Opinion of Bonham, C. J., dissenting.

to the title, and nothing more, is insufficient, certainly a more objectionable form of proceeding, where the amendatory act furnishes no index whatever to the act amended, ought to be prohibited, and in my judgment was intended to be by the section of the Constitution referred to. That which clearly appears to be within the spirit of the rule is within the rule.

Section 22 of Art. IV of the Constitution was doubtless intended to accomplish a twofold object:

1. To require legislators, before proceeding to tamper with a law by ingrafting amendments upon it, to know by a direct reference to such law, as it is written, what are its provisions, so that they may intelligibly vote upon its amendment.

2. That when the harmony and proportions of an act are destroyed by the revisal of the same, or where a like result occurs to one or more sections of an act by an amendment of the same, such harmony shall be restored in the amendatory act, by setting out the act as revised, or the section or sections as amended, so that each will be perfect and complete within itself, in order that the people, who are required to know the law, may be furnished with the means of finding it out. Every law, as amended, should not only show in itself what the law in force on that subject is, but it should be a direct index to the law on that particular subject which has been superseded and which is not in force.

The case of State of Missouri ex rel. Maguire v. Draper, State Auditor (47 Mo. 29), cited in support of respondent's position on this question, I concede appears to be a case in point; but, with due respect for the wisdom of the court rendering that decision, it does appear to me that the reasoning of the court is subject to criticism, and that it cannot be sustained either upon principle or in the light of the preponderance of the authorities on this question. The court in that case say: "The Constitution has gone so far as to prohibit amendments in terms, except in a particular way, but it has not prohibited amendments by implication.” The provision of the Missouri Constitution in question reads: "The act revised, re-enacted, or the act or part

Opinion of Bonham, C. J., dissenting.

of act amended, shall be set forth and published at length as if it were an original act or provision." If the doctrine of the Missouri case referred to is correct, all that a legislator need do to evade the operation of this constitutional provision is, to proceed directly to enact a law which, to all intents and purposes, is in effect amendatory of a preexisting law, without in terms naming the amendatory act as such, and the object is accomplished and the act is amended by implication, the very thing which the framers of the Constitution intended to prohibit.

To my mind this appears to be a sacrifice of substance to matter of form, and a surrender of the spirit of the constitutional provision in question to excessive technicality. I cannot believe that it was ever intended by the framers of a constitutional provision like this, which was intended to prevent a mischief of such great magnitude, that the effects intended to be avoided might be accomplished by indirection in the manner suggested. It is, in my judgment, wholly immaterial whether the act is eo nomine amendatory or not; the evil against which the constitutional provision in question was directed, is amendments which are such in effect, and is not limited to those which are so named in the title or preamble of the act.

The decision of this Court, in The City of Portland v. Stock (2 Or. 69), as I read and construe it, is decisive of the same question presented in the case at bar. It is true that the act in question, in that case, was in terms amendatory of the charter of the city of Portland, but Mr. Justice Wilson, in announcing the opinion of the court, did not seem to attach any importance to that circumstance, but proceeded directly to the consideration of the nature and effect of the act in question by saying: "The first question for determination is, whether 7 of the act of October 15, 1862, operates as a revision or an amendment of any part of the charter of the city, passed January 24, 1854, and if so, of what part?" And, after a review of the law and facts of the case, the court concludes, "that the act of 1862 is a statute which operates as an amendment to the charter," and is therefore void. And again, in Arnoult v.

Points decided.

New Orleans (11 La. 56), which is cited by Mr. Justice Wilson in City of Portland v. Stock, the law on this subject appears to me to be very clearly expressed in these words: "It was intended that each amendment, and each revisal, should speak for itself; should stand independent and apart from the act revised or the section amended. It was, therefore, provided that, in such cases, if the object was to revise an act, it should be re-enacted throughout; and if the object was to amend an act, then the section amended should be re-enacted and published."

I have regarded Portland v. Stock as a well-considered and decisive case on the question determined by it, and do not think that its authority has been directly shaken, or materially qualified by this Court, until the decision of this case. I might pursue this subject much further by a review of the authorities which have been cited on the interesting questions presented in this case; but without deeming it advisable to express an opinion on any of the questions involved, other than the one which I have hurriedly attempted to discuss, I will conclude my unpleasant task of writing a dissenting opinion by only adding that I have always regarded 22 of Art. IV of our Constitution as a monument of the wisdom of the framers of our fundamental law; and without the strict enforcement of its provisions it would be a violent presumption that any one, much less every one, should know the law, and the maxim ignorantia legis neminem excusat would soon become regarded as exceedingly harsh if not tyrannical in its application.

5 253 9 149

11 395

14 266

14 267

S. H. CHRISTIAN, APPELLANT, v. J. H. EVANS,

RESPONDENT.

NOTICE OF APPEAL.--The notice of appeal must describe with reasonable certainty the decree appealed from, the court in which such decree was rendered, the time when such decree was rendered, the names of the parties and the fact that one party or the other intends to appeal to the Supreme Court.

APPEAL from Lane County.

Opinion of the Court--McArthur, J.

In this suit the notice of appeal, after naming the court and giving the title of the cause, is couched in the following language: "Appeal from a judgment on a writ of review. To Messrs. Thompson & Fitch and J. J. Walton, Jr., attorneys for the plaintiff: You and each of you will please take notice that the defendant appeals from the judgment rendered in said Circuit Court at the. April term thereof, 1874, upon a writ of review annulling and declaring void the judgment rendered by T. J. Holland, Esq., a justice of the peace for South Eugene Precinct, wherein the abovenamed defendant was plaintiff, and against you as defendant, for the sum," etc.

Thompson & Fitch, for the motion.

George B. Dorris, contra.

By the Court, MCARTHUR, J.:

The views of this Court, in relation to what is required in a notice of appeal, have been expressed in numerous cases, the last two of which are Lewis v. Lewis (4 Or. 209), and Whiteaker v. Vanschoiack.* In Lewis v. Lewis, which has been frequently cited by the Court since its decision, it is held that in case of a decree the notice of appeal must set forth with reasonable certainty, first, the decree appealed from; secondly, the court in which the decree was rendered; thirdly, the time when rendered; and fourthly, the names of the parties and the fact that one party or the other intends to appeal from the decree to the Supreme Court.

In actions at law the appellant must also specify the errors upon which he relies in the notice. As the notice in this case is defective in not describing the judgment and naming the parties thereto, it falls within the rule of the cases cited, and the motion to dismiss must prevail. Appeal dismissed.

*The opinion on the motion to dismiss in Whiteaker v. Vanschoiack is not reported. It was rendered at the January Term, 1873.

Opinion of the Court-Prim, J.

A. B. ELFELT ET AL., RESPONDENTS, v. A. H. AND FLORA
HINCH, APPELLANTS.

HUSBAND AND WIFE MAY CONTRACT WITH EACH OTHER.-Though Article XV,
5 of our State Constitution is an innovation upon the common law,
it does not abrogate that principle which prevents husband and wife
from contracting with each other.

WIFE'S PROPERTY PRIMA FACIE THAT OF THE HUSBAND, WHEN.-Where the
wife's separate property is not registered according to the statute, it is
prima facie the property of the husband rather than of the wife.
FRAUD PRESUMED FROM CIRCUMSTANCES.-Positive and express proof of fraud
is not required; it may be deduced from circumstances affording strong
presumption.

FRAUDULENT CONVEYANCE-WHAT PRESUMED.--A voluntary conveyance by
a husband to his wife will be presumed to be fraudulent as to existing
creditors.

PARTIES IN SUIT TO SET ASIDE CONVEYANCE.-Judgment creditors may unite in a suit to set aside such conveyance.

APPEAL from Coos County.

The facts are stated in the opinion of the Court.

W. R. Willis, for Appellants.

IV. W. Thayer and Watson & Lane, for Respondents.

By the Court, PRIM, J.:

This was a suit in equity brought by creditors to set aside a deed to a certain parcel of land situate in Coos County, consisting of about one hundred and forty acres. The respondents were merchants doing business in San Francisco, California, and consisted of six different firms, each of which having obtained a separate judgment prior to instituting this suit, joined as plaintiffs in the court below. They allege that A. H. Hinch was indebted to them for goods, wares and merchandise, sold and delivered to him in October, 1869, except Haake & Co., who, it is alleged, sold, their goods, etc., to said Hinch on December 21, 1869. At the time the goods were purchased, A. H. Hinch was in possession and claimed to be the owner of a large amount of property, which he traded to one Nasburg on December