Volume 35 — Oregon Reports

From Clatsop : Thomas A. McBride, Judge. This suit was primarily instituted for a divorce by Mary Osgood against I. L. Osgood; the complaint having been filed on January 11, 1896, but service was not' had until the twenty-seventh.

From Polk : Henry H. Hewitt, Judge. Suit commenced originally by William S. Frink against John Thomas for certain equitable relief, which is fully stated in the opinion. Both parties having died, Jane Frink and others were substituted for plaintiff, and B. F. Hoke and others for defendant. There was a decree for plaintiffs, and defendants appealed.

From Multnomah: Henry E. McGinn, Judge. Action by J. M. Arthur & Co. against the Palatine Insurance Company, limited, to recover the amount of loss under an insurance policy. The plaintiff had judgment.

From Marion : Henry H. Hewitt, Judge. This is a suit by Willamette University and its trustees to enjoin the Sheriff of Marion County from the collection of taxes levied upon certain property of the plaintiff, upon the ground that it is exempt from taxation.

From Coos : J. C. Fullerton, Judge. Application by Lars Clemmensen against Aug. Peterson and others to review a judgment of the Becorder of the Town of Marshfield under a claim that he was without jurisdiction. The writ was dismissed, and petitioner appeals.

From Lake : W. C. Hale, Judge. In 1896 Thomas C. Little filed a complaint against William Pherson, alleging “that he is, and for more than four years last past has been, the owner in fee simple, and is entitled to the immediate and exclusive possession, of all the following described real estate in Lake County, Oregon, to wit: Lot numbered four (4) in section twenty-two (22), lots numbered one (1) and two (2) in section twenty-seven (27), and lot numbered one (1), and the…

From Coos : J. C. Fullerton, Judge. This is a proceeding by C. H. Merchant and John D. Spreckels against the Town of Marshfield to have a certain plat vacated.

From Multnomah : Heney E. McGinn, Judge. This suit was originally brought by Inman, Poulsen 6 Co. to foreclose a lien for material furnished by them, and used in the construction of certain buildings on lots 7 and 8 in block 135, Caruthers’ Addition to the City of Portland.

From Multnomah : John B. Cleland, Judge. Suit by Annetta Stella Therkelsen against her husband Lawrence E. Therkelsen for separate support. Defendant appealed from an intermediate order allowing certain sums to plaintiff pendente lite. A motion to dismiss this appeal was overruled.

From Coos: J. C. Fullerton, Judge. Action by Z. T. Siglin against the Coos Bay, Roseburg & Eastern Railroad & Navigation Company to recover damages for injuries to a horse. Judgment for plaintiff, and defendant appeals.

From Multnomah : E. D. Shattuck, Judge. Mandamus proceeding by B. C. Altman against School District No. 6, and its officers and clerk, resulting in a peremptory writ being issued, from which defendants appeal.

From Multnomah : Loyal B. Stearns, Judge. This is a suit by W. H. Mall and others to enjoin the City of Portland and its chief of police from selling plaintiffs’ property to pay a certain sewer assessment which includes a disputed item of interest. The case comes here on an appeal from a decree sustaining a demurrer to the complaint and dismissing the suit.

From Multnomah: Loyal B. Stearns, Judge. This is a suit by Thomas Patterson, James Lotan, and Julius Ordway to set aside a sale of the real property of an insolvent corporation to a director thereof.

<p>From Linn : Geo. H. Burnett, Judge.</p> <p>M. T. McGrath, having been convicted of murder in the first degree, appeals.</p>

From Marion : Henry H. Hewitt, Judge. This is a suit brought by H. P. McNary, as receiver of the Williams & England Banking Company, to have a judgment recovered by the defendant A. Bush, against the company, subsequent to his appointment as receiver, declared not a lien upon the property and assets thereof.

From Washington : Thos. A. McBride, Judge. Action by the First National Bank of Hillsboro against Lizzie A. Mack and another.

From Multnomah : Henry E. McGinn, Judge. This is an action by W. W. Carney against H. R. Duniway and the Brower & Thompson Lumber Company, a private corporation, to recover on four certain promissory notes, aggregating in amount about the sum of $17,000, made by the defendant Duniway and indorsed before delivery, “Brower & Thompson Lumber Co., by E. H. Thompson, Manager.” The complaint after alleging the malting of the notes by Duniway, and the incorporation of the Brower &…

From Marion : Geo. H. Burnett, Judge. Action by Ruth E. Sayre, executrix, against W. D. Mobney and others. Held: notwithstanding which they neglected to pay the State Treasurer, upon the maturity of the note, the sum agreed upon, or any part thereof, and refused to accept the release of said mortgage and plaintiff’s deed, which were duly tendered them, and which instruments, upon the commencement of this action, were deposited with the clerk of…

<p>Criminad Law — Urging Jury to Agree — Prejudice.—On a trial for assault with Intent to Rill, the jury having reported their disagreement, the court Instructed them that a great deal of time had been taken up, and, If they did not agree, the case would have to be tried by another jury, who could not arrive at a verdict any better than they could; that it was their duty to agrees, if they conscientiously could; that they should pay proper respect to the opinions of each other; that the single object to be effected was to arrive at a true verdict, which could only be done by deliberation and mutual concessions; that no juror should violate his conscience, but, in determining whether his convictions were sustained, he should consider the opinions of ■ the other jurors, and, if he could then conscientiously acquiesce in a verdict, it was his duty to do so. The j ury retired, and returned a verdict of conviction. Held, that the instruction was erroneous and prejudicial Lo accused: Slate v. Saunders, 14 Or. 300, and Slate v. Hawkins, 18 Or. 476, distinguished.</p>

From Union : Robert Eakin, Judge. Action in a justice’s court by Thomas Troy against Charles Hallgarth. From a judgment for plaintiff, defendant appealed to the circuit court, in which a judgment was rendered for defendant, and plaintiff appeals.

<p>1. Judgment — Evidence—Res Judicata. — A judgment for defendant in an action for damages by the purchaser of water rights against a third person for diverting water, is not even prima facie evidence of the purchaser’s eviction and resulting damage in a subsequent action by the vendor to recover the purchase price.</p> <p>2. Meaning oe Wabbanty. — A covenant to warrant and defend a title is an engagement to protect the vendee against all claims by the vendor and his heirs as well as against all paramount titles, but it is not an agreement to protect him against the tortious interference of third persons.</p>

From Umatilla : Stephen A. Lowell, Judge. J. M. Ferdon was committed to the custody of William Blakley, sheriff, on the charge of itinerantly vending medicine without a license, contrary to statute, and he applied for a writ of habeas corpus. From a judgment dismissing the writ and remanding petitioner, he appeals.

From Grant: Morton D. Clifford, Judge. Petition by R. F. Munroe and Otto Wicks against John Thomas and E. L. Cox for a review of a judgment of a justice of the peace. From a dismissal of the writ, plaintiffs appeal.

From Coos : Geo. H. Burnett, Judge. Action of ejectment by D. Grant Beale, Kate Labrie, and Jennie Maclay against William and Emma J. Hite. There was a judgment for plaintiffs, from which this appeal is taken.

Prom Umatilla : Stephen A. Lowell, Judge. Action by B. P. Beck against J. C. Thompson, brought in justice’s court. There was a judgment for plaintiff, and defendant appealed to the circuit court. Prom a judgment dismissing the appeal, defendant appeals.

<p>1. Appeal — Sufficiency of Complaint. — -The supreme court will sustain a judgment entered in favor of defendant notwithstanding the verdict, where it appears that the complaint does not state facts sufficient to constitute a cause of action, though the objection is raised for the first time in the appellate court, and the trial court based its judgment on another ground.</p> <p>2. Pleading — Trespass on Unfenced Land. — A complaint for trespass on uninclosed land in a portion of the state to which the fence law applies, which alleges that defendant knowingly, wilfully, wrongfully, and unlawfully herded a band of sheep upon plaintiff’s land without his consent, and against his will, does not state a cause of action: Walker v. Bloomingcamp, 34 Or. 391, followed.</p> <p>3. Right to Costs. — Costs follow the judgment regardless of the reason for its rendition; thus, where an appeal was taken from a justice’s court to the circuit court and the case there dismissed, the successful party is entitled to costs and disbursements regardless of the reason for the dismissal.</p>

From Union : Robert Eakin, Judge. Action by the Farmer’s & Trader’s National Bank of La Grande, Oregon, against W. G. Hunter upon a contract entered into between the defendant and Yee Sing & Company, by the terms of which, said defendant agreed to plow, put in a good state of cultivation, and seed to sugar beets, three hundred acres of his farm in Union County, and Yee Sing & Company agreed to take posession thereof as soon as the beets were up and ready for cultivation, and…

From Umatilla : Stephen A. Lowell, Judge. William Hanna objected to being convicted of receiving stolen property, and appealed from a judgment sentencing Mm to the penitentiary.

From Malheur: Morton D. Clifford, Judge. Action by Charles Altschul against Francis O’Neill to recover possession of section 9, in township 18 south of range 43 east of the Willamette Meridian, in Malheur County, Oregon.

<p>1. Criminal Law — Declarations of Co-conspirator —The testimony of one jointly indicted with defendant for stealing a cow and calf, that he had sold defendant some forty head of cattle, and that the cattle in question were among the number, and that witness was at defendant’s place when he started to drive them to the slaughter house, is not sufficient to make out a prima facie case of conspiracy or common design between them so as to make acts or declarations of the witness, not in the presence of defendant, admissible against him.</p> <p>2. Declarations of Co-conspirators not Harmless. — The admission of declarations by one jointly indicted with defendant, without'making out a prime facie case of conspiracy or common design between them, was not harmless error, as it tended to advise the jury that the theory of the prosecution that they were acting together was supported.</p>

<p>From Washington : Thos. A. McBride, Judge.</p> <p>Motion to dismiss an appeal.</p>

<p>From Marion : George H. Burnett, Judge.</p> <p>R. W. Witt was convicted of larceny from a dwelling house, and appeals.</p>

<p>From Coos : J. C. Fullerton, Judge.</p> <p>Suit by Ah. Foe against J. W. Bennett. From a decree in favor of defendant, plaintiff appeals.</p>

From Union : Stephen A. Lowell, Judge. Suit to impeach a decree by Rachel M. Hilts against Freeman S. Ladd and Mary A. Ladd. From a decree setting aside the former decree, defendants appeal.

From Harney:' Morton D. Clieeord, Judge. Proceeding by L. Woldenberg against Fred Haines to review the judgment of a justice’s court. There was a judgment for plaintiff, and defendant appeals.

<p>Action on Foreign Judgment — Limitations.—Where a cause of action accrues in another state against a nonresident, who afterwards becomes a resident, the statute of limitations of Oregon commences to run from the time the cause of action accrued in the other state, whether it be on a simple contract or on a judgment; and Hill’s Ann. Laws, g 16, which eliminates the time that the defendant may be out of the state in computing the time the statute has run, has no application to a cause of action which accrued when defendant was a nonresident: Crane v. Jones, 24 Or. 419, followed.</p>

<p>1. Opening Default — Discbetion of Coubt. — The vacation of a default j udgment entered on striking a demurrer to the complaint for a technical defect, and permitting defendant to answer, is within the discretion of the court.</p> <p>2. Adveese Possession of State Lands — Under Hill’s Ann. Laws, §§ 4 and 13, barring action by the state for the recovery of land unless plaintiff or its predecessor was seised or possessed of the premises within ten years before suit brought, the state may be disseised by adverse possession of lands the same as an individual; and hence one who has held adverse possession of state lands for the statutory period acquires a perfect title.</p> <p>3. Effect of Deed by School Boaed. — The board for the sale of state school lands has no power to deprive one who has acquired title by adverse possession to school lands of his title by granting the lands to others, without notice and an opportunity to be heard.</p> <p>4. Chaeacteb of Congeessional Geant of School Lands. — A grant by congress of land to a state “for the use of schools” is an absolute grant, vesting title for a specific purpose, and not a grant as on a condition subsequent.</p>

From Umatilla : Robert Eakin, Judge. This is an action by Mary K. Minard against A. D. Stillman for money had and received.

<p>1. Discretion as to Order oe Testimony. — As the order of proof is in the discretion of the court, there is no error in excluding admissible testimony, if it is subsequently admitted on the witness being recalled.</p> <p>2. Insanity — Competency oe Evidence. — Evidence of acts of violence by deceased toward defendant who killed him is not competent to show the insanity of defendant.</p> <p>3. Evidence of Threats. * — Where a homicide is defended on the ground that it was committed in defense of defendant’s brother, evidence of threats of deceased against defendant himself is inadmissible.</p>

From Baker : Robert Eakin, Judge. Suit by J. F. Flynn against S. B. Baisley and others to set aside a deed, and to subject a part of the real property described therein to the lien of a judgment against the grantor. From a decree dismissing the suit, plaintiff appeals.

<p>From Union : Robert Eakin, Judge.</p> <p>Wong Gee was convicted of murder in the second degree, and appeals.</p> <p>Affirmed.</p>

<p>1. Revocation oe Parod License. — A parol license cannot be revoked after the licensee has expended money or performed labor in making valuable and permanent improvements on the land on the faith thereof: Huston v. Bybee, 17 Or. 140; Combs v. Slayton, 19 Or. 99; Garrett v. Bishop, 27 Or. 349, cited.</p> <p>2. Adverse Possession oe Water Right. — No adverse user can be initiated until the persons possessing the superior title are deprived of its benefit in such a substantial manner as to notify them that their rights are being invaded: * Wimer v. Simmons, 27 Or. 1, cited.</p> <p>3. Parties to Suit to Determine Water Rights. — In a suit to determine an adverse claim to the use of water from irrigating ditches, to enjoin defendants from interfering therewith, and to recover damages for an alleged trespass, a defendant, who, at the request of another defendant, tapped the ditches in question, and owns a tract of land across a corner of which one of them is constructed, is a proper party.</p> <p>4. Measure oe Right oe Appropriation. — A paramount right to use the waters of an irrigating ditch in irrigating a tract of land is measured by the owner’s necessities, and not by the capacity of the ditch.</p>

From Multnomah : John B. Cleland, Judge. Bill by the Oregon Real Estate Company against Multnomah County and the sheriff thereof. From a decree granting plaintiff a part of the relief sought, defendants appeal.

From Union : Robert Eakin, Judge. This is an action by W. L. Series against Clara Series, S. C. Zuber, and John Hough, to recover damages for trespass in detaching and removing a dwelling house from the realty of the plaintiff. The verdict of the jury was for plaintiff in the sum of $400, and against the defendants Series and Zuber, and, judgment having been entered thereon, they appeal.

From Union: Robert Eakin, Judge. Suit by the Western & Hawaiian Investment Company against the Farmers’ & Traders’ National Bank of La Grande and others. The case presents a question of priority between mortgagees.

<p>Appeal — Final Order. — Where a creditor of an insolvent corporation files a petition, praying that the receiver be required to treat the petitioner as a creditor of the corporation, an order denying the petition is appealable as a final order determining the rights of the parties.</p>

From Baker : Robert Eakin, Judge. This is a suit by John R. Burns to foreclose certain miners’ liens.

From Harney: Morton D. Clieeord, Judge. This is an action of ejectment by the French-G-lenn Live Stock Company against Alva Springer to recover .the possession of one hundred and sixty acres of land, situate in Harney County, Oregon, lying to the north of and adjoining lots numbered 3 and 4 of section 34, and lots numbered 1 and 2 of section 35, township 26 south, range 31 east of the Willamette Meridian, as described on the maps of survey of the said township in the office…

From Klamath : Hiero K. Hanna, Judge. This is a suit by the Town of Klamath Falls to enjoin the prosecution of an action commenced by Lipman Sachs against the plaintiff herein to recover upon two coupons for interest payments upon two certain bonds purporting to have been issued by it to H. V. Gates, to restrain the collection of such coupons, and to have the bonds themselves declared null and void.

From Multnomah: E. D. Shattuck, Judge. Action by I. A. Jennings and W. D. McIntosh against Frank and Agnes Kiernan to recover damages for the breach of a covenant of warranty. Plaintiffs had judgment, and defendants appeal. For appellants there was a brief and an oral argument by Mr. Edward Mendenhall. For respondents there was a brief and an oral argument by Mr. Michael Q. Munly.

<p>1. Time foe Moving Against Indictment. — Under Hill’s Ann. Laws, % 1311, 1315, providing that an objection to an indictment on the ground that it is not properly indorsed must be made at the time of arraignment, the right to move must be exercised before demurring or pleading: State v. Smith, 33 Or. 183, followed.</p> <p>2. Indictment foe Fobgeey — Allegation of Intent. — Under Hill’s Ann. Laws, ¡S1816, prescribing that where the intent to injure or defraud is necessai'y to constitute a crime it shall be sufficient to allege in the indictment therefor an intent to inj ure or defraud, without naming therein the particular person intended to be injured or defrauded, construed with the forms of indictment for forgery (Id. p. 1001, Nos. 15,16), an indictment for forgery need not name the party intended to be injured or defrauded-: State v. Imreh, 12 Or. 104, approved.</p>

<p>Salary of Public Officers — Executed Agreement. — An agreement by a public officer to accept less than the amount fixed bylaw as his salary is void on grounds of public policy, and cannot be enforced. Nor is an acceptance of less than the full salary without any previous agreement so to do a bar to a recovery of the balance. But an acceptance of less than the amount due in pursuance of an agreement to that effect is binding, and no recovery can be had for the unpaid balance.</p>

<p>1. When Municipal Charters Take Effect. — A municipal corporation derives its existence from the legislative act creating it, which takes effect without acceptance, unless otherwise expressly required therein.</p> <p>2. Implied Power — Statutory Construction. — A grant to a city of power to regulate and license the sale of liquors within the city limits necessarily carries with it the right to adopt ordinances licensing liquor selling, and prescribing a punishment for selling without a license.</p> <p>3. Jurisdiction of Circuit Court Over City Offences. — Where the legisladture has established a city court to try offenders against the charter and ordinances of a municipality, the jurisdiction of such court is exclusive in the first instance, and the circuit court can only review the proceedings: Cunningham v. Berry, 17 Or. 622; State v. Dupuis, IS Or. 372, and State v. Taniler, 19 Or. 528, cited.</p>

From Multnomah : John B. Cleland, Judge. This is a suit brought by J. W. Cook and others, owners of property fronting and abutting on North Front Street, in the City of Portland, to restrain the collection of an assessment against their property for repairing the street in front thereof.

<p>1. Indorsing Witnesses’ Names on Indictment — Grand Jury. — Where an Indictment is set aside, and the case resubmitted to the same grand jury, a subsequent indictment found under such resubmission must contain the names of the witnesses examined when the first indictment was found, as well as the names of those examined when the second one was found: State v. Fool, 20 Or. 150, applied.</p> <p>2. Statement at Preliminary Examination — Confessions.—Statements in the nature of a confession, made by defendant, at the preliminary examination before a committing magistrate without being advised or cautioned as to his legal rights, were not voluntarily made, and hence are inadmissible against him: State v. Hatcher, 29 Or. 309, followed.</p> <p>3. Instruction. — In a prosecution for exhibiting obscene pictures, evidence was introduced showing that a. tobacco store at a certain place was known as defendant’s. It was established that at the time the pictures were alleged to have been exhibited defendant was at another place. The court charged that if defendant and some other person or persons were partners in the control of a place of business where obscene pictures were shown “in the regular course of such business,” then all the persons so owning said place or business would be guilty of the offense charged. Held, that the instruction was erroneous, (1) because it assumed that the pictures were exhibited in the “regular course of business,” while the exhibition of obscene pictures is a crime, and hence the exhibition could not have been in the regular course of business; and (2) because it assumes that, if defendant was a partner in said store, he had knowledge of and acquiesced in the exhibition complained of, though he was absent at the time. *</p>

From Multnomah : John B. Cleland, Judge. This suit is brought by Charles E. Ladd to restrain A. N. Gambell, who is the auditor of the City of Portland, from issuing any further bonds under what is called the Bancroft Bonding Act (Laws, 1893, p. 171), because the same is unconstitutional. The provisions of the act are set out in the opinion. Plaintiff had a decree, and defendant appeals.

From Harney: Morton D. Clifford, Judge. The defendant John Lavery was indicted for the crime of assault with intent to kill, alleged to have been committed as follows : “The said John Lavery, on the ninth day of December, A. D. 1898, in the said County of Harney and State of Oregon, being then and there armed with a dangerous weapon, to wit, a loaded pistol, did then and there willfully, unlawfully, and feloniously assault one L. C. De Coudress with said dangerous weapon,…

<p>1. Judicial Notice — Population Shown by Census — Courts take judicial notice of the number of inhabitants of a city as shown by the official census taken pursuant to state or federal laws.</p> <p>2. Street Assessments — Implied Repeal — Statutes.—The law of 1893, known as the Bancroft Bonding Act, providing that when any city of twenty-five hundred or more inhabitants shall improve a street at the expense of abutting property, owners whose assessment exceeds $25 may pay in installments, and the city may issue its bonds to the amount of the deferred assessments to pay for the work, is not affected by the Oregon City Charter (Daws, 1895, p. 486, § 85), which provides that the cost of street improvements may be assessed on the property liable therefor; that the city shall not be liable for any portion thereof by reason of its inability to collect the assessment; and that no moneys shall be paid out of the general fund for such purpose, but the contractor doing the work shall look entirely to the property and the owners thereof. There is no direct conflict in the two acts, and they refer to different classes of indebtedness — the liability of the city referred to in the charter being that of the city to the contractor, while that referred to in the statute is the liability on its bonds issued under the bonding act: Ladd v. Gaftibell. 35 Or. 393, applied.</p>

<p>From Harney : Morton D. Clifford, Judge.</p> <p>James Weaver appeals from a conviction of murder in the second degree.</p>

From Multnomah : Alfred F. Sears Jr., Judge. This is a suit by Andrew Allen and others to restrain the City of Portland and its Chief of Police from selling certain real property for the payment of the assessments for the improvement of Sixth Street in said city. The objections raised to the validity of the respective assessments are set forth in the second paragraph of the opinion.

<p>1. Criminal Law — Competency of Juror. — Although a juror stated that he had talked with persons who seemed to have considerable knowledge concerning the ease, and had an opinion as to the guilt or innocence of defendant which it would take evidence to remove, he is nevertheless competent, where it appeared from his examination as a whole that he could give the defendant a fair trial, and that his opinion would readily yield to the evidence, if unsupported thereby.</p> <p>2. Bias oe Juror — Trial.—The ruling of the trial court on a challenge to a juror for bias will not be disturbed, unless the juror’s disqualification is clearly shown as a matter of law: State v. Olberman, 33 Or. 556, followed.</p> <p>3. Stock Brand as Evidence. — Evidence of the brand used by the prosecuting wilness is competent on the trial of one charged with stealing his stock as a step in the identification of the missing animals.</p> <p>4. Impeaching Evidence. — Defendant’s counsel asked the prosecuting witness if he did not make a certain statement at a specified time and place to certain named persons, and afterwards introduced witnesses to impeach defendant’s negative answer. Thereafter the state called one of the persons named in the impeaching question, who testified that he was present at the time referred to, but did not hear the prosecuting witness make the statement testified to by the other witnesses. Held, that it was then proper to refuse to permit defendant to show that the statements took place after the witness called by the state, and whose name was mentioned in the impeaching question, had left the place. After defendant had fixed the time, place and persons present, he will not be permitted to change or vary them.</p> <p>5. Hearsay Evidence. — Evidence that one of the defendants jointly indicted for stealing horses stated to a witness some time prior to the taking of the horses that he had authority from the prosecuting witness to gather up the horses- and dispose of them, is not admissible upon the separate trial of another defendant, since it is purely hearsay: State v. Fletcher, 24 Or. 295, applied.</p> <p>6. Argument of Counsel — Reading Papers Not in Evidence. — Defendant’s affidavit for a continuance, where not offered in evidence, cannot be read and commented on by the state’s attorney in the argument to the jury: State v. Baker, 23 Or. 4á1, cited.</p> <p>7. Harmless Error. — Error, in that the state’s attorney read to the jury and commented on parts of defendant’s affidavit for a continuance, which was not in evidence, was harmless where defendant testified in his own behalf to substantially the same facts as those set forth in the affidavit.</p>

<p>From Multnomah : E. D. Shattuck, Judge.</p> <p>On Original Hearing.</p> <p>Action by A. G. Brauer against the City of Portland. There was a judgment for plaintiff, and defendant appeals.</p> <p>On Motion For Rehearing.</p> <p>On Rehearing.</p> <p>On Motion to Vacate Order Allowing Appellant to Move eor a Rehearing.</p> <p>On Motion to Recall Mandate.</p>

<p>1. Time Within Which to Request Instructions. — The law requires that requests for instructions must be presented a reasonable time before the jury shall be charged, but counsel should not be compelled to make such requests before the evidence has been heard.</p> <p>2. Harmless Error — Asking Instructions. — Error in limiting the time within which requests for instructions must be submitted to the court is harmless where the court fully and correctly instructed the jury on the questions involved.</p> <p>3. Instruction on Credibility oe Witness. — Hill’s Ann. Laws, § S45, subd. 3, requiring the court to instruct the jury, on all proper occasions, “that a witness false in one part of his testimony is to be distrusted in others,” is sufficiently complied with by an instruction that, “where evidence is given tending to contradict the sworn statement of a witness, that does not, of itself, as a matter of law, take out of the case the testimony of the witness, but it goes to you for what you may deem it worth, as affecting the value of the sworn statements of the witness before you; and it is for you to determine, when all these statements are taken together, how much importance you will attach to the testimony of the witness.”</p> <p>4. Rape — Age oe Consent — Failure to Complain. — Where a charge of rape is predicated on the claim that the female is under the age of consent, instructions as to her failure to make complaint are not necessary.</p> <p>O. Instructions Must be Based on Evidence. — Instructions as to failure of prosecutrix in a rape case to make complaint are not called for where there is no evidence as to whether or not she made complaint.</p> <p>6. Rape — Propriety oe Instruction. — There is no obligation to instruct a jury regarding the character of a crime or as to the general effect on the minds of those who hear of such an offence having been charged against one, since neither statement involves any legal principle.</p> <p>7. Harmless Error. — An instruction, in a prosecution for rape based on prosecutrix being under the age of consent, that the jury should find defendant guilty if they found he committed the offense within three years prior to finding the indictment (Hill’s Ann. Laws, § 1207, prescribing a three-years’ limitation), is harmless, though there was a period during the three years before the age of consent was raised within which she could have given her consent; the evidence showing that the crime was not committed within such period.</p> <p>8. Trial — Continuance eor Absent Witness. — Refusal to grant a continuance to procure a witness who had been subpoanaed, but who had a few minutes before gone from the court room, is not error, where no application was made for the arrest of the witness on account of his absence.</p> <p>9. Evidence oe Bias. — Evidence of bias should be limited to showing the feeling of adverse witnesses or those who dominate or influence such witnesses.</p> <p>10. Improper Statements op Prosecuting- Attorney. * — It Is reversible error to permit a prosecuting attorney to purposely reiterate to the jury a charge not supported by the evidence, but where the judge at once warned the attorney to refrain from further violation of the rule, and directed the jury to disregard such improper remarks, the error was sufficiently corrected. If a special instruction on that point was desired it should have been requested.</p>

From Wasco : W. L. Bradshaw, Judge. In 1889 an act was passed by the legislature entitled “An act authorizing the county courts of the several counties of this state to declare unnavigable streams highways for the floating of logs and timber, and provide for the improvement and use of the same:” Laws, 1889, p. 105.

From Multnomah: E. D. Shattuck, Judge. This is an action by E. K. Jones & Company against the City of Portland, to recover damages alleged to have been sustained by the nonpayment of a wai-rant issued by the City of Sellwood upon a special fund to be raised by the levy and collection of assessments upon the property benefited by the improvement of Spokane Avenue, in such city.

<p>From Polk.: Geo. H. Burnett, Judge.</p> <p>W. G. Magers was convicted of murder in the first degree, and appealed.</p>

From Multnomah : Arthur L. Frazer, Judge. This is an appeal from a judgment in favor of plaintiff Kittie C. Nottage in an action brought by her against the City of Portland to recover $308.63 paid in discharge of an assessment against her property for the improvement of Eighth Street under an ordinance of the city, adopted in May, 1892.

From Multnomah : J. O. Fullerton, Judge. Action by Joseph Fowler against the Phoenix Insurance Company of Hartford, Connecticut, to recover the sum of $500 for loss and damages alleged to have been sustained by the burning of insured property. The policy sued on covers $350 on a dwelling house, $100 on household furniture, and $50 on family wearing apparel, all contained in such dwelling. The complaint is in the usual form.

From Sherman : W. L. Bradshaw, Judge. This is an appeal by the Parlin & Orendorff Company, a corporation, from a judgment of $52.50 rendered against it in favor of W. M. Barnett. It is alleged in the complaint that the plaintiff corporation sold and delivered to Barnett goods, wares and merchandise of the agreed value of $642.75, on account of which he paid the sum of $519.30, leaving a balance due of $123.45, which it sought to recover.

From Harney : Morton D. Clifford, Judge. This is an action by Fred Haines to recover from A. J. McKinnon the possession of certain wheat, oats, and barley, and the complaint is in the usual form.