the case under consideration.

require the claimant to set out in a statement the consideration of the claim. Such a requirement will have a tendency to prevent debtors in failing circumstances from executing to their confidential friends promissory notes on account of some pretended indebtedness,-a practice which should not receive any sanction from courts of justice. If the claimant is compelled to state what the claim is for, instead of the evidence of it, there will be greater hesitancy in resorting to such schemes, and a better opportunity afforded to other creditors to expose the dishonesty and nefariousness of such machinations. Under the views herein expressed this court has no authority to revise any of the decisions of the circuit court mentioned and referred to in the notice of appeal. The appeal must therefore be dismissed, and the decision appealed from affirmed.

(17 Or. 481)

SPERRY et al. v. CITY OF ALBINA et al. (Supreme Court of Oregon. April 24, 1889.)

INJUNCTION-STREET IMPROVEMENTS.

A suit in equity cannot be maintained by a lotowner in any incorporate city against the officers thereof, to restrain proceedings in the improvement of a street therein on which such lot abuts, upon apprehension that the officer will attempt to charge a part of the expense of the improvement where there has been an attempt under the proSuch suit can only be maintained upon the lot. ceedings to sell the lot, or the proceedings are of a character that they necessarily will cast a cloud upon the title of the lot-owner.

(Syllabus by the Court.)

ed to the claimant his promissory note of a certain date; they should be informed with reasonable certainty what the consideration of the claim was. "A note," as said by GARDINER, C. J., in Chappel v. Chappel, 12 N. Y. 218, 219, "at best, even between the parties to the instrument, is but presumptive evidence of a debt. The maker did not become indebted by the mere execution of a written promise to pay money. His obligation arose out of facts dehors the instrument, and antecedent to or accompaning its execution." "In this case," said the learned judge, "we are informed, by the affidavits read in opposition to the motion, that there was a loan of money. The loan, if the fact is so, created the obligation, and the note was given as presumptive evidence of the debt, and as a means of enforcing its payment. The statute, however, looks not to the evidence of the demand, but to the facts in which it originated; in other words, to the consideration which sustains the promise." To the same effect is Dunham v. Waterman, 17 N. Y. 9. These were cases, it is true, in which the sufficiency of a statement of confession of judgment came in question, under a statute which required the confession to state plainly and concisely the facts out of which the indebtedness arose, and to show that the sum confessed therefor was justly due, or to become due. But, at the same time, the rule of construction in that class of cases has a bearing on the construction to be given in The object of the requirement to state the facts out of which the indebtedness arose, in cases of confession of judgment, was to prevent fraud upon creditors; and it is just as essential that some reasonable course be pursued in the presentment of claims against the estate of an insolvent, which has in view a like purpose. The act relating to assignments for the benefit of creditors does not provide in express terms that the creditor shall state the facts out of which the claim arises which he presents to the assignee. He is only required, as before mentioned, to present it under oath. But I think it may be inferred from the act that he is required to specify the facts out of which the claim arose, as the assignee is required by section 3178, Code Misc. Laws, to file with the clerk of the court a true and full list of all such creditors of the assignor “as shall have claims to be such," with a statement of their claims, etc. The assignee certainly should not be required to file a statement of the claims of the creditors, without their being required to furnish himn a statement of them. Again, by section 3179, Code, any person interested is allowed to appear and file any exceptions to the claim or demand of any creditor which constitutes in said city, by grading the said Helm street the an issue of fact triable by jury, and upon which a judgment may be rendered. The presentment of a claim by a creditor against the estate of an insolvent debtor is, it seems to me, so important a matter that it should be presumed that the legislature intended to

Appeal from a decree of the circuit court for the county of Multnomah, dismissing the appellants' complaint after a demurrer thereto had been sustained. The appellants alleged in their complaint that the respondent the city of Albina is a municipal corporation, created by an act of the legislative assembly of the state of Oregon approved February 4, 1887, and was vested with the usual and ordinary powers of a body corporate, and that the other respondents were its mayor, common council, and recorder. That, among the powers to be exercised by the said officers, was the authority to grade, improve, and keep in repair highways, streets, and alleys within the city, and to provide a means of defraying the expenses thereof. That among the streets and highways within the corporate limits of the city was Helm street, and upon which appellants were adjacent and abutting property owners. That on the 24th day of February, 1888, the said city council ordered to be published under the hand of the recorder the following notice: "Notice is hereby given that the common council of the city of Albina, Multnomah county, Or., proposes to improve Helm street,

full width thereof to the established grade, from the north line of Russell street to the center of Knott street, and to grade the east half of Helm street to the established grade, from the center of Knott street to the north line of Morris street; and also by laying a first

W. W. Page, for appellants. P. L. Willis, for respondents.

class sidewalk from the north line of Russell | lished or given them of the intention of said street to the south line of Knott street; and council to cause to be made the said preby laying a third-class sidewalk from the tended street improvement at the expense of south line of Knott street to the north line the property adjacent thereto, as required of Morris street, -with cross-walks as pro- by subdivision 6, § 18, of the charter of vided for in section 7 of ordinance No. 13." the city of Albina, and that they were deThe said notice was so ordered, and was pub- prived of their privilege of remonstrance. lished under the pretense and claim that it That appellants have no speedy and adequate made public the fact that the said council remedy at law. Wherefore, by reason of the proposed to grade and improve that portion foregoing premises, they pray judgment, etc. of said Helm street therein designated, and The demurrer was upon the ground that the to which portion appellants' property is ad- complaint did not state facts sufficient to jacent, in the manner and after the form pre- constitute a cause of suit. scribed by the charter of said city. That on the 23d day of April, 1888, the said council did, unlawfully, and without authority having by them first been established, make and enter THAYER, C. J., (after stating the facts as into a contract with one Peter Lynch for the above.) The question to be determined in pretended improvement of the aforesaid por- this case is as to the sufficiency of the appeltion of Helm street, and by the terms there- lants' complaint. The suit appears to have of unlawfully creating a liability and lien been predicated upon the ground that the against and upon the property hereinafter proceedings to improve the street were irregenumerated. And that the said Lynch, act-ular, and that the respondents would undering under said unlawful contract, did there- take to charge the expense of it upon their upon proceed to dig up and disturb the sur-property abutting upon the street. The apface of the aforesaid portion of Helm street, prehension that such an attempt would be and to tear up and destroy the sidewalks made seems to have arisen from the fact that thereon, to the irreparable damage of appel- the city council passed the ordinance numlants. That on the 21st day of July, 1888, bered 37, declaring the costs, accepting the the said council did make and publish a cer- work of the contractor, and directing an entain ordinance numbered 37, declaring the try of the assessment to be made in the cost, and accepting the aforesaid unlawful "docket of city liens," as the appellants term and damaging work of the said Peter Lynch, it. But, if their view of the affair is corand assessing the cost thereof, and did, by rect, they are in no imminent danger of said ordinance, direct the respondent John having to pay the expense of the improveT. Hughes, which he so did, to enter such ment of the street. They allege, in effect, assessments in the docket of city liens, un- that no notice had been published or given of lawfully, against the several lots and parts an intention upon the part of the said counof lots, and in the respective amounts, as fol- cil to cause the improvement to be made at lows, to-wit: J. L. Sperry, lot 1, block 2, the expense of the property adjacent thereto, $66.72; J. L. Sperry, lot 2, block 2, $60.68; as required by subdivision 6, § 18, of the J. L. Sperry, lot 3, block 2, $39.75; J. L. charter. That subdivision provides, as will Sperry, lot 1, block 3, $62.60. The list in- be seen by a reference to the charter, as folcludes also 12 other names, with the number lows: "The council have power and authorof lot and block, and the amount assessed ity, within the corporate limits, * upon each. The said assessment stood upon to construct, clean, and repair sidewalks and respondent's lien docket, and appear unlaw-cross-walks, or provide for the construction, fully as liens against the several lots and cleaning, and repairing of said walks adjaparts of lots above enumerated and men- cent to real property, by the owners of such tioned, and as a cloud upon the several titles property; and also for the making, cleaning, thereto; and that appellants are informed and repairing gutters; to grade, gravel, pave, and believe that the said council will pro- plank, or otherwise improve and keep in receed, or order to proceed, without delay, the pair highways, streets, and alleys: provided, collection and enforcement of said pretended that no property shall be assessed for the liens against said property, and disturb the construction of such improvements for more several titles thereto, which are in appellants. than one-half of its last county assessed valAnd appellants further alleged for them-uation: provided, further, that if two-fifths selves, and others owning the respective lots of the property on such street, and adjacent adjacent to the pretended improvement of thereto, shall oppose such improvement by Helm street, and against which said illegal remonstrance, then such improvement shall assessments were made and entered in the not be ordered: provided, further, that no lien docket, that the aforesaid digging and property shall be taxed more than once for tearing up of said Helm street was without such improvements: and provided, further, benefit to the general public, and did not en- that in case of proposed street improvehance the value of the adjacent property ment, where the improvement proposed is to above enumerated and mentioned, and sought be made at the expense of the property adby said council to be charged therewith, but, jacent thereto, thirty days' notice of such into the contrary, did irreparable damage to tention shall be given by posting three nothe same. That they had no notice pub-tices thereof in public places of said city."

*

*

tenable ground for the suit, and in my opinion the circuit court properly sustained the demurrer to the complaint. The decree appealed from will therefore be affirmed.

STATE v. LEE.

(17 Or. 488)

(Supreme Court of Oregon. April 24, 1889.) INDICTMENT-Evidence.

1. As a general rule, it is sufficient to charge a statutory offense in the words of the statute, but, when a more particular statement is necessary to set forth the facts with requisite certainty, then the particulars must be averred.

connection with other facts in the case, from 2. The flight of an accused is a circumstance, in which a jury may draw unfavorable inferences, but it is a fact to be proven by a person who knows it.1

(Syllabus by the Court.)

Appeal from circuit court, Washington county.

Now, if this provision requires the notice of the respondents," amounts to nothing. to specify that the proposed street improve- The city authorities may have devised such a ment is to be made at the expense of the book, and caused the pretended assessments property adjacent thereto, in order to render to be entered therein, but that would not it liable for the expense of the improvement, give them the apparent effect of a legal lien. as the appellants seem to claim, and which I Such act would no more create a cloud upon am inclined to believe is correct, then cer- title than a memorandum in an ordinary actainly no harm can come to the appellants on count-book. It would not be admissible as account of the proceedings herein. The city proof of a lien upon the property without council, not having given any such notice as showing that the various steps prescribed in required by the provision, will not be likely the charter had been taken which would conto proceed to enforce payment of the pretend-stitute a lien. I am unable to perceive any ed liens against the property, or disturb the several titles of the appellants thereto, and, if it should attempt to do so, its proceedings would be a nullity. At all events, the city council has not attempted to cause the prop. erty to be sold to satisfy the cost of the improvement, and, until it takes some decided step in that direction, the appellants' rights in the premises will not be in such jeopardy as to demand the issuance of an injunction; and whether the appellants would then be entitled, under the rule adopted by courts of equity, to invoke such a remedy, is very doubtful. Mr. Pomeroy, in his work on Equity Jurisprudence, (volume 3, p. 437,) says: "In the absence of statutes giving prima facie validity to deeds or other proceedings, the following doctrine seems to be sustained by the great majority of American decisions. Where the instrument or proceeding constituting the alleged cloud is absolutely void on its face, so that no extrinsic evidence is necessary to show its invalidity, and where the instrument or proceeding is not thus void on its face, but the party claiming under it, in order to enforce it, must necessarily offer evidence which will inevitably show its invalidity and destroy its efficacy, in each of these cases the court will not exercise its jurisdiction either to restrain or to remove a cloud, for the assumed reason that there is no cloud." The learned author indulges in a degree of criticism upon the rule, as thus laid down, which may be eminently just; but it is very questionable whether the court would be willing to disregard it in any case, unless some very extraordinary circumstance intervened. It will be observed, by an examination of the charter of the city of Albina, that it makes no provision concerning the validity of a tax-deed, or deed given upon the sale of property for street improvements. The validity of such a deed, under the provisions of the charter of that city, must depend entirely upon the regularity of the proceedings authorizing the sale of real property for the non-payment of a tax or street assessment; and the party claiming under it is required to prove the regularity of the proceeding before the deed can be considered as having any force or effect. Neither does the said charter provide for any docket of city liens; hence the allegation in the complaint in regard to the assessment for the improvement of said Helm street standing upon the respondents' "lien docket," or being entered in the "lien docket

T. B. Handley, T. H. Tongue, and R. Williams, for appellant. T. A. McBride, for respondent.

LORD, J. The defendant was accused by an indictment of larceny by defacing the artificial ear-marks upon a steer, the property of another, with the intent then and thereby to convert said steer to his own use, committed as follows: "The said John Lee, on the 19th day of July, A. D. 1887, in the county of Washington and state of Oregon, did feloniously, willfully, and knowingly deface certain ear-marks upon a certain steer, (said steer being then and there the personal property of H. W. Scott,) by then and there unlawfully and feloniously cutting off the ends of both ears of said animal, with the intent, then and thereby so defacing said earmarks as aforesaid, then and there, thereby feloniously to convert said steer to his own use; said steer being then and there of the value of ten dollars." It is contended that this indictment does not state facts suficient to constitute a crime, in this: that it does not describe the ear-marks, and how they were defaced. As a general rule, it is sufficient to charge a statutory offense in the words of the statute, but there are exceptions to this rule; and, when a more particular statement of facts is necessary to set forth such offense

On the admissibility of evidence of the flight of the accused in criminal cases, and the presump2 South. Rep. 814, and note; State v. Walker, tions arising therefrom, see State v. Moncla, (La.) (Mo.) 9 S. W. Rep. 646, and note.

with requisite certainty, then such facts | ant's default on that occasion. This is also must be averred. State v. Ah Sam, 14 Or. 347, thought to be error, for the reason that there 13 Pac. Rep. 303. This indictment states was no issue in the case as to whether or not on the offense in the language of the statute, that day the defendant made default or not. and this is sufficient, within the precedents The issue was one of guilt or innocence of under similar statutes. Mr. Bishop has col- the accused, and for that issue the record lected the cases bearing upon this subject, was incompetent. If the defendant fled, the and evidently considers some of them as un- fact could have been proven by any person satisfactory. Bish. St. Crimes, SS 454-461. who knew it, but his default in court on that For instance, in State v. O'Neal, 7 Ired. 251, particular day in no manner tended to prove the descriptive part of the indictment was as it. Under the circumstances disclosed, it is follows: "The defendant did unlawfully, considered that the effect of such evidence knowingly, and willfully alter the mark of a was prejudicial to the accused. It is further certain cow, the property of Martha Beasen," suggested, as the record discloses that there etc.; which the court held sufficient. This, was some evidence tending to show that the as Mr. Bishop says, "goes to the extreme of defendant claimed to own the steer, that it is condensation," and that, "if he cannot pro- important to observe the distinction noted in nounce it absolutely wrong in principle, still State v Chee Gong, 19 Pac. Rep. 607. The the form it sanctions plainly descends less in judgment is reversed, and a new trial ordered. detail than is usual in the approved forms in analogous cases." Bish. St. Crimes, § 460. But it will be observed that the indictment in that case is much less explicit than in the case at bar, in that it not only failed to state what the mark was before alteration, but failed to state how it was altered. Here all the elements of the offense are charged. It is alleged in the indictment that the steer was the personal property of Scott; that there were artificial ear-marks upon it; and that the defendant defaced them by cutting off the ears; and that he did it with a felonious intent. Substantially it conforms to the forms given by eminent text-writers, (Bish. Dir. & Forms, § 166; 1 Whart. Frec. Ind. No. 479; Maxw. Dir. & Forms, 322;) in fact, is fuller and more in detail than some of them. Every ingredient of which the offense is composed is stated with sufficient certainty to give the defendant notice of the charge. As a consequence, we hold the indictment sufficient.

STODDARD v. NELSON.

(17 Or. 417)

(Supreme Court of Oregon. March 27, 1889.) PAROL EVIDENCE-TO VARY WRITING.

to contradict, add to, subtract from, or vary the terms of a written contract.

1. Extrinsic evidence is not admissible either

2. All antecedents or contemporaneous negotiations or agreements are merged in the writing. (Syllabus by the Court.)

Appeal from circuit court, Multnomah county.

Moreland & Masters, for appellant. J. R. Stoddard, for respondent.

STRAHAN, J. This is an action brought to abate a nuisance, and to recover damages for maintaining the same. The amended complaint is substantially as follows: (1) That defendant is the owner of lot 8, in block 118, of the city of Portland. That plaintiff, as trustee, leased the front 51 feet of said lot It is suggested, however, that the record of defendant, for a term, for rental value, discloses other matter which renders it im- and placed buildings upon it. Defendant possible to sustain the conviction. The wit- thereafter, during the term, and without ness Scott was asked: "State what ear-marks plaintiff's consent, built a high board fence the steer had which you lost, at the time you on the rear line of said leased property, which lost it." This was objected to, which the sensibly shut out light and air from plaincourt overruled, and an exception was saved. tiff's stores, and rendered the same unsightThe record recites that the witness was al-ly, unhealthy, and to a sensible degree less lowed to testify that there were certain arti- fit for occupation and business, and impaired ficial ear-marks on said steer, which said the rental value thereof, and caused the same witness specifically described. My associates to be vacated, to plaintiff's damage $622. think this was error, for the reason that the (2) That said lease provided for a renewal, question does not necessarily relate to the at a rental to be agreed upon. At the expirasteer in controversy, and unless it did so it tion of said lease defendant promised orally was clearly incompetent. to stay the damage being done to said premAnother objection is this: In certain cases ises by said fence, and to remove the same the flight of one accused of crime is permitted before July 1, 1888. The rental value was to be shown as a circumstance in connection fixed, and thereupon the renewal lease was with other facts in the case, from which the signed pursuant to said agreement. That jury may draw unfavorable inferences against defendant did remove said fence on or about the prisoner. The defendant being under said last-named date; but before he did so recognizance on the 3d day of December, he built, and has ever since maintained, an1887, he failed to appear when called, and his other one similar, parallel to and within two default was entered of record in the cause. feet of said first fence, and extended the Upon the trial of this cause, as a circumstance same up to the eaves of said building, which tending to prove flight, the district attorney sensibly shut out light and air from both offered in evidence the record of the defend-stories of said building, and rendered the

same unsightly, unhealthy, and to a sensible | right along close to the building occupied by degree less fit for occupation and business, plaintiff, which darkened the windows and and impaired the rental value thereof, and cut off the free circulation of air, and matecaused the same to be vacated, to plaintiff's rially damaged and depreciated the value and damage in the sum of $60. The defendant use of said building. That about the time demurred to each count in the complaint, of the expiration of the Middleton lease the which being overruled, he filed his answer. matter of the renewal for three years more, The defendant, by his answer, admits all of provided for therein, and the amount of rent the allegations of the complaint, except those to be paid upon such renewal, came up for relating to the location of the fence on the discussion between plaintiff and defendant. line, the amount of damage caused thereby, The plaintiff, being on the stand as a witness and the oral agreement to remove it. in his own behalf, was proceeding to state Upon a trial before a jury, the plaintiff conversations and an agreement between had a verdict and judgment for $25 damages, himself and defendant in relation to the fence from which judgment the defendant has ap- which the defendant had erected on said line. pealed to this court, and has assigned the fol- The defendant at this point objected to any lowing grounds of error in his notice of oral testimony tending to prove any contract appeal: "First. The court erred in not sus- in relation to said fence, for the reasons it taining the defendant's demurrer to the plain-appeared that a new lease had been executed tiff's amended complaint, and to each count by the defendant and accepted by the plainthereof. Second. The court erred as is set tiff, and that all agreements and covenants forth in the bill of exceptions. Third. The relative to said fence and lease were merged court erred as to the admission of parol evi- in the written lease. The plaintiff then dence as to any contract or agreement to take stated that he offered to prove by parol evidown the fence complained of. Fourth. dence that he declined to take the renewal The court erred in allowing the witnesses to lease unless the obstruction of said light and testify as to any oral agreement or undertak- air caused by said fence were removed, and ing in regard to said fence. Fifth. The that there was then and there an agreement court erred in its instructions to the jury as on the part of the defendant to remove the is set out in the bill of exceptions. Sixth. same, and that such agreement was the inThe court erred in giving judgment for costs ducement to the acceptance by the plaintiff and disbursements. Seventh. The court of the renewal lease. The defendant renewed erred in ordering a warrant to issue to abate his objections to said evidence, because the the nuisance." same was incompetent. The court overruled the objections, and allowed the evidence offered to be submitted to the jury, to which the defendant excepted, and this exception presents the first question to which our attention will be directed.

The rule of law is too well settled to admit of controversy, that extrinsic evidence is not admissible to either contradict, add to, subtract from, or vary the terms of a written contract. 1 Hill's Code, § 692; 1 Greenl. Ev. § 275; Bast v. Bank, 101 U. S. 93; Wilson v. Deen, 74 N. Y. 531; Naumberg v. Young, 43 Amer. Rep. 380; Glass-Works v. Čoal Co.,

The plaintiff upon the trial gave evidence tending to prove that defendant owned lot 8, in block 118, in the city of Portland, and that on the 14th day of December, 1885, he leased to John Middleton the west 51 feet, by 50 feet, for the period of two years. That said lease was in renewal of a lease theretofore made of the same ground by the defendant to one Harris, who assigned the same to Quivey, who in turn assigned to Middleton. That at the time of the execution of said lease a two-story building erected by Quivey, covered the whole of said ground, and that said building also belonged to Middleton. That 5 Atl. Rep. 253; Hutton v. Maines, 28 N. said building was constructed in such a manner as to receive its light and air, for the rear portion thereof, chiefly through windows in the rear of the building. That the remainder of said lot 8, not leased to Middleton, was in the possession of defendant, and had a dwelling-house on the rear part of the same, leaving a ge open space between said dwelling-house and said building owned by Middleton, over which open space the Mid-40 N. W. Rep. 66; Freeman v. Freeman, 35 dleton building received, by means of its rear windows, light and air for that part of the building. That about August 19, 1886, said Middleton assigned said lease and building to the plaintiff; and that he held said leased premises by virtue of said lease for the residue of Middleton's term. That about September 1, 1887, the defendant, without plaintiff's consent, built, on the line of the part of said lot occupied under the Middleton lease by plaintiff, a high and tight board fence

W. Rep. 9; Williams v. Kent, 10 Atl. Rep. 228; Looney v. Rankin, 15 Or. 617, 16 Pac. Rep. 660; Speckels v. Sax, 1 E. D. Smith, 253; Dutton v. Gerrish, 9 Cush. 89; Smith v. Caro, 9 Or. 278; Carr v. Hays, 11 N. E. Rep. 25; Thompson v. Libbey, 26 N. W. Rep. 1; Parker v. Morrill, 3 S. E. Rep. 511; Miller v. Edgerton, 15 Pac. Rep. 894; Walker v. Engler, 30 Mo. 130; Harrison v. Morrison,

N. W. Rep. 897; Jungerman v. Bovee, 19 Cal. 354; Methodist Episcopal Church v. Town, 49 Vt. 29. These authorities might be greatly multiplied, but enough is cited to show with what uniformity and firmness the law has been applied. The respondents cited a number of authorities from Pennsylvania showing that the rule under consideration has not been always as rigidly applied in that state as it has elsewhere; and it is said in note 487, Cow. & H. Notes to 2 Phil. Ev.