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adverse party or an appellate court, might possibly condense the matters thus expressed, affords no valid reason for dismissing an appeal, where, as in the case at bar, there has been a substantial compliance with the provisions of the statute and of the rules of this court. Where the assignment states that the court erred in giving, over objection and exception, certain instructions, setting them out in distinct paragraphs, containing only a very small part of the entire charge, and not indicating the language complained of under separate assignments, to hold that if either of the parts of the charge, so generally expressed, correctly stated the law applicable to the case, the entire assignment would be unavailing, would, in our opinion, be too technical. The motion to affirm the judgment will, therefore, be denied.

Considering the case on its merits, the bill of exceptions shows that one of the counsel for the plaintiff herein, having been called as Miller's witness, testified that Exhibit E, introduced in evidence in the case of Moss Mercantile Co. v. First National Bank, 47 Or. 361, 82 Pac. 8, 2 L. R. A. (N. S.) 657. and published at page 32 in the brief of the defendant therein, was a correct copy of the original, which had been sent with the transcript of that cause on appeal to this court. Miller's counsel, referring to such original, thereupon inquired: "Do you know whether it has been returned or not? An objection having been interposed, the witness replied: "I don't think it is material, and I decline to answer it." Q. "I just ask you if you know?" An objection to this question on the ground that it was incompetent, irrelevant, and immaterial, having been sustained, no exception was taken to the action of the court in this respect. Thereafter Miller's counsel offered in evidence the copy of such exhibit that had been identified in the manner indicated. An objection to its admission on the ground, inter alia, that it was not the best evidence, having been sustained, an exception was allowed. The copy referred to is as follows: "Payette, Idaho, April 27th, 1903. Mr. Henry Helmick, Payette, Idaho-Dear Sir: The assignment of the judgment against O. W. Porter in Malheur County, Or., for $2775.00 and $120 costs, we have entered for collection, proceeds of which when collected shall be subject to your order. Yours truly, [Signed] P. A. Devers, Cashier." The bill of exceptions further discloses that the person writing that letter was the officer so represented of the plaintiff herein. The statute, regulating the admission of evidence, contains the following provisions: The original writing shall be produced and proved except as provided in section 703. B. & C. Comp. § 771. There shall be no evidence of the contents of a writing, other than the writing itself, except in the following cases: (3) When the original is a record or other document

in the custody of a public officer. Id., § 703.

It will be remembered that the case of the Moss Mercantile Company v. First National Bank, supra, was a suit in equity, and a final decree having been rendered therein, the judge trying the cause was required to identify all the exhibits (B. & C. Comp. § 827), and an appeal having been taken on the merits, the transcript brought up such matters to this court, where, in cases of that kind, they thereafter remain, constituting a judicial record (Id. § 741), which could have been proved by the production of the original or by a copy thereof certified by the clerk of this court, and attested by his official seal. Id. § 742. The object of requiring the production of a copy, authenticated in this manner, is to identify a document which is in the custody of a public officer, so that it may be received in evidence, and though a judicial record cannot, over objection and exception, be proved by parol (Bowick v. Miller, 21 Or. 25, 26 Pac. 861), such record can be established by a writing, the identity of which is acknowledged without objection, as in the case at bar, by counsel for the adverse party who was authorized thus to speak for his client. 16 Cyc. 1024. The production of the best evidence, as stated in the objection to the admission of the letter The inreferred to, was therefore waived. troduction of such evidence was also objected to on the further ground that it was irIt relevant, incompetent, and immaterial. must be admitted that Helmick's assignment of the judgment to the plaintiff herein, without reservation or qualification, would have transferred to it, as between the parties hereto, all his right thereto. Though the assignment expressly appointed the bank Helmick's irrevocable attorney with power of substitution, the stipulation to that effect did not prevent him from rescinding such authority, unless it was coupled with an interest, independent of a compensation for the collection of the sum awarded. Tiffany, Agency, 157; Frink v. Roe, 70 Cal. 296, 11 Pac. 820; MacGregor v. Gardner, 14 Iowa, 326; Blackstone v. Buttermore, 53 Pa. 266.

The letter which was offered in evidence having stated that the proceeds of the Porter judgment when collected should be subject to Helmick's order, the writing, if genuine, tended to show that the plaintiff herein had no interest in the money, except possibly an anticipated commission for its collection, which is not such a part thereof or claim thereto as to prevent a cancellation of the power before it has been executed, on the ground that the agent has an adequate remedy for the recovery of the damage sustained, for when the principal parts with his rights to the subject-matter before the agent has executed the power, it is in law a revocation of the authority. Gilbert v. Holmes, 64 Ill. 548. The letter was, therefore, mate

As

rial and competent, and an error was committed in excluding it. A certified copy of the assignment of the judgment having been offered in evidence, Helmick, as a witness for the defendant herein, was asked: "What, if any, interest has the First National Bank of Payette, Idaho, in that judgment?" An objection on the ground that the question was incompetent, irrelevant, and immaterial, and calling for the opinion of the witness on one of the issues of the case, having been sustained, an exception was allowed. between the parties to an assignment of a chose in action, no consideration is necessary to its validity. Dawson v. Pogue, 18 Or. 94, 22 Pac. 637, 6 L. R. A. 176; Gregoire v. Rourke, 28 Or. 275, 42 Pac. 996. This rule rests upon the principle that a person who is sui juris may make such disposition of his property as he pleases, provided, no person except himself is injured thereby. If the assignment executed by Helmick was intended absolutely to transfer his interest in the judgment to the bank, no necessity existed for a declaration in the instrument of any authority, irrevocable or for a limited period, to collect the money so awarded, for the right to do so would necessarily follow as an incident of the power conferred. The statement that the bank was appointed attorney, etc., casts a doubt upon the intent of the assignment, rendering the instrument ambiguous, and tending to show that the transfer was made for some particular purpose without a design of vesting in the assignee an interest in the judgment. This uncertainty in the instrument, evidencing the assignment, renders parol testimony admissible to explain the ambiguity, and as Helmick is the assignor, and presumed to be competent to state what interest he intended to transfer, if any, the court erred in not permitting him to answer the question asked.

It follows from these considerations that the judgment is reversed, and a new trial ordered.

(18 Or. 558)

HARVEY v. LIDVALL. (Supreme Court of Oregon. Dec. 11, 1906.) 1. TROVER AND CONVERSION COMPLAINTSUFFICIENCY.

In trover, a complaint, alleging that plaintiff was the owner and in possession of the property and entitled to such possession at the time of the conversion, was sufficient, and an additional allegation that the possession was as a mortgagee did not render the complaint objectionable on the ground that it stated a mere conclusion, and that the mortgage should have been set out either in hæc verba, or in substance or legal effect.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 197.] 2. SAME-EVIDENCE-SUFFICIENCY.

In trover, evidence, that plaintiff was in possession of the property at the time it was taken by defendant, was sufficient to make out a prima facie case in his favor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 47, Trover and Conversion, § 235.]

Appeal from Circuit Court, Umatilla County; W. R. Ellis, Judge.

Action by W. M. Harvey against Victor Lidvall. From a judgment in favor of defendant, plaintiff appeals. Reversed, and remanded for new trial.

This is an action of trover. It is alleged in the complaint that on the day of November, or the

day of December, 1903, plaintiff was the special owner as mortgagee, and at the same time was mortgagee in possession, and entitled to the possession of a three-fourths interest in and to a certain crop of grain grown and harsoutheast 14 of section 29, township 3 N., vested during the season of 1903. from the range 31 E. W. M; that said grain was in the form of headings stacked upon the land described and in the possession of an agent of the plaintiff in process of foreclosure; that it amounted to 24 tons of the reasonable

value of $12 per ton or $288 in the aggregate; that at said time and place the defendant wrongfully and without authority entered upon said premises, and took possession of all said headings and converted the same to his own use to plaintiff's damage in the sum of $288, the value thereof, and $100 special damages. The answer denies the allegations of the complaint and affirmatively alleges that, at all the times mentioned, defendant was the owner of the grain described therein. The plaintiff filed a reply, setting up in detail the execution of the mortgage under which she claims, alleged a breach of the conditions thereof, and that for the purpose of foreclosure she entered into possession of the mortgaged property and, during the process of such foreclosure, the defendant wrongfully and unlawfully took possession thereof, and converted it to his own use. To sustain the issues on her part the plaintiff produced a chattel mortgage from one John Thomas to her covering among other property, an undivided three-fourths interest in a crop of grain to be grown during the season of 1903 on the southwest 14 of section 29, township 3 N., range 31 E. W. M., and offered to show that the mortgage was intended by the parties thereto to cover the grain to be grown on the southeast 4 of such section, but by mistake the land was misdescribed therein; that the defendant who was the owner of the real estate described in the complaint, was familiar with all the transactions out of which the mortgage arose, and knew that it was intended to cover the grain to be grown on such property; that he was not only present and observed the harvesting of the grain, but that he had divided the same in accordance with the terms of his lease to the mortgagor, and had taken possession of his share; that the grain in controversy was taken possession of by the mortgagee plaintiff under the terms of the mortgage at a time when defendant and all parties recognized and believed that

the mortgage described the property intended to be included therein; and that she became a mortgagee in possession before the error in the description was discovered. This offer was refused, the evidence excluded and the plaintiff nonsuited.

Stephen A. Lowell, for appellant. J. P. Winter. for respondent.

BEAN, C. J. (after stating the facts). To support the ruling of the trial court it is contended that the complaint does not state facts sufficient to constitute a cause of action because the mortgage, under which plaintiff claims, is not set out in the complaint, either in hæc verba, or in substance, or legal effect. It has been held that, in an action by a mortgagee after condition broken, to recover possession of the mortgaged property, or in trover for its wrongful conversion, it is sufficient for plaintiff to allege generally that he is the owner and entitled to the possession, without setting out the source of his title. Reinstein v. Roberts, 34 Or. 87, 55 Pac. 18,75 Am. St. Rep. 564: Mayes v. Stephens, 38 Or. 512. 63 Pac. 760, 64 Pac. 319. And we think the complaint, in the case at bar, comes within this rule. It is alleged that plaintiff was the owner and in possession of the property in controversy and entitled to such possession at the time of the alleged conversion by the defendant. The averment that her ownership and possession were special and as a mortgagee, was unnecessary, but it did not render the complaint objectionable on the ground that it stated mere conclusions of law.

It is next contended that the proof offered by the plaintiff was inadmissible because parol evidence is not competent in an action at law for the purpose of showing a misdescription of the property intended to be included in a chattel mortgage. As a general rule, this may be conceded. Hutton v. Arnett, 51 Ill. 198: First National Bank v. Hendrickson, 61 Minn. 293, 63 N. W. 725. But the plaintiff offered to go further and show that before the error in the mortgage was discovered she had commenced to foreclose it, and had taken possession of the property intended to be mortgaged, and was in such possession at the time of its alleged conversion by the defendant, and this was sufficient to entitle her to maintain an action of trover therefor against a wrongdoer. "It is very generally recognized," say the editors of the American and English Encyclopedia of Law. "that the possession of chattels, conferring, as it does, title good as against every one but the true owner, will enable the person in possession to maintain trover therefor against a wrongdoer who takes the chattels from his possession and wrongfully converts them, and the wrongdoer cannot set up the title of the true owner in defense to the action, or even in mitigation of damages." 28 Am. & Eng. Enc. Law (2d Ed.) 674. The complaint alleges, and the plaintiff

offered to prove, that she was in possession of the property in controversy at the time it was taken by the defendant, and this was sufficient to make out a prima facie case in her favor.

Judgment reversed, and remanded for new

trial.

HAILEY, J., having been of counsel, took no part in the decision.

(48 Or. 569)

MORRISON v. OFFICER. (Supreme Court of Oregon. Dec. 11, 1906.) WATERS AND WATER COURSES-WATERS SUBJECT TO APPROPRIATION-SPRINGS.

A

B. & C. Comp. $ 5019; Laws 1893, p. 150, regulating the use of water, provides that the person on whose land seepage or spring waters arise shall have the right to the use of such waters. The statute was enacted at a time when the state was the owner of certain lands; a portion of which were subsequently conveyed to plaintiff, and a portion to defendant. perennial spring issued from defendant's land, about 120 yards from the boundary line between plaintiff and defendant, and reached a point of about 150 yards on plaintiff's premises where it disappeared, making its way without channel or banks, and moistening the ground for a space of about 30 feet in width. IIeld, that defendant was entitled to the use of all the water from the spring.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, § 110.]

Appeal from Circuit Court, Grant County; George E. Davis, Judge.

Suit by Finlay Morrison against Floyd L. Officer. From a judgment in favor of plaintiff, defendant appeals. Reversed, and suit dismissed.

Errett Hicks, for appellant. Will R. King, for respondent.

MOORE, J. This is a suit by Finlay Morrison against Floyd L. Officer to enjoin interference with the use of water issuing from a spring. The facts are that, on December 5, 1894, the state of Oregon executed to the defendant a deed to the northwest quarter of the southeast quarter of section 36 in township 11, south of range 25 east in Grant county, ever since which he has been the owner in fee thereof. The state, on February 15, 1901, also entered into a contract with the plaintiff for the sale of the northeast quarter of the southeast quarter of that section, township, and range, and five years thereafter he dug a ditch from a swale on the land last described, and conducted to a part thereof water which he intended to use in irrigating a garden. The defendant thereafter cut two ditches on his land from such swale, and diverted all the water therein, whereupon this suit was commenced, resulting in a decree as prayed for in the complaint, and he appeals.

The testimony shows that a perennial spring issues from the defendant's land at a point about 120 yards from the east line thereof, the water from which reaches a point about 150 yards on the plaintiff's prem

ises where it disappears. Though there is a conflict in the testimony, we think the great weight thereof supports the defendant's contention that the water does not usually appear on the surface, but, issuing from the spring on the side of a hill, it makes its way, without channel or banks, through brush and grass, moistening the ground, for a pace about 30 feet in width, the distance mentioned, and that where cattle have made tracks in the damp soil, water may be seen, but it does not flow until confined in a ditch. No controversy exists as to the quantity of water which the spring affords, for each party admits that it does not exceed three-fourths of an inch, miners' measurement. The statute, regulating the use of water, contains the fol lowing clause: "Provided, that the person upon whose land seepage or spring waters first arise, shall have the right to the use of such waters." B. & C. Comp. § 5019. This act was passed February 22, 1893 (Laws Or. 1893, p. 150), when the state was the owner in fee of the lands hereinbefore described. The clause adverted to is, in our opinion, a grant of the exclusive right to the use of the unappropriated water specified, to the pers n upon whose land such water first arises, and was probably a recognition of a practice prevailing in the arid region of the United States, that the title to lands containing water issuing from the sources mentioned had been secured, so that the water might be used for domestic or stock purposes, and that the quantity indicated did not appear to the legislative assembly to be more than was reasonably necessary to supply such use.

When a spring furnishes a stream of water that rises to the surface, the right of appropriation attaches (Brosnan v. Harris, 39 Or. 148, 65 Pac. 867, 54 L. R. A. 628, 87 Am. St. Rep. 649), but where, as in the case at bar, the admitted quantity is so insignificant that a surface stream is impossible, when spread over the width of ground mentioned, the use of the water belongs to the person upon whose land it first arises. A small part of plaintiff's land was, before the diversion, moistened by water from the spring, and it is possible that such portion might be classed as a "water course," on the theory that the law of gravitation compelled the water to take that direction because of the conformation of the land. The testimony shows, however, that there are no banks to such course on plaintiff's premises, and, unless there is a bank or ripa on his land, he cannot be a riparian proprietor within the meaning of that term. The disposal of the use of water may be controlled by the Legislature when its acts designed for that purpose do not violate the fundamental law by trenching upon the rights of property, and believing that in the present instance, the clause of the statute quoted does not invade such provisions, and that the plaintiff secured his contract of purchase with knowledge of the act, the decree is reversed and the suit dismissed.

87 P.--57

(17 Okl. 85)

BETTGE v. TERRITORY. (Supreme Court of Oklahoma. Sept. 4, 1906.) 1. JURY-RIGHT TO JURY TRIAL-CONSTITUTIONAL LAW.

The provisions of the Constitution of the United States in relation to trials by jury for crimes and criminal prosecutions are applicable to Oklahoma.

2. SAME-NUMBER OF JURors.

A jury, within the meaning of the federal Constitution and the sixth amendment thereto, is a jury constituted, as it was at common law, of 12 persons, neither more nor less.

[Ed. Note. For cases in point, see Cent. Dig. vol. 31. Jury, § 222.]

3. SAME RIGHT IN CRIMINAL CASE.

Under the provisions of the federal Constitution, the guaranty of an impartial jury in a criminal prosecution secures to the accused the right of a jury trial from the first moment. and in whatever court he is put on trial for the offense charged.

[Ed. Note.---For cases in point, see Cent. Dig. vol. 31. Jury, §s 14, 134.]

4. SAME--WHAT CONSTITUTES JURY TRIAL.

To accord to the accused the right to be tried by a jury in the appellate court, after he has been once fully tried otherwise than by a jury composed of 12 persons in a court of original jurisdiction, and sentenced to pay a fine or be imprisoned for not paying it, does not satisfy the requirements of the federal Constitution, except in that class or grade of offenses called "petty offenses," which, according to the common law, may be proceeded against summarily in any tribunal legally constituted for that purpose. 5. SAME -JURY OF SIX PERSONS.

The provision of our statute that a person charged with a misdemeanor may be tried in the probate court by a jury composed of only six persons is in conflict with the federal Constitution, and is therefore unconstitutional and void. [Ed. Note. For cases in point, see Cent. Dig. vol. 31. Jury. § 222.]

(Syllabus by the Court.)

Error from Probate Court, Lincoln County; Fred A. Wagoner, Judge.

Otto Bettge was convicted of selling liquor without a license, and brings error. Reversed and remanded.

Plaintiff in error was prosecuted in the probate court, by information filed on January 16, 1905, charging him with the crime of selling liquor without a license. When the case was called for trial, the defendant demanded to be tried by a common-law jury composed of 12 persons. This demand was refused by the probate court, to which ruling of the court the defendant duly excepted. The cause was then tried to a jury composed of only six persons, and a verdict was returned finding the defendant defendant guilty as charged in the information. Motion for a new trial was filed and overruled, an exception saved, and the defendant was sentenced, on the 23d day of January, 1905, to pay a fine of $100 and costs, and ordered committed until the fine and costs were paid or satisfied. From this judgment the defendant appeals.

J. B. A. Robertson, for plaintiff in error. P. C. Simons, Atty. Gon., and Don C. Smith, Asst. Atty. Gen., for the Territory.

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HAINER, J. (after stating the facts). It is contended by the plaintiff in error that the Constitution of the United States secured to him the right to be tried by a common-law jury, composed of 12 persons, and that, that right having been denied, the probate court was without jurisdiction to impose a fine upon the defendant or to order him to be imprisoned until such fine was paid. This precise question is before this court for the first time for determination. Article 3, § 2, of the Constitution of the United States provides: "The trial of all crimes, except in cases of impeachment, shall be by jury, and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed." And by the 6th amendment to the Constitution it is provided: "In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." It is the settled doctrine of the Su. preme Court of the United States that the provisions of the federal Constitution relating to trial by jury for crimes and in criminal prosecutions apply to the organized territories of the United States. Thompson v. State Thompson v. State of Utah, 170 U. S. 343, 18 Sup. Ct. 620, 42 L. Ed. 1061; American Publishing Co. v. Fisher, 166 U. S. 464, 17 Sup. Ct. 618. 41 L. Ed. 1079; Springville v. Thomas, 166 U. S. 707, 17 Sup. Ct. 717. 41 L. Ed. 1172; Callan v. Wilson, 127 U. S. 540. S Sup. Ct. 1301, 32 L. Ed. 223; Reynolds v. United States, 98 U. S. 145, 25 L. Ed. 244.

In Thompson v. Utah, supra. Mr. Justice Harlan, speaking for the court, said: "But the wise men who framed the Constitution of the United States and the people who approved it were of opinion that life and liberty, when involved in criminal prosecutions, would not be adequately secured except through the unanimous verdict of 12 jurors. It was not for the state, in respect of a crime committed within its limits while it was a territory, to dispense with that guaranty simply because its people had reached the conclusion that the truth could be as well ascertained, and the liberty of an accused be as well guarded, by 8 as by 12 jurors in a criminal case. It is said that the accused did not object, until after verdict, to a trial jury composed of 8 persons, and therefore he should not be heard to say that his trial by such a jury was in violation of his constitutional rights. It is sufficient to say that it was not in the power of one accused of felony, by consent expressly given or by

his silence, to authorize a jury of only 8 persons to pass upon the question of his guilt. The law in force when this crime was committed did not permit any tribunal to deprive him of his liberty, except one constituted of a court and a jury of 12 persons." And in Callan v. Wilson, supra, the same learned justice said: "The third article of the Constitution provides for a jury in the trial of 'all crimes, except in cases of impeachment.' The word 'crime,' in its more extended sense, comprehends every violation of public law. In a limited sense it embraces offenses of a serious or atrocious character. In our opinion the provision is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury. It is not to be construed as relating only to felonies, or offenses punishable by confinement in the penitentiary. It embraces as well some classes of misdemeanors, the punishment of which involves or may involve the deprivation of the liberty of the citizen. It would be a narrow construction of the Constitution to hold that no prosecution for a misdemeanor is a prosecution for a 'crime' within the meaning of the third articles, or a 'criminal prosecution' within the meaning of the 6th amendment. And we do not think that the amendment was intended to supplant that part of the article which relates to trial by jury. There is no necessary conflict between them. flict between them. Mr. Justice Story says that the amendment, 'in declaring that the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state or district wherein the crime shall have been committed (which district shall be previously ascertained by law), and to be informed of the nature and cause of the accusation, and to be confronted with the witnesses against him, does but follow out the established course of the common law in all trials for crimes.' Story on the Constitution, § 1791. And as a guaranty of a trial by jury, in the third article, implied a trial in that mode and according to the settled rules of the common law, the enumeration, in the sixth amendment, of the rights of the accused in criminal prosecutions, is to be taken as a declaration of what those rules were, and is to be referred to the anxiety of the people of the states to have in the supreme law of the land, and so far as the agencies of the general government were concerned, a full and distinct recognition of those rules, as inof the constitutional guaranties of life, liberty, and property. This recognition was demanded and secured for the benefit of all the people of the United States, as well those permanently or temporarily residing in the District of Columbia, as those residing or being in the several states. is nothing in the history of the Constitution or of the original amendments to justify the assertion that the people of this District may be lawfully deprived of the benefit of any

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