheriff, to perpetually enjoin the collection of a tax levied upon a mortgage of real property taken by plaintiff as security for the payment of nine thousand dollars.

Yamhill County: Geo. H. Burnett, Judge. This is a suit to foreclose a landlord’s lien for rent. The facts show that on and prior to the first day of Oetobe, 1890, the West Shore Mills Company was the owner ánd in the possession of certain premises in Yamhill County, which, on or about that day, it leased to the defendant M. M. Edwards for the crop year of 1891.

Josephine County: Lionel R. Webster, Judge. This is an action by Delia Noland to recover the sum of five hundred dollars from Benjamin Bull upon a written instrument which was executed and delivered to plaintiff for a balance of five hundred dollars claimed to be due her on the sale of the Stephens Ranch to the defendant for the agreed price of two thousand dollars.

This is a suit brought by W. S. Bruce against the German Sayings and Loan Society and the Phoenix Insurance Company to recover from the latter one thousand eight hundred dollars, the amount claimed to be due on an insurance policy, on account of a loss by fire.

Multnomah County: Loyal B. Stearns, Judge. This is a suit in equity by S. R. Johnston against Philip C. Wadsworth, for the specific performance of a written contract.

Marion County; Geo. H. Burnett, Judge. This is a suit by J. Q. Wilson and others to restrain the execution of a warrant for the sale of plaintiffs’ property for delinquent street assessments, commenced after the work had been completed and accepted by the city, and the property advertised for sale.

Clackamas County: Loyal B. Stearns, Judge. This is a suit by Ida M. Barkley and others to restrain the collection of an assessment for grading and improving Seventh Street in Oregon City.

Columbia County; Thomas A. McBride, Judge. Tbis is an action by L. D. Duzan to recover the sum of five hundred dollars from Lincoln Meserve and others, alleged to be due on the sale of their right, title, and interest in and to certain mill machinery which was then in their possession under a contract of sale with J. M. Arthur & Co. of Portland, Oregon. The cause was tried upon the issues joined by the pleadings, and resulted in a verdict and judgment for the plaintiffs.

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

Multnomah County: Loyal B. Stearns, Judge. Suit by R. J. Rowland against W. L. Harmon, a prop-= erty owner, and Kill am & Lewton, his contractors) to foreclose a lien for labor and materials. From a decree for plaintiff, W. L. Harmon appeals.

<p>1. Interest on Unliquidated Accounts — Code, £ 3587. — Where the amount of an account is unliquidated, and there is no express agreement to pay interest, there is no default in payment, and of course no interest, until the amount of the debt is made certain; thus, where a lease of a water power provides for the payment of a fixed sum quarterly, unless the supply of water be deficient, when there should be a proportionate reduction of rent, and in fact the water did partially fail, no interest can be allowed on unpaid installments of rent. Hawley v. Dawson, 16 Or. 344, cited and approved.</p> <p>2. Mutual Accounts — Interest—Code, g 3587. — Where a person owes for rent, and furnishes goods and makes repairs against his rent account, there is a case of mutual accounts, and no interest can be allowed either party until the difference between the opposing accounts has been adjusted and settled: Gatlin v. Knott, 2 Or. 321, approved and followed.</p> <p>3. Idem.— Accounts purchased from third parties are not mutual accounts so as to prevent the running of interest upon them, under Hill’s Code, § 3587, providing for interest on accounts from the day the balance is ascertained.</p> <p>4. Trial — Findings or Fact. — When a cause is tried by the court without the intervention of a jury, there should be findings of fact upon all the material issues presented by the pleadings. Drainage District v. Crow, 20 Or. 535, cited and approved.</p> <p>5. Contract — Act oe God.'* — Failure to repair leased dams or races within ten days after the water has fallen to the average winter stage as required by a contract leasing the water power, is not excused, if the water continues below that stage, by the fact that the work could not profitably be done within the time agreed upon; but if the water falls below the required stage and immediately rises again and continues above the required depth, the lessor will be released from liability for breach of his covenant, if he makes the repairs as soon as possible.</p> <p>6. Act of God — Defense — Pleading.—The act of God rendering performance impossible, if relied on as a defense, must be pleaded.</p> <p>7. Contbacts — Liquidated Damages. — A clause in alease for a pro rata reduction of the agreed rent of a water power in case of a deficiency of water> is nota provision for liquidated damages so as to prevent the lessee from recovering damages for breach by the lessor of another clause in the same lease to repair the dams and races, whereby the lessee loses the use of his mill, the rental value of which is twenty dollars per day, while the rent of the water power is only three dollars per day.</p>

Clackamas County: Frank J. Taylor, Judge. This is a proceeding brought by Emma Jane Clayson, in the county court of Clackamas County, to have the will of W. H. Clayson, a non-resident decedent, admitted to probate, and to have ancillary letters of administration with the will annexed issued thereon to some suitable person, and to have the defendant Charles Clayson, administrator of the estate of such decedent, removed, and comes here on an appeal by Charles Clayson.

<p>Clatsop County: Thos. A. McBride, Judge.</p> <p>This is a suit in equity by Mary H. Leinenweber and F. J. Goodenough against Hiram Brown and H. A. Smith, sheriff of Clatsop County, to set aside a sale of real property made under an execution issued on a decree of foreclosure, and comes here on appeal from a decree of the court below sustaining a demurrer to the complaint and dismissing the suit. The material allegations of the complaint are that on the second of March, 1885, the plaintiff, Mary H. Leinenweber, being the owner of all the Powers donation land claim in Clatsop County (except one hundred and thirty-five acres theretofore sold to John Adair), mortgaged the same to the board of school land commissioners to secure the payment of the sum of two thousand five hundred dollars with interest; and afterwards, on the twenty-eighth day of January, 1890, sold and conveyed forty-seven and twenty-seven hundredths acres thereof, subject to the mortgage, to Trueman H. Leinenweber and F. J. Goodenough, and that Goodenough subsequently purchased Leinenweber’s interest in the same; that on the fifteenth of July, 1890, she made, executed, and delivered to Allen & Lewis a second mortgage upon the land then owned by her to secure the payment of the sum of twenty thousand six hundred and fifty-one dollars and twenty-five cents, which was assigned and transferred by Allen & Lewis to the defendant Hiram Brown, who in the year 1891 began a suit in the circuit court for Clatsop County to foreclose it, making the plaintiff Leinenweber and the board of school land commissioners parties, but not the plaintiff Goodenough. It further appears that in said suit the board of school land commissioners appeared and answered, asking for a decree foreclosing its mortgage, and such proceedings were afterwards had as that both the mortgage in favor of the school fund and the mortgage in favor of Allen & Lewis, then owned by Brown, were foreclosed, and the property ordered sold to satisfy the same; that on the first day of February, 1892, Brown caused an execution to issue on the decree in which both said tracts ef land were described as one, and as if owned by the plaintiff Leinenweber alone, and covered by and included in both mortgages, the execution requiring the sheriff to levy upon and sell all the right, title, and interest of the plaintiff Mary H. Leinenweber in and to the donation land claim of Powers and wife, except the one hundred and thirty-five acres sold to Adair; that the execution was not issued upon the joint request of Brown and the board, nor pursuant to an order of court or the judge thereof, but was issued solely upon the.request of Brown; nor did it requirethe sheriff to apply the proceeds derived from the sale of the property to the satisfaction of said mortgages, or either of them, but merely required him to apply the proceeds of the sale to the costs and expenses of making the same, and of and upon the execution. Moreover, it is alleged that after the execution was placed in the hands of the sheriff for service, he published a notice of the time and place of sale, and in the notice claimed and represented that by the terms of the execution he was authorized to sell all the property described in the school fund mortgage to satisfy a decree for the sum of three thousand and thirty-two dollars in favor of the board, and a decree for the sum of twenty-three thousand two hundred and eighty-five dollars and eighty-one cents in favor of Brown, while in truth the execution did not authorize him to sell the land or any part thereof to satisfy the said decrees, or either of them; and that the execution varied from the decree in that it failed to direct an application of the proceeds of the sale in the manner provided in the decree, and that the notice misrepresented the requirements of the execution and the object of the sale.</p> <p>The complaint further shows that the real estate is agricultural land, and that it is customary to sell land of this character in said county upon Saturdays when agriculturists are in the city of Astoria, which is the county seat of said county and the only city therein; that said property was sold upon a day when but few agriculturists are customarily in the city, and it also appears that the only newspaper in which the notice of sale was published was the Daily Town Talk, which was not a newspaper of general circulation in said county; but,, on the contrary, was a newspaper the circulation of which was limited to but a small portion thereof, to wit, the city of Astoria; that upon the second of March, 1892, the sheriff proceeded to sell, and did sell, upon the said pretended execution, all the interest of the plaintiff Leinenweber in the property described in the execution, to the defendant Brown for the sum of fifteen thousand dollars, he being the highest and best bidder therefor, such sale being made en masse and not in separate parcels; that as a result of the proceedings above described, the defective execution, the unauthorized terms of the notice, and the manner of its publication, not more than twelve persons were present when the sale was made to the defendant Brown for the said sum of fifteen thousand dollars, although the property was reasonably worth the sum of seventy thousand dollars; that the sale was confirmed by order of the court on the eleventh of March, 1892; but during all the times when the notices were being published, and when the sale was made and confirmed, the plaintiff Leinenweber was without the state of Oregon, and was within the state of California, and did not discover that the sale had been made until after the confirmation thereof, and that said Goodenough was not made a party to said foreclosure suit. It is also alleged that defendant Brown had knowledge of all the acts and proceedings mentioned and participated in the same at the respective times thereof, with the purpose of obtaining said real estate at an inadequate and unfair price, and preventing a redemption of the same or any part thereof.</p>

Linn. County: Geo. H. Burnett, Judge. This is a suit brought by D. C. Sherman in his own name against A. J. Bellows, James Byron, J. W. Mullen, Charles Nickell, and S. S. Train, the trustees of the Oregon Soldiers’ Home, to restrain them from purchasing land for a site and locating the Soldiers’ Home at Roseburg.

Clatsop County: Thos. A. McBride, Judge. Action by M. S. Warren against M. C. Crosby, mayor of the city of Astoria, Oregon, and others, to enjoin such city from incurring further expense in assessing and collecting the city taxes for the year 1893. From a judgment in favor of plaintiff, defendants appeal.

Multnomah County: E. D. Shattuck, Judge. Petition of Amos L. Lovejoy and others for relief from a judgment rendered against them in an action by them against the Willamette Transportation & Locks Company. Petition denied, and petitioners appeal.

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

Umatilla County: Luther B. Ison, Judge. In substance the facts are these: The defendants Mackenzie & Cavanaugh are copartners. On the thirty-first day of June, 1882, the plaintiff McDonald, being indebted to the defendant Cavanaugh, made and delivered to him a certain promissory note, wherein he agreed to pay to the order of said Cavanaugh a sum therein named, etc., and secured the same by a mortgage.

Crook County: J. H. Bird, Judge. This is an action to recover two hundred and forty-nine dollars, balance on a promissory note, and four hundred dollars claimed to be due upon a written lease. The answer alleged payment of the note in full, and contains several separate defenses which were relied upon at the trial.

Multnomah County: Loyal B. Stearns, Judge. Suit in equity by W. F. Hummel and Frank Hummel against A. H. and Louise Friese to remove a cloud from the title to certain real estate. A decree was rendered in favor of plaintiffs, and defendants appeal.

Multnomah County: Loyal B. Stearns, Judge. Suit by Joseph Buchtel against Frank Bode to redeem fifty shares of the capital stock of the City View Park Association, which plaintiff claimed to have transferred to defendant as collateral security for the payment of a debt. There was a decree for defendant, and plaintiff appeals.

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