Volume 9 — Oregon Reports

The facts are stated in the opinion. Contend, first, that respondent is not entitled to the extraordinary remedy by writ of mandamus, for the reason that he has a plain, speedy and adequate remedy at law.

The facts are stated in the opinion. Contend that a mortgagor’s possession of the mortgaged goods, with the power of selling them in the usual course of business, does not make the transaction fraudulent per se; that fraud in such cases is a question of fact which must be proven. If fraud is alleged to exist in a sale or mortgage, it must be proved as a fact.

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

<p>Appeal from Linn county.</p> <p>The complaint alleges, in substance, that on the 20th day of September, 1879, defendants sold to plaintiff, two thousand bushels of bright, merchantable white oats,' for the sum of seven hundred and sixty dollars, and agreed to deliver the same to plaintiff, in good sacks, on board of the cars at Albany, whenever called for by plaintiff. That plaintiff then and there paid defendants the said sum of seven hundred and sixty dollars for said oats. That afterwards, on the 14th day of November, 1879, the plaintiff demanded said oats of the defendants, and defendants refused and still refuse to deliver the same or any part thereof to the plaintiff, to the damage of the plaintiff in the sum of seven hundred and sixty dollars.</p> <p>There are three other causes of action set forth in said complaint, which it is not necessary to recite.</p> <p>The answer admits the facts alleged in the complaint, except damages, and sets up separate matter as a defense, which is denied in the reply, all the facts in respect to which appear in the opinion of the court.</p> <p>The sale of the oats, as alleged in the complaint, passed the title thereto from appellants to respondent at the time of the sale. (Benjamin on Sales, secs. 313, 315, 316, and note b., page 259; 2 Bouvier’s Law Dictionary, 193; 8 Howard, H. S., 195, 515; 51 N. T., 131.)</p> <p>The destruction of the oats by fire, under the circumstances alleged in the answer, constituted a sufficient excuse for their non-delivery when demanded. (Benjamin on Sales, secs. 308, 570.)</p> <p>Delivery is not necessary to pass title. (102 Mass., Ill; 13 Allen, 28, and Benjamin on Sales, sec. 1.)</p> <p>The title to the oats never passed, and could not pass, under the terms of the contract, until they were selected and delivered after demand, or until they were delivered and accepted before demand. The contract was executory, and could have been filled by the delivery of any oats of the kind and quality mentioned. (Benjamin on Sales, secs. 308, 310, 312; note d.; 52 N. Y., 550; 11 Cush., 573; 1 Cal., 395; 27 Cal., 151; 51 N. Y., 288; 2 Kent’s Com., 196; 111 Mass., 10; 13 Pick., 213; 17 Barb., 73; 35 Maine, 385; 19 Ohio St., 375; 20 Id., 295.)</p>

Tbe facts are stated in tbe opinion. It is competent for partners, upon a voluntary dissolution, to agree that tbe joint property of tbe partnership shall belong to one of them; and it will transfer tbe whole property to such partner, and like any other sale to third persons, will wholly free it from the primary claim of the joint creditors.

<p>Appeal from Multnomah county.</p>

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

<p>Appeal from Polk. The facts are stated in the opinion.</p> <p>All points in this case arise on the complaint; the averments which bear most strongly against the pleader will he taken as true.- (Bell v. Brown, 22 Cal., 671; Dickinson v. Maguire, 9 Cal., 46; 1 Chitty PI., 237, 241.)</p> <p>The complaint avers “that plaintiff is the owner in fee simple of the premises,” &c. An estate in fee simple is the entire and absolute interest and property in the land. Hence it follows that no one can have a greater estate. (Willard on Peal Estate, 50.)</p> <p>The complaint shows that plaintiff has a complete remedy at law; that he could maintain ejectment or trespass upon the title set up in his complaint,’ and therefore courts of equity will not interfere. (Ewing v. Gity of St. Louis; Kennedy v. Kennedy, 43 Penn., St., 417; Beam v. Colemam, 43 N. H., 268; Kimib&rly v. Fox, 27 Conn., 307.)</p> <p>In the court below the appellant relied. upon and urged the proposition that the complaint stated too much, rather than not enough, to constitute a cause of suit, in that it showed upon its face that appellant’s title, as stated, could not be a cloud upon that of the plaintiff, and that therefore a court of equity had no jurisdiction. The rule contended for by appellant has long since been abandoned. (The Chatcmgua Bank v. White, 6 Barb., 605; Hamilton, v. Currmvins, 1 John. Ch., 517.)</p> <p>Whatever may have been the doubts or difficulties formerly entertained' on this subject, they seem by the modern decisions to be fairly put at rest, and the jurisdiction is now maintained in the fullest extent. (Story’s Eq. Jur., Section 700; Code, Section 500.)</p> <p>It is sufficient to call into exercise the jurisdiction of the court, that the deed casts a cloud over the title of the plaintiff. As in such case the court will remove the cloud by directing the cancellation of the deed, so it will interfere to prevent a sale, from which a conveyance; creating such a cloud, must result. (Pixley v. Huggins, 15 Cal., 131.)</p>

The facts are stated in the opinion. Where the trial of the right of property before a sheriff's jury is had, and the verdict is against the claimant, he cannot afterwards maintain an action against the sheriff for the recovery of the property, or for damages for taking the same. {Remdell v. Swaokhammer, 8 Oregon, 502; Storms v. Eaton, 5 Neb., 453; Patty v. Mansdeld, 8 Ohio St., 369; Ralston v. Oursler, 12 Ohio St., 105; Jones v. Carr, 16 Ohio St., 420; Fisher v. Gordon, 8…

<p>Chattel Mortgage-Subsequent Advances-Commission-Scrvices.</p> <p>Where a mQi-tgagee of chattels, under an agreement subsequent to the mortgage, agreed to take possession of the property mortgaged (logs, &c.) and manufacture them into lumber, at the mill of the mortgagor, and sell the same, and out of the money realized, after deducting all costs and expenses, to apply the residue on the chattel mortgage: Held, that it was not error to allow for necessary repairs on the mill.</p> <p>When advances have been made on the credit of the property mortgaged, and there are no intervening equities of third parties, and the court below held the property mortgaged liable for the payment of the subsequent, as w'ell as the original debt: Held, there was no error.</p> <p>Where a certain per cent, is agreed to be paid as a commission on .all sales of lumber, for services, and the services have been performed according to the terms of the agreement, and the evidence discloses no undue advantage, imposition or fraud in the transaction: Held, that the party was entitled to his commission.</p>

The facts are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of suit. It nowhere avers that Peter Grant was insolvent, or unable to meet his liabilities, or that he had no property out of which the judgment could have been made. The only allegation from which this might be presu,med is, that an execution had been issued and returned “ unsatisfied;” the return is not even milla bona.

<p>Rule of Court — Court and Suitors Bound Thereby — Rehearing.</p> <p>The supreme court has the inherent right to prescribe rules for the orderly conduct of its business, not repugnant to law.</p> <p>Such rules may be changed, modified or rescinded by the power from which they emanated; but, while they are in force, they must be applied to all cases falling within them. No discretion can be exercised as to their application, unless such discretion be authorized by the rules themselves. The court, equally with suitors, is bound by its rules.</p> <p>A rule of the supreme court, prescribing a certain time within which petitions for rehearing shall be filed after the judgment, order, or decision of the court is announced, vests in the court no discretion to grant a rehearing after the time, limited by the rule, has expired.</p>

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

<p>Appeal from Union.</p>

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

The facts in this case are that Sarah E. Wagner, formerly the wife of Jesse B. Lewis, respondent, filed a complaint in equity in which she alleges her marriage, in 1856, with, and divorce in the year 1876 from, the said respondent, and her subsequent marriage, in the year 1878, to Charles Wagner; that during her marriage with the said respondent, J. B. Lewis, they acquired, by residence and cultivation, a donation land claim of three hundred and twenty-two acres, in Polk…

On the 8th day of January, 1880, Jacob Swanger was killed in Washington county, Oregon, and on the 25th day of May ensuing, Henry Wintzingerode, the appellant, was indicted by the grand jury of said county for the crime of murder, for causing the death of said Jacob Swanger.

The facts are stated in the opinion. Defendant moved for a non-suit in the circuit court, claiming for the first time want of notice. This motion should not have been allowed under the pleadings, because it was inconsistent with the plea of payment. Respondent should be held to his plea of payment, because it is the only defense pleaded. (Van Sandford’s Pleadings, 561 and 596; Bliss on Pleadings, secs. 343 and 344.

<p>Appeal from Benton.</p>

<p>Appeal from Wasco.</p>

The facts are stated in the opinion. A purchaser and assignee of a judgment for a valuable consideration, and without notice, takes it subject to the right of set-off between the parties. In this case, the assignee had notice.

Tbe facts are stated in tbe opinion. Appellant relies upon only one assignment of error, tbat is, that the court erred in rejecting the deed marked exhibit “ E,” and instructing the jury that it was void for want of consideration expressed. No objection was made to this deed other than that there was no consideration expressed in it.

<p>Appeal from Douglas. The facts are stated in the opinion.</p> <p>The court cannot postpone a trial on the ground of absence of evidence, except on motion and affidavit, showing its materiality and the diligence used to procure it. (Civil Code, sec. 177; 17 Cal., 123, 128.)</p> <p>When the jury has been completed and sworn, the trial shall proceed in the order prescribed by the statute, unless the court, for special reasons, otherwise direct. (Civil Code, sec. 174.)</p> <p>The respondent could not legally qualify as marshal of the city of Oakland, without filing an official undertaking; for the statute making him marshal also makes him a constable. (Session laws of 1878, page 123, section 3; Code, page 697, sections 37 and 38.)</p> <p>There was no error in allowing the jury to separate during the trial. (Civil Code, section 196.)</p> <p>The charter of the city of Oakland does not require the marshal to give a bond. (Session Laws of 1878, page 128, section 12.) There 'is no pretense that a bond had been required by ordinance. In such case his certificate and oath of office were all that was necessary to qualify him to act. The certificate of election is conclusive, in every proceeding? except a direct one to try the title to the office. (Dillon on Municipal Corporations, sec. 716; Warner v. Myers, 4 Or., 76; Cooley on Con. Law, 624.)</p>

The facts are given in the opinion. Contend that each stockholder of the corporation is liable to the extent of his stock subscribed and unpaid. (Constitution of Oregon, Article XI., section 3; 17 Ohio, 187.) The obligation is several as well as joint. (Masters, et al., v. Lead Mining Go., 2 Sanford’s Ch. R„ 301.) The decree should be against the respondents, or either of them, and leave them to enforce contributions among themselves.

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

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

The facts are stated in the opinion. The complaint is fatally defective, because no consideration was alleged for making the contract or writing sued upon. (10 Johns., 417; Edwards on Bills, 315 ; Van San. Pleadings, 554.) The agreement to furnish goods to McCullough, was an agreement to give him a credit, for a special purpose, and was a mere accommodation, and he could not have maintained an action against Friendly.

<p>Appeal-from Yamhill. The facts are sufficiently stated in the opinion.</p>

The facts are stated' in the opinion. That there is in every state government the right of eminent domain, to which all property is subject, whether corporeal or incorporeal, is a principle well recognized, and it is in fact through this power only that all internal improvements in a state are carried on.

The facts are stated in the opinion. The onus of proof is on the respondent. The facts admitted show a prima, facie case in favor of appellant. It is the usage of the bank not to pay money to a depositor on his check unless he has the money or its equivalent in the bank. The delivery of the draft to Sears by the teller is presumptive evidence that he had paid for it. A thing delivered to another is presumed to belong to him (Civil Code, sec. 166).

<p>Appeal from Clatsop. The facts are sufficiently stated in the opinion.</p>

The facts are stated in the opinion. Submit that when the statute refers to the duties of public officers exercising statutory authority delegated to them, concerning the public interests and the rights of third persons, the execution of the power may be insisted on as a duty, even though the phraseology of the statute be permissive only. And if the duty is not performed, an action will lie. (Sedgwick on Statutes and Const. Law, 386, 387; Mayor of New Yorkv.

This is an appeal from a decree of tbe circuit court, declaring a chattel mortgage fraudulent and void as to the respondents, J. Bremer & Co., setting aside a decree of foreclosure thereof in the same qpurt, and giving respondents judgment against the appellants for $200, with interest at one per cent, per month from July 7, 1879, and costs.

The facts are stated in the opinion. The deed of the respondent is good as a conveyance. It can be gathered from it that she, in consideration of twelve hundred dollars, intended to part with and convey all her interest in the land. The recitals in the deed are evidence of title as against her. (Civil code, section 765; Statutes of 1878, page 82; Graham v. Meék,, 1 Or., 235.) The instrument should be construed according to the intent of the parties.

The facts are stated in the opinion. The complaint does not state facts sufficient to constitute a cause of action, for that it does not allege any demand or notice to the defendants, and the court erred in overruling the demurrer. The court also erred in admitting parol evidence to vary the terms of the written agreement of endorsement on the note.

<p>Appeal from Columbia. The facts are stated in the opinion.</p> <p>There is nothing in the record from which it can be reasonably inferred that an official undertaking was ever executed by "Williams; that the sureties signed or justified to it, or that it was delivered, approved or filed. The record of the county court, offered by the respondent to sustain his allegation that such an undertaking was executed, reads as follows: “ C. H.</p> <p>Williams came into court and filed his bond, which was duly examined and approved by the court.” The record does not show that there were any sureties on the bond. There is no analogy between bonds and undertakings, (pity of Sacramento v. Dimlajj, 14 Cal., 424; Gurtis v. Richards, 9 Cal., 33.)</p> <p>The loss of the undertaking must be proved by the best attainable evidence. Before a party can prove tbe contents of a paper, whether it is produced or lost, he must prove the existence of an original and its execution. (17 Mo., 40; 3 N. Y., 424; 39 Mo., 519; 65 N. Y., 127.)</p> <p>Secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. (56 N. Y., 618.)</p> <p>An effort is made to show that the appellants’ names were to the instrument. But there is no evidence showing that they signed and executed it, or authorized its execution. The fact in controversy as to the execution of the instrument is, whether or not appellants did sign, or did authorize their names to be signed to, the paper. (13 Iowa, 228.)</p> <p>This is a peculiar case, and it is to the credit of the state that this is the first time the supreme court bas been called upon to try a case of this hind. . *</p> <p>The writing and its record would certainly be the best evidence, but they are gone and it is not within the power of the party to produce them. The rule requires that the best evidence be produced, yet this rule is construed to mean by best evidence, the best that is within the power of the party to produce. This must depend upon the circumstances of the particular case. If original evidence, without the fault of the party, is wanting, then secondary is admitted; if direct cannot be had, then indirect. Any and every circumstance out of which a presumption can arise or an inference be drawn in support of the ultimate facts to be proved, or any part of them, is admissible, from the necessity of the case.</p> <p>It is impossible to lay down a definite rule which shall be applicable to all cases. The nearest approximation to such a rule may, perhaps, be stated in the following terms:</p> <p>All evidence which tends, in the slightest degree, to enlighten the mind of the court or trier upon the matter in issue, which the nature of the case admits, or which, without fault of the party offering it, is the best that he can produce, is admissible; and such weight is to be given to the entire testimony as under all the circumstances it naturally has upon the mind of the trier. And if, from all the facts and circumstances proved, the triers can arrive at a satisfactory conclusion, as to the preponderance of evidence, they must so decide. The proof need not be free from doubt. (Code, secs. 657, 835, subd. 5, 7.)</p> <p>The question whether the entry of a copy of this undertaking of the county clerk in the book called Miscellaneous Records, is a technical record, has some bearing upon the weight to be given to some of the testimony in this case.</p> <p>The question is not whether it is a copy, made by statute competent primary evidence, to take the place of the original, without accounting for its non-production, but is, whether the original being lost, and there being no possibility of producing a record copy, or a sworn copy, the court will not receive this testimony as the best that, under the circumstances, can be produced, and give it such weight as it must naturally have. The probability that a copy written in the Miscellaneous Records by an officer who was acting under the belief that he made it in the line of his duty, is correct, is as great as that a technical record, made by the same officer in the actual performance of a duty, is a correct copy, and if it is the best evidence that the party can produce, it is admissible, and if lost, its contents can be proved in the same manner as the contents of the original, to prevent a failure of justice. We cite 1 Greenleaf Ev., sec. 509; 1 Wharton’s Law of Ev., secs. 13, 135; 15 Wall., 123; 20 Wall., 226, 210, 215.</p>

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

The facts are stated in the opinion. Wallace filed a petition in bankruptcy on May 30, 1868, and on proper proceedings had, was duly adjudged a bankrupt in June of that year. An assignment was made by the register to the duly elected and qualified assignee. Wallace had no interest in the property described in the complaint prior to May 30, 1868, for which a bill in equity could be maintained by a creditor for any cause.

<p>Appeal from Douglas.</p> <p>The plaintiff alleges, substantially, that on or about the 18th of September, 1878, the defendant represented to the plaintiff that he had a lawful right to sell and convey lots three and four, in block 56, in the railroad addition to the city of Roseburg, Douglas county, Oregon, and then and there agreed that upon the payment to him, defendant, within a reasonable time, o± the sum of one hundred dollars, to make, execute and deliver to plaintiff a deed for said premises. And .that the defendant then and there placed the plaintiff in possession of said premises, and he still maintains the same. That by reason of said representations, the plaintiff made valuable improvements thereon to the amount of six hundred dollars.</p> <p>That on the 28th of November, 1879, plaintiff tendered one hundred dollars to defendant, and demanded a deed to said premises, and defendant refused to accept the money, or deliver the deed. That plaintiff is still ready to pay the one hundred dollars. That by reason of defendant’s failure to perform said agreement, plaintiff has been damaged in the sum of two hundred dollars. That defendant is now, or pretends to be, the owner of said premises, and can perform said agreement, but refuses. And prays for a decree for a conveyance, and for two hundred dollars damages.</p> <p>The defendant denies each allegation of the complaint, excepting the tender of one hundred dollars, and demand for a deed, and that defendant is now the owner of the premises. A decree was rendered dismissing the complaint, and for defendant’s costs and disbursements — sixteen dollars. From this decree plaintiff appeals to this court.</p> <p>To reverse the decree of the circuit court, the following points and authorities were relied on : An agent may be appointed by parol. (1 Parsons on Contracts.) Authority is presumed, or raised by implication of law. (1 Greenleaf on Evidence, secs. 60, 61; 1 Parsons on Contracts, 47, 51; Dunlap’s Paley on Agency, 161.) Authority to contract for land need not be in writing. (Code, 644; 1 Chi tty on Contracts, 276.) An agent employed to contract for land cannot purchase for himself. (1 Story’s Eq., see. 316; 4 Neman, 91.)</p> <p>Before the appellant can recover, he must show by the evidence that the respondent represented that he had a lawful right to sell the lots, and would execute and deliver to appellant a good and sufficient deed therefor, on the payment of one hundred dollars, and that respondent put appellant in possession. (Charnley v. Hously, 13 Pa., 16, 21; Waters v. Howard, 8 Gill, 277; Story’s Eq. Jur., secs. 764 and 765.)</p>

The statute of limitations commences to ran1 from the time,,, the possession becomes adverse. (11 Peters, 41, 52; 9 N. Y. 329; 35 Mo., 197; 49 Mo., 399; 54 Mo.. 315.) Where there has been continuity of possession, the time of all adverse claimants may be taken together, and the vendee can, plead possession in a vendor a a defense. (Code, see. 1; 5 Met., 15; 17 Am. Pec,,, A:9; 13 Id., 320;9 Id., 890.) The warranty of title by a vendor only extends to the boundaries of the ate.

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

A. E. Smith, the appellant, brought an action in the circuit court for Marion county, against Gideon S. Cox and George W. Cox, upon a bond to recover the sum of twenty-five hundred dóllars, with interest from the 1st day of November, 1879, and costs.

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

<p>Aureal from Linn.</p>

The facts are stated in the opinion. This was a bond, under subdivision 2 of section 528 of the code. The decree of confirmation is an essential part of the decree of foreclosure. It completes it. Possibly this bond was not, in all its features, complete as such statutory undertaking, but such was its object, and substantially it was a good undertaking. The bank was entitled to the possession of the property, and this undertaking continued Page in possession.

<p>Appeal from Umatilla. The facts are stated in the opinion.</p> <p>A court of equity has no jurisdiction of the subject matter of this suit, because the complaint shows that the partnership had been dissolved, and the accounts and business of the firm adjusted. The partnership being dissolved, and the property divided by mutual contract, it ceased to be partnership property, and all remedies in relation to it are at law, and not in equity. (1 Story’s Eq. Jur., 528.)</p> <p>If any mistake had been made in the settlement, it could not be corrected in this suit, as it was not instituted to falsify or surcharge the accounts. (1 Story’s Eq. Jur., secs. 524, 527.)</p> <p>Courts of equity have jurisdiction to take an account upon a dissolution of a partnership. (Willard’s Eq. Jur., 707; 1 Story’s Eq. Jurisprudence, secs. 662, 672, 683; Boss v. Cornell, 45 Cal., 133; Bv/rns v. Nottingham, 60 111., 531; Williams v. JELenshaw, 12 Pick., 378.)</p> <p>In regard to the lien of partners on the partnership property, cites: Story on Partnership, secs. 77, 78; Simpson v. Leek, 86 111., 286.</p>

<p>Appeal from Douglas. The facts are sufficiently stated in the opinion.</p> <p>We admit that where the judgment debtor redeems, it restores the estate, for the statute says it shall, and we do not doubt but that a redemption by. the owner of an estate would have the same effect. For instance, A. owns an estate which has been sold upon execution; this deprives him of the possession, but does not divest his legal title until the execution of the sheriff’s deed. Now, by redeeming, he removes the claim and his estate is necessarily freed from it, is restored to him. In the latter case, the result indicated would not follow unless the party redeeming was the owner of the entire estate. If he were the owner of a particular or reversionary interest, or of a distinct and separate moiety or portion, his redemption would not have the same effect, for he could not redeem beyond his particular interest. (Freeman on Executions, sec. 321; Quinn v. Renney, 47 Cal., 147.)</p> <p>In this case, the redemption was not by the judgment debtor, but by an owner of the reversionary interest iñ the premises. Starr was the debtor, though Mrs. Starr had charged her estate with the debt. Two estates arose from the circumstance of her death, to wit: a life estate in Starr, and a reversionary interest in her heirs. Their redemption, or that of their grantee, relieved their interest from the sale under the foreclosure proceedings, and left Starr’s interest and possession still out of him. Although they were compelled to pay the whole amount of the bid, yet that did not restore Starr’s life estate or right to possession. The appellant was not paying Starr’s debt; but, having an interest in the premises, he was entitled to redeem. (Husbvn v. Seely, 27 Iowa, 183; Gibson v. Orehone, 5 Pick., 152; Abadie v. Lobero, 36 Cal., 397; Story’s Eq. Jur., sec. 1,023; Washburn on Peal Property, page 116.)</p> <p>The appellant purchased the interest of part of the heirs of Adeline Starr. This is all the interest or estate he ever had or has now in the pi’emises in dispute. He redeemed them from the sheriff’s sale by virtue of his interest as successor in interest to the judgment debtors. This was a redemption of the whole of the premises sold, and terminated the effect of the sale. (Code, page 171, sec. 310; Rich v. Palmer, 6 Or., 339.)</p> <p>Redemption is a creature of the statute, and that must be followed. (Burroughs on Taxation, 358; Rooer on Judicial Sales, sec. 906.)</p> <p>H the money be paid by a stranger, and accepted by the purchaser, the redemption is good, and enures to the purchaser. {Phyfe v. Riley, 15 Wend., 248; Goxe v. Sa/rtwell, 21 Penn., 480; Lemick v. Brotherline, 74 Penn., 149.)</p> <p>The appellant can acquire by his deed no greater interest in the premises than the grantor; and this estate will not be enlarged by the sheriff’s sale and redemption. {Rich v. Palmer, above cited.)</p> <p>Then the title to these premises has in no respect heen changed by the mortgage, foreclosure, sale and redemption, and the respondent, as grantor of J. W. Starr, has an estate therein for his life, and is entitled to the possession.</p>

This suit was brought by respondents in the circuit court for Lane county, to set aside a conveyance of real property situated in said county, from the Union University Association to the said board of directors of the University of Oregon, executed on or about Dee. 31, 1873, upon the ground of fraud, and to subject such property to the payment of certain judgments, which had been recovered in said court by respondents against said association.

On the 7th day of July, 1880, the respondent applied by petition to the Hon. Ealeigh Stott, j’udge of the fourth judicial district, for a writ of habeas corpus, directed to the appellant. The petition set forth the unlawful imprisonment of the petitioner, the place thereof, and supposed cause. The writ was issued as prayed for, and made returnable before said judge, at 9 o’clock the following morning.

<p>Appeal from Benton.</p>

<p>Appeal from Jackson. The facts are sufficiently stated in the opinion.</p>

The facts are stated in the opinion. In a proceeding for the condemnation of land, the court acts under a special stated authority, and is clothed with no power in that particular to render any other judgment than such as the statute authorizes. (Gear v. The Dubuque and Sioux Oity Rait/road Company, 20 Iowa, 527; Baltimore and Susquehanna R. R. v. Hesbit, 10 How., IT.

<p>Appeal from Linn.</p>

The facts are stated in the opinion. It is not essential that by the terms or tenor of the deed the right to maintain the dam at the height of nine feet shall be expressly mentioned. The fact that it was “mill property” that was sold and conveyed, carries with it every right that is essential to the beneficial enjoyment of the property.

<p>Upon an issue as to the merchantable quality of saw-logs, the testimony of witness that they saw a portion of the lumber manufactured there-fro m, and that all of such portion was “good merchantable lumber,” was competent evidence tending to prove that the logs were merchantable. Testimony that the saw-logs in question were such as were usually manufactured into lumber in the locality where the contract to deliver “ good, sound, merchantable logs” for the purpose of being converted into lumber, was to be executed, and that a portion of them were actually manufactured into lumber there, by the parties to whom such logs were to be delivered under such contract, was admissible for the same purpose, For the same reason the testimony of a witness that he hauled and put into the water, where the logs were to be delivered, a certain portion of them, which were actually received and sawed into lumber by the parties sought to be charged for their stipulated price, under said contract, was also competent evidence on behalf of the parties who under the contra,ct were to deliver “ good, sound, merchantable logs,” even though the description given by the witness in the same answer that “ the logs were average logs, for that timber,” should be deemed at variance with the description of the quality of logs to be delivered in the contract.</p> <p>Where the defendants, in an action on such contract, admit (he delivery of 35,000 feet of logs of the stipulated quality, but deny the delivery of any greater quantity, and the plaintiffs claim to have delivered a much larger quantity, and the bill of exceptions on appeal, fails to show affirmatively that the testimony of a witness, on behalf of the plaintiffs, tending to prove the merchantable quality of a specified portion of the logs in controversy, referred to the portion admitted by defendants, and as to the quality of which there was no issue, the appellate court, in support of the corréctness of the rulings of the court below, admitting such testimony, will presume that it referred to the remaining logs, the quality of which was in issue, and hold that it was therefore relevant and admissible.</p> <p>The same presumption will be indulged in reference to the preliminary proof of the contents, correctness and loss of an original memorandum, to justify the admission of a copy as secondary evidence. Thus the original in this case, being merely a private memorandum of the measurement of the logs in question, made on behalf of the plaintiffs in the course of their own business, solely, and not at the time of, or connected with, any delivery to the defendants, nor offered to prove delivery, but only to show the quantity cut by the plaintiffs under their contract, to establish their claim for damages for the alleged breach thereof by the defendants, by refusing to receive and scale the logs so cut, and otherwise preventing the plaintiffs from performing their portion of the contract, by delivering the quantity of logs stipulated for, its correctness must have been proven by the parties who made it, or others having knowledge of the facts, or have been admitted at the trial by the defendants as well as its loss, or other circumstances excusing its non-production, before secondary evidence of its contents by copy or otherwise could properly have been admitted. But the bill of exceptions not disclosing the absence of snch preliminary proof at the trial, it will be presumed, in support of the correctness of the rulings of the court below,,to have been made at the proper time.</p> <p>A copy of such original memorandum, made by a witness by entering correctly on a separate sheet of paper, the items in the original, as read off to him by another person for that purpose, a short time after the original was made, the witness himself having made the original either alone or in connection with another party, and testifying, in ■ effect, that the copy was a true and correct copy of the original to the best of his knowledge and belief, and it not appearing that the testimony of the person who read off the items from the original could have been procured at the trial by the plaintiff, or that other or better evidence was in their power, was sufficiently proven to justify its submission to the jury, although the witness testified that he did not make any comparison of the copy with the original with his own eyes.</p> <p>The plaintiffs alleging damages covering the net profits they would have realized on all the logs they could and would have delivered under their contract, in addition to the stipulated price for those actually delivered, and defendants having put such damage in issue by their answer, testimony showing the existence of a sufficient quantity of suitable timber, within the limits where the logs were to be procured by the terms of the contract, to supply the additional quantity of logs, was relevant to such issue, and properly admitted.</p> <p>Testimony offered by defendants to show the relative cost of procuring logs within 300 yards of a.certain creek, and in a certain canyon where the contract provided that the plaintiffs should procure 400,000 feet of the logs which they were to furnish the defendants, was properly rejected by the court below, there being nothing in the pleadings or bill of exceptions, showing any issue as to the relative cost of procuring logs in the two localities.</p> <p>Under a count in the complaint of work and labor performed for the defendants by the plaintiffs, at the special instance and request of the former, of the reasonable value of $32.50, without specifying the nature or setting forth the items of such service, it was not competent for the plaintiffs to offer testimony to prove that ten dollars of such charge was for work and labor performed by them, in removing a drift from a certain creek, which defendants had verbally agreed to remove, but had failed to do. If recoverable at all, it was in the nature of damage for breach of the verbal agreement, and must have been so alleged. But as the extent of the injury to defendants arising from the admission of the testimony was inconsiderable: Held., That the judgment ought not to be reversed if respondents will release the said amount and pay the costs of appeal.</p> <p>Judgment affirmed conditionally.</p>

<p>Wagers on Elections Void.</p> <p>Wagers on the result of public elections are illegal and void upon grounds of public policy.</p> <p>Action Lies to Disaffirm Illegal Contract.</p> <p>There is a distinction between an action in affirmance of an illegal contract, and where the action proceeds in disaffirmance of such contract. In the first case, such an action can in no instance be maintained, but in the latter, the authorities are in favor of recovering back money paid, where the contract is void as against public policy, if such contract has not been executed, and the plaintiff seeks to disaffirm his contract.</p> <p>Stakeholders Liable for Money Deposited.</p> <p>When money has been deposited as a wager with the opposite party, it may be recovered back from him at any time before the event has happened upon which the wager was made; and against a stakeholder at any time before the money has been paid to the winner, either before or after the event has transpired, and even where the stakeholder paid the money over to the winner after notice not to do so.</p> <p>Demand — What Constitutes.</p> <p>Where the court charged the jury, “ as to what constitutes a demand, I instruct you that no formal words are necessary to constitute a demand, any words expressive of a prohibition to pay absolutely, or conditionally, are sufficient to revoke the authority of the stakeholder to pay it over:” Held, Not error.</p> <p>Where the following instruction was asked: “That any demand for the’ whole bet of one hundred and twenty dollars by plaintiff on defendant is not proof of the demand in plaintiff’s complaint,” and the court refused to give the same: Held, Not error.</p>

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

The facts are stated in the opinion. That the common council, sitting as a board to try contested elections, is an inferior tribunal and subject to the supervisory control of the circuit court, by certiorari, within the meaning of the constitution, has been recently held by the supreme court of West Virginia, in a well considered case, under a constitution similar to ours.

Contend that acts or words, to constitute cruelty, must produce bodily pain or ill-healtb. To a sensitive person, words may constitute legal cruelty, but to an expert in the use of billingsgate, words have no terror. ' (Powelson v. Powelson, 22 Cal., 359; Johnson v. Johnson, 14 Cal., 460.) The facts do not constitute either cruelty or personal indignities. If the parties are in -pari delicto, equity will not relieve.

The facts are stated in the opinion. Children under ten years of age, who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, are not admissible as witnesses. (Civil code, section 701.) To be capable of relating them truly, it is necessary that they have sufficient capacity to relate them correctly, and sufficient instruction to appreciate the nature and obligation of an oath.

Tbe facts are stated in the opinion. The property in controversy being the separate property of Mary Jane Bickards, her husband had no interest in it, and he was not a necessary party to the suit. {Ackley v. Tarbox, 29 Barb., 512; Newberry v. Garland, 31 Barb., 121; Boat v. Margues, 46 Mo., 48; Bishop on Married Women, sections 824, 1828, 839.) The case of Kennard v. Saxe, 3 Or., 263, recognizes the same principle. The plaintiff could proceed against the parties served.

On the 17th of June, 1881, the appellant, William P. Clark, was indicted by the grand jury of Marion county for seducing “one Mary M. Musser, an unmarried female of previous chaste character, of the age of 16 years.” He was afterwards tried, and the jury brought in a verdict of guilty as charged in the indictment. A motion for a new trial was made and overruled by the circuit court. The defendant was then sentenced to four years imprisonment in the penitentiary.

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

The facts are sufficiently stated in the opinion. Submits that in the investigation of fraud, courts are, and should be, very liberal in the receipt of evidence. Any and all circumstances, however slight, which tend in the least to disclose the true character of the transaction, should be permitted to go to the jury.

The facts are stated in the opinion. Submits that this appeal raises but one question, that is, whether one who purchases land at what appears to be a sheriff’s sale, can recover back his money when it turns out that there was no judgment, and cites: Chapman v. City of Brooklyn, 40 N. Y., 372; Colville v. Besty, 2 Denio, 139; Whealdon v. Olds, 20 Wend., 174; Bank v. Bank, 3 Cowan, 230; Wait v. Leggitt, 8 Cowan, 195; Schwinger v. Hickok, 53 N. Y., 258; Freeman on Executions,…

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

The facts are stated in the opinion. Is the instrument in question a chattel mortgage? We maintain that it is, if it is not void. No particular form is necessary to constitute a mortgage. (Jones on Chattel Mortgages, sec. 60.) Whatever language may be used, if it shows that the parties intended a sale of chattels as security, the instrument will be construed to be a mortgage.

<p>Appeal from Clatsop.</p>

<p>School Districts — Claim and Action Against.</p> <p>Claims against a school district should be presented to the board of school directors before the commencement of an action thereon, and the omission of such allegation in the complaint renders the same demurrable.</p> <p>Such requirement imposes no hardship on the claimant, and affords the school district an opportunity to pay without suit.</p>

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

The facts are stated in the opinion. A married woman, at the time this mortgage was made, was not bound by any covenant in a mortgage. (Code, page 515.) The property of the wife is not subject to the debts of the husband.

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

<p>Appeal from Linn.</p>

<p>Appeal from Multnomah.</p> <p>This was a writ of review, issued from the circuit court for Multnomah county, upon the petition of the appellants, for the purpose of examining the record of the county court of that county in a proceeding for granting a ferry license, on the application of the respondent. The line of the proposed ferry was across the "Willamette river, between the foot of Jefferson street, in Portland, and the foot of IT street, in East Portland. "Upon the return of the writ, with certified transcript annexed, the cause was heard in the circuit court, and the decision of the county court affirmed, with costs to the respondent; and from this decision an appeal has been taken to this court.</p> <p>The record discloses the following facts: Jefferson and IT streets terminate on the opposite sides of the Willamette river, which forms the boundary between the two cities. They are both public streets. The intersection of each with the river has been designated as a “ ferry landing ” by the proper city authority. The Jefferson Street Ferry Company, having been duly incorporated for the purpose, applied to the county court for a license to keep a public ferry between said points. Proof of posting notices of intention to apply, as required by section 43, chapter 50, Miscellaneous Laws, was duly presented with such application. The necessity for the establishment of a public ferry at the place designated, was sufficiently shown by the facts set forth in the application.</p> <p>The appellants were not served with a written notice of the respondent’s intention to apply for such license, as was required by section 42 of the same chapter, in the case of adjoining owners, resident within the county; but they both appeared in the cause and opposed the application at every step in the proceeding. They claimed that a ferry was not necessary at that point, and its establishment would unnecessarily annoy and injure them in their business as'proprietors of another ferry across the same stream, at a short distance below; but that if the county court should determine otherwise, then, as riparian owners on the east bank of the river, at the terminus of U street, they were entitled, under the statute, to have the license issued to them, in preference to the respondent, which did not own ■ any land adjoining, or possess any riparian rights on either bank, and they asked accordingly, that if a ferry at that point should be deemed necessary, the license to keep it should be granted to them. The respondent made no claim as a riparian owner.</p> <p>In support of their claim, appellants produced and offered in evidence, before the county court, three deeds from James B. Stephens and wife to Joseph Knott, and two deeds from the latter to themselves, conveying all the interests acquired from Stephens and wife by the three deeds first mentioned. The execution of these several instruments, and the appellants’ ownership of whatever interests or rights passed under them from Stephens and wife, were not contradicted.</p> <p>In 1852, the legislature of Oregon granted Stephens a charter for a ferry on the "Willamette liver, at a point about one-half mile below the location of the proposed ferry, with exclusive ferry privileges on the river for a distance of one mile each way, for the period of ten years. On March 25, 1861, Stephens being still the owner of such ferry and chartered rights, and also the owner, in fee, of the land adjoining the river, on the east side, for a distance of a mile and a half embracing both the landing of said ferry and the terminus of U street, joined with his wife in executing the first of said deeds in favor of Joseph Knott, for the consideration of eighteen thousand dollars. On the 22d day of the following January, they executed the second of these instruments, for a nominal consideration, and for the avowed purpose of more fully expressing their intention in executing the first.</p> <p>These deeds convey to Joseph Knott the ferry then operated by Stephens under said charter (which is the same now owned and operated by the appellant), the ferry boat, etc., then used in connection therewith, all his rights and privileges under said charter, some additional rights on the west bank, and the exclusive right for the purpose of' landing and carrying on said ferry along the entire river front of his said land; Knott to select such landings as he might desire to use with said ferry, the same» to be at the terminus of some street or public road created by law, and at no other place. The third deed from Stephens and wife to Joseph Knott, was executed July 5, 1862, and conveyed the title, in fee, to a tract of one and 6-100 acres, by metes and bounds, which adjoins TJ street on the north, and fronts 262 feet on the river below. At the time of this conveyance there tvas no street where IJ street is now located, nor was there any until June 8, 1869, when it •was dedicated to the public by Stephens, who still remained the owner of the soil, by his filing and causing to be recorded in the office of the county clerk ,of Multnomah county a plat of his addition to the city of East Portland, with said IT street designated thereon as a public street.</p> <p>W. S. Ladd was the owner of the block adjoining the foot of U street on the south, and fronting on the river immediately above. He was properly served with written notice, appeared and objected to the grant of a license to respondent, but neglected to apply for its issuance to himself.</p> <p>Upon this state of facts, the county court, being satisfied that a ferry was necessary at the piace proposed, granted a license to keep the same, for a term of five years, to the respondent, which appellants’ claim was erroneous, as was also the judgment of the circuit court affirming the same.</p>

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

<p>Appeal from Polk. The facts are stated in the opinion.</p> <p>Maintain that the property inherited by the plaintiff was not separate property. That which sustains the right of a married woman to separate property, must be averred and proved. (Bishop on Married Women, sec., 889; Whitford v. Panama B. B. Go., 23 N. Y., 468; Byder v. JIulse, 24 N. Y., 372; Story on Conflict of Laws, sec. 637. The courts will presume that the general principles of the common law prevail in other states. (Whitford v. Panama B. B. Go., 23 N. Y., 468; 1 Wharton on Evidence, sec. 314; -Jordan v. Jordan, 52 Maine, 320.)</p> <p>The property in controversy was purchased by the plaintiff with her own money, which she received by inheritance from her father’s estate. This brings the case within the settled doctrine of this court. (linmlle v. Smith, 6 Oregon, 202; Bugh v. Ottenheimer, 6 Oregon, 231.) The court will presume that the law of Illinois is like our own. (Bape v. Heaton, 9 Wis., 338; Bramhall v. Van Campen, 8 Minn., 13; Monroe v. Douglas, 1 Selden, 447; Shaw v. Wood, 8 Ind., 518; White v. Oharles, 15 Maine, 470; Hall v. Pillow, 31 Ark, 32; Hill v. Gigsby, 32 Cal., 55.)</p>