Volume 4 — Oregon Reports

Tbis is a suit in equity, brought by plaintiffs to liave a certain decree of' foreclosure rendered against them and others in favor of defendants, in the Circuit Court for the County of Lane, in October, 1863, and the sale made under it, set aside, and an accounting taken between the parties, upon the grounds— That there is no proof, as required by law, of the service of summons, and that the Court had no jurisdiction in the prior suit; and That the decree in that suit was…

<p>Jubisdiction of County Commissionebs.—The Act of 1868, to facilitate the draining of lands in certain eases, only gives to the Board of County Commissioners jurisdiction to locate a ditch where there is none. The Commissioners are not authorized to tap the ditch of an adjoining proprietor and assess damages and benefits to such proprietor.</p> <p>Compensation fob tapping Ditch aleeady Dug.—The compensation mentioned in § 8 of the Act for the appropriation of an existing ditch, is in the nature of a contribution, and is distinct from the damages which the Commissioners are authorized to assess for the cutting of a new ditch.</p> <p>Public Use.—By public use is meant for the use of many, or where the public is interested.</p>

Tlie plaintiff having previously obtained • a decree of divorce brings this suit to obtain from her former husband, James Bamford, Sr., and his assigns, certain real and personal property. The suit for the divorce was commenced by her in 1869, and in March of that year a divorce was decreed in her favor. It does not appear that the complaint in the divorce suit contained any allegations in regard to property, and the decree there rendered does not refer to that subject.

<p>Defense when cannot be Demueeed to.—When a defense is set forth in proper form, containing facts within itself sufficient to constitute a defense, it cannot be demurred out. It may, if false, be stricken out on motion.</p> <p>Statute of Limitations.-—A payment by an attorney of the principal or interest on demands collected by him for his client prevents the operation of the Statute of Limitations to bar the client’s right of action against such attorney for collections retained by him.</p> <p>Juey aee Pbesumed to Eind.—The jury are presumed to find every material allegation in the complaint in favor of the plaintiff, where a general verdict has been rendered in his favor in the Court below.</p>

The appeal is from a judgment of the Circuit Court dismissing a writ of review and affirming the action of the County Court of Marion County in the matter of a petition for an alteration of a road.

Tbis was an action to recover of appellant, a corporation, damages sustained by respondent while engaged in performing certain work in appellant’s woolen mills at Oregon City. The complainant alleges that he was injured in consequence of the negligence of appellant in allowing a portion of the machinery of the mill to be in an unsafe and insecure condition, of which appellant had notice.

This suit was commenced by the administrator of the estate of E. E. Stratton, to foreclose a mortgage executed by Patton to secure vthe payment of a certain promissory note given by him to Stratton for $591 and interest.

This was an action for the recovery, as alleged in the complaint, of the agreed price of a number of horses, mares and colts, and of an undivided interest in a band of mares and colts sold by appellant to Huntington. While the action was pending in the lower Court, Huntington died, and Earhart, the administrator of his estate, was made defendant therein.

The indictment charged the defendant “with the crime of murder, committed as follows: The said George Dodson,, in the county aforesaid, on the 24th day of February, 1870, purposely and maliciously killed William Cochran by shooting him, the said William Cochran, with a pistol.” The defendant demurred on the ground that the facts stated do not constitute a crime; particularly specifying that the words “ purposely and maliciously” state a conclusion and not facts; that the…

<p>Judgment fob want of Answjsb.—Under the Code a judgment for want of an answer cannot be appealed from.</p> <p>When Judgment foe want of an Answer can be taken.—A judgment for want of an answer can only- be taken when it appears that defendant has been duly served with summons and has failed to answer the complaint within the time allowed by-law.</p> <p>What Constitutes Due Service.—To be duly served with a summons implies that the defendant has been duly served with a summons, notifying him to appear and answer in the Court where the judgment is sought to be taken.</p>

Respondent filed a petition in the Circuit Court of Clackamas County, praying for a writ oSf mandamus to compel appellant to deliver to him the jail of the county, with its appurtenances and property therein belonging to the county. The petition alleges that Warner was duly elected Sheriff of said county on the 6th day of June, 1870; and that since said election he has duly qualified and entered upon the duties of said office.

<p>Appeal from Marion County.</p> <p>Tlie facts are stated in the opinion of the Court.</p>

This suit was brought by Brown, assignee of Starr and others, to foreclose mechanic’s lien, procured by them and assigned to Brown, for labor and material furnished Harper & Busberry, and for the sale of property for the benefit of plaintiff, and also to cut off a similar lien of Stewart’s for labor and material furnished to aid Harper & Busberry. Defendants filed a general demurrer, which was overruled and judgment given for plaintiff.

The action is upon a promissory note for one hundred and fifty dollars and interest, which purports to be for value received. The complaint sets out a copy of the note, alleges its execution and delivery, and alleges that no part of the said promissory note or the interest thereon has been paid.

<p>Pleadings—Sufficiency of a Denial.—Where in an action for the recovery of damages, the defendant pleads accord and satisfaction, and the replication denies that “in consideration of the payment of seventy-five dollars, or any other sum and the surgeon’s fee,” mentioned in the answer, the plaintiffs “accepted the same in full satisfaction and discharge of the damages, ” etc.: Beld, that while this is an admission of the payments, it is a denial of. their acceptance in discharge of the damages claimed, and, therefore, a sufficient denial of the settlement set up in the answer.</p>

<p>Appeal from Jackson County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Moetgage—Suit to Fobeclose is not foe the Detebmination of ant •- Right ob Claim to oe Inteeest in Real Pbopebtt.—A suit to foreclose a mortgage is not for the determination of any right, or claim to, or interest in real property, -within the meaning of § 378 of the Civil Code. It is the mere collection of a debt charged upon specific property by resorting to the property as a means of satisfying it.</p> <p>Statute of Limitations.—The absence of a mortgagor from the State will not prevent the Statute of Limitations from running on the mortgagee’s right to foreclose. Equity acts by analogy to the rules of law. A suit of foreclosure is in effect a proceeding in rem. There is no analogy in the application of the Statute of Limitations between such a proceeding and actions at law.</p> <p>Effect of Possession.—A mortgagee or his assignee in possession occupies a position, in a suit to foreclose, no more favorable than if out of possession.</p> <p>Payment—What is, to take a Suit out of the Statute of Limitations.— A payment by operation of law, or acknowledged by the creditor on account of an equitable set-off or counter-claim, which the debtor might insist upon, but which he has never claimed to have applied as such, is not such a payment as will operate to prevent the Statute of Limitations from running.</p>

The appeal is from a judgment of the Circuit Court affirming a taxation of costs by tbe Clerk. Before a hearing was bad upon tbe merits of tbe cause a motion was submitted by respondent to dismiss tbe appeal upon these grounds: Hirst. The order, affecting only tbe taxation of costs, is not a “final decision.” Second. Tbe undertaking was not filed within ten days after tbe service of tbe notice of appeal.

This was an action of ejectment, in which Newsom was plaintiff, and Greenwood defendant. Plaintiff filed his complaint, claiming a certain parcel of land in what is known as the Wesley Shannon Donation Claim, and also the sum of one hundred and seventy-five dollars as damages.

This action was brought in the County Court of Benton County by the appellant, upon a judgment obtained by him before a Justice of the Peace in Grant County in this State.

In §§ 5, 7, 8, 10 and 12 of the General Appropriation Bill passed by the Legislature in 1870, provisions were made for the redemption of warrants drawn on the penitentiary, incidental, executive and general funds, with a proviso in each case that said warrants should not be paid until after the same had been audited by an investigating commission, provided such commission was appointed. At the same session the Legislature adopted a joint resolution creating such a commission.

This suit was commenced in the Circuit Court for Jackson County, at its November term, 1870, to have the rights of the parties to Donation Land Claim 66 declared, and for assignment of dower and partition.

The defendant was indicted under § 636 of the Criminal Code, which provides as follows: “If any officer of this State, or of any county, town, or other municipal or public corporation therein, * * * shall willfully and knowingly charge, take or receive any fee or compensation, other than that authorized or permitted by law, for any official service or duty performed by such officer, * * * such officer, upon conviction thereof, shall be punished by imprisonment in the…

<p>Indemnity Bond—When not Assignable.—Where tlie purchaser of a business takes a bond from, the seller conditioned in a certain sum as liquidated damages that the seller will not engage in business of the character sold for a stated period, such bond can only be enforced for the protection and indemnity of the buyer alone, while carrying on the business in person, and will not be extended to his assignee. In such case, there is no right of action to assign until after a breach of the conditions of the covenant.</p>

This is an action upon a contract to recover one hundred and five dollars for board and lodging furnished by plaintiff to defendant’s infant son for a period of fourteen weeks.

The plaintiff filed a complaint in ejectment, and the answer sets up wliat is relied upon as an equitable defense.

At the October Term, 1870, of tbe Circuit Court for Clackamas County, the appellant, Officer, was tried and convicted on an indictment charging him with having obstructed a public highway in said county. On the trial of the cause the State, to maintain the charge preferred, offered in evidence the record of the County Court appointing viewers to lay out the county road, for obstructing which appellant was indicted.

The Grand Jury of Multnomah County indicted Robert Wiley for the crime of perjury, alleged to have been committed on his examination as a witness on the trial of a cause in the .Police Court, in the city - of Portland, before Hon. D. C. Lewis, Police Judge, in which the State of Oregon was plaintiff and Joseph Perry and Caroline Wilson were defendants, they being then and there charged with and tried for the crime of assault and battery.

The defendant was indicted under § 636 of the Criminal Code, and being convicted, was adjudged to pay a fine of four hundred dollars. He appeals from the judgment of the Circuit Court. The only ground of error assigned is that the facts stated in the indictment do not constitute a crime.

On the 1st day of April, 1867, the respondents, Wheeler and wife, covenanted to and with appellant, to convey to him in fee simple, with the usual covenants of warranty, certain real estate held by said Jemima J., in her own right, under the Donation Law of September 27th, 1850.

<p>Receiving Veedict.—It is error to receive the verdict of a 'jury in the absence of the defendant where the crime charged is a felony.</p>

Tbe appellants were indicted for setting up and managing a lottery for money.

<p>Esteay Animal.—Our statute does not define an estray, but merely provides where, when, and how they may be posted. An estray is an animal that has escaped from its owner, and wanders or strays about—usually defined at common law as a wandering animal whose owner is unknown. An animal cannot b§ an estray when on the range where it was raised, and permitted by its owner to run, and especially when the. owner is known to the party who takes it up. The fact of his being breachy or vicious has reference only as to when he may be taken up.</p> <p>Idem—-When may be Taken TJb.—An animal to be taken up and posted as an estray in the months of August and September, must be not only an estray, but either breachy or vicious.</p>

. This is a suit in equity. Defendant appeals from the decree entered in the Court below.

At an election for city officers, held in the city of Corvallis on the first Monday in May, 1871, Robertson and Groves were competing candidates for the office of City Recorder. Robertson was declared elected and a certificate of election was issued to him, under which he qualified and entered upon the discharge of the duties of the office.

This is an action of ejectment to recover the possession of premises to which plaintiff claims title in fee. The answer denies that plaintiff is entitled to the possession of the premises described, or that she is the owner in fee or otherwise, except as is further stated.

This was an action of ejectment to recover certain real property which each of the parties claimed to own in fee.

<p>G-bantob when Estopped.—If the seizin or possession of a partionlar estate is affirmed in a deed, either in express terms or by necessary implication, the grantor and all persons in privity with him will be estopped from ever afterwards denying such seizin or possession.</p> <p>Deed Conveys aftee-acquieed Tithe—When.—If the terms of a deed clearly show that it was meant to pass an absolute estate to the land itself, and not merely the estate which the grantor had at the time, it will bind and pass every estate or interest which may vest in him subsequently to its execution, and this though it contain no warranty.</p> <p>Idem.—Where a grantor covenants to warrant the premises against all persons claiming by, through or under himself, and he subsequently acquires the legal title to the premises, that legal title will inure to the benefit of the grantee.</p> <p> Per Thayer, J., dissenting : </p> <p>Conveyance.-—The office of our modern conveyances is simply to convey the estate which the grantor has. It is the policy of the law to bind a party to a deed only by express stipulation covenant.</p> <p>Idem—Effect of the Woeds “Geant, Babgain and Sehh.”—The words “grant, bargain and sell” in a conveyance do not imply that the grantor is the absolute owner of the premises conveyed.</p> <p>Idem—Covenants in.—A covenant to- defend the grantee, his heirs and assigns, in the quiet and peaceable possession of the property conveyed, against the claims of the covenantor or persons claiming under him, necessarily refers to existing claims, not to those which the covenantor may thereafter acquire. The object of such a covenant is to defend the grantee against acts done or suffered to be done by the covenantor, whereby the title conveyed may be jeopardized; nor does such a covenant operate as a personal obligation of the covenantor not to buy an outstanding claim against the property, and he is not estopped by such covenant to buy and assert such an outstanding claim. Matter in a deed to operate as an estoppel must be of such a character that, if untrue, the party alleging it would be liable in some form of action, either in law or in equity, to respond in damages to the party injured for a covenant broken or for a deceit and fraud.</p>

<p>Authority of the District Attorney to Sue in his own Name.—The District Attorney is authorized by statute to sue as plaintiff in a civil action brought on an undertaking given as bail in a criminal case.</p> <p>Complaint in an Undertaking.—In a civil action on an undertaking in the nature of bail for defendant’s appearance in a criminal ease, the complaint should show that the.prisoner was charged with a crime, and it is not sufficient to state that he was charged with “shooting and killing ” another.</p> <p>Charge need not be in Writing.—Where a defendant is brought before a committing magistrate on a charge of felony, it is'not essential to the jurisdiction that the charge should be in writing.</p> <p> Per McArthur, J., dissenting: </p> <p>Statement of Crime charged in an Undertaking on Arrest.—It is not necessary, in order to create a liability against the sureties on an undertaking on arrest for crime, that the crime for which the person is admitted to bail should be set forth or described in the undertaking of bail with the same exactness that is required in an indictment or commitment. It is sufficient if the crime is referred to in general terms.</p> <p>Idem.—Every killing of a human being is presumed to be unlawful. The words “shooting and killing” describe a crime generally, and, in an undertaking, in a criminal proceeding, are a sufficient description of the crime charged to create a liability against the sureties thereon.</p>

<p>Insteuctions.—Where issue is joined on the merits in an action for goods sold'and delivered, it is error to instruct that if the plaintiff had sold the demand before tie commencement of the action he cannot recover.</p> <p>[The judgment of the Court below was reversed, and a new trial ordered.—Eep.]</p>

<p>Judgment.—A party cannot claim the benefit of a judgment, and at the same time appeal from it.</p>

<p>Assessments oe Stock in Private Corporation.—When a sufficient amount of the capital stock of a private corporation has been subscribed to authorize the stockholders to proceed to the election of Directors, after the election thereof assessments may be legally made upon the unpaid stock so subscribed, and this though the corporation has increased its capital stock and the entire amount of the shares of the .original stock and of the increased stock has not been subscribed. It is otherwise, where subscription to the entire number of the shares of the original as well as any contemplated increase of stock has been made a condition precedent to the exercise of the power of levying assessments.</p> <p>Stockholders mat become Liable before the whole Amount cf Stock is Subscribed.—Stannus subscribed for and took twenty shares of stock in a private corporation, and promised to pay the company therefor at the rate of fifty dollars per share in gold coin. The only conditions upon which the subscription was made were those contained in the articles of incorporation and the by-laws and in the instrument signed by subscribers to the stock, which “provided only that no assessment upon the shares subscribed should become due prior to the .first of April, 1870,” all the assessments having been made subsequent to that time. Held, that his liability to pay for the shares so subscribed was not upon condition that he should not become liable until the whole stock was subscribed. Seld, also, that the doctrine “that a subscription for stock in a corporation whose capital stock is fixed at a certain amount, or is to be determined by the Directors, is conditioned that the subscribers shall not become liable until the whole stock is subscribed,” cannot apply in this case, for the proportion of stock necessary to be subscribed before the election of Directors, or rather before the organization of the company, was duly subscribed and taken before the business of the company was proceeded with.</p> <p>Idem..— Subscription to the entire amount of stock of a corporation is not a condition precedent to legal corporate existence in this State. The doctrine that whenever a corporation is so organized as to be capacitated to prosecute its business, it has, through its Board of Directors, the power to levy assessments, is in harmony with the general incorporation laws of this State.</p> <p>Denting Legality of Assessments—Stockholders, when Estopped.—Where assessments upon stock were levied by the stockholders by virtue of a by-law framed and adopted by the stockholders, a stockholder -who assisted in framing the by-law and gave his voice for its adoption, is estopped from questioning the legality of the assessments.</p>

<p>Btjkden oe Pbooe.—In an action to recover real estate, where plaintiffs allege title in themselves, and this allegation is denied in the answer of the defendant, the onus probandi is upon the plaintiffs to show title in themselves.</p>

An assessment for the year 1871 was duly levied upon the property of A. P. Ankeny, the appellant, a resident of Multnomah County, consisting of lots in the city of Portland, valued at $8050. Ankeny was indebted to one Jemima Wheeler upon a promissory note for $15,000, executed in Portland, and made payable there, secured by mortgage on a portion of said lots.

On December 20, 1870, Thomas Sly was tried and convicted before the Recorder of Jacksonville, for the offense of disturbing the peace, by fighting one John Pelling in the public street, in violation of a certain duly adopted ordinance of said city. He was fined ten dollars, which fine, together with the costs, he paid.

<p>Appeal from Marion County.-</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Pleadings—Denials.—A denial that property sued for is of the exact value alleged in the complaint is an admission of any less value.</p> <p>Idem—Conjunctive Denials.—Pacts stated conjunctively in a complaint, should not be denied in the answer as a whole, as conjunctively stated, but should be disjunctively denied in order to raise an issue. "</p> <p>Couet op Equity will Inteepose—When.—Mere mental weakness, or inadequacy of consideration standing alone, will not warrant the interference of a Court of equity in ordinary cases; but where both these elements are present, equity will take jurisdiction.</p>

<p>Mechanic’s Lien.—When judgment is rendered to enforce a mechanic’s lien, an execution may be issued thereon to sell the premises.</p> <p>dem.—Under the statute mechanics’ liens have precedence over all other liens after the commencement of the building; but the statute must be strictly complied with in order to secure such precedence.</p> <p>Idem.—In an action to enforce such liens it should appear when the building was commenced, to enable the Court to determine when the liens attached.</p> <p>Idem.—If it nowhere appears in the judgment-roll when the liens attached to the building, the judgment would operate as a lien upon the premises as an ordinary judgment from the time it was docketed.</p>

<p>Appeal from Marion County.</p> <p>The facts are stated in the opinion of the Court.</p>

The complaint alleges that on or about December 3,1864, the defendant received from the plaintiff’s father the sum of one thousand dollars in gold coin to the use of the plaintiff; that demand for the payment thereof was made, but that the defendant has not paid any part thereof, but is now justly indebted to the plaintiff in the sum of one thousand dollars.

<p>Appeal from Yamhill County.</p>

<p>Beferee.—A referee is an officer of the Court. He is clothed with important powers, and some weight must be given to his certificate, and some discretion allowed him in the manner of taking testimony and returning exhibits.</p> <p>Idem— Certified Copies of Exhibits by.—When an original instrument is offered in evidence before a referee, and he makes a certified copy thereof, and files and returns the certified copy as an exhibit, such exhibit will not be disregarded except in peculiar cases.</p> <p>Construction of Deed.—To properly construe a deed it must be taken by “its four corners,” and the intention of the parties, when discovered, must be carried out.</p> <p>Notice.—Whatever is sufficient to direct the attention of a purchaser to the prior rights and equities of third persons, so as to put him on inquiry into ascertaining their nature, operates as notice.</p> <p>Idem.—Actual and unequivocal possession is notice.</p>

This was a suit to enjoin appellant from opening a private road across the land of respondent. The injunction was granted, and appellant brings his appeal. The other material facts are stated in the opinion of the Court.

<p>Mayhem.—Any offense made punishable by § 527 of the Criminal Code, may be denominated mayhem in indictments.</p>

On the 9th day of November, 1869, Wm. M. King, a resident of the city of Portland, died intestate, and respondents, James W. King and J. P. O. Lownsdale, were, on the 4th day of February, 1870, duly appointed administrators of his estate. On the 8th day of October, 1869, said Wm. M. King, for the expressed consideration of $3000, conveyed by deed of warranty lots Nos. 1, 2, 3 and 4 in block No. 221, in the city of Portland to appellant Boyd.

<p>Counties cannot Pbe-emtt Land in this State undee the Act op Congbess op May 26th, 1824.—The Act of Congress of May 26th, 1824, “granting to the counties or parishes of each State or Territory of the United States, in which the public lands are situated, the right of pre-emption to a quarter section of land for seats of justice in the same,” was never in force in this State. Neither was the Town-site Act of May 23d, 1844, in force in this State prior to July 14th, 1854.</p>

<p>Dedication.—A dedication to public use may be by parol as well as by deed.</p> <p>Idem.—To constitute a dedication by parol, there must be some act or acts proved, evincing a clear intention to devote the premises to the public use.</p> <p>Idem—What Constitutes.—If one owning lands or having awequitable interest therein (subsequently acquiring the title thereto), lays out a town thereon, and makes and exhibits a map or plan thereof, with spaces marked streets, alleys, public squares, parks, etc., and sells lots with clear reference to said map or plan (though unrecorded), the purchasers of lots in said town acquire, as appurtenant thereto, every easement, privilege and advantage which the map or plan represents as part of the town. Upon the sale of lots with such reference to the map or plan, the dedication of the spaces marked streets, alleys, public squares, parks, etc., becomes irrevocable.</p> <p>Acceptance and Use.—Formal acceptance by the corporate authorities is not necessary. Where the dedication is irrevocable, it need not be followed by immediate and continued use.</p> <p>Notice.—Whatever is sufficient to direct the attention of a purchaser to the prior rights and equities of third persons, or of the public, so as to put him on inquiry into ascertaining their nature, will operate as notice.</p> <p>Idem.—Notice should, with rare exceptions, be implied where one is shown to have such knowledge as would superinduce further inquiry in an honest, conscientious man.</p>

<p>Piling Appidavits op Sureties on Appeal.—The affidavit of the sureties in an undertaking on appeal as to their qualifications must be filed contemporaneously with the filing of the undertaking:</p> <p>Bill op Exceptions.—The bill of exceptions should be presented, allowed and signed at some time prior to the first day of the term next succeeding the term at which the cause was determined.</p>

On the 10th day of August, 1869, plaintiff (appellant) commenced this proceeding under the provisions of § 377 of the Civil Code, for the purpose of carrying into execution a decree of the District Court for Clatsop County, alleging in his complaint that on the 10th day of September, 1859, one Cyrus Olney commenced proceedings against this plaintiff and one James Taylor for the partition of lots one (l)'and two (2) in block fifty-five (55) in the town of Astoria.

<p>Peopebty in Teust — Gbantob’s Intebest in.—A grantor of property in trust for a specific purpose retains such an interest therein as entitles him in equity to insist on a specific execution of the trust; but a diversion of trust property by a trustee from the purpose for which it was granted, does not opérate as a forfeiture of the property or cause it to revert to the donor.</p>

<p>Easement—Eight op Entby pob Kepaibs.—One who has a right to the enjoyment of an easement has a right to enter for the purpose of repairs, as against the owner of the servient estate, whenever the easement cannot be otherwise enjoyed; and he has the right to dig up and use the adjacent soil for the purpose of repairs whenever there is no other mode.</p> <p>Insteuctions—Ebbob does not Apfiematively Appeab, When.—Where the record does not disclose whether or not the mode of making repairs depends on the construction of a written instrument, error does not affirmatively appear from a statement in the record that the Court instructed the jury that the defendant was not obliged to bring soil from elsewhere to repair a ditch conveying water over the plaintiffs land.</p>

Christian, the appellant, sued Evans, the respondent, before a Justice of the Peace in and for Lane County, to recover the value of a horse; and after issue joined and trial had, obtained judgment against Evans for one hundred and sixteen dollars and costs, which judgment was docketed on the 6th day of September, 1873.

<p>Statute of Limitations.—The defendant and her co-obligor executed a mortgage to secure payment of their joint note, and suit was commenced to foreclose the mortgage more than ten years after the note fell due; within the ten years part payment had been made on the note by the administrator of the defendant’s co-obligor: Held, that the suit was not barred by the Statute of Limitations.</p> <p>Idem.—By § 25 of the Civil Code, the fact of part payment is made the test for ascertaining whether the action or suit is barred by the Statute of Limitations, and if it is not barred, the action may be founded on the original promise.</p> <p>Idem—Who may maxe Payment to taxe Case out of Statute.--Where part payment is made upon an existing contract of the kind specified in 6 25, the creditor retains the right to sue on the original contract, without regard to the theory of a new promise, during the period prescribed, counting from the time of payment, and any person who could be compelled to pay is competent to make the payment.</p>

This is an appeal from a judgment and order of the Circuit Court for Douglas County, refusing a writ of review and for costs and disbursements. The appellants presented to the Court, at the October term, 1873, an application for a writ to review certain proceedings had in the County Court of said county, sitting for the transaction of county business.

<p>Appeal from Linn County.</p> <p>The facts are stated in the opinion of the Court.</p>