plainant removed to Portland, and resided there when the installment of interest fell due. The evidence shows that the complainant was extremely anxious to secure the payment of the whole debt, and endeavored to bring about some negotiation to effect that purpose. Now, it is clear to my mind, failing in this as she did, that she was determined to take advantage of any circumstance, and to entrap the defendant in any way she could, so as to claim a default, and enforce the forfeiture of the credit. Several days prior to the date when the interest fell due, the defendant wrote to her, inquiring to whom he should pay the interest at Salem; or, if she would prefer it, that he would send her a check for the amount. In doing this, he was simply seeking honestly to keep the performance of his contract, and at the same time, if she preferred it, to save her the trouble and expense of coming to Salem. It was an easy matter for her to have answered his letter, either stating she would be there, and where, or designating some person or bank to receive it, or authorizing him to send his check, as might be her pleasure. Honesty and fair dealing required that letter to be answered, but she did not do it, but purposely and advisedly refrained from answering, to produce the result which followed. She neither came to Salem, nor designated any person or bank to receive it for her. More, she did not intend to do either. It would not do for the defendant to incur the risk of going to Portland, for that was not the place of payment; and to do that from his place of residence in the county, by the most rapid means of locomotion, he could not return before late in the evening, when, practically, he would have been in default. The defendant did the only thing he safely could do,-came to the place appointed by the contract for the payment of the interest. It is not questioned but what he had the money, or that his credit at the bank was not such that the payment could have been effected at any moment; nor that he was not at the proper place, ready and willing to meet his engagement. But the complainant was not there, either in person or by proxy, and designedly so. The object manifestly was to lead him to suppose that the complainant would be there when the purpose was to remain away, and thus keep him in waiting until the hour for the late train should have passed, when practically he would be in default, or the hour would be too late to arrange for a deposit of the money. There was in this conduct, and in that which preceded it, viewed in the light of all the circumstances, a manifest intention to mislead him. To my mind there is no difference in such cases from the cases already referred to, where the party kept out of the way, or concealed the place of his residence, to deprive the mortgagor of the power of making the payment at the time prescribed. He was not shirking his obligation, but honestly trying to perform it, and only prevented from doing it by artifice. In such case there was not a default in the sense of a wrongful omission to do what had been contracted to be done, for the result produced originated in the miscon

duct of the complainant, and for the consequences of which the defendant ought not to be made to suffer. This was not a contract which by its terms made the failure to pay the interest at the day specified work a forfeiture of the credit as to the whole debt absolutely, as in many of the cases, but only at the option of the complainant, a circumstance which is to be considered in connection. with the case in the light of all the evidence, and the conduct of the defendant immediately afterwards in sending checks for the interest.

WALDO, C. J., (dissenting.) This may be stated to be a contract, substantially, to pay money at a day certain, with a condition to pay at an earlier day if the debtor shall fail to do a certain act. The plaintiff alleges the happening of the contingency on which the money was to be paid at the earlier day, and claims the payment provided for in that case by the contract. The case turns on the happening or not happening of the contingency,-or, is the debt in default? If so, the case is at an end.

The parties have expressly agreed that on a certain contingency payment shall be made at the earlier day. The contingency relates only to the day of payment. In either case, there is a debt to pay, and the payment is the payment of a debt and not of a penalty. Thus, in Stern v. Beck, 1 DeG. J. & S. 595; S. C. 11 Wkly. Rep. 591, where a mortgage provided for the payment of sums by installments, and contained a stipulation for the payment of the whole sum in default of payment of any such installment, it was held by the lord justices, reversing the judgment of ST. JOHN STUART, V. C., that such provision was binding, and was not in the nature of a penalty. Peachy v. Somerset, 2 White & T. Lead. Cas. *1082; Crane v. Ward, Clarke, Ch. 393; People v. Superior Court, 19 Wend. 104; COULTER, J., Mayo v. Judah, 5 Munf. 500; Basse v. Gallegger, 7 Wis. 442. There is no room in such a case for a court of equity to put an equitable construction upon the contract, and thereby make it other than what the parties themselves have expressly made it. BRAMWELL, B., in Preston v. Dania, L. R. 8 Exch. 20, is of opinion that equitable interference with the agreements of parties has already been carried beyond sound principle.

Now, the plaintiff was, on the day of payment, and long prior thereto, a resident of Portland, and this fact was known to the defendant. Therefore, either of two courses was open to him to avoid a default: (1) To be ready with the money at Salem to pay at the day; or (2) to tender payment at the day to the plaintiff in Portland. He did neither. There seems to have been nothing to prevent him doing the one or the other. A default is the inevitable result. A few days before the money was to fall due the defendant wrote a letter to the plaintiff at Portland inquiring where he should make payment. There is no evidence that the letter was received, but, on the contrary, there is evidence that it was not; for the defendant testifies that the letter

If the defendant would have been But he was not stands as if there

was returned to him through the post-office, as he supposed, by the postmaster at Portland, in pursuance of a direction on the envelope in case of non-delivery. If it had been received and remained unanswered, it would have amounted to nothing, for the law gave the defendant directions what to do. The plaintiff was under no legal obligation to be at Salem to receive the money. had been there with the money ready to pay, it equivalent to a tender, and prevented a default. there, and as to other steps open to him, the case had been no place of payment named in the note. It was defendant's duty in that case to seek the plaintiff at Portland, and to tender her the money. Thus, in Cheney's Case, 3 Leon. 260, the law is stated to be that if "A. is bound to deliver ten bushels of wheat, and no place is limited where the payment shall be made, the obligor is not bound to seek the other party wheresoever, as in the case of payment of money; for the importableness of it shall excuse him." In Cranley v. Hillary, 2 Maule & S. 122, DAMPIER, J., said: "It is laid down by Littleton that the obligor of a bond conditioned for the payment of money at a particular day is bound to seek the obligor, if he be in England, and at the set day to tender him the money, otherwise he shall forfeit the bond." And see Smith v. Smith, 2 Hill, 351. "He that pleads an excuse must show that he did all that he could possibly." Turnor v. Goodwin, Fortes. 150. The defendant did nothing but write the letter above mentioned. The plaintiff did nothing; she remained silent, as she had a strict right to do. It is equally certain that the plaintiff was not ready at Salem with his money to pay at the day. Such readiness is considered equivalent to a tender of the sum payable. Hills v. Place, 48 N. Y. 520. He should have had his money at Salem ready to pay at the day if demanded. Fenton v. Goundry, 13 East, 459; Caldwell v. Cassidy, 8 Cow. 271; Salt Springs Nat. Bank of Syracuse v. Burton, 58 N. Y. 430. As to cases where a note is payable at a city at large, see Boot v. Franklin, 3 Johns. 208; Covington v. Comstock, 14 Pet. 43. A tender after the day is insufficient. Hume v. Peploe, 8 East, 168; 2 Pars. Cont. 770, note. In a social point of view, the conduct of the plaintiff may not have been commendable, but with that we have nothing to do. "As to the mischief which may ensue by this, it matters not; for it might have been prevented by providence of the parties, and the inconvenience which may happen to them must not alter the law." Dekins v. Latham, Sty. 317. Lord MANSFIELD said, in Pray v. Edie, 1 Term R. 314, speaking of a very incommendable defense: "This is a matter for his consideration, and not for mine."

I am of opinion that the decree ought to be reversed.

HEIPLE v. CITY OF EAST PORTLAND and others.

Filed December 7, 1885.

1. MUNICIPAL CORPORATIONS-TRANSFER OF JURISDICTION OVER HIGHWAYS IN ACQUIRED TERRITORY EFFECT.

A transfer of jurisdiction from one tribunal to another does not necessarily affect the nature or character of the thing upon which such jurisdiction is to act; and merely taking from the county and giving to the city the power to work on the highways therein, would not of itself affect the character of the highways as such.

2. SAME-EXTENSION OF CORPORATE LIMITS OVER ROADWAYS-EFFECT ON LIABILITY OF ADJACENT OWNERS.

Where roadways are taken into corporate limits, and the power over them transferred from the county to the corporation, without specially converting the roads into streets, such ways will remain roads, and the abutting property will not be liable for repairs and improvements to any greater extent than property similarly situated along roads without the corporate limits. 3. SAME-ACQUIESCENCE.

Where the improvement made in a roadway, jurisdiction over which has been transferred from the county to the corporation, is consistent with its power over such way as a roadway, an adjacent property will not be held to have acquiesced in such user and improvement as a conversion of such road into a street.

4. SAME-DEDICATION.

The intention of the owner to dedicate a street to the public must be clear and unequivocal.

S. Huelat and Robt. McKee, for appellant, Samuel Heiple. Cornelius Taylor, for respondent, City of East Portland and others. LORD, J. The appellant was the owner of certain lands in East Portland described in his complaint. He alleged that of the lands so owned by him the defendant city had unlawfully and without authority taken and appropriated as a street, or part of a street, a strip 30 by 322 feet; that he had not at any time or in any manner dedicated the same as a street, and that the city of East Portland had not, by any action, suit, or proceeding whatsoever, opened, laid out, widened, or extended Fourth street over said strip, but that, notwithstanding this, the city authorities in the year 1883 declared the same a part of Fourth street, and proceeded under the charter, against the appellant's will, to have the same improved as a part of said Fourth street, by grading and planking a roadway, and grading and planking sidewalks thereon, and afterwards, under the provisions of said charter, the expense of making said improvement, to-wit, $676.11, was charged against appellant, and declared to be a lien on his other. lands abutting upon said 30 by 322 feet strip claimed and improved as a part of Fourth street; that under and in pursuance of said proceedings the common council of East Portland had caused a warrant to be issued to the marshal of the city, directing and requiring him to sell said abutting property to pay for said improvement, and that the same had been levied by said marshal upon said property, which was then advertised for sale. It is also further alleged that in 1867 the county court of Multnomah county duly laid out, established, and caused to be opened, a public county road over and along the identi

cal 30 by 322 feet of ground now claimed and improved as a street, and that the same has since been maintained as a county road, etc.,— concluding with a prayer for an injunction. The defendant city corporation answered, admitting the establishment of the county road in 1867; alleging that the city had at all times since its incorporation in 1870 occupied and controlled Fourth street, including the portion in dispute, as a street and public highway of said city, and had at all times, at the corporate expense, repaired and kept the same in repair as such, with the full knowledge and assent of the appellant; and also specially pleaded the statute of limitations of 10 years. As a separate defense, it further pleaded that in 1882 the appellant laid off his land immediately east of and adjoining Fourth street, as claimed by the city, into lots and blocks, and had made and recorded a plat thereof, recognizing Fourth street as such at the identical point in question; and as another and further defense, it set up the act of October 25, 1872, alleging it to be a grant to the city of the right to control all county roads within its limits. The reply put in issue all the essential matters alleged by the defendant. The suit was referred, the evidence taken, the findings and conclusions of law in favor of the defendant reported to the court, and subsequently, upon motion, after argument, was confirmed by the court, and a decree entered in accordance therewith. To reverse this decree, and to secure the affirmative relief prayed for in his complaint, the plaintiff has brought this appeal.

The denial of the injunction was based on the three defenses set up by the defendant, and the sufficiency of these defenses is the question to be determined. In effect, the first defense was that the legislature had granted the premises in dispute--it being then, and at the time of such grant, a public county road--to the city as a street, and by virtue thereof became a vested right in the corporation. Preliminarily, it may be said that the plaintiff does not deny the existence of the highway as originally established, and the authority of the city to exercise jurisdiction over it as such, but he does deny that the effect of the act was to impose any new liability or burden by virtue of such jurisdiction upon the property holders or lands adjoining such road or highway that was not included in its original establishment. It seems that the city of East Portland was incorporated by an act of the legislative assembly approved October 26, 1870, and that the land in question was included in its limits. By a subsequent act, October 25, 1872, the authority was conferred on the city to control the public highways within its territory, and excepted the same "out of the jurisdiction of the county court of Multnomah county." Now, say the counsel for the city, the effect of this last act was to make all county roads within the city limits streets of the city, and liable to all the consequences of jurisdiction over them as such. If this proposition is correct, the plaintiff has no case, and the decree cannot be disturbed. As relevant to this discussion, it may be said that one of