Morning Oregonian., March 13, 1900, Page 5, Image 5

THE" MOBNING OBEG6NIAN, TUESDAY, MARCH' 13, 1900.
WHY GERMANY BUYS SHIPS
MAGIAJOEE RECEIVES OVER ?05,
000 FOR TWO TRIPS.
Effective Argmment Against Snusidieti
Strathgryle in Port East African
in. Trouble Marine Rotes.
The German bark Magdalene, which was
on an extensive rampage In Portland har
bor a few weeks ago, has been chartered
to load case oil at New York for Japan
at 25& shillings per case. She carries
110,003 cases, so that her gross earnings
for the trip will be J2S.0GO. Her outward
grain freight from Portland amounted to
537,100, and as she will get rid of both
nheat and oil cargoes within a year, her
total earnings for that period will be $65,150.
The Magdalene was formerly the British
Bark Trade Winds, ana she was sold to
the Germans because her owners were in
vesting in steam. Considering the cost
of a vessel like the Magdalene, and the
operating expenses, there Is undoubtedly
a very large profit In the ocean-carrying
trade.
The Magdalene receives no subsidy from
the German Government, and from, the
figures given above it is not apparent that
she is In need of any. There is quite a
large number of American citizens who
like to own and sail snips, and if they
had their own way abouc such matters,
the Magdalene would have been taken oft
the bargain-counter a tew years ago, and
decorated with an American Hag. II
American investors had the same opportu
nities extended to them that are offered
the Germans, we would soon have a big
fleet of vessels under the S.ars and Stripes.
EAST AFRICAX AFIRE.
Another Portland Grain Ship in
Trouble at Honolulu.
Between the plague scare and numer
ous accidents, the grain ships which are
chartered to come to Portland Irom Hono.
lulu are having hard luctc The trials of
the Inverness-shire have occupied consid
erable space in the Honolulu papers re
cently, and the Hawaiian Gazette of
February 27 brings news of disaster to the
East African, another of the chartered
fleet. The Gazette says:
"About 3 o'clock yesterday afternoon
smoke was discovered Issuing from the
main hatch of the ship East African, late
ly arrived from Newcastle, with coal for
the "United States Quartermaster's De
partment. Upon investigation it was
found that quite a hot nre was in prog
ress below decks. A bucnet brigade was
at once put to work; but it was soon
found that the fire, which had been burn
ing for no one knows how long, could not
be handled In this way. Captain Bezant
came ashore and notified the authorities,
and also the agents of the ship, the Inter
Island Company, and Colonel Ruhlen. The
Eleu was sent to the ship, but when the
captain of the burning vessel saw what
poor facilities she had In the way of pump
and hose, he refused her aid, as he was
afraid the small amount of water she
could put Into the burning cargo would
cause the fire to burn more fiercely instead
of quenching it. The services of the tug
Iroquois were secured, and she soon had
six big streams of water pouring Into the
hold. It was so hot below and so smoky
that the damage done could not be ascer
tained, as none who went below the deck
could remain. The hold was flooded to
make sure of the fire being reached, and
the vessel will be pumped out In a day or
two.
STHATHGYLE IS PORT.
Biff Oriental Liner In the Iarseur
Steamer Ever in the River.
The California & Oriental Steamship
Company's llxer Strathgyle arrived In at
Astoria yesterday morning, and left up
shortly after noon. As she Is all ready
for cargo, she will com-rnce loading this
morning. As was previously mentioned,
the Strathgyle is the largest steamer that
has yet entered the Columbia River. She
is 5023 tons gross register, and 32S4 tons
net, and will carry over 7000 tons. "While
her tonnage is much greater than any of
the larger class of grain steamers which
loaded here a few years ago, she is over
10 feet shorter than the largest of these
vessels, her dimensions being: Length,
&K5.3 feet: beam. 48.7 feet; depth of hold,
2S.1 feet. The Teenkat. which was the
nearest In size to the Strathjryle, of any
vessel that has entered the river, was 3016
tons net register, 410 .feet long, 4S.1 feet
beam, and 2G.2 feet depth of hold.
The Strathgyle is not built for speed, but
her engines are by no means small. They
are of the triple-expansion type, with
cylinders 27, 43 and 72 inches diameter, by
4S Inches stroke. The vessel was built at
Greenock, in 1S94, and has all of the mod
ern improvements for quick handling of
freight. She will take about 33,000 barrels
of flou-. and 250,000 feet of lumber from
Portland, and then return to San Diego
to complete her cargo.
SMALL GRAIX CARGO.
Kinfannn Clears "With Leas
Than
Sixty Thousand Uunhels.
Tho British bark KInfanus, the smallest
vessel of the 1S99-1900 fleet, cleared yester
day for Queenstown or Falmouth for or
ders, with 59,500 bushels of wheat, valued
at JC3.910. ''She was dispatched by Bal
four, Guthrie & Co., and will leave down
the river this morning. The Beechdale,
which left down Sunday morning, reached
Astoria yesterday, making three grain
ships at the lower port waiting to cross
out. There are also four steamships down
there ready for sea, so that the pilots
will be kept pretty busy today, getting
them out to sea. A square-rigger was re
ported off the mouth of the river yester
day. It is believed to be the British ship
Poseidon, from Honolulu. She will prob
ably be in today, and will be hurried up
to Portland as quickly as possible, to keep
the Samaritan company. It is a very re
markable occurrence for Portland to have
but one grain ship In port, and naturally
It is a condition which cannot last long.
Marine Xotes.
Tho Oriental liner Abergeldle Is due this
morning. Sho will probably be detained
a. short time at Astoria, on account of the
quarantine regulations.
The steamer Eldn-. which Is running in
place of the Columbia on the Portland
San Francisco route, made a very good
trip up tho Coast. She left San Francisco
behind time Friday, and reached Portland
early Sunday evening.
Tho wreck of the schooner Lilly and
Mattle on Tillamook bar, as reported In
The Oregorclan about two weeks ago, was
not as serious as first supposed. There is
now a prospect for dragging the vessel
over Into the bay comparatively uninjured.
Fatal Steamer Collision.
HALIFAX, N. S., March 12.-A Tar
mouth dispatch reports that the steamer
Counto collided with another steamer off
Sable Island, and the captain and one man
were drowned.
Domestic and Foreign Ports.
ASTORIA, Or., March 1Z Arrived
British steamer Strathgyle, from Hong
Kong, via San Diego and San Francisco.
Arrived down British bark Beechdale,
British steamer Elm Branch. Sailed
Steamer Homer, for San Francisco; steam
er Columbine, for cruise. Left up at 12:13
Steamer Strathgyle. Condition of the
bar at 5 P. M., rough; wind northwest:
weather thick. Outside at noon, three
masted ship in ballast.
San Francisco, March 12. Sailed Steam
er City of Puebla, for "Victoria.
Seattle Arrived March 11. Ship St.
Nicholas, from Port Townsend.
Port Los Angeles, March 12. Arrived
Hawaiian steamer San Mateo, from Na
naimo. Seattle Sailed March 11 British ship
Allegiance, for United Kingdom. Sailed
March 12 Japanese steamer Kinshu Maru,
for Yokohama.
Hong Kong Sailed Feb. 27. Britishshlp
Brodick Castle, for Puget Sound.
Athens, March 12. Arrived Augus to
Victoria, from New York, on Oriental
cruise.
Havre, March 12. Arrived La Gorman
die, from New York.
Naples, Marcn 12.-Arrived Emn, from
New York for Genoa
Genoa. Manh It. -Arrived Aller, from
New York.
Plymouth, March 12. Arrived Rotter
dam, from New York for Rotterdam.
ON THE LECTURE PLATFORM
Joaquin Miller In Characteristic, In
teresting Talk.
Joaquin Miller, "the poet of tho Sier
ras." delivered his lecture, "Lessons Not
Found in Books," and narrated- his ex
periences in "our Arctic Empire" to a
large and appreciative audience, last
evening, at First Baptist Church. His dis
course was characteristic of the man, as
he is known to the world. He followed no
continued line of thought, but seemingly
allowed his thoughts to lead him as they
would. For a moment he would speak in
the familiar tones of a story teller relat
ing his adventures to a circle of friends.
Then in the midst of it ho would drop the
easy, colloquial style and paint the beau
ties of a bit of nature or the horrors of
some fearful experience in language most
vivid and thrilling. He spoke as a poet,
a dreamer, a frontiersman and a man of
the world. He carried his hearers in a
breath from the sublime to the ridiculous
and from laughter to the most touching
pathos.
Tho poet came forward unannounced,
saying that he preferred, with Mark
Twain, to introduce himself, so as not to
leave out any of the facts.
"I was in Paris," he said, "during the
Franco-German war. Food was scarce.
The peoplo were reduced in provender to
tho point where a good, fat rat was eaten
with relish, I was invited to a chicken
dinner one day, ancb-'what do you sup
pose was served?"
A voice from the audience called out
"Rats!". "No," calmly proceeded tho
npeaker, "not rats, chicken. I expected
chicken, and I got it, "We usually get
what we expect In this world." The
statement seemed open to question, but
the speaker proceeded to expatiate upon
tho cardinal doctrine of his religion and
tho religion of Buddha, "be happy."
"Happiness is health. It is tho looking on
the bright side of things. It is the over
looking of the worm in the apple, the
blight on the lily, the spots on the sun
and the seeing of the beauty of fruit and
flower and enjoying the smiling sunlight."
Then this writer, this maker of books,
counseled his hearers to seek knowledge
and delight in the book of nature. He
compared life without books to a dinner
without bread. But man does not live by
bread alone. The beauties of nature are
all around us. Michael Angelo saw In a
rough block of marble the figure of an
angel. There is not a rock by a roadside
in Oregon that does not contain an angel
of beauty if we will but seo it." Miller at
this point told of his home on the heights
back of Oakland, Cal., and described the
setting of the sun behind the mountains
opposite the Golden Gate in language of
exquisite beauty.
The recital of several of his best-known
poems was not the least enjoyable feature
of the evening. Joaquin told of his life
long resolution to write nothing in praise
of valor that would incite to war, but,
nevertheless, his next selection was the
recitation of a poem heartening the Boers
to give the British
Such welcome with such will
As Boston gave in battle's whirr
That red dread day at Bunker Hill.
Leaving the platform for a moment, the
poet reappeared in the garb of furs that
he wore on his famous trip to the Klon
dike. "With entire freedom, from the re
straints of conventionality he drew the
minister's chair from Its place back of
the desk and rested his foot on its velvet
while he held forth on the neatness of
tho Indian workmanship displayed by his
leather moccasins.
"Shall 1 go to the Klondike?" The
speaker said he always answered the
query in this way: "Alaska is the treasure-house
of the world. I never knew a
man to spend a reasonable time and ef
fort there without amassing a reasonable
fortune. But no man stays there a rea
sonable length of time without bringing
away frost in his hair and beard that no
brush can remove. To the man who is in
trouble love, for example and does not
fear hard knocks, Alaska holds out an
Inviting hand. The terrible hardships en
dured on that first mad rush for the El
dorado of the north are now a thing of
the past, but hard work and lots of it
are still necessary to success in that
frozen land."
PERSONAL MENTION.
T. B. Ford, of Eugene, is registered at
the Perkins.
E. A. Pierce, of Salem, is registered at
the Perkins.
M. A. Miller, of Lebanon, is registered
at the Perkins.
R. M. Smith, of Spokane, is registered
at' the Portland.
Edwin Hobson, of Astoria, is registered
at the Imperial.
C. R. Thomson and wife, of Astoria, are
guests of the Imperial.
A. S. Hardly, of Salt Lake, Is regis
tered at the Portland.
L. A. Long, editor of the Hlllsboro Ar
gus, is at the Imperial.
T. H. Hardwick and wife, of Seattle,
are guests of the Portland.
Joslah "West, an old citizen of Clatsop,
is registered at the St. Charles.
A. H. Coppock, a Nelson. B. C, min
ing man. Is registered' at the St. Charles.
George Roberts, a Phoenix, B. C. min
ing man, is registered at the St. Charles.
J. A. Devlin, an Astoria capitalist, is
at the Imperial, accompanied by his wife.
John Thomas, a cheese manufacturer
of Cleone, Or., is registered at the St
Charles.
"William M. Colvlg, a well-known at
torney and politician of Southern Ore
gon, is registered at the Perkins from
Jacksonville.
Rev. "W. T. Kerr, pastor of tho Central
Methodist Episcopal Church, whose leg
was broken by his falling on the sidewalk
some three or four weeks ago, is rapldly
recoverlng from the effects of the acci
dent, and expects to be out in a few days.
United States Circuit Judge "W. B. Gil
bert returned Saturday from San Fran
cisco, where he has been sitting in the
Circuit Court of Appeals, and at once
proceeded to his farm near Rldgefleld.
Wash. He returned to this city yester
day. He will go to San Francisco again
about the last week in April.
NEW YORK. March 12. The following
persons from, the Pacific Northwest are at
New York hotels: R. Ryan and wife, of
Seattle, at the Marlborough; G. D. Colt
hard, of Spokane, at the Westminster.
WASHINGTON, March 12. Senator Mc
Bride was in New York during the day,
but returned this evening. Edgar B. Piper,
of Seattle, is in Washington, visiting the
Oregon and Washington delegations.
3 0
Thoninjr "With Fence Wire.
PLAINVIEW. Or., March 10. (To the
Editor.) I notice an item In your paper
in regard to using wire fence for tele
phono line. I was in Morrow county last
September, where there was in use mile
after mile of such wire fence. There is a
line from Mr. Scott's, at the head of Black
Horse Canyon, into Heppner, about six
miles, operated over wire fences. Connec
tions over roads and gateways are made
by wiro raised on high stakes.
J. B. ROBERTS.
Brains at a Discount
With a headache. Cure it with Wright's
Paragon Headaehe and Neuralgia Cure.
OREGON SUPREME COURT
XIXE OPINIONS IIAXDED DOWN YES
TERDAY. Two Cases Were Affirmed, Two Were
Reversed, and One Was
Modified.
SALEM, Or., March 12. The Supreme
Court today handed down nine opinions,
an unusually large number. Four cases
were afllrmed, two reversed and one modi
fled. Two opinions were upon motions to
dismiss appeals, both being overruled.
In the case of M. K. Kameta vs. D. M.
McLauchlan, the Supreme Court afllrmed
the decision of Judge M. C. George, and
held that the gaming ordinance under
which Kameta was convicted Is void. In
affirming the judgment ox the lower court.
Justice Bean says:
"This Is' an appeal from a Judgment m
a habeas corpus proceeding. In May, IS95,
the Common Council of the City of Port
land passed ordinance No. 10,259, "to pro
hibit the sale of or having In possession
lottery tickets or tools or instruments
W. LAIR
Winner of the Intercollegiate oratorical contest, who la to represent Oregon in the Inter
state contest between Oreiron, Washington and Idaho.
used or intended to be used In making lot
tery tickets,' which provides as follows:
" 'Section 1. That it shall be unlawful
for any person within the corporate lim
its of the City of Portland to sell or offer
for sale any lotterr '. cket, certificate, pa
per or instrument purporting or repre
senting, or understock to be, or to repre
sent any ticket, chance, share or interest
in, or depending upon the event of any
lottery. That It shall be unlawful for any
person to have in his or her possession,
unless it be shown that such possession la
Innocent or for a lawful purpose, any lot
tery ticket, certificate or paper, as afore
said, or any tool. Instrument, stamp or de
vice used or Intended to be used In or for
contriving, setting up, preparing or draw
ing any lottery or preparing for sale or
distribution any lottery ticket or tickets.
" 'Sec. 2. Any person violating any of
the provisions of this ordinance shall bo
deemed guilty of a misdemeanor, and an
conviction thereof before the Municipal
Court shall be punished by a fine of not
less than J20, and not more than $200, or
by Imprisonment not lees than 10 days or
more than 90 days.'
"The petitioner was arrested under the
ordinance in September, 1S99, on a com
plaint charging that within the corporate
Hmt9 of the city he 'did willfully and tin
lawfully have In his possession, for an
unlawful purpose, a lottery ticket and
tickets, tools. Instruments, stamps and
devices used and Intended to He used In
contriving, preparing for sale and distrib
ution of said lottery tickets . . . where
by the peace and quiet of said city was dis
turbed, contrary to the ordinance In such
case made and provided. Upon his trial
he was convicted and sentenced to pay a
fine of $75. In default of which he was
committed to the County Jail until pay.
ment thereof, not to exceed 37& days. He
was thereafter discharged In a proceeding
on habeas corpus, and hence this appeal.
"The claim for the petitioner la that tho
ordinance is void because (1) of a want
of power In the city to enact It; and (2)
the partlcularprovlslon which he Is charged
with violating puts upon a defendant
the burden of showing his innocence, and
Is. therefore. In violation of his Consti
tutional rights. By the charter In force
at the time of the passage of the ordi
nance. It is provided that 'the Council haa
power and authority,' within the city, 'to
prevent and suppress gaming-houses, or
places where any game in which chance
predominates Is played for anything of
value, and to punish any person who en
gages in such game or keeps or frequents
such houses.' It is contended that this
provision of the charter does not authorlzo
or empower the city to prevent and sup
press gaming as a substantive offense,
but only gaming or gamoling-houses; but.
if it Is held otherwise, the ordinance is void
because a lottery Is not gaming within
the meaning of the charter. We are quite
well satisfied the word gaming Is used in
the charter as a substantive and not as
an adjective, and that tne city Is vested
with power to punish and suppress gam
ing as a substantive offense. In the con
struction of tho charter, the court ought
not to lose sight of its object and purpose
and the evil it was Intended to authorize
the city to suppress.
"The next question, however, presents
more difficulty. The decisions as to what
constitutes gaming have not been silo
gether uniform, but It is generally defined
as an agreement between two or more
persons to risk money on a contest or
chance of any kind, where one must be
the loser and the other gainer. . . . We
are dealing here with the simple ques
tion as to whether a lottery Is gaming in
a general sense, and whether it comes
within the provision of a municipal char
ter authorizing the municipality to pre
vent and suppress gaming, and our con
clusion is that under the authorities it
must be so held.
"The objection, however, that the ordi
nance In Question is veld because It .as
sumes to overthrow the presumption of
innocence pnd puts upon the defendant
the burden of showing that his possession
of lottery tickets Is lawful or innocent, is
well taken. Such an objection was held
fatal to an ordinance quite Identical In
language with the one before ua by the
Supreme Court of California In re Wons
Hane, 108 Cal. CS0, and the reasoning of
the court In that case being. In our opin
ion, conclusive, renders unnecessary any
further examination of the question by
us. It follows, therefore, that the judg
ment of the court below must be afllrmed,
and It Is so ordered."
F. L. Richmond et al., respondents, va
Adelaide Bloch et al. appellants, from
Multnomah County, John B. Cleland, J.;
reversed. Opinion by Wolverton, C. J.
The plaintiffs commenced this suit No
vember 6, 1S97, to set aside the deed of
the defendant. Adelaide Bloch, conveying
certain real property to her children and
co-defendants, Bessie, Viola, Sophie and
Bertha Bloch, and subject said property to
the satisfaction of a certain judgment
given and rendered in the Circuit Court
for Multnomah County, June 30, 1S37, In
favor of the plaintiff F. L. Richmond, and
against the defendant, Adelaide Bloch, and
others, for the sum of $1300 and $94 15 costs
and disbursements. The defendants, for
a separate defense, set up that N. F.
Bloch, who died May 6, ISSi. was the hus
band of Adelaide Bloch and the father ol
Bessie, "Viola. Sophie and Bertha Bloch:
that prior to 1S79 he was the owner of the
property in controversy; that, being feeble
In health and contemplating a removal
from his home in Portland, he did, at the
solicitation and persuasion of the defend
ant Adelaide Bloch convey said property
to her, relying upon her verbal represen
tation and agreement that she would hold
the same in trust for their children; but
she accepted the conveyance with the full
understanding, agreement and trust, that
she was to convey said property to their
said children; that meanwhile she merely
held the same in trust for them, and, with
the purpose of terminating said trust and
not otherwise, she made tho conveyance
THOMPSON
complained of. It was not averred that
plaintiffs had any notice or knowledge of
the alleged trust. A demurrer to this de
fense was sustained, and a decree having
been rendered for plaintiffs, the defend
ant appealed. The Supreme Court says:
"It la claimed on the part of defendants
that the verbal or parol trust having
been executed by the deed of the prop
erty to the children, such deed cannot now
be set aside; while, on the other hand. It
Is contended that, as the alleged trust
rests in parol, It Is within the statute of
frauds and is Incapable of establishment,
and that, not having been executed until
plaintiffs' claim for damages had accrued,
the defendant Adelaide Bloch could not
dispose of the property by voluntary con
veyance to the prejudice of the plaintiffs,
and, therefore, that It Is subject to be ap
plied to the satisfaction of the Judgment.
This is the only question presented."
The decision of the Supreme Court sus
tains the contention of the defendants.
The order of the court is that the demur
rer to the defense stated be overruled and
that the cause be remanded for such fur
ther proceedings as may seem meet in the
premises.
F. L. Richmond et al., respondents, vs.
Adelaide Bloch et al., appellants; from
Multnomah County, E. D. Shattuck, Judge;
! afllrmed. Opinion by Wolverton, C. J.
! The facts attending this case are briefly
stated, as follows: On February 23, IS?",
a Judgment was given and rendered in the
Circuit Court of the State of Oregon for
Multnomah County in favor of the above
named Adelaide Bloch, who was plaintiff
therein, and against the said F. L. Rich
mond and F. A. E. Starr, who were de
fendants therein, for the sum of $4001 25
and $15 E0 costs and disbursements, which
was reduced by partial payments
$3353 03. On June SO, 1S37, F. L. Richmond.
one of the plaintiffs herein, recovered a
Judgment against the defendants Adelaide
Bloch, M. M. Bloch and F. Bloch. for the
sum of $1300 and costs, taxed at $94 15, and
upon this judgment the attorneys for
plaintiff, who are co-plaintiffs herein, claim
a lien of $1000 as compensation for services
in obtaining the judgment. The defendant,
Adelaide Bloch, now seeks to have the
Judgment agalnsther and co-defendants set
off. so far as it is adequate for the pur
pose, against tho Judgment which she has
against the plaintiff herein and F. A. E.
Starr. The Supreme Court says:
"This application comes In contravention
of two general rules of law: (1) Where
two or more defendants are Jointly sued,
one or more of them, less than all. cannot
set off a debt due to him or them only
from the plaintiff, and (2) the defendant
cannot sot off a joint against the plaintiff
and another who is not party plaintiff in
the action.
"There are exceptions to these rules, but
the case made by the defendant who la
seeking tho set-off comes fairly within
both their letter and spirit Her Judg
ment under the showing Is a Joint one
against the plaintiff and Starr, the latter
of whom Is not a party plaintiff to this
action, and under the same showing the
Judgment, which plaintiff has Is against
her, M. M- Bloch and F. Bloch, Jointly:
so that there Is no gainsaying the fact
that these general rules have direct ap
plication to the controversy. The Judg
ment of the court below being in har
mony therewith, it will accordingly be af
firmed." Fred Dose, appellant, vs. W. L. Tooze,
respondent; from Marlon County, George
H. Burnett, Judge; affirmed. Opinion by
Moore, J.
This was an action to recover damages
for the alleged breach of a contract Tho
substance of the complaint Is, that on
August 1L 1S95. defendant was engaged
in business at Woodburn, Or., as a pro
duce merchant, dealing In grain, potatoes
and wool, and owned at that city and op
erated a warehouse in connection there
with, containing, as fixtures, a boiler, en
gine and other machinery, which property
on that day. In consideration of $1500, he
sold to plaintiff, and In the bill of sale
evidencing the transfer stipulated not to
engage either directly or Indirectly in said
business In the cities of Woodburn. Hub
bard or Gervals. for the term of five
years from said date. That plaintiff there
upon took powesslon of said building and
machinery, and has been continuously ever
since and is now doing business In said
warehouse as a produce merchant, deal
ing In grain, potatoes and wool. That
about September 1, 1S9G, defendant violated
his agreement by engaging In business at
Woodburn as a produce merchant, dealing
In said commodities and having advertised
such occupation he has since continuously
solicited the trade of his former custo
mers In said cities and vicinity, thereby
diverting patronage which plaintiff would
have received, and destroyed the "good
will" of his business. That the value of
the building, machinery, etc., did not ex
ceed the sum of $700, and the price paid
therefor would have been exorbitant if the
purchase had not Included such good will;
and that by reason of defendant's wrong
ful acts, plaintiff has sustained damage In
the sum of $4900, for which he demanded
Judgment The answer having denied the
material allegations of the complaint, a
trial was had, resulting in a judgment for
plaintiff In the sum of $1, and be appealed.
The opinion of the Supreme Court, in
brief. Is as follows: "At the trial, plain
tiff called witnesses by whom he proved
that subsequent to August 11. 1SSC, defen
dant purchased from them In the cities
of Woodburn, Hubbard and Gervals. such
commodities as he had agreed not to deal
In. but was not permitted to prove by
them the quantity so purchased or the
sum paid therefore, nor allowed to call
50 other witnesses whose attendance ho
procured to testify In relation to the quan
tity or value of such commodities sold
by them to the defendant after that date
within said territory, which action of the
court Is assigned as error. This testimony
was rejected on the ground that It could
only tend to prove special damages, and
plaintiff, not having alleged that he sus
tained any loss of this character, such
testimony was inadmissible under the ad
damnum clauso of the complaint.
"General damages . . . nre recover
able under an averment In the complaint
of plaintiff's pecuniary loss without stat
ing their particular nature. . . . Special
damages, however, do not necessarily re
sult from the wrongful act or omission o!
the adverse party, but are such as may
flow from them as a natural and proxi
mate consequence caused by his ne&ll
gence or design, and as the law does not
presume that such an effect will Inevit
ably follow, it Is Incumbent upon the plain
tiff to allege specifically in the complaint
the facts constituting his special damages
in order that the adverse party may have
notice thereof and? be prepared for trial. . . .
"The quantity of the various commodi
ties purchased by defendant, and the prices
paid therefor, might have formed a basis
for estimating the profits accruing or the
losses sustained byvlolating his agreement,
but as such oroflts or losses do not con
stitute an element of plaintiff's loss or
measure the extent of his damage, no
error was committed in rejecting the tes
timony on that subject."
Other questions presented are reviewed
and it is held that no error was com
mitted by the trial court
Mary E. Hallock, appellant, rs. Robert
Suitor, respondent, from Polk County, H.
H. Hewitt, Judge; modified. Opinion by
Moore, J.
This was a suit to enjoin the defendant
from maintaining and operating a dam
constructed by him on plaintiff's premises
in Polk County, and to restrain him from
Interfering with a water power thereon.
It appears that La Creole Creek flows In
an easterly direction through said prem
ises and empties Into the Willamette Riv
er. The land drained by the headwaters
thereof is covered with valuable timber,
which, cut Into sawlogs and put into the
creek, can only be floated therein In Its
natural stage during the winter freshets,
but by means of dams provided with sluice
ways of sufficient capacity and so ar
ranged as to permit logs to pars through,
water can be raised at all time;, except In
the summer, to a sufficient height, so
that when suddenly liberated it flushes
the creek, carrying the logs to market
Plaintiff's husband, about 1?G7, built a
sawrclll on the premises now owned by
her, which was operated by water power
secured from said creek, and having blast
ed rocks and removed obstructions from
the bed thereof, he was able to supply
his mill with logs, from which he manu
factured lumber, and upon his death plain
tiff succeeded to his estate in the premises
and continued the operation of the mill.
Tho defendant about 1S9G, built a saw
mill on said creek below plaintiffs mill,
and, finding the head of water raised by
two dams constructed by him insufficient
to float logs thereto, constructed a dam
In the creek on plaintiff's land, and Is op
erating the same thereon.
Plaintiff alleged that the closing of tho
dam built by the defendant on her land
retards the flow of tho water In the creek
to such an extent as to hinder the opera
tion of her mill in the summer, and that
after the dam is filled the sudden opening
of the gate causes the accumulated water
to overflow her land, destroying the banks
of tho stream, and scattering logs and
timber over her land. The defendant,
after denying the material allegations of
the complaint, alleged that he built the
dam upon plaintiffs land with her knowl
edge and consent
The trial court found that the defendant
was entitled to float sawlogs in said creek
through plaintiffs premises to his mill,
provided he did so without "damage to her
property; that he had the right to operate
the three dams so constructed by him, re
taining the water raised thereby for a
reasonable length of time for the purpose
of floating sawlogs In tne creek when
the water therein was In Us natural con
dition; and that the plaintiff was entitled
to the free use of the creek to float sawlogs
to her mill, and to use the water In the
6tream as theretofore In operating her
mill, and a decree having been rendered
in accordance with such findings, the pla'n
tlff appealed.
The Supreme Court holds that the
stream In question Is navigable for logs
within the meaning of the term as adopted
by the court, and hence no .error was
committed In decreeing defendant the use
of a common right through plaintiff's
premises. It is also held that plaintiff
has sustained no damage In consequenco
of the defendant's flushing the creek. But
the Supreme Court holds that the defen
dant had no license to trespass upon plain
tiffs property, and the decree Is there
fore modified to the extent that Jhe de
fendant Is perpetually enjoined from op
erating the dam constructed on jiljrurR
premises.
A. Goodnough, appellant, vs. Claua
Gatch et al.. respondents, from Marlon
County. H. H. Hewitt, Judge; affirmed.
Opinion by Bean. J.
This was a suit to require a receiver to
deliver to the plaintiff any balance of,
tho receivership property remaining In
his possession after deducting the costs
and disbursements of the emit wherein he
was appointed. The efforts to obtain the
property were numerous and the parties
brought Into the transactions were many.
The Supreme Court disposes of the case by
holding that since the property is In the
rightful possession of the receiver. It 13
in the custody of the law. and the pos
session cannot be Interfered with by any
other person or court The opinion says:
"In 6uch case, manifestly the proper
practice is for a person claiming an equit
able Interest or title to the fund to fllo
a petition In the original suit sotting up
his rights, and have them, determined
therein. . . . Nor Is the order of the court
authorizing this suit conclusive. It was
made ex parte and without notice to the
Interested parties, and does not preclude
the court from dismissing the complaint,
after a hearing, on the ground that the
plaintiff has mistaken his remedy.
B. M. Lombard, respondent, vs. Edith J.
Smith, appellant, from Multnomah County,
E. D. Shattuck, Judge: reversed, and new
trial ordered. Opinion by Bean, J.
This was an action to recover from the
defendant the penalty provided for In sec
tion 79S of the code, for a failure to attend
court as a witness in behalf of the plaintiff
in obedience to a subpena. duly served
upon her at his Instance, In an action to
which he was a party. Upon the trial the
court rujed. and so Instructed the jury,
that to entitle the plaintiff to recover ho
mu3t show that he was actually damaged
by the nonattendance of the witness, but
that payment of the witness fees and
mileage at the time of the service of the
subpena was a sufficient showing of dam
age for the purpose of such a recovery.
To
Ladies
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T
srr nAtt n.to
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and thi3 ruling presented tho point for
decision upon appeal.
The opinion, after reviewing the law
upon the subject, concludes: "The court
erred in instructing the Jury that the pay
ment of the witness fees and mileage was
sufficient damage to entitle the plaintiff
to recover, and for this reason the judg
ment of tho court below must be reversed
and a new trial ordered."
H. L. Fisher et al.. appellants, vs. S.
Tomllnson, et al., respondents, on motion
to dismiss appeal: motion overruled. Opin
ion by Wolverton, C. J. Tho Supreme
Court says:
"The respondents (except the Northwest
Door Company) moved to dismiss the ap
peal herein, and they assign as a reason
therefor that the transcript was not tiled
with the clerk of this court within 30 days
from the date on which the appeal was
perfected. A notice of appeal (directed to
John Manning. E. P. Morcum. W. T.
Slater and W. M. Kaiser, attorneys for all
the defendants), showing due acceptance
of sen-Ice thereof by John Manning, 'one
of the attorneys for said defendants and
respondents,' on October 6. 1S99, was, to
gether with an undertaking on appeal, filed
with the clerk of the court below October
7, 1SS9. Subsequently, another notice was
served, all of the defendants, except the
Northwest Door Company, accepting ser
vice thereof November 7, 1S99, by John
Manning, their attorney, and the North
west Door Company by H. A. Cowrell. It3
president. This notice, together with a
new undertaking, was filed with the clerk
November 9, 1899. No transcript was filed
with this court until more than 30 days
after the time for excepting to the sureties
on the first undertaking. It Is claimed that
John Manning was never the attorney of
record for the Northwest Door Company,
and was without authority to accept ser
vice of the notice of appeal for said com
pany, and, as a matter of fact, such ac
ceptance was made through inadvertance.
and it was for th!s reason the second
notice was served.
"The question is presented, therefore,
whether the appeal was perfected by the
service and filing of the first notice and
undertaking. If so. this appeal should be
dismissed: otherwise, not
"If tho Northwest Door Company wa3
a necessary part to tho appeal (and we
must conclude that it was, being made a
party defendant in the original suit,
and no showing or contention having
been mado by the other respondents to
the contrary), then the appeal was not
perfected for the very good reason that the
other respondents would have had a right
to Its dismissal because the notice was not
served upon the company, being an ad
verse party.
"It Is clear that, plalnUffs filed an Im
perfect notice in the first instance. They
had a'right, therefore, to abandon the at
tempted appeal, serve another notice and
perfect their appeal through the latter,
Instead of tho former. The transcript
having been filed within 30 days of the
completion of the appeal upon the latter
notice, tho motion of dismissal will be
denied.
The Northwest Door Company, appel
lants, vs. S. Tomllnson et al., respondents,
on motion to dismiss appeal; motion over
ruled. Opinion by Wolverton, C. J. Tho
Supreme Court says:
"This Is a motion to dismiss the appeaL
The facts attending the appeal are Iden
tical, in effect, with those set forth In
the case of Fisher vs. Tomllnson, just de
cided; hence tho motion must bo over
ruled." Minor orders were made in the Supreme
Court today as follows:
P. H. Oviatt et al., appellants, vs. Big
Four Mining Company et al., respondents,
ordered that appellants have until May li
to serve and file their brief.
Jacob Denn, respondent, vs. John P.
Peters, appellant, ordered that appellant'3
time to file petition for rehearing be ex
tended to March 20, 1900.
State of Oregon ex rel. Hammer, re
spondent, vs. F. O. Downing, appellant,
ordered that appellant's time to file brief
be extended to April 1, 1D00.
George Rlsch, respondent, vs. Jess?
Wiseman, et al., appellants, ordered that
appellants have 20 days' additional time to
file a petition for rehearing.
T. T. Burkhart, appellant, vs. R. C.
Hart, respondent, ordered on application
of appellant that he have 10 days' addi
tional time to file a petition for rehearing.
G. Wingate et al., appellants, vs. The
City of Astoria et al., respondents, ordered
that appellants have until April 15, and
respondents until June 15 to serve and file
their respective briefs herein, and that
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Experience has proved that
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but none equal it. If your doctor
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If we had your address we would send
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joe and St.oo, all druggists,
SCOTT & BOVNE.:s Pearl St.. New York.
appellants have unUl July 10 to fllo thett
reply brief.
E. Shannon et al.. appellants, vs. th
City of Portland et al., respondents, or
dered that M. C. Lyon and Herman
Hlrschberg be substituted as respondents
instead of Rosa Lyon, deceased, and that
so far as It concerns the Interests and.
property of said Rosa Lyon, deceased,
be revived and continued In the name
of said substituted respondents.
Has Reversed His Opinion."
SHERIDAN, Or.. March 7. (To the Edi.
tor.)-I wish to ask you a question or two
about our school laws. Our Superinten
dent of Public Instruction has decided that
District School Clerks shall not be paid
for their services out of the common school
fund. The old law was bad enough, but
this decision is worse. Who makes tho
laws, the Legislature, the State Board of
Education or the Superintendent? I think
the Clerk should be paid Z5 or $6 for his
work. It takes from three to five days of
every school clerks' time in the State of
Oregon. He has to quit his own business
to attend to the school work. The Clerk
Is the responsible officer of the district
school, and has three times the amount of
business that the Directors have. If the
school fund is not sufficient to pay the
Clerks a small sum for their services, let
us add another mill or two to the tax.
Subscription Is not the correct way. Some
of the patrons of the district will pay
promptly, while others will not Under
the present rule it will bo difficult to
elect a Clerk. Poor pay means poor work.
I would like to have your opinion in The
Oregonian. n. BLAIR.
Clerk, School District No. 34, Polk Co.
State Superintendent Ackerman has Is
sued a .second letter, wnlch was printed
in The Oregonian within the last two
weeks, in which he rescinded his first rul
ing on this matter. He decides now that
it Is permissible to allow the Clerks a
small compensation. This amount Is de
termined by the Board of Directors.
' . a
CronJe.
Uncrowned, unconquered. sliest hero of tba
age.
Thy country's breastwork and best heritage;
Henceforth emblazoned on tho brow of Liberty
Will stand tho names of these Immortal
three
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When Freedom shrieked that Greece must-etlll
be free;
Horatlus on the bridge at Horn before tb
Gaul.
And Cronje last hut grandest of them oXL
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