Volume 5 — Oregon Reports

By an amendatory act of the Legislature, approved October 22, 1870, the time within which actions for criminal conversation could be brought was limited to two years. (Civ. Code, § 8.) Prior to this amendment, the limitation for such actions was six years. This is an action begun on the 12th day of February, 1873, by respondent against appellant for enticing away respondent’s wife.

This is an appeal from a judgment recovered at law. The complaint alleges that on May 28, 1872, one William Davidson made, executed and delivered his promissory note to Hayden; that Hayden indorsed it and for value sold and transferred it to one William Barlow; that Cogswell indorsed it subsequent to Hayden; that said Barlow sold and delivered the note to John Bines; that Bines commenced an action thereon in the Circuit Court of Multnomah County and recovered judgment…

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

<p>Appeal from Marion County.</p> <p>The complaint alleges, in substance, that the city of Salem, by an ordinance, contracted and agreed to pay James M. Martin and David Allen, their associates, successors and assigns, for supplying said city of Salem with good and whole’some water, as by said ordinance provided, the sum of eighteen hundred dollars per annum, in gold coin, to be paid in quarterly installments in each and every year for seventeen years.</p> <p>That said Martin & Allen duly accepted the contract and undertook to comply with its terms and conditions; that afterwards, for a valuable consideration, they assigned their interest in said ordinance and contract to the Salem Water Company, a private corporation; that said company did erect waterworks and did supply the said city with water in accordance with the terms of said contract, from and after the 27th day of September, 1871, up to the 27th day of March, 1873, and that the city received and used said water so furnished by said company; that the city paid for all said water received and used, except for the quarter ending the 27th day of March, 1873, at which time it is alleged there was due appellant the sum of four hundred and fifty dollars, gold coin; that said, city refused to pay said'sum, or aDy part thereof, except the sum of two hundred dollars.</p> <p>Respondent interposed a demurrer to the complaint upon the ground that it does not contain facts sufficient to constitute a cause of action. The demurrer was sustained by the court below and judgment rendered for respondent for costs, from which appellant appeals.</p>

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

This appeal is from a judgment of the Circuit Court for Linn County, overruling a demurrer to the complaint.

This was an action to recover a balance due upon a promissory note executed by appellant to William Poster on the 4th day of Pebruary, 1864, due one day after date. It is alleged in the answer that at the time of the execution and delivery of the note, one James Poster was the agent of William Poster to collect and receive money for him, and to forward-the same to him in Missouri or retain it on deposit, as he might deem best.

Appellant was convicted in the Circuit Court for Lane County, of larceny, alleged to have been committed by taking a large belt from his own saw-mill, alleged in the indictment to be the personal property of J. N. Poindexter, sheriff of Lane County. At the trial it appeared in evidence that on September 3, 1873, a writ of attachment was levied by said Poindexter as sheriff, upon a portable sawmill belonging to appellant, by posting a certified copy of the writ upon the mill.

<p>Appeal from Yamhill County.</p> <p>This is a suit to quiet the title to section twelve, township two south of range four west, of the Willamette meridian, the same being situate in Yamliill and Washington Counties. The complaint alleges that the defendant is in tbe possession of said lands; that they are swamp and overflowed lands, unfit for cultivation by reason of sucli swampy and overflowed condition; tliat tliey were granted to tbe State of Oregon by virtue of tbe provisions of the swamp land grant, made by Congress March 12, 1860, and that the State bas sold them to this plaintiff under the provisions of the State Swamp Land Act, approved October 26, 1870. The complaint further alleges that the defendant has set up a claim to said lands under a pretended pre-emption of the same made in September, 1871, by virtue of the pre-emption laws of the United States, and alleges that said lands were not subject to pre-emption.</p> <p>To this complaint the defendant filed a general demurrer. On the argument thereof in the court below, the question was raised whether or not the title to “ thé swamp and overflowed land” passed to the State by virtue of the act of Congress of March 12, 1860, The court below resolved this question in the affirmative, and overruled the demurrer. Upon leave granted the defendant filed answer.</p> <p>The answer admits that the lands in controversy are “ swamp” lands, and alleges that prior to August 28, 1871, the defendant made settlement thereon under the pre-emption laws of the United States; that he duly made his declaratory statement at the proper land office; that on March 4, 1872, he made proof of residence and cultivation, and paid to the United States the lawful price of said lands; that the same were at the time subject to pre-emption; that ever since said last date he has been entitled to a patent from the General Government therefor; that he is in equity the owner of the fee-simple to said land, and that he is in possession thereof. And further answering, he avers that there is notv pending in the land department of the General Government a contest between the State of Oregon and the defendant, concerning the right to receive a patent for the lands described in the complaint; that it has not been determined by the proper officer of the said department who is entitled thereto; that no patent or patent certificate has been issued to the State of Oregon; that the title to said land has not been confirmed to the State of Oregon, and that said land exceeds in value the sum of two thousand dollars. The answer concludes with the prayer that the defendant’s title be quieted, and that the claim set up by the plaintiff be declared to be fraudulent and void.</p> <p>The plaintiff demurred to the first and second defenses set up in tbe answer, for tbe reason tbat the matters therein averred constituted no answer in equity to tbe cause of suit set up in the complaint; at tbe same time filing a motion to strike out tbe prayer of the answer, for tbe reason tbat it asked such affirmative relief as could only be obtained by. original suit. Tbe motion was sustained, as was also tbe demurrer to tbe aforesaid defenses, and to every part thereof, except tbe averment setting forth tbe value of the land.</p> <p>The defendant' refused to answer or plead further, and tbe court granted plaintiff tbe relief prayed for in tbe complaint, and from the decree entered in accordance therewith •the defendant appeals.</p>

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

This is a suit for an injunction to restrain the defendant from erecting certain buildings on A street, in the city of Portland, to the irreparable damage of the adjacent premises of the plaintiff. The answer admits that there is a street called A street, thirty feet in width, dedicated and laid out by John H. Couch, the owner of the land, but denies that the buildings mentioned in the complaint are situated on any part of said street.

The indictment is as follows: “Robert Bruce is accused, by the grand jury of the county of Multnomah, by this indictment, of the crime of voting illegally, committed as follows: “The said Robert Bruce, on the 13th day of October, A. D. 1873, in the county of Multnomah and State of Oregon, in the precinct of East Portland, in said county and State, did willfully, knowingly and unlawfully, vote at a legally authorized election, then and there being held for the purpose of…

The appellant, a physician, was indicted jointly with one Charles Mealey for the crime of manslaughter in producing abortion, committed on the 25th day of October, 1873, by administering drugs and medicines to, and by the use of instruments upon one Mary E. Hardman, a single woman, pregnant with child, by which means the death of the said Mary was produced.

<p>Appeal from Polk County.</p> <p>This cause was tried in the Circuit Court of the State of Oregon for the County of Polk, at the November term, 1873. On August 24, 1872, judgment was given in Justice’s Court for Lucldamute Precinct, in said county, in favor of Allen Simpson, and against oné Moses W. Hart, for one hundred and eight dollars, costs and disbursements. On August 30 said Hart appealed to the Circuit Court and filed an undertaking on appeal, which was duly executed by Moses W. Hart, William Prathe'r and E. W. Russell, by which said parties jointly and severally undertook that Hart would pay all damages, costs and disbursements which might be awarded against him on the appeal from said judgment, or if any part thereof should be affirmed, the appellant would satisfy the same so far as affirmed.</p> <p>That at the time of filing the said undertaking execution had been issued, and sufficient property levied upon to satisfy the said judgment and costs, all of which proceedings were stayed, and the property levied upon was released.</p> <p>That by an order of the said Circuit Court, made at the November term, 1872, the judgment appealed from was “ in all respects affirmed in this, that the said appeal to said Circuit Court was dismissed, and the defendants have abandoned their appeal, and that more than six months have elapsed since the notice of appeal was filed herein in the said Justice’s Court, and that defendants have wholly failed and neglected to perfect said appeal.”</p> <p>To this complaint the defendants interposed a general demurrer, which, after argument, was by the court overruled. Prather, the appellant, thereupon filed his answer, denying “ that the judgment rendered in the Justice’s Court of said Luckiamute Precinct, on the 24th day of August, 1872, against said Moses W. Hart, was affirmed by the" Circuit Court.” After the answer was filed plaintiff moved for judgment on the pleadings, upon the ground that the answer presented no defense. The motion was sustained, and judgment for one hundred and eight dollars, damages' and costs and interest, was rendered against W. B. Prather, appellant.</p>

This is a possessory action to recover an undivided eighth of the parcel of land described in the complaint. The answer denies the plaintiff’s allegations of title, and sets up title in the defendant Richard Philips. The plaintiff claims title as heir of John Monroe, deceased, and the defendant claims that he has acquired title through a sale made by the administrator of the estate of said John Monroe, in the regular course of administration.

<p>Appeal from Linn County.</p> <p>This suit was brought by A. C. Layton, as plaintiff, against the heirs at law and widow of J. P. Hogue, deceased, to set aside a sale of land made by the said J. P, Hogue, in his lifetime, as the executor of the last will and testament of Davis Layton, deceased; at which sale it appears said executor himself became the real purchaser of the land, acting through his agent and attorney, at the price of ten.dollars per acre, amounting in the aggregate to the sum of $3129.80 in coin. It appears that at said executor’s sale, Powell bid off the land at said price on July 18, 1868. The sale was confirmed August 3, 1868, and Hogue, as executor, etc., executed a deed therefor on October 12, 1868. On November 24, 1870, Powell and wife, conveyed the land back to Hogue, the consideration recited being $4000, but as found by the court below the true consideration was $3129.80. The relief sought by the plaintiff was the setting aside of said sale and the cancellation of said deeds, which relief was granted by the court below, and a referee was appointed to take an account of the rents and profits accrued to Hogue and his heirs since the sale, and also of the value of the permanent improvements made by them upon said land, and the amount of taxes paid by them during the interval. On the coming in of said report, the same was modified in some respects, and a final decree entered setting aside said sale, and declaring said deeds void. Interest was allowed to Layton’s heirs upon the rents and profits from the end of each year, as the same accrued, up to the date of the decree. After allowing Hogue’s heirs for the value of the improvements and for taxes paid, and deducting therefrom the value of rents and profits, with interest thereon as aforesaid, there was found due Layton’s heirs the sum of $2300.70.</p> <p>The heirs of Hogue were allowed the original purchase-price paid by their ancestor, the said executor, for said land —$3129.80, without interest—the court below refusing to allow interest thereon; and one of these sums being deducted from the other, a balance of $829.10 was decreed to be paid by Layton’s heirs to Hogue’s heirs. A. C. Layton and Clara D. Layton, one of the defendants, are identified in interest as against Hogue’s heirs, and therefore are both made respondents in this appeal, which is only from so much of said decree as allows interest to them on rents and profits, and refuses interest to appellants on the purchase-money paid by their ancestor for the land at the sale, which is thus avoided.</p>

• This is' a suit in equity to enjoin the further prosecution of three several actions of ejectment and to enforce the specific performance of a contract for the sale of land. The complaint alleges that in February, 1855, John Odell, the father of the plaintiff, purchased of Laban Morin a portion of his donation land claim and paid him the sum of six hundred dollars, that being the full purchase-price and value thereof.

<p>Appeal from Baker County.</p> <p>This is an action ’for damages, brought by the plaintiff to recover the sum of four hundred and ninety-five dollars, for the failure and refusal of the defendant, as a common carrier, to convey the plaintiff from the town of Keiton, in the Territory of Utah, to Baker City, in Oregon.</p> <p>Plaintiff avers that on or about the 3d day of November, 1871, she arrived at Keiton, in Utah, en route from the East to Baker City, Oregon, and that she had then.and there in her lawful possession, and as the lawful owner thereof, for value, an order from the defendant to its agent at Keiton, directing him to give her passage on the stage-coaches of the defendant, from said town of Keiton to Baker City, Oregon. This order is set out in the complaint in words and figures as follows:</p> <p>“Mr. Kinney,</p> <p>“Agent N. "W. Stage Co. at Keiton.</p> <p>“Dear Sir: You will please way-bill Miss M. E. White from Keiton to Baker City. Collect, as her fare is settled to this place.</p> <p>“ J. A. Reed,</p> <p>“Agent N. W. S. Co.</p> <p>“Barer City, March 28, 1871.”</p> <p>Plaintiff further avers that defendant refused to pass her upon said order from Helton to Baker City, although said order was presented to the agent of the company at Helton, and her passage demanded thereon; and that by-reason of such failure she was annoyed, harassed and delayed on her journey among strangers, and compelled to incur great expense in getting to her destination, to her damage in the sum of four hundred and ninety-five dollars.</p> <p>Defendant appeared September 23, 1872, by its attorney, F. P. Dugan, Esq.,, and demurred to the complaint, which demurrer was by said attorney subsequently withdrawn, and by order of the court said Dugan was allowed to withdraw his appearance as attorney for defendant, for the reason that the same wras entered without his authority. ,</p> <p>Subsequently, on the 26th day of November, 1872, defendant entered an appearance by its attorneys, Dugan and La Dow, and demurred to the complaint,'which demurrer, after argument, was overruled by the court.</p> <p>On May 21, 1873, defendant, by Lawrence and Dugan as attorneys, was permitted by leave of court to file a motion to strike out portions of the complaint. The record fails to disclose any further action of counsel or the court on this motion to strike out; but subsequently thereto, to wit, on the 23 d of May, 1873, an answer was filed, signed and indorsed by Prank P. Dugan as attorney for defendant. On the day following the filing of said ansAver a motion Avas filed by plaintiff’s counsel to strike out the same, for the reasons that said Dugan had never been admitted to practice as an attorney in the courts of this. State; and because said answer was not properly verified, and was sham and frivolous. The motion to strike out the answer Avas sustained by the court on the 26th of- May, 1873, and the defendant failing to apply for further time to further plead or answer, the court, on the same day, on-motion of plaintiff’s counsel, rendered judgment for the amount claimed by plaintiff for want of an answer.</p> <p>Subsequently, on the 28th day of May, 1873, defendant appeared by J. H. B.eed, Esq., of counsel, and, on motion supported by affidavit, sought to have the judgment for plaintiff set aside; and, upon the hearing thereof, the court overruled said motion on the 4th day of September, 1873. The defendant appeals to the Court, assigning as error:</p> <p>“1. The entry of a judgment in said action against defendant, for the reason that there had been no legal service of summons on said defendant, and that the court had no authority to enter judgment in this action without some proof of plaintiff’s claim; that the judgment entered in this action is informal, and erroneous in form; and that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>“2. The overruling the motion of defendant to open said judgment, and permit the defendant to answer on the merit.”</p>

This suit was instituted to quiet the title to and enjoin the respondent from asserting any rights in and to a certain gold-bearing quartz lode situate in Jackson County. The complaint alleges that Henry Klip pel, John McLaughlin, Charles S. Drew, N. C. Dean, Thomas Cliavner and John E. Ross, on December 5,1865, located six claims upon the said lode in accordance with the provisions of the State laws and the local laws and customs of miners.

This was a. suit in equity, in the Circuit Court of Multnomah County, against the defendants, to quiet the title to six hundred and forty acres of land described in the complaint.

This is a suit in equity to enforce the specific performance of an agreement in writing for the exchange of lands. On the 4th day of May, 1872, appellant and respondent Yanschoiack entered into a written agreement for the exchange of certain lands. The agreement contained a proviso by which it was provided that the exchange should take place thirty days from the date of the agreement.

<p>Appeal from Lane County.</p> <p>This cause came on to be heard in this Court upon a motion to dismiss the appeal made by the respondent’s counsel, for the reason that the transcript exhibits no judgment made and entered in the court below, and for the further reason that the notice of appeal has not been served as by law required. The return upon the notice of appeal is as follows; “I hereby certify that I served the within notice of appeal upon J. A. Stratton, the attorney for the within named defendant, and upon Joel Ware, clerk of said Circuit Court, on the 7th day of February, 1873, in Lane County, and State of Oregon, by delivering to each of them a copy of the within notice, certified by me to be true copies thereof.” Dated and signed in the usual manner.</p>

This action was brought to recover the sum of $5788.50 in gold coin, claimed to be due as follows: “That heretofore, to wit, on or about the 29th day of June, 1871, the defendants, as copartners, under the firm name of T. Patterson & Co., entered into a contract with the plaintiff, and in writing requested him to engage in service for them, the defendants, in the capacity of editing and writing for the certain newspaper then and still published in Portland, Oregon, known and…

<p>Appeal from Multnomah County.</p> <p>About the 18th of October, 1869, J. B. Harter entered into a written contract with the appellants and one J. H. Hayden, who were then the owners of a steam saw-mill in the city of Portland, and the block of ground on which the same is situate, and doing business as copartners, by the firm name of Hayden, Smith & Co., by the terms of which contract it was provided that on the 1st day of April, 1870, Harker should pay to said firm the sum of $11,000 in coin, in consideration whereof he should become a member of said copartnership, and the owner of an undivided one-fourth interest in said mill and block of ground, with all the appurtenances. It was also further provided that on said 1st day of April, 1870, an account should be taken of the stock on hand at said mill, consisting of sawed lumber, etc., ahd that as soon thereafter as the value thereof was ascertained, Harker should pay to said firm one-fourth thereof in coin, and own an undivided one-fourth interest in the same, and that thereafter such new copartnership, to consist of Harker, Hayden and the two Smiths, should carry on its business under the firm name of Harker, Smith & Co. On the samé day another contract was entered into between Harker and the two Smiths, by the terms of which it was agreed that Harker should, on or before the 1st day of April, 1870, convey to the appellants an undivided interest in a certain five-acre tract of land within the corporate limits of said city of Portland at the agreed valuation and price of $9333.831,- in coin. This contract between Harker and the appellants appears to be lost, and there -was a wide difference between the parties as to the nature and construction of it.</p> <p>Harker testifies that it “was a trade of a two-third interest in five acres of ground for a one-fourth interest in another block of ground and saw-mill, machinery and articles pertaining thereto, valued at $11,000, and that said two-thirds interest, in the five acres of ground, was to be valued at $9333.33£;” while J. S. Smith claims that Harker was to be paid for the land appellants purchased of him by obtaining credit on the books of Hayden, Smith & Co. for its value, provided he, Harker, should at the same time comply with the remaining provisions and terms of his aforesaid contract with Hayden, Smith & Co. After these two written agreements, the one between Harker, and Hayden, Smith & Go., and the other between Harker and appellants, had been signed, and, on the same day, October 18, 1869, a deed was drawn up by J. S. Smith, and dated as of that day, to be executed by Harker and wife, conveying to the appellants said two-thirds interest in said five acres of ground for the consideration of $9333.33^- in coin. This deed was not executed until some time afterward, and, when executed, was placed upon record by Harker, prior to April 1, 1870, and the appellants took possession of the land by virtue of that conveyance. Harker, when the 1st of April, 1870, arrived, was unable to complete his contemplated purchase of an interest in the saw-mill property, and finally proceedings in bankruptcy were instituted against him, to compromise which he conveyed his property to the respondent as his assignee. Appellants, refusing to pay said assignee the agreed value of $9333.33-2,- for said land conveyed by Harker to them, this action was brought by the respondent seeking to enforce the payment of the said sum with interest from October 18, 1869, and, upon the trial, he obtained a judgment against them for said amount, and from that judgment this appeal is taken. The errors complained of consist in the charge of the court to the jury, and his refusal to other instructions asked for by the appellant. The following are the instructions given by the court and excepted to:</p> <p>“Defendants could not put Harker in default so as to claim to retain the land mentioned in the complaint, without paying for it, unless the deed of Hayden, Smith & Co., to the real property mentioned in the agreement for a copartnership, was made out and tendered to Harker on the 1st day of April, 1870, unless Harker waived all claim to have a deed tendered.</p> <p>“If a party purchase property, and agree to pay therefor in other property at a stipulated valuation, on a day certain, he must tender performance by offering to convey on that day, or otherwise the party to whom the debt is owing may elect to consider the debt a money obligation to the extent of such valuation, and may sue for its recovery in money.</p> <p>“If a party purchase property and agree to pay therefor in other property at a stipulated valuation, on a day certain, he must tender performance by offering to convey on that day, unless such offer to convey is waived by the other party, either expressly or by the conduct of such other party; and if the one who has agreed to pay in other property refuses to convey, when it is his duty to do so, and retains the property that has been conveyed to him, the party to whom he is thus bound to convey may, if he has fulfilled on his part, elect to consider the debt a money obligation to the extent of the value of the property he has conveyed, and may sue for the recovery of such value in money. But if the party sues for money upon contract he must show that he has complied on his part with the agreement upon which he seeks to recover. If the jury find that there was a contract between the defendants and said J. B. Harker which did not go into effect by reason of the default of the said J. B. Harker, and that Hayden, Smith & Co. are not in default, then the defendants are not liable.</p> <p>“ If the jury find that. Harker notified the defendants, on or before the day when performance was to be made, that he, the said Harker, was not and would not'be able to perform his part of the agreement, then the defendants are under no obligations to tender a deed.”</p> <p>Several instructions were asked by appellants and refused by the court; but no important question is raised'by them which is not presented in those given.</p>

<p>■ Appeal from Multnomah County.</p> <p>All the necessary facts are stated in the opinion of the Court.</p>

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

. This action was brought in the County Court for Multnomah County to recover a balance of $320.43 for lumber sold and delivered by respondents to appellant. Respondents recovered judgment, from which appellant appealed to the Circuit Court.

The complaint alleges that about March, 1873, the parties hereto made a contract by which appellant-was to sell respondent six hundred ewe sheep, and respondent was to pay therefor such price as he should pay for other sheep which he proposed to purchase in the fall of that year.

’ Respondent Steger was, on the 12th day of June, 1871, appointed by the County Court of Umatilla County, administrator of the estate of Jacob Yarlett, deceased.

This is a special proceeding by petition for mandamus, brought by appellant against respondent before Hon. B. F. Bonham, in the Circuit Court for Marion County in vacation.

Thomas Garrand was indicted by the grand jury of Marion County, on June 10, 1874, for the crime of murder in the first degree, in killing one Thomas J. Hubbard, on April 12, 1874. - He was tried and convicted, and on June *17 was .sentenced to be hanged August 14, 1874. An appeal was taken to this Court, and the Governor reprieved the defendant until October 2, 1874. The bill of exceptions exhibits the errors complained of.

The complaint alleges that respondent is police judge of the city of Portland, and while acting as such, in the years 1871 and 1872, in pursuance of authority vested in him by § 156 of a special act of the Legislature under and by which said city is incorporated, he exercised the jurisdiction and authority of a justice of the peace for the county of Multnomah, in said city of Portland, and subject to the general laws of the State prescribing the duties of justices of the…

This was an action in the Circuit Court for Polk County against A. H. Whitley in his lifetime for malicious prosecution.

<p>Pleading—Suit to Refobm a Deed.—In a suit to correct or reform a deed or written contract on the ground of mistake, the complaint should show • distinctly what was the original agreement and understanding of the parties, and should point out with clearness and precision wherein there was a mistake, and should also show that the mistake did not arise from the gross negligence of the plaintiff.</p> <p>Idem.—In such a case the complaint should also state some circumstances relating to the nature or situation of the property, which show that an unfair advantage has been gained by the defendant through the mistake, and that it is against good conscience to allow the mistake to stand.</p>

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

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

<p>Divoece—Peepondebance of Evidence Sdeeicient.—In a suit for divorce, brought upon grounds that involve a criminal charge against the defendant, it is not necessary to prove the allegations constituting such charge beyond a reasonable doubt. It is sufficient if they be established by a preponderance of evidence.</p>

This was an action of ejectment brought by respondent Dolph to recover possession of nine hundred and twelve acres of land, situated in Polk County, Oregon. The opinion of the court contains a digest of the pleadings.

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

The respondent, in his answer, denies the execution of the note for value or any indebtedness; then, and for a further defense, alleges, that about April 18, 1871, he executed with others a writing, in favor of the appellant, through its agent, Ben Holladay, in the form of a subscription, whereby he promised to pay three hundred dollars, in coin, to appellant, in consideration that the said appellant, the O. & C. E. E. Co., would thereafter cause the line of their railroad,…

<p>Appeal from Baker County.</p> <p>This was an action to recover an alleged balance of two hundred and twelve dollars on an account for labor performed, for which, it is alleged in the complaint, the defendant promised to pay plaintiff at the rate of thirty-five dollars per month “ in gold coin,” and the further sum of eighteen dollars, alleged to be due the plaintiff on account of money received by defendant and to his use from plaintiff. The answer alleges that before the commencement of the action the plaintiff accepted from the defendant sixty-four dollars and five cents in full satisfaction and discharge, of the several alleged promises and items of indebtedness set forth in the complaint.</p> <p>The reply denies the satisfaction and discharge -set up in the answer.</p> <p>A jury having been waived, the questions of fact presented in the pleadings were tried by the court and determined in plaintiff’s favor. Judgment was entered upon these findings for plaintiff for two hundred and thirty dollars in gold coin, from which judgment this appeal is taken.</p>

<p>Appeal from Multnomah County.</p> <p>On the 10th day of March, 1866, the defendant, James B. Stephens, contracted with Joseph Long and "William Poster to sell them' block No. 23, in the city of East Portland, for the agreed price of six hundred dollars in coin, of which sum one hundred dollars was then paid; and said Long and Poster executed and delivered to said Stephens their joint and several promissory note for the payment of the remaining five hundred dollars two years after date, with interest at one per cent, per month.</p> <p>On the same day (March 10, 1866), James B. and his wife, Elizabeth Stephens, executed and delivered to said Long and Poster, a bond for a deed to said block No. 23, in the penal sum of five hundred dollars, the conditions of which read as follows: “Now, therefore, on the payment of said note ($500), the said James B. and Elizabeth Stephens, their heirs, executors or administrators, are to make, execute and deliver, or cause to be, a good and sufficient warranty deed, in fee-simple, to the following described * * * real estate * * * to wit, block No. 23, in the city of East Portland, in Multnomah County, Oregon.” By the terms of this bond the obligors therein reserve to themselves any ferry rights or franchises which now, or in the future, may appertain to said block.</p> <p>On the 12th day of March, 1867, sixty dollars, or one year’s interest, was paid on said note. In the fall of 1867, Long died intestate. On the 28th day of June, 1870, Foster, for himself and as surviving partner of Long, deceased, undertook, for the consideration of two hundred dollars and the payment of said five hundred dollar note to Stephens, to sell and assign to said Knott all the right, title and interest of himself and Long, deceased, in and to said block No. 23, and did in that manner assign said bond to Knott. Thereupon said Knott, on the 2d day of July, 1870, offered and tendered to said James B. Stephens seven hundred and sixty dollars in coin, as the amount then due upon said note, and demanded a deed to said block, which money Stephens declined to receive, and refused to execute such deed.</p> <p>On the 22d day of July, 1870, Knott commenced suit in the Circuit Court for Multnomah County against Stephens and wife, to compel the specific performance of said contract of sale by the execution of a deed to said block according to the terms of said bond. After issue joined by the ■ pleadings and upon trial by the court, defendants obtained a decree dismissing plaintiff’s cause, and for their costs and disbursements, which decree was rendered on the 13th day of February, 1871. Afterwards, in said year 1871, Wm. Foster was duly appointed as administrator of the estate of Jos. Long, deceased, by the County Court of Multnomah County, and by proceedings regularly had thereafter, sold at public auction said Long’s interest in and to said block No. 23, which was purchased by Joseph Knott for two hundred and fifty dollars in coin, and a deed thereto was duly executed by said Foster, as administrator of Long’s estate, and deliv- ' ered to said Knott on the 13th day of May, 1872. Upon obtaining this deed, Knott made a tender of eight hundred and fifteen dollars in gold coin, as the amount then due on said five hundred dollar note, including accrued interest. Stephens refused the tender, and refused to execute a deed, ■claiming that the bond had been rescinded by the failure of Foster to comply with the contract of sale on his part. Thereupon, on the 17th day of May, 1872, plaintiff commenced this suit, and prays a decree for the specific performance of said contract.</p> <p>Appellants allege that Long’s representative and Foster had forfeited their right to a specific performance at the-time of the alleged assignment to respondent Knott, and further, that after the forfeiture of said bond by said Foster, they being ignorant of any pretended assignment of said bond to the respondent, or of any claim of Foster to said block, commenced improving the same in June, 1870, by driving piles thereon, and otherwise improving the same without objection from respondent or said Foster, until July 9, 1870, when respondent for the first time set4 up claim to said block under the assignment of said bond of June 28, 1870.</p> <p>Appellants also plead, in bar of respondent’s right to recover in this suit, the adjudication had between the same parties and concerning the same property, in which appellants, on the 13th of February, 1871, obtained judgment against plaintiff dismissing his bill and for costs. Appellants, in their answer in this case, tender to plaintiff the one hundred and sixty dollars paid by Foster and Long on the block, with accrued interest thereon, and offer to surrender up said five hundred dollar note, and pray a decree rescinding said contract.</p> <p>Despondent replying, denies substantially the new matter set up in answer.</p> <p>The cause was by agreement of the parties referred to W. H. Effinger, Esq., to take and report the testimony and his findings of fact, and on the filing of his report it was stipulated that a fro forma decree might be entered by the court, as each party intended, in the event that the cause should be decided adversely to him or them, to appeal to this Court. Whereupon the court below decreed the relief prayed for by plaintiff, and defendants appeal.</p>

<p>Illegal Payment to County Oegtoeb may be Recoveked.—Money claimed by and paid to a county officer under a claim of right for his services as such, if he be not entitled thereto, is an illegal payment and may be recovered back by the county.</p> <p>Constitutional Act.—The act of October 26, 1870, fixing the salary of the county judge of Grant County at eight hundred dollars per annum is not unconstitutional.</p> <p>Statute may be Repealed by Implication.—When two statutes are inconsistent and repugnant so that both cannot stand, the one last enacted shall be considered in force, and to repeal by implication all prior acts or parts of acts that conflict with it.</p> <p> Per Bonham,, Chief Justice, dissenting. </p> <p>Amendments by Implication.-—Section 22, Art. IV of the State Constitution, prohibits amendments by implication. Every law as amended, should not only show in itself what the law in force on that subject is, but it should be a direct index to the law which has been superseded.</p>

<p>Notice or Appeal.—The notice of appeal must describe with reasonable certainty the decree appealed from, the eonrt in which such decree was rendered, the time when such decree was rendered, the names of the parties and the fact that one party or the other intends to appeal to the Supreme Court.</p>

<p>Husband and Wine may Contbact with Each Otheb.—Though Article XV, § 5 of our State Constitution is an innovation upon the common law, it does not abrogate that principle which prevents husband and wife from contracting with each other.</p> <p>Wine’s Pbopebty Pbima Facie that on the Husband, When.—Where the wife’s separate property is not registered according to the statute, it is prima facie the property of the husband rather than of the wife.</p> <p>Feaud Pbesumed neom Cibcumstances.—Positive and express proof of fraud is not required; it may be deduced from circumstances affording strong presumption.</p> <p>Fbaudulent Conveyance—What Pbesumed.—A voluntary conveyance by a husband to his wife will be presumed to be fraudulent as to existing creditors.</p> <p>Paetihs in Suit to Set Aside Conveyance.—Judgment creditors may unite in a suit to set aside such conveyance;</p>

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

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

<p>Appeal—May be Taken from Recorder.—The recorder of the city of Corvallis is ex officio a justice of the peace, and an appeal will lie from his judgments to the Circuit Court.</p> <p>Review and Appeal not Concurrent Remedies.—The writ of review will not lie where the right of appeal exists. The decision of this Court in Schirott & Gronery.Pkittippi & Coleman, overruled so far as it holds that appeal and review are concurrent remedies. The decision of this Court in Evans v. Christian (A Or. 375), affirmed.</p>

<p>Repeal of Statute by Implication.—When two statutes that are in conflict are enacted by the Legislature upon the same general subject, the last enactment furnishes the rule of action and repeals the prior act by-implication, so far as they conflict.</p> <p>Pbkfeeence to Applicant fob School Lands.—Upon an application to the Board of School Land Commissioners to purchase a part of the thirty-sixth section (school land' under the law of 1868, the first applicant is entitled to preference after the six months have expired in which settlers are required to make application.</p> <p>Decision oe School Land Commissioners is conclusive upon the State.— The decision of the Board of School Land Commissioners is final so far as the interest of the State is concerned, but does not prevent a party from showing, in a proper proceeding, that a deed made by the board was obtained through fraud or upon false testimony.</p>

<p>County Court—Jurisdiction op.—The County Court has not jurisdiction to try questions of title, or rights arising out of the exercise of eminent domain.</p> <p>Idem—May be Questioned on Writ op Review.—The jurisdiction and regularity of proceedings in the County Court, in the matter of laying out a road, may be called in question by a writ of review.</p> <p>Jurisdiction—Cannot be Questioned, When.—If jurisdiction is once fully obtained, objection to its exercise cannot be heard. ■</p> <p> Per McArthur, J., concurring: </p> <p>Parties to Proceedings on baying out Roads.—The petitioners and remonstrators are the parties to the proceeding in laying out county roads, and are the only persons who can question the jurisdiction of the County Court in such proceedings.</p> <p>Writ op Review does not bring up the Evidence.—The writ of review brings up only the record, not the evidence.</p> <p>Review onby bies when the Party is precbuded by the Order sought to be Reviewed.—The test of the right to the writ is whether the party seeking is concluded by the determination or judgment of the inferior tribunal.</p> <p>Equity can abone protect Road Company.—A court of equity alone can fully protect the franchise of an incorporated road company.</p> <p> Per Burnett, J., dissenting: </p> <p>Proceedings op County Court in baying out Roads may be Questioned by any Person injured by such Proceedings.—To entitle a party to attack the jurisdiction of a County Court in laying out a county road, it is not necessary that he should be a petitioner or remonstrator. Any person directly injured by the location of a county road has a sufficient standing in court to attack the jurisdiction of the court in the proceeding, and is entitled to a writ of review.</p> <p>Description op Termini op Road—What Insuppioient.—A petition which describes the termination of a proposed road as “ the summit of the Cow Creek Hill, the same being the southern line of Douglas County,” is not sufficiently definite.</p>

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

This was a suit in equity for an accounting and settlement for rents and profits received by respondent as a mortgagee in possession, and to compel a reconveyance of the mortgaged premises. The appellants, Adkins and wife and William J. Russel, being the owners of a one-half interest in two hundred and twenty acres of land, mortgaged the same to respondent, to secure, as the complaint alleged, the payment of $634.54, loaned by respondent to appellant William J. Russel.

On the 6th day of May, 1862, the respondents obtained a judgjnent by default, in the Circuit Court of the State of Oregon for Yamhill County, against the appellant,- Harvey Higley, for the sum of $577.66 and costs of suit to be taxed.

<p>Amending Decree—Motion too Late, When.—A party comes too late who applies seventeen months after entry of a decree, for leave to amend the same without showing excuse for the delay.</p>

<p>Corporations—Tendency op Decisions concerning.—The tendency of modern decisions is to assimilate the actions, rights, duties and liabilities of private corporations to those of individuals and of commercial partnerships.</p> <p>Presumptions in pavor op Corporations.—In the absence of proof, courts cannot disregard as illegal or unauthorized the dealings and acts of private corporations which, on their face, or according to their apparent import, are within their charters or articles.</p> <p>Idem.—Artificial bodies, like natural persons, are entitled to the benefit of the rule which imputes honesty rather than wrong to the conduct of men.</p> <p>Acts op Agents.—Corporations are bound by their simple contracts and by other acts of their officers and agents performed in the discharge of their ordinary duties.</p> <p>Findings by the Court.—Where the cause is tried by the court without the intervention of a jury, the findings must be sufficient to sustain the judgment, and must cover all the material issues.</p>

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

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

The decree appealed from perpetually enjoins the appellants from erecting or maintaining the toll-gate described in the complaint, or obstructing or interfering with the road claimed by respondent.

<p>Appeal from Baker County.</p> <p>On May 23, 1874, a judgment was rendered in the Circuit Court for Baker County in favor of respondent, and against appellants, for money. On May —, 1874, an appeal was taken from such judgment to this Court, but no transcript was filed here by the second day of the August term, 1874. At that time, respondent, by his counsel, produced a certified copy of the notice of appeal, undertaking and judgment, and moved for an affirmance of the judgment, and for ten per cent, damages thereon, upon the ground that no transcript had been filed here by appellants within the time required by law.</p>

This is a suit in equity to enjoin tbe collection of costs and disbursements in tbe case of the State o Oregon against said A. H. Whitley, deceased. The complaint shows that the said Susan Whitley is the sole executrix of the estate of A. H. Whitley, deceased. That said A. H. Whitley died on the 6th day of October, 1873.

The complaint alleges that a policy of insurance was issued by the New York Life Insurance Company to Thomas J. Buford, on the life of his brother, Albert C. Buford; that all' the conditions of the contract concerning it have been performed on the part of respondent and the said Albert G. Buford.

This was originally an action of ejectment,' instituted by the respondent Bayley against the appellants Clark and Chambers, to recover about fifty-three acres of land situated in Benton County, Oregon.

<p>Appeabs in Equity—Must be Tbied Anew.—A suit in equity which has been fully tried in the Circuit Court and a cfeeree therein rendered, must, if appealed, be tried anew upon the transcript and the evidence.</p> <p>Idem—Testimony must Accompany the Teanscbipt.—As the findings of fact and conclusions of law by the court below are not conclusive in a suit in equity, if appealed, this Court must look into the testimony and reach its own conclusions of fact as well as of law. Findings of fact by the court below in suits in equity are not conclusive in the appellate court.</p>

<p>Ebbob cannot ee Assigned when Demubbee is Waived. —Where a demurrer is waived by the filing of an answer no errors can be assigned in the appellate court, upon the judgment of the Circuit Court overruling the demurrer.</p> <p>Insteuction—Relevancy oe, not Pbesumed.—Where an instruction is refused, the correctness or incorrectness of which depends on circumstances not disclosed in the record, its applicability will not be presumed. The party complaining must show its relevancy affirmatively. This Court will not presume a state of facts in order to find error, but every presumption will be made in favor of the ruling of the court below.</p> <p>Idem—Bill of Exceptions must show what Evidence.—In order to enable this Court -to determine whether instructions asked for and refused are correct, there must be a proper bill of exceptions, embodying sufficient of the evidence, or a statement that some evidence had been given, upon the points upon which instructions are asked, in order to show whether they were applicable to the case.</p>

This is a motion interposed by respondent’s counsel to dismiss the appeal, for the reason that the notice is defective and insufficient. The notice is as follows: “In the Supreme Court of the State of Oregon.

This cause originated in a proceeding by the Common Council of the city of Portland for the extension of West Main street upon the premises of defendant Kamm.

<p>Records of County Coubts—Sufeevisory Control over by the Circuit Court, how Exebcised.-—The failure of the proper officer of an inferior court to record the proceedings of such court, can only be remedied by proceedings to complete the record. The supervisory control exercised by the Circuit Court in such cases, as a general rule, is by mandamus, the writ of review, or on appeal.</p>

This is a proceeding under § 354 of the Civil Code, for the purpose of having the respondent adjudged ineligible to hold the office of county judge of Grant County, and to have him ousted therefrom.

In August, 1872, an execution issued out of the Circuit Court for Umatilla County, on a judgment in favor of one 0. O. Fanning, and against the appellant, D. A. Richards, for four hundred and eighty dollars. This execution was placed in the hands of A. W. Nye, who was sheriff of said county, who made levy thereunder on the 4th of September, 1872, of property belonging to Richards.

This is a suit in equity, by the representatives of G. W. Snider, deceased, for a specific performance of a contract in writing between said Snider and one of the defendants, John Lehnherr, for the purchase by Snider from Lehnherr of a town lot in Boseburg, Oregon. The purchase-price of the lot was six hundred dollars.

Respondent’s property was assessed by the assessor of Multnomah County, at eight thousand two hundred dollars.

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

<p>Pleadings—Action foe Damages foe False Repeesentations.—The essential allegations in an action to recover damages for false representations are, that the representations were false; that the defendant knew them to he false, and that they were made with intent to defraud the plaintiff.</p> <p>Veedict—Special Findings of Fact contkol.-—Where special findings of fact are inconsistent with the general verdict, the former must control, and judgment he given accordingly.</p>

<p>Appeal from Douglas County.</p> <p>A motion was made in the County Court of Douglas County, on the 8th of April, 1875, for the entry in the records of the court, nunc pro tunc, of a contract alleged to have been made on the 10th of April, 1874, between such court and the appellants, by the terms of which the appellants were to have the right to use and occupy the public highway, extending through the canyon. The motion was based upon affidavits which averred the existence of the alleged contract, the order of- the court directing the entry of the same by the clerk, and the neglect of the clerk to make the entry. The motion was denied, whereupon appellants sued out a writ to review the proceedings of the County Court denying the motion. The Circuit Court dismissed the writ upon a hearing thereunder, and rendered judgment against appellants for costs, from which judgment this appeal is taken.</p>

The complaint alleges that on the 25th of September, 1866, the plaintiff was the wife of the defendant, Charles Barrett; that the former was then a resident of San Francisco, California, and the latter of Portland, Oregon; that on that day, plaintiff began a suit for divorce against said defendant, in the District Court of the State of California for the Fifteenth Judicial District; that said defendant Barrett filed his answer therein on the 5th of June, 1867; that on the 13…

<p>Act ov 1874, sedating to Lock Bonds, unconstitutional.—The act to authorize the State treasurer to convert currency funds into coin in certain cases, and also to pay off the Lock bonds, approved October 26, 1874, is unconstitutional, for the reason that it impairs the obligation of the contract, entered into between the State and the Willamette Lock and Canal Company by act of the Legislative Assembly, approved October 21, 1870.</p>

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

This is an action by the respondent, a married woman, to recover five hundred dollars for the use and occupation of a farm owned by her in her own right, which farm, it is alleged in the complaint, appellant occupied with the permission of the respondent, and with the knowledge that it was her separate property.

In accordance witb provisions of an act of tbe Legislature of 1872, tbe question of tbe location of a county seat for Union County, Oregon, was submitted to tbe voters of said county, at tbe Presidential election of that year. Tbe places to be voted for at such election were restricted by tbe act to La Grande, Union, Cove, Oro Dell, and Summer-ville.

On the 12th of March, 1875, one Henry Watkins executed his promissory note to one Shuker, for three hundred and fifty dollars, coin, payable in sixty days, secured by a chattel mortgage of the same date upon certain personal property. The note covered several loans, upon which usurious interest had been taken, and it also included fifty dollars given as a bonus for tbe loans. Usurious interest was also paid upon tbe note.

<p>Statute Construed.—The Act to provide for the loaning of common school funds, approved December 19th, 1865, is constitutional and valid.</p>

<p>Appeal from Linn County.</p> <p>This action was first begun and tried in a Justice’s Court, to recover $150 damages for breach of a contract for leasing a farm.</p> <p>A part of defendant’s answer was stricken out on motion, and a demurrer of plaintiff to the remaining part was sustained. No further answer having been filed, judgment was rendered in favor of the plaintiff, for want of answer, for the amount claimed and for costs and disbursements. From this judgment the defendant appealed to the Circuit Court, where the appeal was dismissed, upon the ground that the judgment appealed from was rendered for want of an answer, and was therefore not appealable. Upon the dismissal of the appeal, the Circuit Court affirmed or rendered the same judgment rendered in the Justice’s Court, against the defendant and his sureties on appeal. From this judgment defendant appeals.</p>

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

<p>Replevin.—The action for the recovery of x>ersonal xiropepty, under the Code, is substantially the former action of replevin, and is governed by the same principles and rules, especially in relation to demand and refusal.</p> <p>Idem—Affidavit no Paet of the Pleadings.—The affidavit, under which an immediate delivery is sought, is no part of the pleadings, and the facts therein set forth form no part of the issues in the case.</p> <p>Pleadings—Conjunctive Denials.—No issues can be raised by conjunctive and literal denials.</p> <p>Appeal—What Amendments not Allowed on.—Upon an appeal from an inferior court to the Circuit Court, no amendment, which substantially changes the issues raised and tried in the inferior court, can be allowed.</p>

This is an action by Tippin, an aged and infirm person, against Ward, to recover damages upon an alleged breach of contract for tbe support of Tippin by Ward.

<p>Appeal from Coos County.</p> <p>On the 3d of November, 1874, defendant conveyed to plaintiff, by deed containing a covenant of warranty against incumbrances, lots 5 and 6, in the town of Marshfield, Coos County, Oregon.</p> <p>The complaint alleges that at the time this deed was made the premises were not free of incumbrances, but that there existed at that time an unexpired lease by the defendant to James Ferry and S. S. Bailey, for the term of two years, from April 15, 1875, with a privilege to Ferry and Bailey of an additional .year after the expiration of said term; and that by reason of this incumbrance plaintiff had been kept out of the possession of the premises, to his damage in the sum of two thousand five hundred dollars, for which he prays judgment with costs.</p> <p>The answer denies the leasing alleged by plaintiff, or that plaintiff has been kept out of possession of the premises or has suffered damages; and for a separate answer it alleges that about the 15th of April, 1874, it was agreed between defendant and Ferry and Bailey that defendant would build a house, and that Ferry and Bailey should lease such house, when it was built, for two years, with the privilege of one year; that in pursuance of this agreement Ferry and Bailey became tenants of defendant in the premises in controversy, and were so in possession at the time of the purchase by plaintiff; that plaintiff took with full knowledge of such possession, and agreed to accept Ferry and Bailey as his tenants, and receive rent from them.</p> <p>The reply denies the matter set up in the separate answer. Upon the trial the plaintiff offered in evidence the following writing:.</p> <p>“We, the parties of the second part, agree with George Stauff, the party of the first part, to furnish one man to perform labor on the said house which is to be in construction as soon as possible; the labor of said man is to be confined strictly to the finishing of the dining-room and kitchen of said house as soon as the building is inclosed. We, the parties of the second part, do further agree with George Stauff, the party of the first part, to lease and to rent the said house for the term of two years, with the privilege o'f one year, at the rate of forty dollars per month, the said rent to be paid monthly in advance.</p> <p>“George Stauee,</p> <p>“S. S. Bailey,</p> <p>“James Ferry.”</p> <p>The genuineness of this paper was admitted; but on objection by defendant it was excluded by the court. The defendant recovered judgment for his costs and disbursements, from which judgment this appeal is taken.</p>

<p>Nonsuit wna not be Geanted wheee thebe is ant Evidence.—A cause should be submitted to the jury, unless there is an entire lack of evidence to establish the allegations of plaintiff’s complaint.</p> <p>Conteact, Sepaeabbe oe Entibe.—The question as to whether a contract is entire or separable, depends to some extent upon the intention of the parties, and this must be discovered in each case by considering the language employed and the subject-matter of the contract.</p> <p>Sepaeabbe Conteact, in past Bad.—When a contract bad in part is separable, the court will enforce the valid part. Where there is no imputation of malum in se, the bad parts will not affect the good.</p> <p>Statute op Eeauds.—Where the parties must have expected that the contract would not be performed within a year, and yet by the terms of the contract it might have been so performed, the contract is not within the statute of frauds.</p>

<p>Appeal from Lane County.</p> <p>The appellant brings this suit to have the title to a tract of land in Lane County, now vested in the respondent, inure to him. The appellant is the assignee of Sarah Butler, who settled upon the land in question in 1855, and claimed the same under the Donation Act. In 1859, something in the nature of final proof was submitted to the Surveyor-General, but the papers relating to it were lost. In 1864, Sarah Butler conveyed to Blachley. In 1859, J. J. Butler made application to pre-empt the premises, and deposited money in the land office at Oregon City for that purpose. In 1864, upon a contest between the parties, the register and receiver decided that Sarah Butler was not entitled to hold the premises, and that her claim was invalid. Subsequently to his application to purchase under the pre-emption law, Butler, the respondent, relinquished his pre-emption right, and took the land under the homestead law; and, in 1873, patent issued to him. The appellant brings this suit to show that the title to said premises vested in him, as the assignee of Sarah Butler, and to have J. J. Butler declared a trustee of the legal title for Ms benefit.</p> <p>The court below dismissed the suit.</p>

On the 7th of December, 1872, John Lloyd, in consideration of love and affection and of the payment of taxes thereon, made a verbal agreement with his son, William Lloyd, by which he, William, was to have the possession of certain lands, with their rents, issues, and. profits, during his, John’s, lifetime. In pursuance of this agreement, William entered upon the premises and paid the taxes thereon.

<p>Divoece—Bead Estate, how Affected by.—Whenever a marriage contract, shall be dissolved, the party at whose prayer such decree is obtained is entitled peremptorily (under § 495 Civil Code) to the undivided one-third part of all the real estate shown to be owned by the other party at the time such decree was made. In all such cases, it is the peremptory-duty of the court to so decree.</p> <p>Thied Paeties—When made Defendants in Divoece Suits.—When a husband conveys the bare legal title to a third party in trust for his use, to prevent the marital rights of the wife from attaching thereto, such third party is a proper party to the proceeding.</p>

In July, 1871, the respondent, A. D. Babcock, owned • the land in question, and at that time executed a mortgage thereon to the appellants to secure the sum of five hundred dollars. In said month of July, 1871, said mortgage was by the clerk of Polk County copied into the record of mortgages for said county, but was not indexed as by law required, or in any manner; and immediately after being so copied, was delivered to the plaintiffs. In December, 1871, one Leona It.

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

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

On the 13th day of August, 1873, A. H. Whitley and Susan, his wife, for a valuable consideration, conveyed lot 8, in block 50, in the city of Salem, to one Ramsey. On the 27th of the same month Ramsey, for a valuable consideration, conveyed said lot 8 to said Susan Whitley, by whom it was for a valuable consideration conveyed, on the 4th of February, 1875, to the plaintiff.

The facts stated in the complaint are as follows: That on January 29, 1867, at the city of Portland, in the State of Oregon, L. L. Blake, who at that time resided in ■ Oregon, made and delivered to the defendant, S. N. Arrigoni, a certain promissory note, a copy of which is set out in complaint as follows: “$950.

<p>Assault with Intent to Kill—Indictment—What objections to abe Waived by Failuee to demue.—An indictment charging an assault with intent to kill, which follows the language of the statute and omits to state the acts constituting the offense, is sufficient where no objection is made to it until after verdict; but if demurred to, such indictment is insufficient.</p> <p>Idem.—All objections to the sufficiency of an indictment which appear upon its face, except the first and fourth grounds specified in § 123 of the Criminal Code, are waived by a failure to demur. State of Oregon v. Dougherty etal., (4 Or. 200), and State of Oregon v. Bruce, (ante, 68,) cited and approved.</p> <p>Idem—Evidence.—A defendant on trial for an assault with intent to kill, will not be permitted to show in his justification that, prior to the affray, he made complaint before a peace officer charging the assaulted party with having threatened his life, and asking to have him bound over to keep the peace.</p>

On the 28th day of July, 1875, the plaintiff, who is the respondent here, filed his mption in the court below, under § 292 of the Civil Code, for leave to issue execution for the sum of $25,376.40, upon a judgment récovered by Amory Holbrook, now deceased, against William H. Barn-hart and others, in the District Court of the Territory of Oregon for the County of Multnomah, on the 3d day of March, 1856.

This is an appeal from a judgment of nonsuit, granted on motion of the plaintiff, after issue joined and before proceeding to trial.

This is a suit to foreclose a mortgage for twelve thousand dollars in gold coin, executed byD. D. Bunnell, as guardian of certain minors, against the real estate of such minors. The mortgage was executed in pursuance of an order of the County Court, duly made. The court below dismissed the appellant’s complaint on the ground that the County Court had no authority to order the mortgaging of a minor’s estate.

This action was brought in the County Court of Coos County to recover seven hundred and eighty dollars, alleged to be the reasonable value of work done in running a tunnel in a coal mine, less three hundred and thirty-three dollars and thirty-three cents, already paid.

In 1858, Levin N. English, one of the defendants, as guardian of the plaintiffs, who were minors, made sale of certain real property described in the complaint, of which O. G. Savage, another of the defendants, became the purchaser.