Volume 41 — Oregon Reports

From Multnomah: John B. Cleland, Judge. Suit by the Bank of British Columbia and others against the City of Portland and another. From a decree for defendants, plaintiffs appeal.

From Washington: Thos. A. McBride, Judge. Ezra Colestock, feeling he has not received justice by a sentence of twelve years in the penitentiary, appeals from a conviction of rape.

From Marion: Reuben P. Boise, Judge. This is a suit by J. F. T. B. Brentano ag'ainst his brother C. F. Brentano to cancel a tax deed. Plaintiff, being the owner in fee and in possession of the west half of the Jean Jeangras donation land claim, No. 79, situate in sections 14 and 23, township 4 south, range 3 west of the Willamette Meridian, conveyed, on February 13, 1896, the east two thirds thereof to the defendant and one R. L. M. Brentano.

<p>From Marion: George H. Burnett, Judge.</p> <p>Jobn Kelly has appealed from a conviction of an assault ' with a dangerous weapon.</p>

From Multnomah: John B. Cleland, Judge. This is a controversy over the distribution of a balance due from the City of Portland to the Bullen Bridge Co. on the contract for the construction of Burnside Street Bridge.

<p>Bate — Deduction From Circumstantial Evidence.</p> <p>In a prosecution for rape by carnally knowing a female under tlie age of consent (Hill’s Ann. Laws, § 1733; Laws, 1895, p. 67), where tlie evidence showed that the defendant for weeks occupied with the female in question, she being a prostitute, a room with only one bed, the jury might reasonably infer that there was a sufficient penetration to consummate the crime charged.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>This action was begun by Phillip Chaperon against the Portland General Electric Co. in a justice’s court, and taken to the circuit court on appeal. The defendant is, and was at the time of the accident complained of, engaged in maintaining and conducting upon College and other public streets in the City of Portland a system of poles, and wires extended thereon, for the transmission of electricity; and for cause of action it is alleged “that on the 1st of December, 1899, at about the hour of 3 o’clock a. m. of said day, the plaintiff! was, by and through his employe, engaged in driving his horse and bakery wagon upon said College Street, * * and that, without notice of or fault upon the part of plaintiff or his employe, the defendant corporation carelessly, unlawfully, and negligently allowed one of its wires, charged heavily with electricity, to become broken and hang down upon said College Street, and that plaintiff, nor his employe, did not know that said wire was broken, or was hanging down upon said street; and that while said wire of defendant, charged with electricity, was so hanging upon and close to said College Street, the horse and wagon belonging to plaintiff was being driven upon and along said street, and, without fault on the part of plaintiff or his employe, said broken and hanging wire, heavily' charged with electricity, came into contact with and struck the horse belonging to plaintiff, and threw said horse to the ground, seriously and permanently injuring said horse, and breaking the shaft of the bakery wagon, and tearing the harness upon the horse, to the damage of the plaintiff in the sum of $150,” etc., which is followed by allegations of special damages. The sufficiency of the complaint was challenged during the trial by objections to the introduction of evidence, a motion for non-suit, and by a request for an instruction to find in favor of the defendant.</p>

<p>Larceny of Horse — Changing Brand — Instruction.</p> <p>1. In trials where a defendant is charged with an offense the evidence to support which may show the commission of a somewhat similar but really different offense, the jury should be clearly instructed as to the difference between the two, and that defendant must be shown to be guilty of the one described in the indictment: thus, a defendant being oh trial for horse stealing, under Section 1766 of Hill’s Ann. Laws, and it appearing that after getting possession of the horse defendant changed the brand, which is an independent offense under Section 1769 of Hill’s Ann. Laws, it is error not to instruct the jury, when requested to do so, that if the animal was taken without an intention to steal it, the subsequent alteration of the brand was immaterial; since the two acts are distinct, and the jury may quite possibly have understood that the changing oX the brand would justify a conviction for stealing.</p> <p>Idem.</p> <p>2. The refusal to give such instruction was not cured by giving an instruction that, if the horse was taken in good faith, with the intention of returning it to its owner, a subsequently conceived intention to wrongfully convert it would not constitute larceny.</p>

From Multnomah: Arthur L. Frazer, Judge. Action for damages by F. L. Richmond against the Southern Pacific Company, resulting in a judgment for plaintiff, from which defendant appeals.

From Multnomah: John B. Cleland, Judge. Suit by the Oregon Real Estate Co., a private corporation, to restrain the City of Portland, its Auditor and others, from selling certain lots. There was a decree for defendants, from which plaintiff appeals. Reversed.

From Multnomah.: Alfred F. Sears, Jr., Judge. Action by I. H. Taffe against the Oregon Railroad & Navigation Co. On September 17, 1898, the plaintiff shipped at Celilo Station, in Oregon, by defendant’s railroad, one car load of fresb salmon, consigned to Cbesebro Bros., Fulton Market, New York City.

From Polk: George H. Burnett, Judge. This action was commenced in a justice’s court, where plaintiff prevailed. On appeal the circuit court sustained a demurrer to the complaint and dismissed the action, whereupon plaintiff appealed. Further facts appear in the opinion. A motion to dismiss the appeal was overruled, appellant was allowed to amend and complete his record, and the appeal was decided on its merits. On Motion to Dismiss tub Appeal. Per Curiam. 1.

<p>Pleading Conteibutoey Negligence as a Deeense.</p> <p>1. In actions for personal Injuries It Is not necessary to allege or prove lack of contributory negligence by the plaintiff: Johnston v. Oregon S. L. Ry. Co. 23 Or. 94, cited.</p> <p>.Raileoads — Death While Coupling Caes — Assumed Risk.</p> <p>2. A railroad employe was used to coupling flat cars loaded with iron rails, which usually shift in transit. In an action for his death, It appeared that, while thus employed, a flat car was “kicked” toward a loaded car, and, while endeavoring to couple them, he was caught between the projecting rails and the moving car. No one saw the accident, but it occurred before sunset, and his view of the cars was unobstructed, though what his position was before the cars came together was not shown. It was apparent that he must have stooped to avoid the danger at the time of the accident. Held, that it was an ordinary risk of his employment, which he had assumed.</p> <p>Care Required oe Railroad Terminal Company.</p> <p>3. A terminal company engaged in receiving and switching cars from railroad companies is not bound to the same degree of care for the safety of its employes as a regular railroad company engaged in general transportation business.</p>

From Multnomah: John B. Cleland, Judge. This is a suit by the Irving Park Association (a corporation) against Virginia Watson to foreclose an alleged pledge of personal property. The facts are, in substance, that in April, 1890, the defendant and nineteen others contracted for the purchase of 600 acres of land near Portland for the sum of $130,000, payable $3,000 down and the balance in installments.

<p>Total — Motion foe Nonsuit — Peovince of Juet.</p> <p>1. The jury being the judges of the facts, the court should not decline to submit a case if the plaintiff’s testimony tends, even remotely, to support the allegations of the complaint. In this instance the case was properly sent to the jury, though the plaintiff’s testimony was somewhat confused.</p> <p>Trial — Directing Vbedict foe Defendant.</p> <p>2. If a verdict is directed in favor of defendant it precludes another action for the same cause, which is not the case where a motion is allowed to take the case from the jury for insufficiency of plaintiff’s evidence. In some cases the courts are justified in directing a verdict for the defendant after all the evidence has been submitted, but there must have been more of a defense than a contradiction of the plaintiff’s case — to direct a verdict on a mere contradiction would be to determine the weight of the evidence, which a judge has no right to do.</p> <p>Misconduct of Counsel in Aegument.*</p> <p>3. Where there was evidence tending to show that defendant and his partner were allied in some manner with the makers of the notes upon which plaintiff’s action was brought, and that all were engaged in a common purpose to obtain money on the credit of irresponsible parties, it was not an unwarranted abuse of privilege for counsel to designate defendant and his partner as vultures and wolves, and as fit subjects for the penitentiary, and by permitting such invective the court did not so abuse its discretion in regard to control of counsel and their arguments as to warrant a reversal of a judgment in favor of plaintiff.</p>

<p>From Marion: Reuben P. Boise, Judge.</p> <p>Suit by G. D. Trotter against tbe Town of Stayton. From a decree dismissing tbe complaint, plaintiff appeals.</p>

From Multnomah: John B. Cleland, Judge. This is a suit by the Larch Mountain Investment Co., to determine the ownership of $2,271.21, deposited by the plaintiff with the sheriff of Multnomah County, for the purpose of redeeming from the defendant Garbade certain land sold under an execution on a judgment against it. The facts are that on September 28, 1898, one Gilchrist recovered a judgment against the plaintiff in the circuit court of Multnomah County for about $2,000.

<p>From Coos: James “VV. Hamilton, Judge.</p> <p>Action by W. E. Baines against the Coos Bay, Roseburg & Eastern Railroad & Navigation Co., and another. From a judgment in favor of the defendants, the plaintiff appeals.</p>

<p>From Multnomah: Alfred F. Sears, Jr., Judge.</p> <p>Action by Barbara Stager against the Troy Laundry Co. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Unascertained Boundaries — Settlement ex Agreement.</p> <p>Where the boundary line between adjoining proprietors is unascertained, and they agree on a division line, and take possession accordingly, and acquiesce therein, the line so agreed on is binding on the parties and their privies, and one of such owners, or his successor in interest, is entitled to a reformation of his deed so as to make the agreed line the boundary of his land.</p>

<p>Fees — District Attorney — Divorce—Statutes.</p> <p>Since the act of 1899, placing distreit attorneys on a salary and cutting off all fees and compensation except their salaries (which does not apply to Multnomah County), the district attorney fee in divorce cases required by Section 1074 of Hill’s Ann. Laws, need not be paid, as the later act (Laws, 1899, pp. 184, 185, § 3), repeals section 1074 by implication in its application to all counties except Multnomah.</p>

From Umatilla: William R. Ellis, Judge. Action by G-. D. Simmons against tbe Oregon Railroad & Navigation Co., to recover damages for injuries received in a collision on defendant’s road. There was a verdict and judgment for plaintiff for $20,700, from which defendant appeals.

<p>From Multnomah: John B. Cdeland, Judge.</p> <p>Suit by Nannie N. Starr against Kate M. Kaiser and another. From a decree for plaintiff, defendant Kaiser appeals.</p>

From Clatsop: Thomas A. McBride, Judge. This is an action by S. Normile against the Oregon Railroad & Navigation Co., to recover the value of a mule, which, with other stock, the defendant, it is alleged, undertook and agreed, for the consideration of $15, to transport from Portland to Astoria, skillfully and safely, and there deliver to plaintiff in good condition.

From Lane: James W. Hamilton, Judge. Creditor’s bill by J. C. Goodale against A. Wheeler and others to set aside alleged fraudulent conveyances. From a decree for plaintiff, defendants appeal.

From Tillamook: Reuben P. Boise, Judge. Tbis is a suit to quiet title to a strip of laud, containing about three quarters of. au acre, lying’ between the government meander line and the line of ordinary high water in Tillamook and Trask rivers, both of which are tid'al streams. A part of lot 10, section 26, township 1 south, range 10 west, as surveyed by the United States, is a peninsula, bounded on the east by the Trask, and on the south and west by the Tillamook River.

<p>Preference by Insolvent Debtor.</p> <p>1. In Oregon the law is now settled that an insolvent debtor may prefer one creditor over another, if the transfer is to pay or secure an honest debt, and no secret benefit is reserved to the debtor. Transfers to relatives will be closely examined, but are not necessarily void: Mendenhall v. Ehoert, 36 Or. 375, cited.</p> <p>Fraudulent Conveyances — General Principles.</p> <p>2. In determining the legality of an alleged fraudulent conveyance the courts inquire whether there was an adequate genuine consideration, and whether a secret benefit was reserved to the grantor — and unless at least one of these points is decided in the negative the conveyance must be sustained,</p> <p>Fraudulent Conveyance — Bona Fide Debt.</p> <p>3. Where a son who was indebted to his mother and others transferred a large amount of property to his brother-in-law on condition that he would assume and pay the son’s debts, and the brother-in-law thereupon executed his note to the mother fos the amount of the son’s debt to her, such note represented a bona fide debt.</p> <p>Sufficiency of Evidence.</p> <p>4. The evidence in this case is quite satisfactory that full value was given for the property transferred.</p> <p>Fraudulent Conveyance — Expectation of Benefit.</p> <p>5. Where an insolvent conveyed property to a bona fide creditor, receiving credit for the full value thereof, the fact that such debtor expected that such property would be reconveyed to his children — there being no agreement for such reconveyance — did not render the conveyance fraudulent as to the other creditors of such debtor.</p>

<p>Waters for Irrigation — Privity With Appropriators.</p> <p>1. Where persons who divert water do not surrender their rights to a company, but it is organized merely to facilitate distribution of the water among them, there is such a privity as to enable it to defend in their behalf.</p> <p>Prescriptive Right to Water.</p> <p>2. As against riparian owners, one who diverts water may acquire title by prescription in the same time necessary to acquire title to land by adverse possession.</p> <p>Use of Water — Appropriation—Title by Relation.</p> <p>3. When the appropriation of a water right is initiated by the posting of a notice, the statute of limitations will begin to run at the date of the posting of such notice (Nevada Ditch Co. v. Bennett, 30 Or. 59, cited), but when it is initiated by an actual diversion without a notice, the statute is set in motion on the date of the. diversion, provided in both instances that there is an application to a beneficial use within a reasonable time.</p> <p>Prescription — When Statute of Limitations Begins.</p> <p>4. Prescription begins to run from the time one diverts water, though there is not then an actual use thereof, provided there is actual and exclusive possession and control with intent to use it, followed by actual use within a reasonable time.</p> <p>Adverse Use — Effect of Objections.</p> <p>5. Continuity of holding by persons who divert water is not interrupted by objection being made thereto, no attention being made to the objection.</p> <p>Continuity of Adverse Holding.</p> <p>6. There is no interruption of the continuity of holding of persons who divert water because others make a diversion by a canal into which for a while their water flows for a short distance, they again taking up the water and using it in defiance of the others’ claims.</p>

From Clatsop: Thomas A McBride, Judge. This is a suit to set aside a deed of real property.

From Multnomah: Alfred F. Sears, Jr., Judge. Action by Thomas J. Hammer against F. O. Downing and another, partners under the firm name of Downing, Hopkins & Co. ' Judgment for plaintiff. From an order, issued in supplementary proceedings, requiring the defendant Downing to apply certain money to the satisfaction of the judgment, defendants appeal.

From Linn: Reuben P. Boise, Judge. This is a suit by Elizabeth Robson against Juliett Hamilton and others to set aside a deed to real property, and to subject the premises to the satisfaction of a judgment.

<p>Action foe Rent — Evidence.</p> <p>1. Defendant, in an action for rent of a wharf, having alleged he agreed to pay for it only so long as he occupied it, may give evidence not only that he was not in the occupancy of it, but that another was, through agreement with plaintiff.</p> <p>Effect of Admissions.</p> <p>2. A statement of defendant, who alleged he was to pay rent for a wharf only so long as he occupied and used it, that the lease was for an indefinite time, and that he did not surrender possession, is not an admission that he was to pay rent, without regard to use and occupancy.</p> <p>Self-Sebving Declabations.</p> <p>3. A statement by defendant to plaintiff that he had quit business, and did not want the wharf any longer, is not a self-serving declaration; he alleging that, by the terms of the letting, he was to pay rent only so long as he occupied and used the wharf.</p> <p>Rent — Measube of Value of Repaies.</p> <p>4. The value of repairs in lease of a wharf, providing the lessor shall pay the lessee the value of repairs if he is not allowed to remove them, is their value as contained in the wharf, and not what the material, if taken out, would sell for.</p>

<p>From Multnomah: Arthur L. Frazer, Judge.</p> <p>Supplemental proceeding by Lusetta P. Beers against C. A. Aylsworth, resulting in an adverse judgment, from which plaintiff appeals.</p>

<p>From Marion: George H. Burnett, Judge.</p> <p>Action for damages by S. Spencer against V. C. Peterson. Plaintiff having recovered a judgment, defendant appealed.</p>

<p>From Polk: George H. Burnett, Judge.</p> <p>Action for damages by Laura Adkins’against the City of Monmouth. Plaintiff appeals from a judgment against her.</p>

<p>Numerous Parties — Suit by Part on Behalf of All.</p> <p>1. Ten out of a hundred persons jointly interested in a fund cannot bring a suit on behalf of all, under Section 385 of Hill’s Ann. Laws, to recover and distribute such fund, where as many as thirty-four of the interested parties state in court that they are not willing to contribute to the expense of the suit. To such a suit all those entitled to share in the fund are necessary parties, and should be brought in as plaintiffs or defendants.</p> <p>Affidavits as Evidence — Hearsay.</p> <p>2. In a suit by depositors of wheat in a warehouse tp compel an accounting for wheat delivered by the warehouseman to defendants without the consent of the depositors, affidavits of the depositors as to the deposit, amount, and authority to remove or dispose of the wheat, made on ex parte examinations, and without opportunity of defendants to cross-examine, are hearsay, and inadmissible in evidence.</p> <p>Tenancy in Common of Wheat — Receipt Stubs as Evidence.</p> <p>3. Where, in a suit by depositors of wheat in a warehouse to compel an accounting for wheat shipped by the warehouseman to defendants, without the depositors’ authority, it appeared that the amount bought by defendants was more than the amount belonging to the depositors and unaccounted for, but such excess was commingled with the depositors’ wheat, the defendants were tenants in common with the depositors, and parties to the transactions recorded in the warehouseman’s receipt book containing the stubs of the receipts issued to the depositors, rendering them admissible in evidence as books of original entry.</p> <p>Harmless Error in Admitting Evidence.</p> <p>4. A careful examination of the evidence has satisfied the court that the error of the trial judge in admitting in evidence certain affidavits was harmless. ,</p> <p>Bailment. — Liability of Purchaser.</p> <p>5. Though a warehouseman in whose warehouse wheat was deposited purchased it whenever the. depositors chose to dispose of it, and shipped it, and the agents of those to whom it was shipped believed he had authority to dispose of wheat delivered to them, such persons obtained no title to wheat delivered to them without the authority of the depositors, and should account to the depositors for the wheat for which they are legally responsible, in proportion to that part of the deficiency which they severally caused.</p> <p>Deposit With Warehouseman — Bailment—Sale.</p> <p>6. Where owners of wheat delivered it to a warehouseman, receiving either warehouse receipts reciting the receipt of wheat subject to warehouse charges for sacks and storage at a certain sum per bushel, and stored at owner’s risk of loss by fire, or load checks reciting the receipt of wheat stored at owner’s risk unless specially insured, — the owners expecting either to sell to the warehouseman, or secure the return of a like quantity and quality of wheat upon demand and payment of the storage charges, — the deposits were not sales, instead of bailments, and did not pass title to the warehouseman.</p>

From Multnomah.: Arthur L. Frazer, Judge. This is an action to recover damages for a breach of contract.

From Benton: James W. Hamilton, Judge. This is a proceeding' by writ of review.

<p>From Washington: Thomas A. McBride, Judge.</p> <p>James Aiken was convicted of murder in the second degree, and appeals.</p>

<p>Action by Curtis Bowers, an infant, by Daniel C. Bowers, his guardian, against the Star Logging & Lumber Company. From a judgment for plaintiff, defendant appeals.</p>

Fiom Multnomah: Melvin C. George, Judge. James L. Warren was convicted of murder in the second degree and appeals. After several applications for a stay of execution had been granted, further time was refused by the trial judge, whereupon application, for a stay was made to Mr. Justice Wodverton/one of the members of the supreme court, and his decision on the application as a justice of the supreme court is given below.

From Douglas: James W. Hamilton, Judge. The defendant, J. F. Rose, commenced an action at law against the plaintiff to recover $794.30… Held: and now holds and occupies, the same, and that the alleged sale of wheat mentioned in the complaint as the basis of the action was made, and the said wheat delivered, in part payment of the purchase price of said land, and that by reason of the facts so alleged he had no adequate defense at law, and thereupon presented his cross bill…

<p>Intoxicating Liquors — Necessity os’ Guilty Knowledge.</p> <p>1. In prosecutions for distinctly statutory offenses, sucb as selling liquor to minors, for example, where tbe statute does not make guilty knowledge an element, it is unnecessary to show an intent to violate the law, and that defendant acted in good faith on mistaken information Js not a defense.</p> <p>Intoxicating Liquors — Implied Amendment os’ Statute.</p> <p>2. Act February 20, 1891 (Laws, 1891, p. 79), enacting that if any minor over tbe age of sixteen shall, for tbe purpose of inducing any person to give or sell him intoxicating liquor, represent that he is twenty-one years of age, he shall be punished, does not impliedly modify or affect section 1913, making it a misdemeanor to sell liquor to minors.</p>

From Multnomah: Arthur L. Frazer, Judge. This was originally an action to recover money by Isam White against A. H. Johnson, accompanied by an attachment. Johnson was out of the state, and died a few hours after the action had been commenced. His executrix was substituted as defendant, and, upon her death, her administrator became defendant. The present appeal is from an order sustaining objections to the confirmation of a sale of part of the attached property.

From Multnomah: Arthur L. Frazer, Judge. This is an action against the Portland General Electric Co. for damages by a minor, through his father as guardian, predicated upon the same facts as Boyd v. Portland Elec. Co. reported in 40 Or. 126 (7 Am. Electl. Cas. 661, 66 Pac. 576), that being an action by the father on account of the same injury complained of here.

From Multnomah: Melvin C. George, Judge. The defendant James L. Warren was convicted of murder in the second degree upon an information charging him with murder in the first, and appeals from a judgment of life imprisonment. On the morning of January 24, 1900, shortly after 9 o’clock, William Kirk, the mate of the ship Clarence S. Bement, was found in his room, situated on the port side of the ship, with a contusion upon the left side of his head, and his skull fractured.

From Multnomah: Alfred F. Sears, Jr., and Arthur L. Frazer, Judges, in joint session. Two separate actions were brought by Henry Weinhard and George H. Williams, respectively, to recover the value of certain shares of stock in the defendant corporation (the Commercial National Bank of Portland, Oregon,) alleged to have been wrongfully converted by it. As the same questions are involved in each ease, they are here considered together.

<p>Motion to Acquit — Specification of Reasons.</p> <p>1. Where, in a prosecution for larceny, a motion to direct a verdict of not guilty was based merely on the insufficiency of the evidence, it could not be urged for the first time on appeal that it was error to overrule the motion because there was no evidence that the taking was without the owner’s con. sent; for, under the established practice in Oregon, a motion to acquit must specify the reasons on which it is based, unless it is for insufficiency of the evidence as a whole.</p> <p>Larceny — Instruction as to Intent of the Taking.</p> <p>2. Where the theory of the defense on prosecution for larceny was that defendant took the animal under the belief that it belonged to his father, and that he had authority to take it, an instruction that “the intent to convert the animal to his own use, knowing it was not his, is the gist of this offense,” was not prejudicially erroneous, in connection with the preceding instruction defining larceny as the felonious taking, stealing, and carrying away of the property of another, and an instruction following, exonerating defendant if the jury believed the theory of defense.</p> <p>Harmless Error in Admitting Evidence.</p> <p>3. Error in admitting testimony as to marks on a stolen article is harmless where the thing itself is before the jury.</p> <p>Refusing Duplicate Instructions.</p> <p>1. A judge may properly refuse to give requested instructions that are covered by his general charge.</p> <p>Instruction as to Possession of Stolen Property.</p> <p>D. Where the defense for larceny of a steer was that defendant took it believing it to be the property of his father, an instruction that, while possession of property recently stolen, if unexplained, is a circumstance tending to show guilt, yet if the jury believed that defendant came honestly in possession, or that it was unconnected with any suspicious circumstances of guilt, this would remove every presumption of guilt, was as favorable as defendant was entitled to ; and it was not error to refuse an instruction that, if the possession was reasonably and credibly explained, the presumption of guilt arising therefrom was overcome.</p> <p>Presumption From Possession of Stolen Property.</p> <p>6. The presumption arising from the possession of stolen property is one of fact only.</p> <p>Favorable Error is Harmless.</p> <p>7. Error in favor of an accused cannot be the basis of complaint, for it is manifestly harmless.</p> <p>Practice in Pronouncing Sentence.</p> <p>8. Whether a defendant is entitled to be asked if he has anything to say why sentence should not be pronounced, the right (if it is a right) is practically granted where the court overrules a motion for a new trial and at once pronounces sentence, for the aefendant is present and has not been without a hearing. '</p>

<p>From Multnomah: John B. Cleland, Judge.</p> <p>Suit by the United States Mortgage and Trust Co. and another against P. A. Marquam and others, in which some of .the defendants partially appealed. One of the plaintiffs now moves for an affirmance of the decree for failure to prosecute the appeal.</p>

From Multnomah: Arthur L. Frazer, Judge. The City of Portland, intending to open Main Street, in Amos N. King’s Addition thereto, from its western terminus to an intersection with King Street, a distance of 120 feet, more or less, instituted proceedings under its charter for that purpose.

<p>Larceny- — Possession With Consent of Owner — Intent.</p> <p>1. That one accused of larceny has secured possession of the property with the owner’s consent is not conclusive of Ms innocence, but the question of his guilt will depend on the intent with which the possession was so secured, which is a matter of fact.</p> <p>Evidence of Felonious Intent.</p> <p>2. Evidence in a prosecution for larceny considered, and held to take the question whether, at the time of acquiring possession of the property with the owner’s consent, defendant entertained a felonious purpose to convert it to his own use, to the jury.</p> <p>Special Instructions Should be Requested.</p> <p>3. Where counsel desire an instruction covering a particular point, or given in an especial manner, it should be requested, otherwise error cannot be assigned for not giving it.</p>

From Union: W. R. Ellis, Judge. This is an action by Fred Nodine against the First National Bank of Union to recover an alleged balance due plaintiff from the defendant bank.

From Multnomah: John B. Cleland, Judge. ■ This is a suit by the United States Mortgage & Trust Co. to foreclose a mortgage given by P. A. Marquam and wife, and the defendant Title Guarantee & Trust Co. filed a cross bill asking the foreclosure of a trust deed given as security for' sundry loans. There was a decree in favor of- the plaintiff; and the cross-plaintiff, from which the defendants Marquam appeal.

From Union: Rorert Eakin, Judge. This is a suit by J. E. Reynolds against J. W. Scriber to enforce the specific performance of a contract for the purchase of personal property. On March 10, 1900, these parties were stockholders in the Union County Alliance Flouring Mill Co., a corporation with a capital stock of $25,000, divided into 2,500 shares, of the par value of $10 each.

From Union: Robert Eakin, Judge. This’is an action by W. T. Carroll to recover from Eliza Nodine upon an implied warranty on the sale without recourse by defendant to plaintiff of a certain promissory note made and executed by Louisa A. Hudson and Thomas R. Hudson to Fred Nodine on August 21, 1878, for the sum of $150, with interest at 10 per cent per annum, and by the latter indorsed to the defendant.

From Union: Robert Eakin, Judge. This is a suit by W. A. Coughanour against Jas. H. & W. R. Hutchinson and Jas. Welch and wife to reform a deed and for possession of real property.

From Union: Robert Eakin, Judge. This is an action by 'William H. Male and others against George Schaut and wife and John Huber on a promissory note.

From Baker: Robert Eakin, Judge. This is a suit by E. M. Payton and M. A. Baisley against C. R. Burns to determine an adverse interest in realty.

From Union: Eobert Eakin, Judge. The defendant E. W. Deal was tried, eon-victed, and sentenced by judgment of the trial court for the crime of larceny by stealing a gelding, the property of one Charles Eowland. There was evidence introduced at the trial tending to show that the horse was brown in color, branded J D on the the left shoulder, about four years old, having white hind feet, and a cut or bruised knee.

From Union: Robert Eakin, Judge. This is an action by Turner Oliver against J. H. and W. R. Hutchinson to recover damages for the trespass of defendants’ stock upon improved agricultural land of which the plaintiff was the lessee.

From Union: Robert Eakin, Judge. On November 18, 1897, the plaintiffs, Killes J., Oliver, G. M., and Nellie Martin, of the first part, and the Eagle Creek Development Co. of the second part, entered into a,n agreement whereby the parties granted the Development Company an option to purchase certain mining claims for the consideration of $16,000, of which $4,000 was paid down, and also granted ■with said option the right and privilege of prospecting, exploring, and mining the…

From Douglas: James W. Hamilton, Judge. This is a suit by W. C. Wilson and wife against Geo. W. Wilson, personally and as administrator, and Geo. M. Brown, as administrator.

From Lane: James W. Hamilton, Judge. Suit of interpleader by the New Zealand Insurance Co., a corporation, against E. C. Smith and others. From the decree in so far as it granted relief to plaintiff, defendant Smith appeals. The insurance company now moves to dismiss the appeal.

From Union: Robert Eakin, Judge. This is an action by the'Advance Thresher Company against Addie C. Esteb and husband to recover the possession of real property. It is alleged in the complaint that plaintiff is a private corporation, and the owner in fee and entitled to the imrnediate possession of lot 4 in block 16 of Coggan’s Addition to La Grande, Oregon, and that the defendants are wrongfully in possession thereof, to its damage in the sum of $50.

<p>From Klamath: Henry L. Benson, Judge.</p> <p>Action by James Taylor aud others against Gilbert C. Lapham. From a judgment for plaintiffs, defendant attempted to appeal. Plaintiffs moved to dismiss.</p>

From Multnomah: Arthur L. Frazer, Judge. This is an action by the United States Mortgage & Trust Company, the purchaser of real estate at a judicial sale, against P. L. Willis, a tenant in possession under an unexpired lease, to recover rent, or the value of the use and occupation of the premises, from the day of sale.

From Linn; Reuben P. Boise, Judge. Proceeding by School District No. 110 against D. M. Palmer and others, constituting the District Boundary Board of Linn County, to review the action of that board in changing the boundaries of district No. 110. From a judgment dismissing the petition, plaintiff appeals.

From Multnomah: John B. Cleland, Melvin C. George, and Alfred F. Sears, Jr., Judges, in joint session. Petition for release from custody by W. N. Northrup. From an order denying the writ, petitioner appeals.

<p>Example oe an Appealable Order.</p> <p>1. An order in an escheat proceeding directing specified persons who are not parties thereto to turn over to a receiver certain pi’operty which has been received by them is an appealable order, under Section 535 of Hill’s Ann. Laws.</p> <p>Control oe Personal Property During Administration.</p> <p>2. The personal property of a decedent goes to the administrator, and all title thereto must be derived through him; but the title to real property descends at once and directly to the heirs under Section 1120 of Hill’s Ann. Laws.</p> <p>Escheat — Right of State to Appear in County Court.</p> <p>3. The state, when in pursuit of escheated property, has the same right to appear in a county court and determine questions of heirship that a natural person has, and it is bound by the proceedings in that court, until reversed or set aside, as a natural person would be; in other words, having possession of the personal property of an estate, and having given the notice of distribution designated by statute, and in the manner required, the orders of the county court based thereon cannot be collaterally attacked.</p> <p>Relative Position of Probate and Escheat Proceedings.</p> <p>4. Construing together, Section 895 of Hill’s Ann. Laws, conferring on county courts exclusive probate jurisdiction; sections 1183 and 1191, directing the payment of claims, charges and legacies, and the distribution of the remaining proceeds of personal property; section 3099, providing that the residue of personal property shall escheat; and sections 3135, et seq., prescribing the method of procedure; it is reasonably apparent that the beginning of an escheat proceeding in a circuit court, as provided by section 3136, was not intended to interfere with or to interrupt the usual proceedings in the county court in a given estate, or to affect the jurisdiction of that court in any way.</p>

<p>From Uhioh: Robert Bakin, Judge.</p> <p>Action by M. S. Crossen against B. W. Oliver. From a judgment in favor of plaintiff, defendant appeals.</p>

From Marion: Reuben P. Boise, Judge. This is a mandamus proceeding by F. C. Reed against F. I. Dunbar, to compel the defendant, as secretary of state, to draw a warrant in favor of the plaintiff for salary alleged to be due him as fish commissioner for the month of March, 1901, and for expenses which it is asserted he incurred in the discharge of his duties during the same time.

<p>Indictment eor Rescue — Allegation oe Intent to Escape.</p> <p>1. An information under Section 1833 of Hill’s Ann. Laws for aiding a prisoner to escape contains a sufficient allegation of intent when it alleges that defendant “did willfully, unlawfully, and feloniously assist * * in an attempt to escape” from a county jail, for it alleges co-operation in an actual effort to escape, which could not have existed without the intent by the prisoner to escape.</p> <p>Indictment — Charging Guilt oe Prisoner.</p> <p>2. An information for aiding a prisoner in an intent to escape need not allege the facts showing the prisoner’s guilt; it will be sufficient to state that the prisoner was lawfully detained in the stated place of confinement.</p>

From Union: Robert Eakin, Judge. This is a suit by M. A. Lawrey to foreclose a mortgage.

From Josephine: Hiero K. Hanna, Judge. This is an action by A. C. Hough, as administrator of the estate of E. L. Moon, deceased, against the Grants Pass New Water, Light & Power Co., to recover for injuries received while acting in the capacity of a lineman in the employ of the defendant.

From Marion: George H. Burnett, Judge. This is an action by the Goodale Lumber Co. to recover on a promissory note-. It is alleged in the complaint “that plaintiff is a corporation organized and existing by virtue of the laws of the State of Oregon, with its head office at Salem, Oregon”; that about April 3, 1895, the defendant, W. A. Shaw, and one Win.

From Douglas: James W. Hamilton, Judge. Suit by Morris Abrabam as administrator of the estate of Sol Abraham, deceased, substituted for Sol Abraham, against the Oregon & California Railroad Company and others. From a judgment dismissing his complaint, plaintiff appeals.

From Marion: George H. Burnett, Judge. This action was commenced October 22, 1900, by Mrs. R. L. Noblitt and C. F. Ziegler to recover from F. W. Durbin possession of certain personal propertjr, consisting of horses, carriages, etc., used in a livery stable business.

<p>Highway Petition — Description op Terminus.</p> <p>1. Under Section 4062 of Hill’s Ann. Laws, requiring a petition for the location of a county road “to specify the place of beginning, the intermediate points, if any, and the place of termination,” such a document is sufficient if from its terms these points can be definitely ascertained ; thus, a petition is sufficient when the terminus can be definitely ascertained by following the description from the initial point — and particularly when it can be further fixed by pursuing the' last two calls from a given point. It is not necessary that the petition describe each or any point with such exactness or detail that it can be found without referring to any other part of the petition.</p>

From Marion: George H. Burnett, Judge. Action of trover by tbe Salem Light & Traction Co. against F. B. Anson, wherein plaintiff had judgment. A motion to dismiss the appeal was overruled, and the case heard on its merits. On Motion to Dismiss the Appeal. Per Curiam. 1.

From Lake: Henry L. Benson, Judge. Suit by George H. Small against Elmer D. Lutz, to remove a cloud from the title to certain land. Held: in substance, that the approval of list No. 5 by the Secretary of the Interior was a conclusive adjudication that the land was swamp and overflowed, within the terms of the swamp land act, and the subsequent cancellation thereof was void as to the plaintiff because made without notice to his grantor; that therefore, at the time of…

<p>Lease — Effect of Holding Over.</p> <p>1. Where there has been a leasing for a year, or for a term of years, and the tenant holds over after the expiration of the term without objection from the landlord, the relation becomes a tenancy from year to year upon the terms and conditions contained in the original lease.</p> <p>Continuation of Lease — Liability for Improvements.</p> <p>2. Where a lease provided that “in case this lease cannot be continued after the expiration of * * by mutual agreement of the parties thereto, then the improvements * * shall be purchased” by the lessor, the lease was “continued” by the action of the parties in respectively paying and accepting the reserved rent after the expiration of the term limited, and the lessee thereby forfeited his right to be paid for the improvements.</p>

From Josephine: Hiero K. Hanna, Judge. This is an action by C. E. Harmon, as administrator of the estate of Horace Gasquet, deceased, to recover the sum of $2,908.80, alleged to be due on an open account for goods, wares, merchandise, and other property sold and delivered by the deceased to Charles Decker, the defendant, a copy of which is made a part of the complaint.

From Baker: Bobeet Eakin, Judge. This is a suit by Edmond D. Le Clare against N. H. Thibault and another to foreclose a mortgage.

<p>Adverse Holding — Privity or Possession — Evidence.</p> <p>1. In establishing adverse possession consisting of successive holdings, privity between the successive holders is necessary, but this may be by oral as well as written contract, if the holdings all refer to one source of claim, and there is actual possession.</p> <p>Nature oe Possession Under Contract to Purchase.</p> <p>2. One in possession of realty under a contract to purchase cannot claim adversely to his vendor until after performance of his part of the agreement; but thereafter his holding is in his own right, without reference to the completion of the contract by the vendor.</p> <p>Adverse Possession — Evidence oe Privity and Continuity.</p> <p>3. The owner and occupant of a tract containing one hundred and fifty acres sold and contracted to convey the entire tract. The purchasers went into possession of the whole tract, and received a deed which was supposed to convey all, but which omitted a triangular piece of about nine acres. Thereafter they sold and delivered possession of the whole tract, giving a deed containing the same description as in the deed to them. From such purchaser the title and possession passed through various conveyances to plaintiff, each purchaser holding possession of the entire tract until he passed the possession to his vendee. More than ten years after the first sale, their grantor having died, the first purchasers obtained deeds to such' omitted nine acres from all their grantor’s heirs, and legatees. Hold, that defendants’ possession of the nine acres was adverse to their grantor from the time they received their first deed, and that there was such privity and continuity of possession between them and the subsequent purchasers, to and including plaintiff, that the title of such original owner and his heirs was lost before such heirs executed deeds to defendants, and they acquired no title or interest in such nine acres by such deeds.</p>

From Clatsop: Thomas A. McBride, Judge. This is an action by Thomas Miles against the Columbia River Packers’ Association to recover wages alleged to be due from the defendant.