Volume 6 — Oregon Reports

This is an action by Thomas Murray to recover the possession of certain real estate of which he claims to own an undivided one-tliird, as tenant in common with his two sisters, Ellen and Jane. Thomas Murray and his sisters named, are the children of John Murray, deceased, by a first marriage- — -Winnifred Murray being their mother. Thomas claims as the heir at law of John Murray.

<p>This suit was originally brought by Winnifred Murray against Mary Ann Murray, the respondent. During the pendency of the suit Winnifred died, and the suit has been continued in the name of her legatee and executrix, the appellant.</p> <p>The complaint alleges that on May 1, 1854, and long-prior to that time Winnifred was the wife of one John Murray, and that she continued so to be until his death in 1852. That on the first of May, 1854, Jolm Murray, being a citizen, and capable of taking a donation land claim under the act of congress of September 27, 1850, made actual settlement upon a certain desci-ibed tract of land; that he continued to reside on and cultivate said land for four years or more, and made due final proof of his residence and cultivation, and on March 22, 1870, received a patent certificate therefor; that in such certificate the east half of the land was designated as the part enuring to the husband, John Murray, and the west half as enuring to the wife; that since the issuance of the certificate a patent has been issued thereon. That she, Winnifred, being the wife of John Murray, is the owner of the land so designated as the Avife’s, and that said patent should have been issued to her. That through the fraudulent acts of Mary Ann, the respondent, who falsely pretended to be the wife of John Murray, the patent Avas issued in fraud of Winnifred’s rights to Mary Ann. The material question is as to Avhich of the parties, Winnifred or Mary Ann, was the wife of John Murray, at the date of the settlement, residence and cultivation.</p> <p>On the trial the court below, Mary Ann, the respondent, offered in evidence a decree of divorce procured by John Murray against Winnifred in an Indiana court, prior to the date of the settlement, Avhich was admitted.</p> <p>The respondent had a decree in her favor, whereupon this appeal Avas taken.</p>

In the month of September, 1875, Jarvis Briggs commenced an action at law in the county court for Linn county against John L. Batcher, to recover an undivided interest in certain real property, and for damages for the wrongful detention of the same. The defendant in that action appeared and filed his answer, and thereupon as plaintiff filed his complaint, in the nature of a cross-bill in equity against Jarvis Briggs, as defendant.

On the thirteenth, day of November, 1874, Collins and Delashmutt entered into an agreement in writing, whereby Delashmutt bargained and sold to Collins, for the consideration of two thousand six hundred dollars, in gold coin, a tract of land, situated in Polk county, Oregon.

This is a suit brought by appellant in the circuit court of Umatilla county. A demurrer was sustained in the court below to plaintiff’s complaint, and from that judgment this appeal is taken. Plaintiff alleges that Jacob Yarlett died intestate April 20, 1871, and that defendant Steger was appointed administrator of his estate.

<p>Act of Legislature — Constitutionality of, Affirmed. — The amendment to the city charter of East Portland, approved October 25, 1872, is not unconstitutional.</p> <p>Highways — Legislative Control Over. —The paramount and primary control of highways in a state, and of streets in cities is vested in the legislature.</p> <p>Idem — Control over Highways may be Delegated. — The state may transfer its control of streets to a municipal corporation by act of the legislature.</p> <p>Tax — Uniform, when. — A tax is not unconstitutional when it is equal and uniform throughout the taxing district. <</p>

The facts are stated in the opinion of the court. . The court below erred in admitting parol testimony to explain the judgment and judgment-roll in the former action, the record itself being conclusive as the matters there tried. In order to avoid the effect of the bar, the circuit court allowed the proof excepted to, and the jury therefore disregarded it. The ruling in effect allowed the plaintiff to split an entire demand.

The process issued in this action, purporting to be a summons, did not “run in the name of the state of Oregon.” After the service of this process, a judgment by default was entered against the defendant. Thereafter, at the same term of the court, the defendant moved the court to set aside the judgment, and for leave to answer, and filed an affidavit of merits.

<p>Transcript on Appeal — Lost Records. — An appellant must bring into tlie appellate court a perfect record. In case of loss or destruction of originals, they may be supplied by copies embracing every paper necessary to show that the original and the appellate tribunal had jurisdiction.</p>

<p>Costs and Disbursements — Statutes Construed. — Section 539 of the code, relating to costs and disbursements, applies to cases originally commenced in the circuit courts. Section 542 governs in cases brought to these courts by appeal.</p>

<p>Contract — Condition Precedent. — B. executed liis promissory note to H. & D., payable January 15, 1876, in the usual form, with the addition of the following words: “The above note is given upon, and for the sole consideration that the said Hawley & Dodd have agreed and promised that upon the payment of the said note, at maturity (time being of the essence of the contract), they will soil and transfer to the undersigned, Bingham, the planing machine which they have this day entrusted to him:” Held, that the promise of B. was not dependent upon the promise of H. & D. to sell and transfer the machine as a condition precedent; but that it was an independent promise to pay.</p>

This action was brought by Smith against Lownsdale on a promissory note executed by one Cooper to Lownsdale, and by him indorsed to Smith. Lownsdale took from Cooper and wife a mortgage to secure him against loss on account of the indorsement, and still holds the security. No demand was made and no notice given. Cooper became insolvent, and died after the maturity of the note. Issue was joined as to waiver of demand and notice by Lownsdale.

<p>Appeal from Multnomah County.</p> <p>Paddock, the respondent, brought a civil action against one Shaeffer, a non-resident, and procured his arrest. The appellants, Hume and Herman, executed a bond conditioned that Shaeffer would pay any judgment that Paddock might recover in the action, whereupon Shaeffer was discharged from arrest. Paddock subsequently recovered judgment in the action. Before such judgment was rendered, Humé and Herman duly delivered to the proper officer a properly certified copy of the bond or undertaking as provided by statute in case of surrender under bail bonds, surrendered Shaeffer into the custody of the sheriff, and had an order entered discharging them from liability.</p> <p>This action w'as brought by Paddock to recover from Hume and Herman, upon the bond or undertaking in question, the amount of the unsatisfied judgment against Shaeffer.</p> <p>The complaint alleges that the obligation upon which the action was brought is a “bond, undertaking or writing obligatory.” The answer confesses the allegations of the complaint, and pleads the surrender in avoidance, which matter in avoidance is denied in the reply. The action was in justices’ court. The respondent recovered judgment, and the appellants appealed to the circuit court. Upon the trial in the circuit court, the jury found for the appellants. "Whereupon respondent filed a motion for judgment, notwithstanding the verdict, which motion was allowed and judgment' rendered accordingly. From this judgment this appeal is taken.</p> <p>The order exonerating the bail was a complete discharge of the defendants from all liability upon the undertaking. (Civ. Code, 129, secs. 110, 113; Hume v. Norris, 5 Or. 478.) It was an order of a court of competent jurisdiction, and can only be set aside by a writ of review, and cannot be impeached collaterally.</p> <p>It is contended by the respondent that because the undertaking, in addition to what is required by the law, contains an undertaking to pay the amount of such judgment as should, in that action, be recovered against the defendant, Shaeffer, these defendants are still liable for the judgment as upon a common law bond for the judgment.</p> <p>This is not a common law bond, nor is it an instrument known to the common law. It is purely a creation of the statute, and has no force except such as the statute gives it, and it must be construed with reference to the statute, the terms of which enter into and become a part of the obligation. (5 Or. 442; 2 Id. 318.)</p> <p>There is no consideration for the undertaking to pay the judgment. All the benefit derived to the defendant in the action of Paddock v. Shaeffer, was release from arrest. This release he was fully entitled to on giving surety. He got no additional benefit by this extra stipulation, when Shaeffer was surrendered to the constable, who was in law the agent of the plaintiff, the plaintiff was in as good a position as he was before he took the security for his appearance.</p> <p>A bond at common law implied consideration. For this reason a bond defective, as a compliance with the statute, has been held binding as a common law obligation, but I find no instance where an unsealed instrument has been held to imply a consideration. A bail bond which imposes conditions more onerous than the law requires has been held void in 33 Geo. 37; 1 U. S. Dig. N. S. 99, sec. 2; Id. 125; Id. sec. 3; 2 Brevard (S. 0.) 394; 4 U. S. Dig. 234,' sec. 49; 15 Geo. 573; 15 U. S. Dig. 71, sec. 19; 3 Kelley (Geo.) 128; 8 U. S. Dig. 42, see. 3.</p> <p>It has also been held that where a bail bond recites immaterial or irrelevant matter, such recital will not vitiate the bond, but may be rejected as surplusage. (State v. Adams, 3 Head. 259.) Notwithstanding an. absolute engagement expressed by the literal terms of a bond, the purpose of the law under which it is executed is sufficiently satisfied when that which the law regards as legal indemnity of the obligation is accomplished. (20 Minn. 196; Ohio v. Findley et al., 10 Ohio, 51; U. S. v. Hodson, 10 Wall. 395.)</p> <p>The insertion of an obligation to pay the judgment should be regarded as .a mistake of the law. The parties not intending to bind themselves any further than was necessary to relieve the defendant from arrest. In such case the parties would not be bound by the bond to what they agreed to do, that was not required to attain the proposed end. (1 Pars, on Cont. 437.</p> <p>The bond was voluntary on the part of the defendants, without any claim of fraud, and the plaintiff had a right to, and did rely on their agreement to pay the judgment. Parties are at liberty to make any contract' they see fit that is not prohibited by statute or in violation of public policy, and this contract', instead of being prohibited by the statute, is expressly authorized. (Civ. Code, sec. 775.)</p> <p>But it is contended, though no such defense is set up in the answer, that the undertaking not being in form required by the statute is void. Such, however, is not the law. The bond is good between the parties as a contract. It does not follow that the bond is necessarily invalid, though not authorized by statute it will be good as a common law bond, when it does not contravene public policy nor violate a statute, and binding on the parties to it. (12 Iowa, 570; 23 Iowa,°21; 7 Bosw. 670; 13 Cal. 553; 17 Cal. 431; 16 Mo. 258; 5 Mass. 314; 12 111. 93; 16 B. Monroe, 556; 37 Barb. 179; 8 Ala. 466; 8 Barb. 340; 28 N. Y. 318; 7 Wend. 499; 21 Wend. 270.</p>

<p>Execution — Levy and Return of Personal Property. — The mere levy-on personal property, the property being subsequently returned, is not a satisfaction of the judgment, and furnishes no valid objection to the issue of another execution on the same judgment.</p> <p>Execution against Real Property — Informality of. — Where an execution commanded the sheriff “to levy upon the real estate, goods and chattels” of the defendants in the writ, instead of directing a resort to the personal property of such defendants first, and then a levy on the realty, it is informal, but not void.</p> <p>Idem — Waiver.—Where two executions, of the same date and tenor, were issued upon the same judgment to the sheriff of the same county, and the return of such sheriff shows that he duly executed one writ, and that the other was returned1 to the clerk without anything further or different being done with it, the proceeding was irregular, and might have been taken advantage of by a motion to quash. The failure to take advantage of such irregularity at the time is a waiver of it.</p> <p>Confirmation of Sales on Executions under Territorial Statutes.— When the state government superseded the territorial government, the laws of the territory were contained in force until the code took effect in 1863, and all sheriffs’ deeds, whether made on executions issued by the district, circuit or county courts, were required to be submitted to the circuit court of the state for confirmation.</p> <p>Indorsements on Sheriffs’ Deeds. — The omission to indorse the approval of the circuit court upon a sheriff’s deed does not render the deed inoperative.</p> <p>Order Confirming Sheriff’s Sale — Effect of. — An order confirming a sheriff’s sale is conclusive upon all questions relating to the sale; that is, as to the regularity of all proceedings after execution, and before confirmation.</p>

<p>Judgment — Execution on Proceeding to Obtain Writ of what Defense Admissible — Presumptions in Eavor of Judgment. — On a proceeding for leave to issue execution on a dormant judgment, such judgment cannot be questioned for want of jurisdiction, unless such want of jurisdiction appears on the record. In such a proceeding the same presumptions obtain in favor of the validity of the judgment that would obtain in case it was attacked collaterally, and the only defense admissible is either that there is no such judgment, or that it has been in some way discharged.</p>

The facts are stated in the opinion of the court. A deed from an insane person, not under guardianship, is voidable only, not void, and creates a seisin. If the plaintiff had a remedy it was in equity to have the deed set aside, as an act of an insane person.

This is an action brought by the county of Multnomah against W. H. Aclams, for the recovery of certain fines collected by him from defendants in state cases.

. Appeal from Multnomah County; • The appellant at the December Term, 1876, of the county court of Multnomah county, presented a claim for the sum $950.00 for fees as justice of the peace, between September 80, 1875, and December 1, 1876, in certain criminal cases wherein the state of Oregon was plaintiff and diverse persons were defendants.

<p>Appeal from Columbia County. The facts are stated in tbe opinion of the court.</p>

<p>Replevin — Title in Stranger a Good Deeense. — Li an action to recover the possession of personal property, the defendant may plead property in himself or in another in bar of the action, and if he obtains a verdict, he is entitled to a return of the property.</p> <p>Idem — Demand oe Admissions. — In such action, if plaintiff relies upon the admissions in the answer to recover, he should not deny such admissions in his replication.</p>

The respondent is a private corporation, with William Utter as its president. In addition to the powers conferred upon such officer by the general incorporation act of the state, he was business .and financial agent of the corporation by one of its by-laws. As such president and agent, •he executed a promissory note and mortgage upon one of the locomotives of the corporation, in favor of the appellant.

<p>Appeal from Multnomah County.</p> <p>The respondent was indicted in the circuit court for Multnomah county, under the gambling act, for dealing, playing and carrying on, as proprietor, a game of faro. The charging part of the indictment is as follows: The said Alfred Carr, on the thirtieth day of October, a. d. 1876, in the county of Multnomah, and state of Oregon, and at divers times between that time and the finding of this indictment, in the county and state aforesaid, did willfully and unlawfully deal, play and carry on, as the proprietor thereof, a game of faro, a banking game, played with cards for money and checks as representatives of money and value.</p> <p>The respondent demurred to the indictment upon the grounds: 1. That it did not state facts sufficient to constitute á crime; 2. That it charged more than one crime.</p> <p>The court sustained the demurrer, and the state appealed.</p>

The facts are stated in the opinion of the court. The decision in this court must turn upon the law applicable to such facts as appear to have been found by the court below; and if it is certain that the substituted contract was, by the consent of the parties, as above — or by acts unequivocally evidencing such consent, taken in lieu of the written agreement (accepted as a substitute for it), the authorities seem to be clear that the only remedy to the plaintiff was upon the…

This suit is for a dissolution of a partnership and an account and sale of partnership property. The respondents are sons of the appellant. The parties to the suit were, in 1857, the owners, respectively, of different tracts of land in the Umpqua valley, and of certain personal property. The land of the appellant consisted of six hundred and forty acres, and that of the respondents of three hundred and twenty acres each.

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

This is an appeal from the Circuit Court sitting in Clackamas county.

<p>Variance not Material Unless Party is Misled. — Under the code no variance between the allegations of a pleading and the proof is material unless the adverse party has been actually misled by it to his prejudice in maintaining his action or defense upon the merits.</p> <p>Idem. — When such variance occurs, it should be shown to the satisfaction of the court, and in what respect in order that the pleadings may be amended upon such terms as may be just.</p> <p>Pbomissoby Note — When Time oe Payment not Stated. — When no time of payment is expressed in a note, the law adjudges it to be due and payable immediately.</p>

<p>Consideration — When Promise Made for a Public Object will be Enforced.. — While a naked promise to pay money for a public object cannot be enforced for want of consideration, yet if the promise itself or any other promise upon which it is founded contains a request, or that which can be construed as a request, to those representing the institution for whose benefit the promise is made, to do any act or to incur any expense, or to undergo any inconvenience, and such institution does the act or bears the expense or submits to the inconvenience, this request and performance on the behalf of the institution is a sufficient consideration to support the promise.</p>

<p>Appeal from Linn County.</p> <p>This is an appeal from a final decree of the circuit court, in a suit for a specific performance of an agreement to convey real property, brought by one Craig.</p> <p>After the decree had been rendered, and before the expiration of six months — the time allowed for appeal — -from the date thereof, Craig, the original plaintiff, died. Before the expiration of the six months from the date of the decree, Dick, the appellant, qualified as Craig’s administrator, and with the other appellants, who were the heirs at law of Craig, served notice of appeal from the decree, and filed the necessary undertaking therefor. No order was made in the court below substituting them as parties in the suit, or allowing the cause to be continued in their names.</p> <p>The respondents moved to dismiss the appeal on the ground that the appellants have no authority to prosecute the same without first obtaining an order of the circuit court therefor.</p>

<p>New Trial — Decree in Vacation. — When the decision is rendered in vacation, the party desiring a new trial has twenty days from the filing of the decision within which to file a motion therefor.</p> <p>Measure oe Damages. — When a vendee, with covenants of warranty, buys in an outstanding paramount title, the measure of damages for breach of the vendor’s covenant is the amount so paid.</p>

<p>Appeal from Umatilla County.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

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

<p>Possession under Imperfect Deed — Specific Performance. — Possession under an imperfect deed gives an equitable title which, a court of equity, on a proper bill filed, will enforce by directing a specific performance of the contract to convey. In such case the deed will be construed as a contract to convey.</p> <p>Cross-bill — Equitable Title, how Asserted. — Under the statute which allows an equitable defense by cross-bill in actions at law, a party may rely upon a legal defense in an action without being thereby precluded from afterwards asserting his equitable title in an original suit.</p>

This was an action for the recovery of real property. Penny and another were the original defendants, but they claimed to hold under the present respondent, who was substituted in their stead. The appellant had a perfect chain of title from Bethuel Dove, the respondent, down to the last will and testament of one Oliver M. Hurt, deceased, through whom appellant claimed title.

This is a suit to reform and enforce a written instrument. The court below decreed the relief prayed for. The facts are stated in the opinion of the court.

This is a suit in equity for an injunction and for damages. The complaint alleges that plaintiff is the owner of certain real property in the city of Astoria, upon which is situated his dwelling. That from time immemorial a spring branch has been wont to flow through this land, from which he has hitherto obtained water for his domestic, household and other purposes, and that he has no other suitable and convenient supply of water upon his land.

The respondent was the owner of one half a donation land claim under the act of congress of I860. The settlement and notification was made upon the claim about December, 1850, by William Linnville, respondent’s husband. Subsequently the title was perfected to the land claimed, and the wife’s half designated as provided by law. The wife’s half was, in 1871, sold by the husband and wife.

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

<p>Appeal from Multnomah County.</p> <p>The respondent obtained a judgment in the court below for seven thousand four hundred dollars, on the twenty-eighth of June, 1870. On the second day of July following, a notice of appeal was filed with the clerk of the circuit court, but no proof of service thereof was made, nor was any indorsement of service placed on said notice. On the third day of September, 1870, one of the, attorneys for the appellant made an affidavit of the fact that on the second day of July, 1870, he served the notice of appeal herein on J. O. Moreland, one of respondent’s attorneys, and attached that affidavit to the notice. Respondent’s attorneys filed counter affidavits denying any such service, and filed a motion based thereon for dismissal of appeal.</p>

<p>Levy — How Made on Personal Property — In the Hands oe Third Persons Having no Interest Therein.. — Where an officer levies an execution upon personal property, in the hands of a third person, the bailee of the person claiming to be the owner, he is a trespasser. He cannot justify under such attempted levy in an action to recover possession of the property by the person so claiming. The fact that the bailee had no lien in the property is not material. The officer, when he finds the property, which he supposes belongs to the judgment-debtor in the possession of third persons, has no right to determine the right of possession, except in the maimer provided by law.</p>

<p>Witness — What Testimony not Admissibie to Impeach. — A party being a witness in her own behalf cannot be impeached by a letter written by her to another person, containing language which would indicate she was unchaste.</p> <p>Idem — Particular Acts not Admissible. — The moral character of a witness cannot be impeached by showing particular act of immoral conduct.</p> <p>Slander — In Action por What Acts op Dependant May be Proven.— In an action for slander it is proper for the court to charge that the jury could consider the acts and manner of the defendant at the time of speaking the words complained of, both on the question of malice and as to the amount of damages. That the manner and acts of defendant at the time of speaking the words complained of, may be considered to explain the words.</p>

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

The facts are stated in the opinion of the court. Our first position is that the facts stated in this petition are not sufficient to entitle the party to the remedy sought. This petition is brought under section 583 of the civil code, which only authorizes the writ to issue to an inferior court, corporation, board, office or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.

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

This is an appeal from the judgment of. the Circuit court upon a writ of review taken from proceedings of the county court of Clatsop county, in relation to the laying out of a county road. At a regular term of the county court a petition was presented for a road across the lands of the appellant. Yiewers and a surveyor were appointed, who proceeded to locate the proposed road, and who, at the July term following, reported in favor of establishing the same.

<p>False Representations — Will not avoid Contract, when. — False representations made by one party to another to induce him to enter into a contract will not avoid the contract unless it is shown that the party complaining relied upon such representations and was thereby misled and induced to make said contract.</p>

<p>Justice of the Peace — Jurisdiction.—The jurisdiction of a justice of the peace once obtained over the subject-matter of an action, continues until the action abates, or is legally disposed of by the justice.</p> <p>Idem — Alias Summons. — The rendering of a void judgment by the justice does not terminate the action so as to prevent such justice from issuing an alias summons, and acquiring jurisdiction of the person of the defendant.</p> <p>Publication of Summons — Order for. — In construing an order for the publication of a summons to an absent defendant, the court will consider the affidavit and complaint.</p> <p>Instructions to the Jury. — It is not error for the court to append to an instruction asked for by a party, and given by the court to the jury, an explanation in writing of any matter pertinent to the case.</p> <p>Judgment in Justice’s Court — Time of Entry. — When a justice renders a judgment, but neglects to record the same at length in his docket at the time it is rendered, he may afterwards record the same, and such judgment will be valid.</p>

On November 18, 1876, the appellants filed a complaint against the vessel known as the Revenue Cutter, to enforce an alleged lien upon said vessel for the sum of one thousand seven hundred and seventy-eight dollars and thirty-five cents, arising out of the furnishing of labor and materials used in the original construction of said vessel at the request of the Oregon Iron Works.

<p>Promissory Note Transferred without Indorsement. — Minear, being indebted to the bank of Idaho, upon his promissory note, in consideration of an extension of time thereon to Minear, Miller executed his.promissory note to the bank for the sum of Minear’s note, with the understanding that both notes should be delivered up when either was paid. Moore, a stockholder in the bank, received both notes, with notice of all the facts, as a part of his share of the bank assets. The Miller note was regularly indorsed to him; the other was delivered without indorsement: Held, 1. That Miller’s liability was not that of an indorser upon the Minear note, but that it grew out of an independent contract to pay a certain sum at a fixed time, upon conditions expressed in the agreement; 2. That Moore became the owner of the Minear note without indorsement, and that he had the right to maintain his action upon the Miller note.</p>

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

<p>Valuable Consideration — Conveyance oe Heal Estate. — Where a deed recites that the estate therein conveyed is subject to a mortgage, the acceptance of such deed by the grantee therein, and the subsequent payment by such grantee of the mortgage, in the absence of actual fraud, constitutes such a valuable consideration as will uphold the deed as against creditors, existing or subsequent, of the grantor.</p>

<p>Sheriff — Return of — Presumptions.-—The return of an officer, serving a notice of appeal, did not show in what county the service was made: Hein, that it would be presumed that the service was made within the local jurisdiction of the officer making it, and that, the sheriff of Grant county being the officer who made the return, it would be presumed that the service was made within such county.</p> <p>Idem. — The sheriff’s return upon a notice of appeal showed that service had been made upon L., tke attorney of the respondent in the action, but it did not show that L. was a resident of the county within which the notice was served: Held, that it would be presumed that the attorney - was a resident of the county in which he appeared as counsel, and in which the notice was served.</p>

<p>Certificate of Acknowledgment — Impeachment of. — The officer’s certificate of the acknowledgment of the execution of a mortgage or deed cannot be impeached by parol evidence, unless there are allegations in the pleadings to warrant it.</p> <p>Married Woman — Deed by, cannot be .Avoided, when. — If a married woman, without duress or misrepresentation as to the nature of the instrument, joins her husband in a deed, and suffers the same to be delivered, she cannot avoid it on account of fraud and misrepresentation, without showing that the grantee knew of or participated in the fraud.</p> <p>Idem — Debts of Husband. — The sale or mortgage by a married woman of her separate property for the payment of her husband’s debts may be enforced.</p> <p>Consideration — Pre-existing Debt. — A pre-existing debt or liability is a sufficient consideration to uphold a mortgage.</p>

This is an action to recover damages for injuries received by the respondent in consequence of a fall upon a broken and defective sidewalk in the city of Salem. The jury found for the respondent in the sum of four hundred and seventy-five dollars, and he recovered judgment for that amount. There was no allegation in the complaint or evidence tending to prove that the city or its officers had notice of the defect complained of.

<p>Special Act Construed — Berry License. — The license to keep a ferry, granted by the territorial legislature to James B. Stevens, is perpetual, and relieves the grantee from the necessity of obtaining license from the county court.</p> <p>Exclusive Jurisdiction — Justice of the Peace. — When the statute creates an offense and affixes a penalty thereto, and provides that such penalty shall be collected by an action before a justice of.the peace, the justices’ courts have exclusive jurisdiction of such action.</p>

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

This is a suit in equity by the appellant against tbe respondent and others, who are the sureties upon the official undertaking of one C. H. Williams, late county clerk of Columbia county, for relief on account of the official delinquency of Williams as such clerk. The appellant, on the fifth of April, 1872, loaned one Gillihan two thousand dollars, and took as security a mortgage upon certain real estate in Columbia county.

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

This action was to recover for certain materials furnished by respondents to one Steffen for the construction of the hull of the The Pilot, a steam-tug. The complaint alleges that Steffen was the owner at the time the materials were furnished. The materials were furnished between May 8 and November 10, 1876. Charles Holman, J. M. Gilman and A. B. Nutting intervened and filed an answer to the complaint in which they denied that Steffen was at any time the owner of the boat.

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

The facts are stated in the opinion of the court. At common law there was no remedy given for the forcible entry upon, or unlawful detention of real' property; such remedy is purely the creature of statute, and in derogation of the common law; and no principle is better settled, or more wholesome, than that where extraordinary powers are conferred, or summary proceedings are authorized, all the steps and proceedings required must be strictly pursued to give jurisdiction, or…

<p>Justice or the Peace — When Mat Enter Judgment. — Under the code a justice of the peace may, after a case is submitted t& him for decision, take the same under advisement and render a valid judgment without adjourning the ease to a day certain.</p> <p>Idem — Error in Date or Entry a Mere Irregularity. — A judgment rendered in a case submitted on the sixth of the month and taken under advisement and a decision made on the eleventh, but entered up in the record as of the sixth, the day on which it was submitted is not for that reason void;</p> <p>Equity — Bill to Set Aside Judgment — What it Must Show. — Where a party by bill in equity seeks to have a judgment annulled, he must, to be entitled to relief, set out in his bill, the matters determined by such judgment, in so clear and intelligible a manner that the court can on setting aside the judgment proceed to determine the tights of the parties.</p>

. Appeal from Marion County. This is an action by the respondents to recover an alleged balance due them for rent upon an unexpired lease. The appellant defends by alleging a surrender of the lease, and an acceptance by the respondents. The cause was tried without the intervention of a jury by the judge, who rendered the following finding of fact: 1.

<p>Appeal from Multnomah County.</p> <p>This action is brought by Bartel, as the administrator of Nicholls, to recover certain personal property which belonged to Nicholls in his life-time. The defendant Lope alleged ownership in himself, and on the trial in the court below introduced au absolute bill of sale of the property by Nicholls to himself for an expressed consideration of two hundred and seventy dollars. On such trial the plaintiff, to establish the ownership of Nicholls, was allowed to prove that “it was generally believed” that Nicholls was the owner. He was also allowed to prove the declarations of Nicholls, to the effect thatlie was the owner, made after the execution of the bill of sale; and that he, the plaintiff, had offered in writing to pay the defendant two hundred and seventy dollars, the amount expressed in the bill of sale, and interest, and that such offer was not accepted.</p> <p>The introduction of all this testimony on the part of plaintiff was objected to by the defendant, and the rulings of the court thereon are the errors assigned in the appeal. The jury found for the plaintiff, and under the direction of the court returned, among others, the following special findings: r</p> <p>Q. What was the intention of said Nicholls and said Lope at the time, and in the execution of said instrument of writing or bill of sale; was it intended to be an absolute bill of sale or a mortgage? A; It was a bill of sale to secure the payment of the above-mentioned sum of money, and consequently considered as a mortgage.</p> <p>Q. Was there any agreement between Nicholls and Lope concerning a resale of the property in controversy to Nicholls. If so, when was it made, before or after the execution of the bill of sale, and what were the terms of such agreement? A. There was, after. The terms were that Bichard Nicholls could redeem the property within sixty days, by the payment of the money back to Adam Lope, according to the agreement between them, viz.: two hundred and seventy dollars, with interest.</p> <p>Q. Has the estate of Nicholl any creditors, and is there property of said estate, exclusive of the property in controversy, sufficient to pay said creditors? A. There are creditors; not sufficient outside of the property in controversy to pay the debts.</p> <p>The defendant moved for judgment, notwithstanding the verdict, upon the special findings, which motion was denied, and judgment rendered for plaintiff.</p> <p>The defendant appeals.</p> <p>With pleadings framed as in this case, evidence could not be legitimately allowed tending to convert this absolute bill of sale into a mortgage. The submitting of that question to the jury by the court was error, and judgment should have been entered for defendant, upon the special findings, notwithstanding the general verdict. (Code, 248, sec. 682; Anthony v. Atkinson, 2 Sweeny, 228; Webb v. Bice, 6 Heill, 219; Erwin v. Saunders, 1 Cow. 249; Norton v. Woodruff, 2 Com. 153; Miller v. Baker, 20 Pick, '285; Hazel v. Lindel, 10 Mo. 308.) The rule in New York and California, allowing it, is based upon the provision of. the code in those states abolishing the distinction between suits and actions. (2 Neman, 266; 9 Barb. 658; 36 Cal. 45; Leese v. Clark, 20 Id. 387.)</p> <p>The special findings show the parol agreement to have been for a resale, and the facts found do not constitute the bill of sale a mortgage; and the agreement so found was void, because entered into after the-sale, and without consideration. (Sturtevant v. Sturteoant, 20 N. Y. 40; Barrett v. Carter, 3 Lans. 68; Fullerton v. McCurdy, 55 N. Y. 637; 4 Daily, 77; Mason v. Moody, 26 Miss. 184; Harbaugh v. Cicott, 33 Mich. 241; Johnson v. Clark, 5 Ark. 336, 343.)</p> <p>Even if the bill of sale were intended betweemthe parties to it as a mortgage at the time of its execution, Bartel had no authority as administrator to offer to redeem without an order of the county court allowing it, and without such order, he had no more right to claim to redeem out of his own individual funds than any other third person, being a stranger to the contract, would have had. (Code 331, secs. 1129, 1130; Boone v. Banes, 7 T. B. Mon. 384; Champion v. Joslyn, 44 N. Y. 658.)</p> <p>After condition broken, a mortgagee of personal property becomes the owner thereof, except that an equity of redemption remains to the mortgagor which he may assert if he sues within a reasonable time. But he cannot after condition broken tender the money, and, if unaccepted, maintain an action for the possession of the property. (Blodgett x. Blodgett, 48 Vt. 32; Brown x. Bement, 8 John. 96; Porter x. Palmley, 13 Ah. Pr. N. S. 104; Patehin x. Pierce, 12 Wend. 61; Heyland x. Badger, 35 Cal. 404; Wright x. Boss, 36 Id. 414.)</p> <p>Conceding for the sake of argument that this bill of sale was in fact a mortgage, still, there having been no time of payment expressed in it, it was payable immediately, and no demand of payment was necessary, but the title of the mortgage became absolute at law on the execution of the mortgage without a demand; and the. mortgagor, if suffered to remain in possession, was thereafter a mere naked bailee of the property, having no right but that of redemption in a court of equity. (Hotuland x. Willett, 3 Sandf. 607.) And pai-ol testimony is inadmissible to show a different time of payment. (Thompson v. Ketclian, 8 John 190.) We submit, therefore, that appellant is entitled to judgment on the special findings.</p> <p>If the court should differ with us as to our right to judgment in appellant’s favor on the special verdict, then we claim that for the reasons, and upon the principles of law, already stated, and for the further error of the court below in allowing proof of reputation, and of the declarations of Nicholls, after he parted with the title, as to the ownership of the property, a new trial should be granted. (Sprague x. Kneeland, 12 Wend 161; Norton x. Woodruff, 2 Comstock 155; Visherx. Webster, 13 Cal 58; Cohnx. Mulford, 15 Id. 52; Jones x. Morse, 36 Id. 205; Poormanx. Miller, 44 Id. 269; Campbell x. Coon, 51 Ind. 76.)</p> <p>The respondent, by virtue of his general ownership of the property, was entitled to tender the amount in order to preserve his rights and that of the creditors, in the property; it was a right incident to his trust. The fact that respondent had not obtained an order from the probate court allowing him to redeem, was not drawn in question. No objection was made upon that point, and for all that appeared in the court below, respondent may have obtained an order to that effect. Appellant had nothing to do with the question. He was offered the money, and it was none of his business whether any order allowing the respondent to redeem had been made or not. The effect of the tender was to relieve the property from the incumbrance. The debt was the principal and the mortgage but an incident. (9 Wend. 80.) While a tender, not kept good, would not discharge the debt, yet it would discharge the lien. (8 John. 96; 2 Cain. 213; 3 Parsons on Cont. 274; 21 N. Y. 343; Amot v. Post, 6 Hill, 65.) It is not necessary to bring money into court. (21 N. Y. 347; 6 Cow. 728; 56 Barb. 97.) Plaintiff had the right to show that the bill of sale was a mortgage. »He had a right to show anything under the pleadings that would tend to establish that he was the owner of the property in the character alleged, and that the appellant was not. (Allison v. Mathews, 3 John., 235.)</p> <p>Under our law a chattel mortgage simply credits a lien upon the property mortgaged. (Chapman v. State, 5 Or. 432.) A. bill of sale, though absolute upon its face, may at law be shown to be only a mortgage. (8 Wend. 375; 1 Am. R. 135; Chaplain v. Butler, 18 John. 173.)</p> <p>The rule, however, that a party cannot, by parol evidence, vary or change the terms of a written instrument, does not apply to this case; that rule is only applicable in suits between the parties to the instrument and their privies. (55 N. Y. 234.) The parties represented by the respondent in this case, the creditors of Nicholls, were strangers' to that instrument.</p> <p>The plaintiff had the right to give evidence of Nicholls’s declarations concerning his ownership of the property while in his possession. (47 Mo. 365.) They were a part of the res gestee. Allowing Nicholls to retain the possession of the property and represent it as his own, was not only an indicia of fraud, but tended to establish that the bill of sale was only intended as a lien or pledge of the property. The appellant’s counsel excepted to the question asked the respondent when on the stand, as to common reputation of ownership of the property. It was not answered, and we might claim that if it were error, no injury was suffered by appellant; but tbe question was asked in view of tbe case of Wilson v. Haddock, 5 Or. 480.</p>

<p>Measure oe Damages — Establishing Hoad. — The measure of damages for land taken for public use in opening a public highway through such land, is the loss in value which the land will sustain by the opening of the proposed road.</p> <p>Idem — Manner oe Estimating Loss in Value. — In determining this question, the jury should estimate the value of the land occupied by the road, the necessary expense of building extra fences, and the inconvenience it may be to the remainder of the premises, and all special advantages the opening of the road will confer upon the premises.</p> <p>Idem:. — The advantages which the proposed road will confer on the premises of the claimant may be considered, not only as a compensation for the increased fencing and injury to the remainder of the land not occupied by the road, but as a compensation of all damages caused by the opening of the road, and, if they equal or exceed such damages, the jury should find against the claimant.</p> <p>Constitutionality oe Statute Affirmed. — Section 7, page 723, Miscellaneous Laws, as to the measure of damages for private jiroperty taken for a public highway, is not unconstitutional. (Per Shattuch, J., dissenting.)</p> <p>Just Compensation does not consist oe Estimated Benefits. — “Just Compensation, ” m the meaning of the constitution is the actual value in money of the property taken, without any deduction for estimated benefits or advantages accruing to the owner from the public use of his property. A part of the diminution in value of the premises is the cash value of the portion taken, and that should be made good to the owner in cash.</p>

<p>Appeal from Multnomab County.</p> <p>In a suit between A. J. Knott, plaintiff, and Joseph and Levi Knott, defendants, to dissolve a partnership, and for an accounting, the court’ found the indebtedness of the partnership to consist of a claim for two thousand eight hundred and forty-eight dollars in favor of one Foster, and it ordered a distribution of the assets in a prescribed manner, “ after payment of said indebtedness.” The respondent, Joseph Knott, moved for an order in the court below directing the payment of the two thousand eight hundred and forty-eight dollars upon Foster’s claim, which motion was opposed by the other parties to the suit. The court allowed the motion, and from its order thereon this appeal is taken.</p> <p>Foster was no party to the suit in which this final order is made, and the only object of a finding that the assets of the firm was subject to a claim of his, was that the said assets might not be distributed among the partners without the firm debts being first ascertained and paid. It was not contemplated by this court that Foster’s claim should be recognized and allowed, without these appellants being given an opportunity to dispute it. It would be establishing a very dangerous precedent. The fraud and connivance of an unscrupulous partner, with a third person, might, by this process, deplete the assets of a dissolving firm, and the other partners be powerless to resist and without remedy against the defrauding partner, and this court was without jurisdiction or authority to render such a decree. No person can bind another by any adjudication, who was not himself exposed to the peril of being bound in a like manner had judgment resulted the other way. (Freeman on Judg. 125; 2 Paine, 536; Clark v. Clark, 2 N. J. B. 112.) A decree that money should be paid to the owners of the judgment, without stating who the owners were, is objectionable. (DeWolf v. Long, 7 111. (2 Gilm.) 679; Carr v. Bobb, 7 Dana, 417; Roberts v. Elliott, 3 T. B. Mon. 395. Muldroiv v. Muldrow, 2 Dana; 386; Riley v. Wiley, 3 Dana, 75; Taylor v. Watkins, 4 B. Mon. 561; Hallett v. Hallett, 2 Paige, 15; Pratt v. Oliun, 3 McB. 27; Campbell v. Consalus, 25 N. Y. 615; People v. Johnson, 37 Barb. 502; Mathews v. Dweyn, 45 Barb. 69; York v. Steele, 50 Barb. 397; Jones v. Kolisenski, 41 Aid. 607.)</p> <p>This decree could not have been pleaded as a bar to an action by Foster to recover on the same claim of services. {Miner v. Walter, 17Ind. 237; Williams v. Gibbs, 17 How. 249; Barny v. Fanning, Paine, 549; Dorsey v. Smith, 28 Cal. 31; Smith v. Hall, 8 Maine, 348.)</p> <p>Creditors have no lien upon partnership effects, and can enforce their claim only by a common law action. (Story on Part., sec. 361, p. 570; Mosely v. Cake, 7 Leigh 225; Boswell v. Duckison, 4 McL. 262.)</p> <p>No member of the late firm, after commencement of suit for dissolution, could bind the firm so as to authorize judgment in favor of a stranger. The motion of Joseph Knott, by his attorneys, to pay Foster, could not bind the late firm as an admission of the debt; nor would his admissions during pendency of litigation' bind the interests of the , other partners. The decree of dissolution relates back to the commencement of the suit. (Story on Part., sec. 323 et seq., and notes; Bell v. Morrison, 1 Pet. 351; 3 Kent’s Com. 42; Brisban v. Boyd, 4 Paige, 17; Hamway v. Steioart, 6 Watts, 489; Hockley v. Patrick, 3 Johns. 536; Walden v. Sherbourne, 15 Johns. 409; Hopkins v. Banks, 7 Cow. 650; Baker v. Kaufman, 9 Coav. 420; Gleasony. Clark, 9 Cow. 57; Burns v. McKenzie, 23 Cal. 101; Bispham v. Patterson, 2 McL. 87.)</p> <p>“ A partner cannot confess judgment that shall be binding upon the partnership property, unless made in an action pending.” {Richardson v. Fuller, 2 Or. 179.) It was, therefore, the duty of the lower court, in construing said mandate, to put such interpretation upon it, if possible, as would hold this court to have done what it had authority to do — to bind parties and privies to this suit and no others.; lies inter alias acta, alies nac prodest nec nocet. It should have, therefore, construed this portion of the mandate as a caution not to distribute the assets to the partners until this suggested indebtedness to Foster had been adjusted by legal proceedings determining the rights of the 'Several parties.</p> <p>It is an elementary proposition, time and again reiterated in the text books and decided cases, that upon decreeing a dissolution of copartnership, there can be no distribution of the property of the firm amongst the partners until after payment of the debts of the concern; for it is onlyas to the. surplus hereafter that any rigid of distribution exists. (Story on Part., sec. 347 and note, sec. 350; Colyer on Part., secs. 226, 320; Parsons on Part., p. 512, note h; Geor trier v. Trustees of Ganajoharie, 2 Barb. 628; Trufante. Merrill, 37 How. Pr. 531; Griggs v. Clark, 23 Cal. 428.)</p> <p>It may be, however, that the court will decline to inquire into these circumstances, or to look beyond the transcript presented on this appeal. If such should be the opinion of the court in this particular, then we submit that, as this transcript consists simply of a copy of the former decree of this court, and of said order entered in the court below for its enforcement, the doctrine must prevail that everything will be presumed to have been done and shown which was necessary, to sustain the judgment of those courts in entering said decree and order, until the contrary appears, and that therefore said order will be affirmed. (People v. Best, 39 Cal. 690; Garman v. Pulla, 21 N. Y. 547; Fulton v-Earhart, 4 Or. 61.)</p>

<p>Tax Sale — Who mat redeem Land Sold. — To entitle a party to redeem land sold for taxes it is not necessary that he should own the whole of the premises sold.</p> <p>Idem. — Part Owner must redeem the whole. — A person owning a part of a tract of land sold for taxes must redeem the whole tract.</p> <p>Pleading — Redemetioner’s Bill to set aside Sheriee’s Deed — What sueeicient allegation oe ownership. — Where a party owning an equitable interest in land has properly applied to the sheriff to redeem land sold for taxes and paid the delinquent taxes and legal charges and percentage, and received from the sheriff a certificate of redemption, and the sheriff has afterwards given the purchaser a deed under the sale for taxes; in a bill to set aside such deed it is sufficient for the party moving to set it aside to allege generally that he is the equitable owner of a large portion of the premises sold and redeemed, without particularly describing his interest or the particular part of which he is owner.</p>

Appellants were indicted for violating the provisions of section 674 of the criminal code. The section is recited in the opinion of the court.

<p>Appeal from Benton County.</p> <p>This is an action of ejectment brought by the appellant, who claims the land as the heir of one Jacob Allen, deceased. The respondent alleges title in himself and derives Ms title from a sheriff's deed and sale under an execution on a judgment by confession against said Jacob Allen and in favor of Thomas M. Reed, and the questions to be decided in this case concern the validity of this judgment and sale. The judgment, after naming the ease, is as follows:</p> <p>“I do hereby confess judgment in this cause in favor of .Thomas M. Reed, plaintiff, for the sum of two thousand eight hundred dollars, and authorize judgment to be entered against me therefor. This confession of judgment is made for the purpose of securing the said Thomas M. Reed against any liability which may accrue to him in consequence of his having signed a bond as security for me, bearing date the seventh day of November, A. D. 1854, for the sum of three thousand six hundred dollars; said bond was given by me as guardian of the infant heirs of George W. Stewart, deceased, to-wit: Mary Jane Stewart, Amanda Stewart and George W. Stewart.”</p> <p>“ State oe Oregon, County of Benton, ss.</p> <p>“Jacob Allen, being duly sworn, deposes and says he has heard the foregoing statement for the confession of a judgment read, and knows the contents thereof, and that the same is true of his knowledge.</p> <p>his</p> <p>“ Subscribed and sworn to before me this nineteenth day of January, 1861. A. J. Thayer, Notary Public.”</p> <p>The following was indorsed on said statement:</p> <p>“ Thomas Reed v. Jacob Allen. Confession of judgment; the said Jacob Allen having confessed judgment in favor of Thomas M. Reed for the sum of two thousand and eight hundred dollars. It is therefore adjudged that the said Reed have and recover of said Allen the sum of two thousand eight hundred dollars and five dollars costs, this nineleenth day of January, 1861. E. L. Perham, Clerk.”</p> <p>Execution was issued on this judgment on the thirtieth day of August, and the land in question sold under the same. The sale was confirmed in due form, and a sheriff’s deed executed to Reed, the purchaser. Reed afterwards conveyed the same land to the defendant.</p> <p>The probate court, at the time of the appointment of the guardian, was a court of limited jurisdiction, hence jurisdiction must affirmatively appear. (Parley v. Parker, 4 Or. 46.) There, is nothing in the record which shows that the probate court ever had jurisdiction of said infants. (Gen. Laws, 1855/391, secs. 1, 2, 3.) The amount of the bond should have been fixed by the probate court, or the judge thereof. (Gen. Laws, 1855, 392, sec. 5.)</p> <p>A judgment is absolutely void when it appears on the face of the record, that the court did not have jurisdiction of the person or subject-matter of the suit. (4 Or. 309; 34 Gal. 407.) The probate court had the exclusive jurisdiction, in the first instance, of all matters pertaining to guardian bonds at the time this confession of judgment was made. (Gen. Laws, 339, secs. 6,10.)</p> <p>The surety on a guardian’s bond undertakes, generally, for all legal liabilities of his principal and none other. (3 .Hill, 77; 25 Oal. 214.) The liability of a surety on a guardian’s bond is fixed by a decree against the principal, and in no other way. (3 Hill, 77; 1 John. Oh. 607; 19 John. 304; 25 Oal. 214.)</p> <p>A party by confessing a judgment, cannot confer, jurisdiction on a court of the subject-matter, where otherwise it would not have it. (Freem. on Judg., sec. 547; 23 Barb. 402.) The judgment offered in evidence is a mere security. (6 N. T. 147.)</p> <p>The probate court had jurisdiction to appoint said guardian. (Laws of 1854, 361, secs. 1, 2, 3.) By the record of appointment, it appears that application was duly made and bond ordered to be given, whereupon said bond was duly given and thereafter approved by the court, which, in effect, fixes the amount of the bond as provided by the law then existing. (See bond and order of appointment in bill of exceptions and Terr. Code, 62, sec. 5.)</p> <p>We do not think that the appointment of guardian was void. But if it was void, as claimed by plaintiff, the bond is nevertheless good. After,Jacob Allen had gone forward under said appointment and given the bond, and thereunder taken charge of the wards’ property, his appointment for want of jurisdiction of the court cannot thereafter be called in question. (20 U. S. Dig. 466, sec. 24; Hines v. Mullins, 25 Geo. 696; 20 U. S. Dig. 470, secs. 129-132; Alston v. Alston, 34 Ala. 15; 24 U. S. Dig. 311, sec. 43; Sebastian v. Bryan, 24 Ark. 447 ; 8 U. S. Dig. 208, sec. 4; Speight v. Knight, 11 Ala. 461.</p> <p>It is a well settled principle of law that a party claiming, under a judgment debtor, can not set up against the judgment that the debt for which it was confessed was illegal or void. (Parker v. Rochester, 4 John. Oh. 329.) A confess sion of judgment to secure against a contingent liability was authorized by law at the time said judgment was obtained. (Terr. Code, 1854, p. 98, secs. 49 and 50; 3 Wait’s Prac. 688.)</p> <p>The statement and affidavit subscribed by defendant being filed with the clerk, the statute then authorized the clerk to enter judgment thereon; thereafter the effect of the judgment and the proceedings thereon are the same as other judgments. And the said act of entry by the clerk is the judicial action of the court. (Terr. Code, 1854, p. 99, sec. 51; Banning v. Carpenter, 23 Barb. 404; 20 N. Y. 462; 4 Mo. 402.) A defective statement for a confession of judgment is good as between the parties, and between them the judgment confessed is legal and valid.</p> <p>And a levy and sale of property, under such judgment, is good as against the defendant and all other persons, except judgment creditors existing and having a lien upon the property. (Miller v. Earle, 24 N. Y. 112; Mitchell v. Van Burén, ‘PI N. Y. 303; 1 Saw. 246; Freem. on Judg., sec. 557.) This judgment being valid on its face, cannot be attacked collaterally. (Mitchell v. Van Burén, 27 N. Y. 303; Hunt v. Boucles, 38 Cal. 382; In re Price Fuller, 1 Saw. 246; Jachson v. Robins, 16 John. 574; Aee. v. Fig, 37 Cal. 336.) Executions may be issued on judgments by confession for a contingent liability, as in other cases. (Terr. Code, 1854, p. 99, sec. 52; Civ. Code, sec. 271; Hopkins v. Nelson, 24 N. Y. 520.)</p> <p>If an execution directs the levy of more money than the judgment calls for, it is not, for that reason, void, but only voidable as to the excess, and cannot be attacked collaterally, even by the parties to them. (Hunt v. Loucks, 38 Cal. 381, 382; Hibbard v. Smith, 50 Cal. 511.) If an execution issue upon a confession of judgment for a contingent liability before liability accrues, or for too much money, the defendant has his remedy, to set aside or to amend at the time, or to recover the excess of the levy from the plaintiff in the execution — and failing to do so he is estopped after the sale. (Hunt v. Loucks, 38. Cal. 382; Miller v. Earle, 24 N. Y. Ill; Hopkins v. Nelson, 24 N. Y. 520; Jaclcsonv. Bartlett, 8 John. 364; Voorhees v. Bank of U. S., 12 Curtis U. S. S. Ct. B. 197.) It is the policy of the law to uphold judicial sales. An order confirming a sale shall be a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons in any other action, suit or proceeding. (Code 1864, p. 218, sub. 4, sec. 293; Clark v. Lockwood, 21 Cal. 225; Mathews v. Eddy, 4 Or. 234.) The sheriff’s deed is in due form and the judgment, execution and sale being regular and valid, the defendant’s title to the land in question is therefore good — for defendant’s title rests only on the judgment, execution, sale and deed. (Clark v. Lockwood, 21 Cal. 224; Cloudy. El Dorado County, 12 Id. 133; Bloody. Light, 38 Id. 652.)</p>

<p>Appeal from Multnomah 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.</p>

<p>Appeal from Washington County.</p> <p>The facts are stated in the opinion of the court.</p> <p>The case stated in the complaint is that defendant’s dam has obstructed the waters of the creek in their natural flow, and caused them to flow back and overflow plaintiff’s land.</p> <p>The court authorized the jury to take into consideration damages, claimed to have resulted from water percolating from the creek underground into the lakes and upon the low lands of plaintiff, between which and the creek there were high ridges of land.</p> <p>The two cases are entirely different, and a man summoned to answer to the one ought not to be called upon at the trial to meet and refute the other. Whether the water in those lakes and upon those low lands originated or were increased in quantity by percolation from the creek, might be largely matter of opinion; or the question might depend upon the testimony of witnesses familiar with appearances at those localities, both prior and subsequent to the time of the erection of the dam; whilst the question as to what lands were overflowed by back water from the dam was one patent to every observer. Defendant was bound to be prepared with testimony to meet the latter proposition, but to allow plaintiff to make liis case, in whole or in part, upon the former, was to take defendant by surprise, by calling upon him to meet an issue not tendered in the pleadings. {Edge v. Pemberton, 12 M. & W. 186; Martin v. Gilliam, 7 Adolph & Ellis, 540; Merle v. Hascall, 10 Mo. 407; Long v. Doxey, 50 Ind. 385; Pixley v. Clark, 32 Barb. 268.)</p> <p>On the trial plaintiff was allowed to introduce testimony against the objections of defendant, to prove the yearly value per acre of the land in question, if cleared and drained; the expense of clearing the uncleared part, and the cost of draining, if the creek had been left in its natural state.</p> <p>Plaintiff’s right to recover should be restricted to the actual loss sustained by him in being deprived of the use of the land in its present condition as wild, timbered, or unimproved land. To allow witnesses to estimate the cost of draining the land and.of clearing it up so as to make it fit for cultivation, and then to estimate its probable value per annum thereafter for cultivation, is a violation of the rule against allowing speculative damages. {McGuire v. Crant, 1 Dutcher, N. J. 356; Ivey v. McQueen, 17 Ala. 408; Jones v. Gooday, 8 M. &. W. 146; Walrath v. Bed-field, 11 Barb. 368; Richardson v. Northrup, 66 Id. 85; Clark v. N. & M. Co., 6 Nev. 203.)</p> <p>It is established by the authorities that a person whose lands are injuriously affected by backwater from a millpond has no right to ask to abate any portion of the height of the dam, except so much only as is necessary to relieve the land from injury. In an action of this character, if the plaintiff designs asking for relief in the nature of abatement, he should take the verdict of the jury as to the proportion of the height of the dam necessary to be removed in order to his relief. This might readily have been done by special verdict, without which, as we submit, there is nothing upon which to base such judgment as was granted by the court below on plaintiff’s motion. "We think it self-evident that upon a general verdict for damages only, such as was found in this case, plaintiff would have no right to ask the court to tear out the entire dam, and ruin property worth perhaps thousands of dollars, to relieve half a dozen acres of swamp land from overflow, unless this were absolutely essential for the purpose. And if the whole dam may not be destroyed needlessly, neither may any part of it; and what part is necessary to be removed is a question directly involved in the ease, and one upon which the defendant is as much entitled to have the jury pass as he is to have them decide upon the quantum of damages, before any judgment is rendered against him; (Angelí on Watercourses, secs. 389, 390; Gates v. BUncoe, 2 Dana, 158; Moffett v. Brewer, 1 Greene, 348; Heath v. Williams, 25 Maine, 209; Great Falls Go. v. Worster, 15 N. H. 439; Wright V. Moore, 38 Ala. N. S. 593.)</p> <p>While the overflowing of the land of another by the erection of a mill-dam without license, has been-treated as the creation of a private nuisance, remediable by action to abate it, or by suit to enjoin it, yet such erections being somewhat in the nature of a public benefit, have in many instances received from legislatures and courts such favor and privileges as are scarcely consistent with their classification as nuisances. In some of the states laws have been passed authorizing the condemnation of the lands to be flowed. (7 J. J. Marsh, 248; 1 A. K. Marsh, 589, 5 ü. S. D. 399; Mills, secs. 57, 60, 67, 74.)</p> <p>In 16 Wis. 692, it was held that after long enjoyment of the privilege by the mill owner, though without legal right, equity will interfere in his behalf to prevent the destruction of his water power without which his mill is valueless. While we have no similar statute in Oregon, and such equitable feature of the case cannot be considered by this court on this appeal, yet the fact that such consideration is elsewhere extended to property of this kind tends to justify our position that respondent should be jealously limited to his strict legal rights, and a technical adherence to the rules of evidence and law should be demanded of him, in his effort to destroy the value of appellant’s mill by cutting off his water power, in order that opportunity may be afforded respondent to drain half a dozen acres of natural marsh.</p> <p>The court instructed the jury that if they found that-some part of the plaintiff’s l'and mentioned in the complaint, was overflowed or saturated by the water thrown back by the dam, and plaintiff in good faith sought to improve the same, and was prevented by the said water, then the plaintiff is entitled to recover the net value of the use of the land, or what it would have been worth per year had the improvements been made, which the state of the water prevented; but that he was not entitled to recover for the use of the land as if it were improved, unless he attempted to improve it, and was prevented by the wrongful acts of the defendant.</p> <p>The only triable issue in this cause was the measure of damages, and on this question the rulings of the court on admission of testimony, and the charge to the jury furnished the correct rule. Testimony was properly admitted as to the value of the use of the lands, both in an improved and unimproved condition, and also what was necessary to improve such lands in order to furnish proper data for the jury to estimate the damages sustained by plaintiff. Plaintiff having proved his title to the lands alleged to be injuriously affected by said dam, and the defendants having failed to prove any adverse right to flow said lands, the plaintiff is entitled to nominal damages in any event. (3 Kent, 440; Sedg. on Meas, of Dam. 47.) The order directing the abatement of defendant’s dam, was according to the statutory provision in such cases. (Civ. Code, sec. 330.)</p>

<p>Appeal from Multnomah County.</p> <p>This suit was brought to set aside a deed, absolute on its face, and have it declared a mortgage. Respondent, Hurford, and one Erancis, were in business as partners in a music store in Seattle, W. T. Hurford’s health was poor and the business was not very prosperous, but the concern was not insolvent. The partnership was closed, and a debt of Gray & Co., of San Francisco, amounting to one thoúsand two hundred and sixty-four dollars, was presented for collection. Appellant Harned was a merchant in Portland, a member of the firm of A. P. Smith & Co., and his wife was Hurford’s niece. Hurford went to Harned for temporary assistance in paying off the one thousand two hundred and sixty-four dollars until the money could be made on the stock of goods at Seattle, and offered Harned security on the property in question. Harned got a deed and had it made to his wife as security for his assistance. Harned made advances and assisted Hurford, but in five weeks the one thousand two hundred and sixty-four dollars and all debts were paid off, in full, from sales irony the stock of goods.</p> <p>The court below decreed the relief prayed for.</p>

<p>Indictment eor Perjury — What it must Set Forth. — In all indictments for perjury or subornation of perjury, it is necessary to set forth the substance of the controversy or matter in respect to which the crime was committed.</p>

This is a suit brought by the respondent to reform two deeds, one made April 14, 1855, by one James Loomis (now deceased) to Perry Baker, the other made March 7, 1856, by Perry Baker to Thomas Carter. It was brought against the grantees in the two deeds and the heirs at law of James Loomis, deceased. In October, 1854, Loomis filed his notification upon a section of land.

This was an action for damages for the obstruction of a highway.

Jurisdiction — Testimony may be taken by a Person appointed eob that Purpose, and Cause submitted in Vacation, ie Parties so stipulated. — The parties after issue joined stipulated that the trial of… Held: that the judgment was not void for want of jurisdiction. Appeal from Grant County. The facts are stated in the opinion.

<p>Hill began a criminal prosecution in justices’ court against Conger, charging him witb the larceny of forty-six bushels of wheat. A warrant was issued, but no arrest was made. Hill owed Conger eighty-six dollars at tbe time tbe complaint was filed. Two days after the complaint was filed, Conger, by his agent and Hill, made an agreement, by which Conger was to return to Hill forty-six bushels of wheat, valued at thirty dollars and fifteen cents, pay Hill’s attorney for his services in the criminal proceeding, pay the expenses of following up the stolen property and release the debt of eighty-six dollars which Hill owed him. Hill, on his part, agreed to acknowledge satisfaction for the injury done him by the larceny of the wheat, and procure the dismissal of the prosecution. The wheat was returned, and the attorney’s fee and other expenses paid by Conger. Hill made the necessary acknowledgment of satisfaction, and the prosecution was dismissed. Subsequently this action was brought against Conger, and a garnishee process served upon Hill. Hill returned his certificate to the effect that he was not indebted to Conger. He was thereupon, by an order, required to appear and answer written interrogatories. He did so, and answered in effect that the eighty-six dollars due to Conger had been paid by his agreement not to prosecute. Such proceedings were had that a judgment was rendered against him for sixty-three dollars and costs of the garnishment proceedings. Upon appeal to the circuit court this judgment was affirmed, the court finding, among other conclusions, that the release by Conger of the debt due from Hill was fraudulent and void as to the creditors of Conger.</p> <p>Conger and Hill appeal to this court.</p>

Tbis suit was brought by the respondents, eleven in number, against Mahala Wilson and F. M. Wilson, the appellants. The respondents, and the appellant F. M. Wilson, are the children of the appellant Mahala Wilson and of John Wilson, deceased. John Wilson left a will, in which he bequeathed all his property, real and personal, to Mahala Wilson, during her life, and to her children equally upon her death (excepting one tract of land).

<p>County Commissioners — Authorized to Employ Counsel. — The county commissioners, setting as a board, are authorized to employ attorneys to represent the county in proceedings by or against it.</p>

Respondent is the owner of certain lots in the city of Portland. On the seventeenth of January, 1877, the common council of the city passed an ordinance to improve the streets in front of those lots. On the eighteenth day of April, 1877, the council passed an ordinance assessing the cost of the improvement of said streets upon the adjoining lots.

<p>Appeal from Umatilla County.</p> <p>The facts are stated in the opinion.</p>

<p>Void Promise. — A promise made by one party without a corresponding obligation or promise made by the other party is void.</p> <p>Statute oe Frauds — Void Contract. — An agreement for the sale of personal property at a price not less than fifty dollars is void, under our statute of frauds, unless the same or some note or memorandum thereof expressing a consideration be in writing and subscribed by the party to be charged.</p>

The facts are stated in the opinion of the court. The donation law of September 27, 1850, granted, upon the conditions therein expressed, lands to actual settlers. It was a manifest assumption of the sole right to control the public lands within the territory. The title to the land in controversy was in the United States at the time of the completion of the residence and cultivation of McClure, and his rights became vested under the donation law.

<p>Appeal from Union County.</p> <p>A motion was made in this case to dismiss the appeal upon the ground that no affidavits by the sureties in the undertaking on appeal as to their qualifications were filed with the undertaking. Upon the hearing of the motion, appellant asked leave to perfect his appeal by filing a new undertaking.</p>

This is a suit in equity to set aside two deeds. The following is an abstract of the bill: On the twenty-sixth day of August, 1864, in consideration of two thousand six hundred dollars paid down, the appellant purchased of Narcissa Herpin three hundred and forty-six acres of land in question. The money was paid some time before the deed was made. The deed was drawn up by one B. DeLorme, who was acting for the respondent, delivered to him and by him recorded.

This action was brought to recover five thousand dollars for injuries to Franklin Cogswell, caused by respondent’s railroad engine and tender, while he was walking upon the latter’s track. This appeal is from a judgment of nonsuit, granted upon the motion of the respondent, after the appellant had rested his case in the court below. Additional facts are stated in the opinion of the court.

The respondents were indicted for the crime of dealing, playing and carrying on as proprietors a banking game played for money% The indictment charges that “ the said Gitt Lee, Ah Foy and Ah Gau, on the fourteenth day of February, A. D. 1877, in the county and state aforesaid, did willfully and unlawfully deal, play and carry on as proprietors thereof a banking game played for money; but of what name, is to the said grand jury unknown, said game being played with copper…

John Wilson, the appellant, was indicted jointly with George Wilson for the larceny of a steer, alleged to be the property of one Waugh. They were tried separately, and found guilty as charged. A motion for a new trial, upon the grounds stated in the opinion of the court, was interposed and overruled by the court, whereupon this appeal was taken.

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

<p>Appearance — Abandonment of Defense on Appeal in Equitv, Presumed. —Where an appeal in a suit in equity is taken to this court, and the respondent, being the defendant in the court below, fails to appear, such failure will be regarded as an abandonment of the defense. And if the appellant, being the plaintiff in the court below, makes a prima facie case he will be entitled to a decree.</p>

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

Smith was the owner of three claims against the government of the United States, agregating one thousand three hundred' and seventy-five dollars. Held: that plaintiff might disaffirm the contract and maintain an action for money had and received against the defendant.”1 (M. and Y., p. 203.) Judge Grabb, in delivering the

This is an action to recover an estate of dower. Plaintiff is the widow of Charles McKay, deceased, who died intestate on or about the twenty-eighth day of May, 1878. McKay took six hundred and forty acres of land under the donation act, one half to himself and the other to his wife the plaintiff. The required residence and cultivation was completed on the twenty-seventh of September, 1854;. but the final proofs were not made until subsequent to his-death.

<p>Composition Agreement — In what Case Liability op Third Persons to Creditor Discharged by. — N. deposited two thousand dollars with L. to be loaned to U. upon the security of a first mortgage on certain real estate. L. loaned the money, but took a second mortgage. The property was absorbed in discharge of the first mortgage. U., having become insolvent, compromised with his creditors. N. signed the composition deed without notice to L., who was a creditor of U. on a separate account, and who also signed it: Held, that ÍT., by entering into the composition agreement, released L. from liability for a breach of the agreement under which the two thousand dollars was loaned.</p>

The appellants are the owners of a tract of land upon which there is a grist-mill and a saw-mill. Both mills are run by a small stream of water known as Rock creek, the grist-mill being above the saw-mill.

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

Appellant was, at tbe October term, A. d. 1877, of tlie circuit court for Union county, and still is, district attorney of the fifth judicial district of the state of Oregon, in which district Union county is situated.

<p>Undertakings oe Officers — Nature of Actions on. — Actions brought on official undertakings are not for the recovery of fines, penalties or forfeitures witbin the meaning of subdivision 4 of section 1041 of the code of civil procedure, allowing district attorneys ten per centum of the sum recovered.</p>