Volume 33 — Oregon Reports

<p>1. Pleading — Contract or Tort. — A complaint averring the delivery of merchandise by plaintiff to defendant, under an agreement that defendant should sell the same, and account for the proceeds, less expenses and a certain commission, but that defendant “ wrongfully and unlawfully retained and converted to their own use ” an excess over the agreed commission, declares upon a contract rather than a tort: Suksdorf v. Bighorn, 18 Or. 369, cited.</p> <p>2. Appeal. — Questions of fact decided in the trial court cannot be reviewed in the supreme court.</p>

From Multnomah: E. ID. Shattuck, Judge. Fred D. Miller applied to the state board of medical examiners for a license to practice medicine, but was refused because the application was not made within ninety days after the passage of the act of 1895. An appeal was taken to the circuit court, and thence here.

<p>Mandamus — Appeal—An appeal from a peremptory writ of mandamus requiring county commissioners to levy an additional tax will be dismissed, where it was not taken until after the commissioners had complied with the terms of the writ.</p>

<p>Rtjxe eor Admitting Secondary Evidence — Secondary evidence of a transfer of personal property by bill of sale is inadmissible unless a reasonable excuse is given for not producing the writing.</p>

<p>Personal Property — Bttilling.—It Is error to nonsuit plaintiff in an action for conversion of a building upon the ground that his evidence shows the building to be real and not personal property, where the defendant claims the building by virtue of a levy upon it as personal property under attachment, and the evidence merely shows that it was erected by one person upon land of another under an agreement giving the former the right to remove it.</p>

From Multnomah : Alfred F. Sears, Judge. Action by Barney Gobbi against M. Refrano for $213, wherein plaintiff had judgment in the justice’s court for $170. On appeal plaintiff liad, judgment for $54, which was paid. Plaintiff appeals from certain rulings which are fully set forth in the opinion.

<p>1. Vendor and Purchaser.— A grantor is not chargeable with false and fraudulent representations concerning the title to land conveyed, although he said the title was perfect, when all the facts within his knowledge were communicated to the grantee prior to the purchase, since his statement was but an expression of opinion based on such facts.</p> <p>2. Fraud — Rescission oe Sale. — In the absence of fraud, an executed sale of real estate will not be rescinded for failure of title, but the purchaser must look for protection to the covenants of the deed.</p> <p>3. Adverse Possession. — An adverse possession of public land, with a claim of exclusive title thereto as a homestead, for more than ten years, except as against the Unitfed States, vests a perfect title in the occupant, as against one who had obtained a patent before such occupancy: Parker v. Metzger, 12 Or. 407, approved.</p>

<p>From Grant: Morton D. Clifford, Judge,</p> <p>Otis Welch, appeals from of $600 for sheep-stealing. a judgment imposing a fine</p>

From Multnomah : Alfred F. Sears, Judge. Separate actions by the First National Bank of Portland against the Commercial Union Assurance Company, and the Phoenix Assurance Company. The two actions were tried together and plaintiff had judgment. Defendants appeal.

<p>Larceny — Consent oe Owner. — Property is not taken without the owner’s consent, within the meaning of the term larceny, where an authorized agent of the owner co-operates with the suspected thieves in planning and carrying out the asportation.</p>

From Multnomah.: Loyal B. Stearns, Judge. This is a suit by Solomon Stemmer against the Scottish Union and National Insurance Company and others, to set aside the awards of arbitrators, and to recover upon certain policies of insurance the amount of loss claimed to have been sustained by fire.

<p>From Baker : Robert Eakin, Judge.</p> <p>J. L. Ash, having been convicted for a crime, appeals.</p>

<p>From Marion: Henry H. Hewitt, Judge.</p> <p>Appeal from an order of the circuit court dismissing a writ of review from a justice’s court.</p>

<p>From Grant: Morton D. Clieeord, Judge.</p> <p>Richard Hinkle was convicted of manslaughter and appeals.</p>

<p>1. Agreement to Insure — Presumption as to Form of Policy. — Where nothing is stipulated in a preliminary agreement to insure so far as it respects the kind of policy to be issued, the law presumes that the parties contemplated the policy ordinarily employed by the company to cover property of the kind designated in the agreement, and this whether insured sues in equity for specific performance of the agreement and for damages in pursuance thereof, or at law directly on the agreement for damages for a breach thereof in neglecting to issue the policy.</p> <p>2. Incumbrances — Waiver of Conditions of Policy. — Where, in the course of the negotiation of a preliminary agreement for the issuance of a policy, no inquiry is made touching incumbrances, and no intimation is given applicant that they would affect the insurance, the denial of the agreement and the withholding of the policy by the company waives a condition in the policy against incumbrances: Koshland v. Home Ins. Co., 81 Or. 321, and Koshland v. Hartford Ins. Co., 31 Or. 102, applied.</p> <p>3. Waiver of Proofs of Loss. — A denial of an oral contract to insure followed by a refusal to deliver a policy, is a waiver of any condition or rule requiring proofs of loss: Hardwick v. State Ins. Co., 20 Or. at p. 557, applied.</p>

<p>1. Impeaching One’s Own Witness — Evidence.—Where a witness gives testimony which is unexpected, the court may, in its discretion, permit the party calling him to direct the attention of the witness to circumstances of time, place, and persons present, to refresh his memory as to alleged contradictory statements; and where such witness answers in an equivocal manner, and seemingly tries to shade his testimony to the advantage of the other party, such statements made by him at another time may be given, not as substantive proof, but by way of explanation. Langford v. Jones, 18 Or. 308, and State v. Sleeves, 29 Or. 85, followed.</p> <p>2. Impeaching Question — Persons Present. — Where it is desired to lay a foundation for impeaching a witness by contradictory statements theretofore made, it is not necessary to name all the persons who were present. It will be sufficient to designate a few of them, especially where the contradictory statements were made in public, and then anyone who heard them may testify.</p> <p>3. Refreshing Memory Prom Memoranda — Witness.—Stenographic notes made at a preliminary examination may be used to refresh the memory of the person who made them to contradict the testimony of a witness, where a proper foundation therefor has been laid.</p> <p>4. Competent Evidence of Situation. — On a trial for murder evidence is admissible to the effect that the tracks of the deceased occurred at regular intervals to the point where he fell, although there were many tracks around the body, but none other in the furrow where the deceased was walking, as bearing on the question whether the deceased made any hostile advances on defendant.</p> <p>5. Defendant as Witness — Cross-Examination—Impeachment.—The defendant in a criminal action who voluntarily testifies in his own behalf may be cross-examined as to statements made on his preliminary examination contrary to his testimony on the trial, although he did not in his direct examination refer to the preliminary examination. State v. Abrams, 11 Or. 169, followed; State v. Lurch, 12 Or. 99, and State v. Saxtnders, 14 Or. 300, distinguished.</p> <p>6. Appeal — Unanswered Question. — Alleged error in excluding an answer to a question is not available on appeal unless the bill of exceptions shows that counsel stated what he expected the answer to be. Stanley v. Smith, 15 Or. 505; State v. Gallo, 18 Or. 423, and Graft v. Dalles City, 21 Or. 53, followed.</p> <p>7. Instructions Must be Taken Together — Trial.—A judgment will not be reversed becau.se some instruction considered alone may be subject to criticism where the instructions as a whole are substantially correct and could not have prejudicially misled the jury. State v. Anderson, 10 Or. 448, and State v. Hansen, 25 Or. 391, applied.</p> <p>8. Evidence of Threats — Self-Defense.—An instruction on a trial for murder that evidence of threats by the deceased or a previous quarrel may be considered by the jury if the circumstances raise a doubt as to whether defendant acted in self-defense in order to aid them in determining who was the aggressor is not prejudicial to defendant where he is convicted of manslaughter only, and if the jury had not considered such evidence the verdict must have been a finding that defendant was guilty of murder in the first or second degree.</p> <p>!). Force to Expel Trespassers — Homicide.—The right within a reasonable time to employ sufficient force to expel a person who unlawfully intrudes on one’s premises after having been warned to depart does not extend beyond the limits of the dwelling and the customary outbuildings.</p> <p>10. Instruction on Use of Deadly "Weapon. — An instruction that “an intent to murder is conclusively presumed from the deliberate use of a deadly weapon, causing death within a year, if not done in self-defense or in the rightful and necessary defense of property,” is cured by a modification to the effect that “ this does not raise a presumption of murder in the first degree ; it only uses the term ‘ murder,’ and cannot raise a presumption greater than murder in the second degree.” State v. Carver, 22 Or. 602, cited.</p>

From Marion : Henry H. Hewitt, Judge. Proceeding in the form of a writ of review by the Dayton Hardware Co. against the State Board of Equalization and Multnomah County to test the propriety of the action of said board in adding twenty-five per cent, to the assessed valuation of plaintiff’s stock of merchandise. There was a judgment for defendants.

<p>From Marion : Geo. H. Burnett, Judge.</p> <p>L. F. Gardner appeals from a conviction for rape.</p>

From Klamath.: W. C. Hale, Judge. Proceeding by N. B. Knight against J. W. Hamaker, administrator of'Warren H. Mills, on a claim. Appeal of the administrator to the circuit court from an adverse order was dismissed, and he again appeals.

<p>From Union : Robert Eakin, Judge.</p> <p>John Minnick having been acquitted on a charge of larceny, the state appealed, whereupon the defendant filed a motion to dismiss.</p>

From Washington : Thomas A. McBride, Judge. Suit by Mary Patton against her daughter Mary F. Nixon and another for the re-conveyance of land. There was a decree for plaintiff, and defendants appeal.

<p>Imprisonment nor Failure to Pay Fine. — Under sections 2131 and 1408, Hill’s Ann. Laws, giving to a justice of the peace the same power as to fines and imprisonments that is possessed by the circuit courts, and prescribing how a judgment of fine in the latter court must be executed, a justice of the peace may order a defendant imprisoned if his fine is not paid: State v. Sheppard, 15 Or. 598, applied.</p> <p>Meaning oe the Word “Proceeding” Considered. — An imprisonment for failure to pay a fine is a “ proceeding ” within the meaning of a section of a city charter providing for “ proceedings before the (municipal) court.”</p> <p>Municipal Court — Statutory Construction. — A provision inacity chárter limiting punishment by imprisonment to ninety days does not affect the right of the municipal judge to inflict a fine, the working out of which under the general statutes will keep the offender in confinement longer than the prescribed limit, since in the latter case he is only paying a fine, while in the other case he is being imprisoned as a punishment.</p>

From Multnomah: E. D. Shattuck, Judge. Consolidated actions by the First Nat. Bank of Portland against the Fire Association of Philadelphia and the Aachen and Munich Fire Insurance Company, on certain assigned policies of fire insurance issued to H. Wolf and Bro. Judgments for defendants from which plaintiff appeals.

<p>From Multnomah': Melvin C. George, Judge.</p> <p>George Barrett was convicted of manslaughter and appeals.</p>

From Klamath : W. C. Hale, Judge. Writ of review by Cecil J. Garnsey against the county court of Klamath County and its judge to review the action of said court in allowing a certain claim against an estate. The circuit court dismissed the writ, whereupon petitioners appealed. The case was heard on a motion to affirm and on the merits.

From Multnomah : Loyal B. Stearns, Judge. Bill by the Security Savings and Trust Company against William Mackenzie to bar the latter’s interest under a certain contract to convey real estate. There was a decree for plaintiff.

<p>1. Mandamus — Contents op Writ. — a writ of mandamus must itself point out the acts required to be done, and the person against whom it is directed cannot be required to look beyond the language of the writ to ascertain such acts.</p> <p>2. Duty op Secretary op State — Australian Ballot Law. — Under section 45 of the election law of this state, commonly known as the Australian Ballot Law (Laws, 1891, p. 22), the secretary of state is required to certify to the names of candidates, and to the other matters contained in the several certificates which are required by law to be placed on the official ballot, and mandamus will not compel him to do more, as, for example, to certify that a particular candidate was nominated by a certain party.*</p>

From Jackson : Hiero K. Hanna, Judge. This is a suit to enjoin an alleged trespass.

From Klamath : W. C. Hale, Judge. Writ by Mary E. Towns to review certain proceedings. The circuit court having dismissed the writ, petitioner appealed again.

<p>Trtal — Power of Court to Control Testimony. — Under the general power to control the conduct of a ease a judge may sua spoute withdraw improper testimony from consideration by the jury, or may limit its application, particularly whore counsel were notified on offering the testimony that such a ruling might be made at the conclusion of the trial. ■</p>

<p>1. Sufficiency of Motion to Dismiss Appeal. — A party asking the dismissal of an appeal by reason of a technical defect in the proof of service of the notice must specify definitely and with certainty the point of the Irregularity complained of: JBilyeu v. Smith, IS Or. 335, applied.</p> <p>2. Certifícate of Service of Motion. — A constable’s return of the service of a notice of appeal is Insufficient where it specifies that the service was made within a certain county and state, but fails to show that it was made within the constable’s own precinct: Sloper v. Carey, 9 Or. 511, approved.</p>

From Sherman: W. L. Bradshaw, Judge. Bill of mortgage foreclosure by George A. Liebe, as executor of R. G. Closter, deceased, against Chas. W. Battmann and Chas. A. Schütz who, it was alleged, claimed some interest in the note and mortgage. Battmann defaulted, and after a trial with Schütz there was a decree dismissing the suit, from which plaintiff appeals.

From Umatilla : Stephen A. Lowell, Judge. Suit for an injunction by Matt. Mosgrove against Geo. W. Harper and Julia and D. St. Dennis to prevent tlie plaintiff from being forcibly ejected from a tract of land in the Umatilla Indian reservation. Plaintiff prevailed and defendants appeal.

<p>From Union : Robert Eakin, Judge.</p> <p>Action by Armittie H. Sullivan against A. W. Cline and others. From-a judgment setting aside proceedings of the county court on a writ of review, defendants appeal.</p>

<p>From Umatilla: Stephen A. Lowell, Judge.</p> <p>Action on a contract by Effie Graham against School District No. 69. Defendant had a verdict by direction by order of the court.</p>

<p>1. Collateral Attack —Jurisdiction.—An action for trespass on plaintiff’s premises defended on the ground that defendant entered on an established public road by authority of the road supervisor is a collateral attack on the proceeding establishing the road, and the only question which can be considered is that of the jurisdiction of the county court in the establishment of the road: Bewley v. Gi'aves, 17 Or. 174, applied.</p> <p>2. Highways — Sufficiency of Notice. — Notice that, at a session of the “ county court for-county,” a petition will be presented to “ said court ” to establish a road “within said county” along a certain line in H. county, sufficiently shows, as against collateral attack, that the petition is to be presented to the county court of H. county.</p> <p>3. Evidence of Postín© Notices. — Posting of notices in three public places within the vicinity of a proposed road is sufficiently shown by affidavits designating the places where notices were posted, as a barn on the line of road, the barn of V. and a fence at the east end of the road, and a recital in the journal entry of the court appointing viewers that it appeared that the notice had been posted in “ three of the most public places along the line of the proposed road”: Latimer v. Tillamook County, 22 Or. 291, and Cameron v. Wasco County, 27 Or. 318, applied.</p>

<p>Trespass — Pleading and Prooe\ — In trespass, where land is described as a particular lot, without giving metes and bounds, the evidence must be confined solely to that lot, and will not include trespass on other realty belonging to plaintiff.</p> <p>Surveys — Meandered Lines — Boundary.*—Whore a government surveyor fails to include large tracts of land lying between the meander lino as run and the stream, the patents for lots along such line, though referring for identification to the official plat of such survey, which represents the meander line as the border of the water, are grants only to the meander line actually run.</p> <p>Disputable Presumption — Government Survey. — Under the general presumption that official duty has been performed it will bo supposed that a line appearing on a government map was by the official who surveyed the ground actually run as shown, but this may be disputed.</p>

From. Umatilla : Stephen A. Lowell, Judge. This is an action to recover damages for the destruction by fire of certain personal property belonging to the plaintiff, alleged to have been caused by the negligence of the defendants. The facts are that during the harvest season of 1897 defendants were engaged in operating a threshing machine in Umatilla County, the motive power of which was a steam, straw-burning engine commonly used for such purpose.

From Umatilla: Stephen A. Lowell, Judge. This is an action by the W. W. Kimball Company, a corporation, against C. E. Redfield, to recover the possession of a piano.

<p>1. Pleading. — Under the rule here established that an objection to a complaint because it does not state a cause of action Is never waived, it is immaterial whether a court erred or was correct in overruling a motion for judgment non obstante after disposing of a demurrer which raised the same point.</p> <p>2. Construction oe Contract — Lease.—A contract by which one person is to rent certain premises, advance and pay the rent therefor, furnish necessary grain to seed the same, advance the money for harvesting the crops and the sacks for the same, and a second person is to cultivate the land and care for the crop produced until l-eady for harvesting, furnish the necessary assistance in harvesting, and out of the proceeds arising therefrom repay the former all money advanced for harvesting, sacking and marketing the crop and for rent of the premises, and also a debt due from him to such former person, entitles the husbandman to any surplus remaining after making such payments, although the contract is sEent in regard thereto. Considered in its entirety the contract is one of leasing.</p> <p>3. Tenancy in Common. — A tenancy in common between the landlord and tenant in the crop produced by the latter is never created where there is a cash rental.</p>

From Multnomah: Henry E. McGinn, Judge. Action by the City of Portland against the Bituminous Paying & Contract Co. and others on a bond.

<p>Injuries to Premises — Rights of Lessee — A lessee in possession of property which is destroyed through, another’s negligence may recover the value of its use for the unexpired term of the lease.</p> <p>Competency of Opinion Evidence. — Plaintiff in an action for property injured and destroyed by defendant’s negligence cannot, without laying the foundation therefor by showing that he is possessed of sufficient knowledge to form an intelligent estimate, give bis opinion as to the value of the different articles of property injured and destroyed: Oregon Pottery Company v. Kern., 30 Oregon, 328, followed.</p> <p>Appeal — Harmless Error. — Error in admitting incompetent evidence as to the value of articles injured or destroyed by fire set by defendant’s negligence cannot be regarded as harmless because competent evidence was subsequently given as to the value of some of such articles, whore the verdict is for a gross sum. In such a case there is no means of telling whether the competent or incompetent evidence decided the jury: Krewson v. Purdom, 15 Or. 589, and State ex rel. v. Kraft, 18 Or. 550, distinguished.</p>

<p>From Malheur: Morton D. Clifford, Judge.</p> <p>Action by Louise W. Mullaney against R. T. Evans, A. S. Evans, and H. Curtner, co-partners as Evans & Curtner. From a judgment in favor of plaintiff, defendants appeal.</p>

From Baker : Robert Eakin, Judge. Suit by tbe Municipal Security Company, of Portland, Maine, against Baker County, its judge, commissioners, treasurer, and five hundred of its taxpayers to relieve sundry warrants from the effect of the decree in a suit brought by the five hundred defendant taxpayers to enjoin the payment of these and a large number of other warrants.

From Umatilla: Stephen A. Lowell, Judge. This is a suit by S. L. Conklin of New York to foreclose a mortgage on certain real property in Pendleton, executed by Mattie La Dow, Charles B. Isaac, and Frank E. La Dow, to plaintiff’s assignor, to secure the payment of $17,350.

<p>S ufficiency of Exceptions. — An exception in gross to a series of propositions, some of which are correct, is unavailing on appeal: Langford v. Jones, 18 Or. 307; Salomon v. Cress, 22 Or. 177; Jensen v. Foss, 21 Or. 158, and Nickum v. Gaston, 21 Or. 380, approved and followed.</p>

<p>From Baker : Robert Eakin, Judge.</p> <p>Action by Andrew Hamilton against E. B. Butler and Robert Dickson. Judgment for plaintiff, from which defendants appeal.</p>

From Washington : Thos. A. McBride, Judge. Action by Stephen Blank against L. C. Walker and others, wherein plaintiff appealed. Respondent moves to dismiss for failure to file briefs as required.

<p>Homestead on Public Land —Conclusiveness op Judgment. — One who has acquired land as a homesteader under Rev. Stat. U. S., § 2298, may recover possession of the land from one who purchased at a sale under an execution on a judgment based on a debt contracted prior to the actual issuing of the patent although evidenced by a note executed after its issuance: Wallowa Nat. Bank v. Riley, 29 Or. 289, and Berry v. Charlton, 10 Or. 362, followed.</p>

<p>When Nonsuit Should be Refused — The only question for the consideration of the court on a motion for nonsuit is whether there is any evidence from which the jury can reasonably conclude that the facts sought to be proved are established, and in determining such question it must assume as true every fact which the j ury could properly find from the evidence: Wallace v. Suburban Railway Co., 26 Or. 174, and Vanbibber v. Plunkett, 26 Or. 562, approved.</p> <p>Execution — Payment.—It is immaterial that an execution debtor does not offer an account as part payment of the execution, if it is taken and accepted by the creditor from the sheriff as such payment, and the debtor subsequently acquiesces therein.</p> <p>33 375</p>

From Harney : Morton D. Clifford, Judge. Action by Jas. W. Smith against Henry C. Turner and others on a promissory note executed April 12, 1890, for $2,440, with interest from date at the rate of 10 per cent, per annum. The following payments are alleged to have been made and indorsed upon the note, viz. : November 3, 1890, $83.75; May 25, 1891, $40; December 2, 1891, $15; and September 5, 1893, $160.

From Grant: Morton D. Clieeord, Judge. This is a proceeding to determine what commissions should be allowed to the assignee of an insolvent debtor in the settlement of his final account.

From Union : Stephen A. Lowell, Judge. • Suit by Leroy Lomax against G. M. Walk, in which it was decreed that there were equal mutual accounts between the parties and that each party should pay his own costs. Plaintiff appeals.

From Union : Stephen A. Lowell, Judge. Suit by tbe Farmers’ & Traders’ Nat. Bank of La Grande against Lavia A. Gates, the Western & Hawaiian Invest. Co., Lt., and others to foreclose a mortgage, consolidated with a suit of a similar nature by Jno. F. F. Brewster against the same persons. The suit having been dismissed as to the Investment Co., plaintiff appeals.

From Umatilla : Stephen A. Lowell, Judge. This is an election contest to determine whether Christ Breding or James Williams is entitled to the office of school director of district No. 69, Umatilla County, Or.

From Umatilla : Stephen A. Lowell, Judge. Action by the Farmers’ Bank of Weston, Oregon, against I. E. Saling and others on two notes. The plaintiff had judgment from which I. E. Saling appeals.

From Baker: Robert Eakin, Judge. This is a suit by A. H. Huntington to set aside a judgment against him, and to enjoin a levy upon his property under an execution issued thereon. The facts are : That Frank Clarke and W. A. Weatlierby commenced an action in the Circuit Court of Baker County, Oregon, against S. F. Murphy, J. W. Murphy, J. C. Young, and plaintiff (alleging that they were co-partners as Murphy, Huntington & Young), to recover the sum of $503.25.

From Morrow : Stephen A. Lowell, Judge. Judicial accounting of W. B. Cunningham, as administrator of the estate of Eliza Ann Plunkett, deceased. From a decree settling the final account, and directing payment of the funds of the estate to the county clerk, an appeal was taken to the circuit court. A decree was there made remanding the matter to the county court, and E. L. Freeland, the administrator subsequently appointed, appeals.

From Harney: Morton D. Clieeord, Judge. Proceeding by Peter French against Harney County, its judge and commissioners to review the proceeding of the county court changing an assessment. From an order dismissing his writ petitioner appeals.

<p>From Jackson : Hiero K. Hanna, Judge.</p> <p>Action by Daniel Reynolds against Jackson County, in which the former had judgment. Heard on motions to strike and to affirm.</p>

From Grant: Morton D. Clifford, Judge. Action before a Justice of the Peace by Ralph Fist against Martha Hunt and others, in which defendants attempted to appeal. The appeal was dismissed in the circuit court and defendants again appeal.

<p>From Union : Robert Eaicin, Judge.</p> <p>Suit by Mary E. Payne, Sarah. Gunnell, Ann Thornton, Joseph Hallgarth, and William Hallgarth against Jane Hallgarth and others. From a decree for plaintiffs, defendants appeal.</p>

<p>1. Abpealable Order. — An intermediate order dissolving an attachment is not appealable. Van Voorhies v. Taylor, 24 Or. 247, followed.</p> <p>2. Appeal From Only Part of Judgment. — A law judgment is not severable, so that if a party wishes to appeal at all he must appeal from the entire judgment, and the supreme court, under sections 544 and 545 of Hill’s Ann. Laws, can make such orders as may be appropriate concerning both final and interlocutory proceedings. Van Voorhies v. Taylor, 24 Or. 247, and Bush v. Mitchell, 28 Or. 92, applied.</p>

<p>From Wallowa : Robert Eakin, Judge.</p> <p>Action by Wm. K. Stubblefield against A. E. Imbler for damages for breach of a contract. Judgment for plaintiff and defendant appeals.</p>

From Multnomah : E. D. Shattuck, Judge. Action by W. T. Perham, as administrator of the estate of N. C. Perham, deceased, against the Portland General Electric Company, which resulted in a judgment for $4,500 in favor of plaintiff.

<p>Motion to Set Aside Indictment. — A defendant who resorts to a demurrer without filing a motion to set aside the indictment is thereafter precluded from making the objection for which his motion is otherwise appropriate. Under the statutes of this state such a motion must be made within the time after arraignment allowed to plead, although the argument may be postponed till a later time: State v. Pool, 20 Or. 150, applied.</p>

<p>Trust Ex Maleficio — Statute of Frauds. — A trust ex maleficio, which is not within the statute of frauds, arises where a person, with the intent to eventually appropriate obtains the legal title to property by representing that it will be .managed and held in trust for the grantor: but where the grantee, although honestly intending when the title is taken to carry out the trust, afterward forms the design of defrauding the grantor, the trust is within the statute and must be in writing.</p> <p>Husband and Wife — Presumption.—The presumption that a purchase of land by a husband in the name of his wife was an advance or settlement and not a trust, is disputable and may be overcome by evidence that such was not the intention of the parties nor the nature of the transaction relied upon: Parker v. Newitt, 18 Or. 274, and Taylor v. Miles, 19 Or. 550, cited.</p> <p>Evidence to Overcome Presumption. — The presumption that a deed of absolute conveyance, unambiguous in its terms, expresses the intent of the parties- at the time of the execution cannot prevail where fraud vitiates the conveyance itself.</p> <p>Dower. — A widow is entitled to dower in land conveyed to her by her husband during his lifetime, but as to which she is held to be a trustee ex maleficio for the heirs because of her fraud in procuring the conveyance.</p>

<p>Rate — Indictment—Duplicity.—An indictment charging that defendant, being a male person over sixteen years of age, did forcibly ravish and have carnal sexual intercourse with a specified female child under sixteen years of age, charges common law as well as statutory rape, and is open to an objection for duplicity, which, however, is waived by failure to demur. After a conviction on evidence of a forcible ravishment the allegations as to age will be rejected, the charge being complete without them: State v. Horne, 20 Or. 485, applied.</p>

From Josephine : Hiero K. Hanna, Judge. Suit by A. H. Carson against C. F. Gentner, and others, to enjoin defendants from interfering with plaintiff’s maintenance of a ditcli constructed across their premises. Decree for plaintiff. Defendants appeal.

<p>Criminal Law — Remarks or Pbosectjting Attorney. — Where, on a trial for larceny, a person already convicted of the same theft is introduced by the state, and refuses to testify, it is reversible error for the prosecuting attorney, where there was nothing to show any understanding between the witness and the defendant, to argue to the jury that the guilt of the accused was to be inferred from the refusal of the witness to testify: State v. Hatcher, 29 Or. 309, applied.</p>

From Multnomah: E. D. Shattuck, Judge. Action by Carl H. Jackson against Alexander W. Mc-Innis to recover the amount of a negotiable certificate of deposit that McInnis had indorsed. There was a judgment for plaintiff from which defendant appeals.

From Lane : J. W. Hamilton, Judge. The defendant, Claude Branton, was convicted of the crime of murder in the first degree, alleged to have been committed in Lane County, June 15,1898, by killing one John A. Linn, and, having been sentenced to be hanged, he appeals, assigning as error the action of the trial court in denying him leave to withdraw his plea of not guilty to enable him to demur to the indictment, in refusing to direct the jury to acquit him, and in giving…

From Umatilla; Stephen A. Lowell, Judge. Replevin by Ellen Gf. Bond against D. Turner and Rudolph Martin for certain household furniture. Plaintiff had a judgment, from which defendants appeal.

<p>Triad — Disqualification of Jurors for Bias. — The fact that proposed jurors stated on their voir dire that they had read an account of the inquest held over the body of the person for whose murder defendant was on trial, which purported to give the testimony of witnesses before the coroner’s jury, and the verdict of such jury, and that they had heard the matter discussed, and, from what they had read and heard, had formed some opinion as to the guilt or innocence of defendant, will not disqualify them if it appears that the opinion was not of a fixed and determined character: Kumli v. So. Pac. Co., 21 Or. 505, and State v. Brown, 28 Or. 147. cited.</p> <p>Error Must Appear in the Record. — Before the appellate court can undertake to correct an alleged error it must appear in the record that the error actually occurred.</p> <p>Triad — Misconduct of Jury. — A conviction in a capital ease will not be set aside because, after having been ordered kept together during the trial, three j u rors, accompanied by a bailiff in charge of the j ury, separated from the rest, and went into a saloon, in which there was only one person, and drank liquor, nothing being said by anyone concerning the case.</p> <p>Idem. — It will not be set aside because, at another time during the trial, two jurors sepai'ated from the others, and, accompanied by a bailiff, went to their respective residences, neither of them going out of sight of the bailiff, and immediately returning to the other jurors, without conversing about the case with anyone, or hearing any statement in reference thereto.</p> <p>Idem. — The fact that j urors drink intoxicating liquors during the trial will not invalidate a conviction even in a capital case, unless it appears that such drinking probably affected their verdict.</p> <p>Idem. — The mere fact that the direction of the court that the j ury be kept together during- the progress of the trial has been violated is not cause for reversal, if it appears that their verdict was not improperly influenced.</p>

From Marion: Henry H. Hewitt, Judge. Suit by James McCourt against George W. Johns and others for a rescission of a contract for the sale of land and an accounting. There was a cross bill by defendants, asking a foreclosure of a mortgage subsequently executed, and a sale of the property, etc. From a decree in favor of defendants, plaintiff appeals.

From Multnomah : Melvin C. George, Judge. Held: as a matter of law, that the two offenses were not the same, and former jeopardy in the one constituted no defense on the trial of the other, and instructed the jury that they must find for the state upon the plea of former jeopardy. The defendant, having been convicted, and judgment entered upon the conviction, again appeals.

From Multnomah: E. D. Shattuck, Judge. Garnishment proceeding against Wm. M. Gregory, on an execution issued by H. Schneider against Lee & Marx. The garnishee had judgment, from which plaintiff appeals.

From Multnomah: Thos. A. Stephens, Judge. George Renick having been indicted for obtaining money by false pretenses demurred to the indictment. The demurrer was sustained, and the state appeals.

From Wasco : W. L. Bradshaw, Judge. Proceedings by E. F. Gibbons and others against Z. F. Moody, executor, wherein the petitioners prevailed and the executor appeals. Petitioners move to dismiss the appeal.

From Marion : George H. Burnett, Judge. R. W. Witt was convicted of the offense of haying in his possession, with intent to exhibit the same, an obscene writing, and he appeals.