Volume 8 — Oregon Reports

<p>Appeal from Linn County. Tbe facts are stated in the opinion.</p>

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

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

<p>Crime—Accomplice, Testimony oe.—In a criminal case tlie testimony of an accomplice is not alone sufficient to warrant a conviction.</p> <p>Idem—Corroborating Testimony.—Proof that the prisoner was in the same town about the time of the alleged commission of the crime is not alone sufficient to corroborate the testimony of an accomplice and warrant a conviction, and it is the duty of the court to so instruct the jury when asked to do so by the defendant.</p>

<p>Pleading—Allegation oe Ownership in Action eor Conversion.—In an action for the wrongful conversion of personal property when the complaint contains no allegation that it was either the property of plaintiff or property in which he was interested, nor any allegation that it was wrongfully taken from his possession, it is not sufficient to sustain a judgment after verdict.</p>

This is a suit in equity, originally brought by the appellants, Lnoien and Edward Remillard, ivho claim to be the legal owners of an undivided half and equitable owners of the other half of lot No. 4, of block No. 1, in the town of Union, to compel the respondent Prescott to convey to them the undivided half of said lot 4.

<p>Appeal from Polk County. The facts are stated in tlie opinion.</p>

<p>Appeal—Execution—May be Recalled, When.—When an appeal has been taken from a judgment and undertaking given for a stay of proceedings, an execution issued thereon may be recalled and set aside by the circuit court on motion.</p> <p>Idem—Evidence not Produced in Lower Court.—No paper or other evidence not produced at the hearing of the motion in the circuit court can be considered by the appellate court.</p>

This is an action to recover upon an express contract for the maintenance of the infant illegitimate son of the parties.

<p>Final Settlement oe Estate—Rejected Claim.—Where one having a claim against the estate of a deceased person presented it to the administrator for allowance, and it was rejected by him, and no action was afterwards commenced by the claimant against the administrator to establish its validity, the holder thereof can not after the final settlement of the administration accounts maintain a suit in equity to recover the claim from the next of kin of the deceased person out of any distributive share which he may have received.</p>

<p>Conveyance—Reservation in a Deed.—Where a person owning a tract of land sells a portion thereof which is surrounded by his other lands, and describes the lands conveyed by metes and bounds, and then excepts a strip included in these bounds off of three sides of the land so described, for a road; held, that the fee passes by the deed subject to the right of way for a road.</p>

It is alleged on behalf of the respondent that in March, 1873, the appellant undertook with the respondent for compensation to loan two thousand dollars for the respondent upon adequate first-mortgage security; that he negligently loaned the money to J. B. and C. B. Upton, upon the security of a second mortgage on certain real estate in East Portland; that there was a prior unpaid mortgage of record upon the property taken; that the property so mortgaged was sold, upon…

<p>Negligence—Passenger mat Land at Intermediate Points.—A passenger for hire, traveling upon a steamboat, has a right to go ashore at any point where such boat may land, before arriving at his destination, without forfeiting his rights as a passenger to safe ingress and egress.</p>

<p>A Purchase at an Execution Sale by a sheriff, depends upon the judgment, the levy, and deed. All other questions are between the parties to the judgment and the sheriff.</p> <p>Sheriff’s Sale—Order of Confirmation Conclusive of Regularity of Sale.—By sec. 293, subd. 4, of the code, an order confirming a sheriff’s sale is a conclusive determination of the regularity of the proceedings concerning such sale, as to all persons in any other action, suit, or proceeding whatever.</p>

<p>Pleading—Denial on Information and Belief.—Where the plaintiff in his reply used these words: “But whether the defendant was at the time a non-resident of this state, plaintiff has no knowledge or information thereof sufficient to form a belief, and therefore denies the said allegation:” Held, that this was a sufficient denial of the allegation of non-residence.</p>

<p>Sewer Improvements—Proceedings Relating to Streets do not Apply.—The common council of the city of Portland, under section 106 of the charter, has power to lay down necessary sewers, and charge their cost to the property directly benefited; and it is not necessary, before proceeding to construct such sewer, that the council shall declare by ordinance that the sewer is necessary, or create a taxing district to be charged with the cost of its construction.</p>

<p>Appeal from Marion County.</p> <p>This is a suit begun November 5, 1869, for a dissolution and settlement of a copartnership. The case was referred to a referee to report findings of fact and conclusions of law, and upon his report a decree was rendered, in the circuit court, in favor of the respondents, dissolving and settling the copartnership. Erom that decree, the defendant, Simeon G. Elliott, brings this appeal.</p> <p>The facts in the case are substantially as follows: On or about the twenty-second day of April, 1867, a corporation was formed under the general incorporation laws of this state, under the name of the Oregon Central Railroad Company, for the purpose of building and operating a railroad from Portland, Oregon, southward to the California line, on or near the stage road, and having its principal office in Salem, Oregon. The capital stock of the corporation was seven million two hundred and fifty thousand dollars, divided into seven thousand two hundred and fifty shares of one hundred dollars each. On the day the corporation was formed, six different persons subscribed one share each to this stock, and thereupon there was an attempt to subscribe seventy thousand shares by the company, of its own stock, by a subscription, as follows: “Oregon Central Railroad Company, by Geo. L. Woods, Chairman, seventy thousand shares—seven million dollars.” Upon the same day, the corporation entered into an agreement with Elliott, acting for A. J. Cook, for the construction of one hundred and fifty miles of road. This contract was modified by a supplemental contract, on November 27, 1867.</p> <p>On the twentieth of May, 1867, Elliott assigned seven twentieths of this contract to one Perrin, and thereupon Perrin and Elliott formed a partnership under the name of “A. J. Cook & Co.,” for the carrying out of the contract in question. On the twenty-ninth of the same month, Elliott assigned one tenth of the contract to one Elint. In April, 1868, he assigned seven twentieths to Eroham, and in March, of the same year, he assigned to Brooks two twentieths, and to Gardiner Elliott one twentieth. About the twelfth day of May, 1868, the appellant, S. G. Elliott, in the name of A. J. Cook & Co., entered into another agreement, or contract, for the construction of the balance of said road from the end of the first one hundred and fifty miles to the California line, being two hundred and ten miles more or less. On the second of May, 1867, A. J. Cook, for a consideration of one dollar, assigned the contract of April, 1867, to the appellant.</p> <p>On the twelfth of September, 1868, the respondents, Holladay and Emmet, and the appellant Elliott, formed a partnership for the purpose of taking, by assignment, the contracts of A. J. Cook, and A. J. Cook & Co., with the railroad company, and of constructing and operating one or more railroads in Oregon and the adjacent territories. The interest of each in the partnership was as folloivs: Holladay, twenty-four fortieths parts; Emmet, ten fortieths; Elliott, six fortieths. This is the partnership involved in this suit. The various interests in the contracts referred to passed to this partnership. It was a part of the agreement of partnership, that Elliott should not be required to advance money in carrying out the contracts of construction; but, that when the partnership should realize enough on its contracts to cover expenses, he should be charged with his proportion of the expenses, and that he should be general superintendent in the construction and operating of the road, at a salary of five hundred dollars per month. A further stipulation in this agreement is contained in the following writing, delivered to Elliott by Ben Holladay & Co., that being the partnership name:</p> <p>Office Ben Holladay & Co., )</p> <p>Portland, Oregon, September 12, 1868. (</p> <p>S. G, Elliott, Portland—Hear Sir: On our purchase of this date from A. J. Cook & Co. of the pending contracts .with the Oregon Central Railroad Company for the construction of the railroad from Portland to the California line, it is understood that we are to pay you the money furnished by you to the firm of A. J. Cook & Co. and standing to your credit on their books. This money is stated by you to amount to about twenty-one thousand dollars. When the accounts are fully made up and the balance correctly ascertained, you will be entitled to our obligations for the correct amount. Respectfully yours,</p> <p>Ben Holladay & Co.</p> <p>The partnership of Ben Holladay & Co. built a part of the road under these contracts, and appropriated it to their own use, the O. C. R. R. having no legal organization. Subsequently the partnership sold the road to a new corporation formed to purchase and complete it. While the work was progressing Elliott was discharged from the position of general superintendent for incompetency. The respondents claim that Elliott made false and fraudulent representations, to induce them to go into the partnership in question, as to the financial standing and character of A. J. Cook and A. J. Cook & Co., as to the amount of money advanced by them towards the building of the road, as to the bonds which were available in their hands, the amount of work already done, the cost of completing the road to Salem, and as to his own competency to superintend the construction and operating of the road. The referee, Mr. J. 0. More-land, reported fully upon all the issues in the case, and found that the respondents were entitled to recover from the appellant five hundred and thirty dollars and eighty cents.</p> <p>The case was tried upon the findings and testimony by Mr. Justice Boise at circuit, and some modifications made in the findings of the referee. The circuit court found for the respondents in the sum of four hundred and seventy-seven dollars, but not for costs.</p>

<p>Marriage Contract—’Fraudulent Concealments a,t Time oe.—Where a woman before marriage conceals from her intended husband the fact that she had some time before been the mother of an illegitimate child, such concealment is not such a fraud as will annul the marriage.</p> <p>Grounds eor Divorce—False Accusation or Unchastity.—If a husband or wife either falsely accuse the other of unchastity, such accusation is a sufficient cause for a divorce.</p>

<p>Public Road—County Court may Make. Agreement eor Appropriation by Private Corporation.—A corporation, having been organized to construct a road, located a portion of its road upon a public road, but made no application to the county court to agree upon the extent, terms, and conditions upon which such public road might be used, as provided in section 26 of the corporation law. Afterwards another corporation was organized to construct a road, and made an agreement with the county court as to the extent, terms, and conditions upon which the public road might be appropriated by the corporation as a part of its road. Held, that such agreement was valid, and that the corporation first organized had not the excluse right to contract with the county court for the use and appropriation of the public road, although it first surveyed and located the line of its road on the public highway. Per Mr. Justice Boise, dissenting: A road corporation may, when it is necessary and convenient, locate its road on the county road, whether the county court assent to it or not, and having done so, the right becomes property of which the corporation can not be deprived by the county court. The assent of the county court is only necessary to the right to collect tolls upon the road appropriated.</p>

<p>Appeal from Multnomah County. The facts are stated In the opinion.</p>

<p>Construction of Will—Vested Legacy.—A testator made the following bequest: “I give and bequeath to my nephew, P. M. S., one tenth of all my personal property, outside of my real estate, the said one tenth to be given to him when he is twenty-two years of age.” Held, that 3?. M. S. took a vested legacy; and that having died before he became twenty-two years of age, his personal representative is entitled to recover the legacy.</p>

<p>Chattel Mortgage—Foreclosure where Mortgage Provides Manner oe.—Where, in a mortgage of chattels, there is a manner provided for foreclosing the same, either party may insist that the foreclosure shall be in the manner provided; but such party must comply with the mortgage stipulation on his part. If the mortgagor insists that the foreclosure be in the manner stipulated, he must, if delivery of possession to the mortgagee is necessary to such foreclosure, deliver the mortgaged property to the mortgagee to enable him to sell the same.</p> <p>Idem—A Mortgagor may Sell or assign mortgaged personal property, subject to the lien of the mortgage.</p>

This action, as appears by the complaint, was brought to recover personal property with damages for the withholding thereof. The cause was tried in the circuit court by a jury, who found generally for the plaintiff, and assessed his damages at the sum of three hundred dollars.

<p>Severable Contract.-—T. contracted to cut and deliver at the mill of M. one million feet of merchantable logs within the year, at four dollars and twenty-five cents per thousand feet, to be scaled and received as each one hundred thousand feet were placed in a certain creek. Held, that the contract was severable and not entire.</p>

<p>Joint Wrong-doers—General Verdict.—Where, in an action for a wrongful conversion of property against two defendants, both answer, and a general verdict is rendered, it is a verdict against both defendants, and judgment should be given against both. But if, in such case, judgment is rendered against one only, it is error. If the defendant against whom the judgment is rendered appeals from the justice’s court where the judgment was rendered, to the circuit court, and on the trial had in the circuit court both defendants appear and defend, the circuit court has jurisdiction to render judgment against both defendants on a verdict of guilty against both.</p> <p>Pleadings, Affidavits not Admitted to Explain.—In order to determine the issues to be tried in an action, the court can only look to the pleadings, which cannot be enlarged or explained by affidavits.</p>

<p>Road Supervisor—Sole Judge of Necessity for Taking Materials.— In repairing a public road, the supervisor of roads has authority to enter upon any lands adjoining or near the public road, whether the same be inclosed or not, in order to obtain stone with which to repair the road; and the supervisor alone is to be the judge whether it is necessary to use stone or not in order to make the repairs.</p> <p>Idem—Court of Equity will not Interfere.—So long as the supervisor does no act to willfully oppress or annoy the owner of the premises where the stone or other materials are procured to repair the public roads, a court of equity will not interfere to restrain him in the discharge of his official duties as supervisor.</p> <p>Idem—Damages—County Court must Assess.—If the owner of lands from which stone or other materials are taken to repair the public roads feels aggrieved by the acts of the supervisor, he must apply for redress to the county court, while transacting county business, to assess and determine the damages sustained by him.</p> <p>Damages Assessedwithout Jury.—Section 29 of chapter 50 of the miscellaneous laws, which provides for the assessment of damages for taking stone or other materials to repair the public roads, is not unconstitutional because it authorizes the county court to assess the damages without a trial by jury.</p>

This is a suit by the appellants to set aside a conveyance executed by one John G. Parrish, on March 14,1876, to the respondents. The complaint, in substance, alleges “that John G. Parrish died in Yamhill county, state of Oregon, on the tenth day of November, a. d. 1876, and left surviving him, as heirs at law, the above-named appellants—Sarah Biglow, Margrette E. Chrisman, Wm.

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

One Thomas Robertson, having a mortgage upon certain real property, brought a suit of foreclosure against D. W. Williams, the mortgagor. Subsequent to the Robertson mortgage and on June 13, 1877, Williams, the mortgagor, had, so it was claimed, conveyed the mortgaged property to one C. W. Prindle, in trust for the benefit of his creditors.

<p>Evidence—Value oe Property, Purchase Price not Material.—In an action to recover the value of horses killed by a railroad, the plaintiff, testifying as to the value of the horses, stated on cross-examination that he bought and paid for them in sheep at a stated price. The defendant then asked where he gut the sheep, how much he paid for them, and whether they had been sheared: Held, that such questions were irrelevant.</p> <p>Slight Negligence will not prevent a recovery, if the negligence complained of has been gross.</p>

<p>Coroner’s Fees—Summoning a Jury.—Where in a statement of expenses of a coroner’s inquest returned by the coroner to the county court, said coroner has charged five dollars for summoning a jury, the court may, in its discretion, allow a less sum.</p> <p>Idem.—County Court may Allow in Its Discretion.—No fee is fixed by the statute for the coroner for summoning a jury of inquest. The county court may fix the compensation in such case. The finding and order of such county court, in such a case, is not the subject of a writ of review.</p>

<p>Evidence oe Prior Accident in Action eor Negligence.—In an action against a railroad company to recover damages for an injury sustained by one of its passengers in consequence of alleged negligence on the part of the company, evidence of another accident having occurred at the same place, under similar circumstances, is inadmissible.</p> <p>Contributory Negligence—Drunkenness—Proximate Cause.—Drunkenness is not a defense by way of contributory negligence, unless it was the proximate cause of the death of the deceased. If the person injured got drunk under such circumstances that any reasonably prudent man could foresee that he was putting himself in such a condition that that which resulted might probably happen, then his drunkenness would be a defense.</p> <p>Idem—Passengers, Presumptions by.—A passenger has no right to presume that a ferry boat has landed on account of the chain guard and barriers across the bow of the boat being down, when warned and personally notified at the time by those in charge that a landing had not been made.</p>

The appellant was tried and convicted of the crime of rape, at the March term of the circuit court for Linn county.

<p>Appeal from Clatsop County.</p> <p>Tbe appellants are husband and wife. Tbe respondent alleges, that on tbe thirteenth day of July, 1878, be recovered judgment against tbe appellant, Peter Grant, for seventy-seven dollars and twenty-seven cents, upon which an execution was issued on the twenty-fifth of the same month, and returned unsatisfied except as to four dollars; that on July 10,1877, Grant entered into a contract with one Armstrong, for the purchase of the property in question; that thereafter, on the eighteenth of July, 18.77, and after the greater portion of the debt recovered upon had been contracted, the appellants, for the purpose of defrauding their creditors, and to prevent the respondent from collecting his claim, caused the property bargained for by Peter Grant, to be conveyed by Armstrong to Bridget, Peter’s wife, without consideration. The appellants deny that the indebtedness in question was contracted prior to the conveyance complained of, or that there was any indebtness by Peter Grant to Hamburger, at that time, or that the conveyance was fraudulent, and it is alleged that the property described was purchased by money which constituted a part of Bridget’s separate estate.</p> <p>The referee found that at the time the conveyance was made, Peter Grant was only indebted to Hamburger in the sum of three dollars and fifty cents. The court below found that the conveyance from Armstrong to Bridget Grant was made in contemplation of future, as well as of existing debts, and was fraudulent, and decreed that it be set aside.</p>

<p>This is a suit brought to have the appellant, Moses Rogers, decreed to be a trustee for the respondent, Parker, of whatever title he acquired under and by virtue of a deed executed by the board of tide land commissioners to said Rogers, lot 3, in block 8, in McClure’s addition to the city of Astoria. The facts are as follows:</p> <p>One John McClure, prior to the twentieth day of April, A. d. 1850, was a white male citizen of the United States, a resident of Oregon, and a married man, and was a settler and residing upon, and cultivating, that part of the public domain in Oregon afterwards known as McClure’s Donation Claim, upon which a portion of the town of Astoria now stands, and which claim embraced so much of lot six in block eight as lies above ordinary high-water mark of the Columbia river. After the passage of the act of congress of September 27, 1850, commonly known as the donation law, John McClure notified upon and continued his residence upon and cultivation of said donation claim, and in all respects complied with the conditions and provisions of said act, so as to become entitled to said donation and to a patent; and on or about the twenty-seventh day of March A. d. 1866, a patent was duly issued to said McClure and Louisa, his wife.'</p> <p>Prior to the twentieth day of April, 1850, McClure had laid off a portion of said donation land claim as a town site into lots and blocks—the blocks numbered from one to eight and over—and made a map thereof. Block eight on said map, as laid out, was situated partly below and partly above ordinary high-water mark of the Columbia river —that is to say, ordinary high-water mark of the river crosses lot 6 in block 8, several feet south of the north end of said lot; and ordinary low-water mark crosses lot 3 in block 8 several feet north of the south line of lot 3—lot 3 lies immediately north of and adjoining said lot 6. On the twentieth of April, 1850, McClure delivered to one W. S. Keene his obligation under seal, and reciting that he had sold lot 6 in block 8, 44 being fifty feet front by one hundred in depth only, and bounded on one side by the Columbia river,” and obligating himself and his heirs to make to Keene a deed in fee simple to the lot, “bounded as above described,” 4 4 with a full reservation of all and every privilege around said lot.”</p> <p>About the fourth of February, 1858, McClure and wife conveyed all their interest in the donation claim to Cyrus Olney, including so much of block eight as was situated within the boundaries of the claim, and all the riparian rights appurtenant thereto. Olney took with notice of Keene’s purchase. Thereafter, and on the nineteenth of September, 1865, Olney conveyed to the appellant said lot six in block eight. The deed contained a reservation in the following words: “Exclusive of any wharfing privileges.” The appellant had already succeeded to the rights of Keene in said lot six, and was in possession of so much of it as lies above ordinary high water. Thereafter, and for a valuable consideration, Olney conveyed to the respondent, Parker, lot three in block eight.</p> <p>The appellant, Rogers, on the third day of August, 1876, procured from the board of commissioners for the sale of state lands, a deed from the state for the tide lands in front of lot number six, which covers, and under which he claims lot number three. Prior to the application by Eogers to purchase from the state board, Parker, the respondent, had erected a wharf and building.</p>

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

<p>Administration—Jurisdiction or County Court—Distribution or Personal Property.—The county court has exclusive jurisdiction over the distribution of the personal property of deceased persons, and if there be an antenuptial contract which affects such property it should be proved before such court and the rights of the parties thereunder determined by such county court.</p> <p>Idem—Orders Pinal, When.—If parties interested in the estate do not appeal from orders of the county court duly made, such orders become final and can not be inquired into in a court of equity.</p>

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

<p>Complaint—Cause op Action—Damages eor Breach oe Marriage Contract.—Where-it is averred in the complaint that the respondent, at the request of the appellant, promised to marry him at such time as she should come from Washington city to Portland, Oregon, at Ms request, and that she did so come about the fifteenth day of April, 187S, and on that day the appellant again promised to marry her about the twentieth of May, 1878, hut instead thereof, on the third day of June, 1878, married a Mrs. Harvey, although he had notice all of said time that respondent was ready and willing to comply with her said agreement: Held, that the complaint alleged facts sufficient to constitute a cause of action.</p> <p>Instructions must Appear to have been Pertinent.—The refusal of the circuit court to allow certain questions propounded to a witness to be answered will not be held error, unless it can be ascertained from the bill of exceptions, and other portions of the record, that they were pertinent and relevant.</p> <p>Marriage Contract—Request to Marry.—If appellant agreed with and offered to marry respondent in Washington, and afterwards, by mutual consent, it was arranged between them that she come to Oregon, at which place the marriage should he consummated, and with that understanding respondent did come to Oregon, and was then ready and willing to marry him, married a third person, then the respondent was entitled to recover without first showing any request to offer to marry appellant.</p>

<p>Appeal from Douglas County.</p> <p>In this cause the respondent moves to dismiss the appeal: 1. Eor the reason that the undertaking is limited in amount to the sum of two hundred dollars. 2. Because no affidavits are filed, undertaking as to the qualifications of the sureties thereto. After this motion was called for argument and the counsel for respondent had opened the case, and while he was making his argument upon the motion, the counsel for appellants filed a cross-motion asking leave to file a new and sufficient undertaking.</p>

<p>Measure on? Damages—Warranty oe Engine.—In case of a breach of warranty in the sale of an engine to be used in elevating grain at a warehouse, the warrantee is entitled to recover of the warrantor such damages as naturally, according to the usual course of things, would result from the breach, and the necessary expense incurred by the warrantee in putting up said engine would be such natural damages. So, also, the expense incurred by the warrantee in handling and storing grain while trying to work the engine which proved a failure.</p> <p>Idem—Promts op Business.—As a rule, the loss of the profits of a business which has been interrupted by a breach of warranty can not be claimed, unless the parties are shown to have contemplated, or can reasonably be presumed to have contemplated such loss at the time the contract was made.</p>

On the twenty-fifth day of October, 1878, the appellant was jointly indicted with Lee Jong and Charlie Lee Quong for tbe murder of Chin Sue Ting. Lee Jong was never arrested. Tbe others, tbe appellant and Charlie Lee Quong, were tried together, and convicted of murder in tbe first degree, and sentenced to be banged on the seventh day of February, 1879. They appealed from the judgment to tbe supreme court at tbe January term, 1879.

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

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

<p>Appeal from. Yambill County.</p> <p>The defendant ivas sheriff and tax collector of Yamhill county from July 1, 1876, to July 1,1878. He wasindicted by the grand jury of said county at the March term of the circuit court of said county for 1879, for larceny of public money.</p> <p>The crime charged is described in the indictment as follows: “As such sheriff and tax collector of said Yamhill county, said H. C. Dale had received and had in his possession in said Yamhill county on the seventh day of August, A. D. 1878, the sum of three thousand dollars in gold and silver coin of the United States of America, belonging to and being the property of said county pf Yamhill, which said money he had received and collected between the fifteenth day of September, A. D. 1877, and the seventh day of August, A. D. 1878, as taxes, assessed and duly levied by the county court of said county, and that the said H. C. Dale on the said seventh day of August, A. D. 1878, in said Yamhill county, state of Oregon, then and there being, and having in his possession said sum of three thousand dollars, w’hich belonged to, and was the personal property of said Yamliill county, Oregon, and which he had collected and received as taxes as aforesaid, did then and there fraudulently and feloniously, take, steal, make away with, embezzle and convert to his, H. C. Dale’s, own use, the said three thousand dollars, and then and there neglected and refused to pay over, and does still neglect and refuse to pay over to said county of Yamhill, said three thousand dollars, or any part thereof, as by law directed and required; said county of Yamhill being all of said time a public corporation in the said state of Oregon, and the grand jury being unable to give or ascertain a more definite description of said money than that above given. Contrary to the statute,” etc.</p> <p>Upon the trial the jury returned the following verdict: “ We, the jury in the above-entitled action, find the defendant guilty as charged in the indictment, and find that the amount of money converted was the sum of twenty-five hundred dollars.”</p> <p>The defendant was fined five thousand dollars and sentenced to five years’ imprisonment.</p> <p>The indictment is based upon section 559, page 4M, of the criminal code, which is as follows: “ If any person shall receive any money whatever for this state, or for any county, town, or other municipal corporation therein, or shall have in his possession any money whatever belonging to such state, county, town, or other corporation, or in which such state, county, town, or corporation has an interest, and shall in any way convert to his own use any portion thereof, or shall loan, with or wdthout interest, any portion thereof, or shall neglect or refuse to pay over any portion thereof, as by law directed and required, or when lawfully demanded so to do, such person shall be deemed guilty of larceny,” etc.</p> <p>The appellant claims that this section does not include the acts of the tax collector, and that the appellant was liable only under section 65, p. 763, of the General Laws, which is in the following words: “The sheriff shall pay over all moneys collected by him, on any tax list in his hands, to the treasurer of the county at least once a month, taking a duplicate receipt for the same, which he shall file with the clerk of the county court of his county immediately thereafter; and any sheriff failing to comply with the provisions of this section shall be deemed guilty of a misdemeanor,” etc.</p> <p>The appellant further claims that the court erred in permitting the prosecution to show the receipt by the appellant of more than one sum of money from different persons; that if the appellant was guilty, the receipt of different sums from different persons on the conversion, constituted distinct offenses triable by separate indictments.</p> <p>An exception was taken to the ruling of the court, upon a challenge to one of the jurors. The facts which explain this exception are stated in the opinion.</p>

<p>Larceny of Different Articles, One Offense.—Where a person is charged with the larceny of a horse, saddle, and bridle, taken at the same time and place, and from the same person, the whole transaction constitutes but one crime, and but one indictment can be sustained for such taking, and if the prosecution see proper to split up the transaction into two offenses, by causing two indictments against such person for that which is but one crime, a conviction or acquittal on one may be pleaded as a bar to a subsequent prosecution on the other.</p> <p>Idem.—When a man has done a criminal act the prosecutor may carve as large an offense out of the transaction as he can, yet he must cut only once.</p>

<p>Appeal from Marion County.</p> <p>This is an action for the conversion of an organ. The appellants claimed title to the organ through a purchase from D. N. Hedges, in September, 1878; the respondent, to defeat the claim, introduced testimony tending to show that Hedges never owned the organ; that he held it under a written agreement between himself and S. A. Nichols, executed in September, 1877, by the terms of which said organ was to be the property of Nichols until paid for, and that it had not been paid for; the pretended agreement was lost, and it is claimed that the following is a copy, excepting that it contains no signature by Hedges and no date, to wit:</p> <p>“Received from S. A. Nichols, one Burdett organ, of the value of one hundred and forty dollars, for which I executed and delivered to said S. A. Nichols my promissory note bearing date of September 1, 1877. Now, therefore, if I fail to pay according to the terms of the said note, I do hereby agree to pay to said S. A. Nichols the sum of five dollars per month rent for the organ, and to relinquish all claim on the organ and to return the same to said S. A. Nichols at my own expense; and it is further agreed that the said organ shall belong to and be the property of the said S. A. Nichols until the said sum of money is all paid. "When this sum of one hundred and forty dollars, the value of the organ, is all paid, the said organ, together with this contract, shall belong to and be delivered to David Hedges. (Signed,) S. A. Nichols.”</p> <p>Hedges testified that he never executed said pretended agreement; that he purchased said organ from Nichols by an absolute parol sale, and gave his promissory note therefor, which matured about September 1, 1878. The testimony and the answer of the defendant showed that Nichols, in' October, 1878, obtained in said circuit court judgment on said notes, and compelled the defendant, as sheriff, to sell said organ, as the property of Hedges, on an execution to enforce said j udgment.</p> <p>Among other things the court charged the jury as follows, to wit: “The defendant offers in evidence a copy of said written agreement. And this paper (holding in his hand the pretended copy above referred to) having been proved to be copy, and admitted in evidence, it becomes my duty to construe it.” Also the following: “ Whether it was wise,, or unwise, for Hedges to make such a contract is not for us to determine. We are to take it as it is and give to it its legal effect.” Also, the following: “Unless you find that Hedges obtained a title otherwise than by or under this instrument, of which this is a copy, he did not own the organ.”</p> <p>The jury found for the respondent and he had judgment, from which this appeal is taken.</p>

This is an action for the abatement of a nuisance and for damages; brought under section 330 of the code.

This was an action on a promissory note, which is in the following words and figures, to wit: “Buena Vista, February 20, 1878. “ On or before January 1, 1879, I promise to pay to W. R. Findley, or order, the sum of one hundred and nine dollars, with interest at one per cent, per month, from date until paid, for value received. (Signed) “H. Taylor Hill, “M. Scrafford.” Hill failed to answer, and was defaulted.

<p>Pabol Agreement, Possession oe Land under.—Where one man agrees by parol with another to lease land for a term of years, to begin in the future, and agrees to put such parol contract in writing, and no consideration passes between the par-ties, either party may disregard the parol contract, and if the lessee go on the land at the commencement of the term named in the parol agreement without the request of the lessor, his possession thus obtained will not give him any rights under such parol agreement.</p>

The complaint alleges, in substance, that plaintiff on and. before June 3, 1873, was, and ever since has been, the owner and entitled to the possession of the premises described; that on the third of June, 1873, defendant wrongfully entered upon and took possession of said premises, and wrongfully detained the same until the sixteenth day of February, 1878, to plaintiff’s damage, one thousand five hundred dollars; that there was a crop on said premises of the value of two…

<p>Estoppel—Deed, Recitals, Admissions, or Covenants in.—Where it dis-. tinctly appears in a deed of conveyance of real estate, either by a recital, an admission, a covenant, or otherwise, that the parties actually intended to convey and receive reciprocally a certain estate, they will he estopped from denying the operation of the deed according to this intent.</p>

<p>Toll Road—Road Corporation mat Use Public Highway.—A corporation organized under the general incorporation law of this state to construct a plank or clay road, is authorized by law to appropriate and use any part of a public road which may be necessary and convenient in the location of such plank or clay road; but the corporation does not thereby acquire the right to exclude another corporation subsequently formed for the same purpose, from appropriating and using the same part of the public road when it is necáisary and convenient in the location of its road.</p> <p>Franchise—Grant Strictly Construed.—The grant of a franchise is to be strictly construed against the grantee, and nothing passes by implication. It is not exclusive unless expressly made so by the grant itself.</p>

On the eighteenth day of November, 1878, the respondent commenced an action against Jason Springer & Co., on a promissory note executed and delivered by them, and made payable to the order of A. Crawford & Co., for one thousand one hundred and fifty dollars, which was duly indorsed and transferred to the respondent.

<p>Custom—Proof of, When Required.—Where a plaintiff alleges a right to-appropriate water under a local custom, and such allegation is denied, the plaintiff must prove such custom and a compliance therewith. The court does not take judicial knowledge of local customs concerning water rights. To claim and hold water appropriated under a local custom, such as is recognized by the act of congress of the twenty-sixth day of July, 1866, the claimant must allege and prove a custom such as is named in said act.</p>

<p>Dower—Administrator—Possession oe Estate.—A widow is not entitled, immediately on the death of her husband, to receive one third of the rents and profits of the lands of which he was the owner and died seised, in right of her dower interest therein, but the executor or administrator of the estate is entitled to the possession and control of the same, and to receive the rents and profits thereof, to be applied to the satisfaction of claims against the estate.</p>

This is a suit by the respondent to enjoin the appellant from diverting any part of a certain stream of water from respondent’s premises, and from preventing any more than one third of such flowing upon the respondent’s premises at the southeast corner of his farm, and for damages.

This is a suit to enforce a trust concerning real property, and for an injunction and damages against the appellants. Tlie respondent corporation was incorporated for tlie purpose of owning and working certain placer mining claims, with a capital stock of two hundred thousand dollars, in shares of the par value of one dollar each.

<p>Will—Extraneous Oral Evidence Admissible, When.—While it is admitted to be the general rule that oral evidence is not admissible to explain or vary the words of a written instrument, there are exceptions and qualifications of the rule, where the force, operation, and construction of the written instrument are concerned. Falsa demonstratio non nocet has become a thoroughly established maxim of the law, the practical meaning of which is that however many errors there may be in the description either of the legatee or of the subject-matter of the devise, it will not avoid the bequest, provided enough remains to show with reasonable certainty the intent of the devisor. Extraneous oral evidence is admissible to show the state and extent of the testator’s property at the time the will was executed, in order that the court may be placed in the position of the testator at the time and be able to read the will in the light of surrounding circumstances.</p> <p>Idem—Misdescription oe Devised Property.—Where a will devised to Margaret lot 2 in block 187, and to Esther lot 1 in block 187, and it appeared that the testator had no such lots as 1 and 2 in block 187, but did own lots 3 and 4 in said block: Held, that the erroneous part of the description might be rejected and that the remainder was sufficient to identify the property with reasonable certainty.</p> <p>Married Woman Residing out oe State may Execute Power to Convey. —Where a married woman owns land in this state inher own right and she and her husband reside out of the state, she may, by joining in a power cf attorney with her husband, empower another to convey such property.</p>

On the twenty-tliird day of June, 1851, Hubert Petit and Emerance Petit, his wife, commenced to reside upon and cultivate a certain tract of land containing one hundred and ninety-five acres, and continued to reside thereon and cultivate the same for four years, as required by the donation land law of Oregon. The north half of the claim was set apart to the said Emerance, and the south half to the said Hubert Petit, and a patent was afterwards issued to them.

<p>Pleading—Statute of Limitations of Another State.—An answer wliieh alleges that the note on which the action is based was executed in the State of California, and that the maker thereof was a resident of said state at the time of its execution, and has been ever since, is insufficient. Under section 26 of the code, in pleading the statute of limitation in force in another state, in bar of the action,! it must be averred that the cause of action arose in that state, and was Between non-residents of this state.</p> <p>Promissory Note—Pelease of one Joint Maker.—A release of one joint maker of a joint and several promissory note, by the holder thereof, operates as a discharge of all the joint parties to said note.'</p> <p>Affidavit for Attachment—Ultimate Facts only to be Stated.—Under the act of 1876, an affidavit for an attachment need not state the probative facts out of which the indebtedness of defendant arose, but it is sufficient if the ultimate facts required by the statute be shown as the basis of the writ.</p>

This is an action brought upon an undertaking in an action of replevin, heretofore brought by the appellant McGrew against this respondent, for the recovery of certain wheat and oats. The undertaking in the replevin action was executed by McGrew, with Townsend and Logan as sureties, and was for the immediate delivery of the property sued for, which delivery was had.

This action is founded on an instrument in writing whereby the respondent agreed to deliver to the appellant a sufficient number of American brood mares and colts at their actual cash value to amount to one thousand dollars, at Wain Claypool’s, on the Upper Ochico, in Wasco county, Oregon, on the first day of October, 1878.

On tbe sixteenth day of August, 1872, the respondent sold and conveyed to W. T. Baxter five acres of land for a mill-site, and on the same day, by a separate deed, conveyed to him a right of way across his land for a millrace, for the purpose of floating logs and supplying the mill with water, as follows: “This indenture, made the sixteenth day of August, 1872, between Warren N. Vaughn, of the county of Tillamook and state of Oregon, of the first part, and William T. Baxter,…

• The board of equalization of taxes for Yamhill county, at its September term, 1879, caused a notice to be served upon Edgar Poppleton, the respondent, in accordance with sections 38 and 39 of chapter 57, Miscellaneous Laws, requiring him to appear before said board, and show cause, if any he had, why certain notes and mortgages described in said notice, should not be assessed to him.

<p>Appeal from Yambill County.</p> <p>This was an action brought by the respondent against the appellant in a justice’s court to recover thirty-three dollars and forty-five cents. The case was tried with a jury, and the plaintiff had a verdict for the amount claimed, upon which a judgmen t was rendered. Subsequently it was discovered that the justice had inadvertently omitted to swear the jury. Thereupon, on motion of the respondent, the judgment and verdict were set aside and a new trial ordered. Upon the second trial the respondent failed to appear, and the appellant had judgment. The respondent then obtained a writ of review, upon which the second judgment was reversed and the first affirmed. From the order thus made this appeal is taken.</p>

<p>School Land—Purchaser’s Right to Sever Timber beeore Completing Payments.—The purchaser of a tract of school land, having paid one third part of the purchase-money, and received a certificate of purchase under section J 0, p. 632, of the Code, afterwards cut and piled up a quantity of cord-wood on the land, and then assigned his certificate of purchase; the assignee did not thereby become entitled to the wood by virtue of the assignment of the certificate. The wood so cut became personal property when severed from the realty, and belonged to the purchaser of the land who cut and piled it up; and it did not remain the property of the state until the land was fully paid for.</p>

<p>Devise—Speaks prom Time op Testator’s Death.—The general rule is, that a devise, in designating the objects of the testator’s bounty, speaks from the time of his death, unless a contrary intent can be inferred from some particular language of the will, or from such extrinsic facts as may be entitled to consideration in construing its provisions.</p> <p>Will—Construction.—The will of G. provided as follows: “I.deviseall that may remain of my real and personal property, to each of my living children, and the children of my deceased daughters, alike. ” Held, That the latter being mentioned in their representative capacity, thus evincing the purpose of the testator to give them the shares their mothers would have taken if they had survived him, the property should be divided per stirpes and not per capita.</p>

<p>. Appeal from Tambill County.</p> <p>This suit is a suit to quiet title. The respondents claim as devisees of Mary Ann Gerrish, and the appellants claim as her heirs at law. The appellants claim, that as to them the will of Mary Ann is void, because they, being the children and grandchildren, representing deceased children, are neither named nor provided for in the will of Mary Ann. Mary Ann made no mention of or provision for the appellants, except that her will contained the following provision: “I direct that whatever may remain at my death of the personal property bequeathed to me by my late husband, James Gerrish, for my life, shall at my death be distributed in accordance with the provisions made in the last will of my said husband concerning the same.” The will of James Gerrish, referred to, provided as follows: “I give and bequeath to my beloved wife Mary Ann all the rest and residue of my personal property for her life-time; at her decease I do devise and bequeath all that may remain of my real and personal property to each of my living children and the children of my deceased daughters alike, to be divided as a majority of them shall say, by sale or otherwise.”</p> <p>The controversy is concerning the construction of Mary Ann’s will. If it be held that the heirs generally are named or provided for, then the appellants take nothing; otherwise, Mary Ann as to them died intestate and they have a valid and subsisting estate and interest in the lands in controversy.</p>

The respondent brought an action in a justice’s court against the appellant, to recover a balance due him on an account. A summons was issued and served on the appellant, requiring him to appear “on the twenty-sixth day of March, 1879, at one o’clock in the afternoon of said day,” etc. On that day the following proceedings were had before the justice, as appears by his docket: “March 26, A. D. 1879, one o’clock p. M. Cause called.

On the twenty-ninth day of May, 1879, in pursuance of ordinance No. 2427, duly passed by the common council, the appellant entered into a contract with city of Portland, for the improvement of Tenth street in front of and abutting upon block Nos. 266 and 267 in said city. The improvement consists of grading, laying sidewalks and crosswalks. The consideration, as named in said contract, is merely nominal.

<p>Waiver—Demand or Payment—Promissory Note.—P., wlio was an accommodation indorsor, indorsed on the back of a note before due, these words: “I hereby waive notice of protest for non-payment.” Held, not to be a waiver of demand of payment from the maker when due. Agreements of this character are to be construed strictly, and not extended beyond the fair import of the terms.</p>

<p>Mileage—Sherief Conveying Prisoners.—A sheriff is not entitled to mileage in addition to other fees prescribed in section 5 of the laws of 1874, prescribing the fees of sheriffs for transporting a convict to the state penitentiary. Said section 5 prescribes all the compensation a sheriff is entitled to for such service.</p>

This is an action for damages brought by appellant against respondents for an alleged trespass claimed to have been committee], by them, in entering upon, and building a flume across, certain lands of appellant, and in floating wood through the flume, and thereby causing water to overflow, and portions of said wood to be cast upon the lands of the appellant.

Tbe appellant was indicted for tbe crime of larceny, yas tried, convicted, and sentenced to three years imprisonment. Tbe facts constituting tbe alleged larceny are briefly these: The appellant asked one Theodore Bracker to change a ten-dollar gold piece for him.

This is an action brought by the district attorney Of the fourth judicial district to test the validity of the appellant’s corporate existence under the constitution of the state.

This is a suit by the appellant to obtain a divorce from his w’ife on account of adultery committed by her, and for the custody of Gilbert Roy Jackson, the minor son of the parties, four years of age. The circuit court granted the divorce, but awarded the care and custody of the child to Harrison Ogle, its maternal grandfather, with whom the respondent was living before and since the trial. From this part of the decree the appeal is taken.

<p>Paeol Lease eor Moke than One Yeak.—Whei’e A. leases of W. a store under a verbal lease for three years, and enters into possession and pays rent, such tenancy becomes a tenancy from year to year, and can only be determined by notice from one party to the other.</p>

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

The case is mandamus to compel the payment of certain warrants drawn by the secretary of state upon the state treasury.

This is an action of ejectment. The respondent alleges that she is the owner and is entitled to the possession of the premises described, and prays for their possession. Tbe appellant denies tbe allegations of tbe complaint. The jury returned a verdict in tbe respondent’s favor for a part of tbe premises described. The respondent bad judgment upon this verdict, and the appellant appeals.

<p>Distribution of Proceeds, on Resale of Property.—When a sheriffs sale of real property is set aside by the judgment of the supreme court, and a resale of the premises is ordered, such resale must be made in conformity with section 293, subdivisions 3 and 4, on page 169 of the Code. And if, upon such resale, the property shall be sold to any person other than the former purchaser, the court must first repay the former purchaser the amount of his bid, out of the proceeds of the resale.</p>

This is a suit in equity, brought by plaintiffs to restrain defendants from digging or altering the ground or grade of Oak street, between the east line of Front street and the Willamette river, in the city of Portland, and further asking that the defendants be enjoined and restrained from, in any manner whatever, interfering with, changing, injuring, or destroying certain roadways and a wharf erected by the plaintiffs, Eines and Newhouse, for the purpose of a wood-yard,…

This action was brought by the respondent to recover wages at the rate of twenty dollars a month, for her services rendered to defendant in the capacity of a house-servant and dairy-maid for a period of over nine years. The complaint is the ordinary one for labor and services. The answer of the defendant denies all of the material allegations of the complaint, and also sets up as separate defenses: 1.

This was an action commenced in a justice’s court by the respondent, to recover from the appellant the sum of forty-seven dollars, less a credit of twenty dollars and sixty-four cents, which he allowed to appellant. The balance claimed was twenty-six dollars and thirty-six cents. The appellant filed an answer, • admitting that the respondent had a just demand for forty-five dollars, but claimed a larger credit, amounting to thirty dollars and ninety-six cents.

The complaint alleges, in substance, that respondent is the owner of a certain tract of land, and “ by virtue of his title” is in possession thereof. That appellant has a sheriff’s deed to said lands, under a tax sale, and that such deed is void and constitutes a cloud on the respondent’s title.

<p>Appeal from Multnomah County.</p> <p>This is an action for damages for violation of plaintiff’s rights to a trade-mark, commenced in the circuit court and decided against appellant on demurrer to the amended complaint. The complaint shows, by proper allegations, that the plaintiffs have the exclusive right to use as a trade-mark the name “I X L General Merchandise Auction Store,’ and that the respondents, knowing the fact, fraudulently, and for the purpose of deceiving the public, use the name “ Great I X L Auction Company. ” The court below sustained the demurrer to the complaint, upon the ground that the facts stated did not show an infringement of the plaintiff’s trademark.</p>

<p>Partnership Business, Profits of, how Determined.—A referee appointed to ascertain and state an account between partners should ascertain what the real and actual profits were, and not what they ought or might have been.</p> <p>Idem—Expert Testimony not Admissible.—Where the books of a partnership fail to show the true state of its business, resort may be had to a calculation of the profits from the amount of merchandise proven to have been sold by said firm at the rate per cent, profit proven to have been made on said merchandise in that particular business, but not to expert testimony of witnesses engaged in a similar business, to prove that profit was made by this firm in their business, for the purpose of charging one of the partners therewith.</p> <p>Idem—Entries in Partnership Books, Effect of.—In stating the accounts of partners, as between themselves, the rule is that the entries on the partnership books, to which both partners have had access at the time when those entries were made, or immediately afterwards, are to be taken as prima facie evidence of the correctness of those entries; subject, however, to the right of either party to show a mistake or error in the charge or credit.</p>

In May, 1872, the Portland Light Battery was organized in Multnomah county, according to the laws of the state of Oregon, and was listed in the office of the adjutant general of the state, and became, and has continued ever since, a part of the organized militia of the state. Thomas Mountain aforesaid was elected and duly commissioned captain, and as such, gave the necessary bonds required by statute.

On the tenth day of October, 1878, the respondent executed and delivered to the appellant a promissory note, of which the following is a copy: “ $300. Thirty days after date, for value received, I promise to pay S. A. Lindsay or bearer the sum of three hundred dollars, in XJ. S. gold coin, and one per cent, until paid. “Portland, October 10, 1878.

<p>The Dismissal oe an Appeal by order of the appellate court, for defects in the undertaking of appeal itself, does not operate as an affirmance of the judgment appealed from.</p>

<p>Notice of Appeal—Error not Assigned.—No error not specifically assigned in the notice of appeal will be considered; but the court will take, judicial notice of the lack of jurisdiction in the court below, appearing on the face of the record.</p> <p>Idem.—A statement in the notice that “the decision and judgment are against law,” is not specific under the statute, and should be disregarded.</p> <p>Proceeding for Contempt—Affidavit merely Evidence.—A counter affidavit filed in a proceeding for contempt, is not a “ pleading,” but evidence merely, and the facts stated in it may be rebutted by other evidence without a formal replication.</p> <p>Idem—Questions of Pact not Examined on Appeal.—The question upon, the hearing of a rule to show cause, as well as the question on the trial of a proceeding for contempt, are those of fact merely, to be determined on all the evidence taken by the court below, and this court will not disturb such determination, unless for errors of law or want of jurisdiction appearing upon the transcript.</p> <p>Idem—Jurisdiction only Exercised During Term.—The judge of the. circuit court, in vacation, has no power to hear and determine charges of contempt for disobeying judgments or orders of court. The exclusive jurisdiction over such charges belongs to the court whose judgments or orders have been disobeyed, and can only be exercised during term.</p>

<p>Municipal Corporation—Board oe Trustees—Jurisdiction in Election Contest not Exclusive.—The provision in a city charter that the board of trustees “shall judge of the qualifications and election of their own members, ” does not oust the jurisdiction of the circuit court over usurpations of such office. It will still entertain an action under section 354 of the civil code against a person unlawfully exercising the office of trustee of such city, and the provision in the city charter will be held as affording merely a preliminary or cumulative tribunal.</p> <p>A Ballot Written or Printed on Colored Paper is Illegal, and should be rejected at any election held under the general laws of this state.</p> <p>In Case oe a Tie there is no Election.'—Where, at an election held under the laws of this state, two or more candidates receive the highest and an equal number of votes for the same office, neither is elected, nor can either rightfully exercise the duties of such office until the matter has been decided by lot, and he has been declared duly elected in the manner provided in the code.</p>

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

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

<p>Appeal from Douglas County. Tbe facts are stated in tbe opinion.</p>

<p>Appeal from Benton county. The facts are stated in the opinion.</p>

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