require lighterage at Astoria, in order to enable her to make the port of Portland;" that it was then and ever since "engaged in the towage and lighterage service between the ports of Astoria and Portland, and controlled and regulated the same almost exclusively,' and that said charter party was entered into by the parties with the understanding that the facts" in said article stated, were "the real facts," and that it was made with reference thereto.

The defendant excepts to the libel, for that, it does not appear therefrom that the libellent is entitled to the relief sought thereby; and that the second article thereof is impertinent.

On the argument of the exceptions, counsel for libellant contended that it was the duty of the defendant under the circumstances, "to furnish" the lighterage, and that the delay caused by its neglect or refusal to do so is in effect a delay or detention in discharging the cargo, that entitles the libellant to demurrage therefor, at the agreed rate, citing: Abb. on Shipp., 12 Ed., 241, 243; Maclaehlan's Law of Ship., 522, 526; 1 Ed., L. P., 63; 52 Q. B. D., 163, 166.

But there is nothing in these authorities or the circumstances to warrant such a construction of the charter party.

The defendant did not agree to pay for any detention of the vessel, however caused, after she left the port of New York until she reached Portland-the port of discharge. To this point the libellant undertook to bring his vessel and her cargo, with a full knowledge, as he alleges, of the character and means of the navigation on this side of Astoria.

Neither did the defendant agree "to provide" or "furnish" lighterage, but only "to pay" for it if necessary. When he contracted to bring his vessel and cargo to Portland, the libellant thereby undertook to provide all the means necessary and appropriate to that end; and also to bear the expense of so doing, except as otherwise specially provided in the contract. Upon this point-that the defendant was only "to pay" for the necessary lighterage, and therefore the libellant was not excused from furnishing it-the language of the charter party is plain, and the meaning and purport apparent. But the instrument also furnishes very strong confirmatory evidence of the correctness of this conclusion, in the special provision. therein, that "no more cargo is to be lightered than necessary," to enable the vessel to proceed to Portland. Now, if the defendant was to furnish the means, as well as "pay" for, the lightening of the vessel, there was no conceivable necessity for this provision. For it goes without saying, that it would not furnish any more lighterage than was necessary, and that, if it did, the libellant could not be injured thereby. But if the libellant was "to furnish" or "provide" the lighterage at the expense of the defendant, the latter might well seek to protect itself against imposition in this respect, by the insertion of some such clause in the contract.

It may be admitted that the law would have construed the contract, without this clause, as only binding the defendant to pay for

necessary lighterage; but, nevertheless, the insertion of it puts beyond question, what is otherwise not in doubt, that the parties contemplated that the libellant would furnish or provide, at the expense of the defendant, the lighterage necessary to enable him to perform his undertaking to bring the vessel to Portland for the discharge of her cargo.

incurred by "furnish" it

If the defendant had agreed "to pay" all pilotage the vessel on the voyage, it might as well be held to also as to furnish lighterage under this charter party. Nor is it likely or reasonable, that if the parties to this contract ever contemplated that the defendant was to provide or furnish the lighterage under any circumstances, as well as to pay for it, they would have omitted to say it. An agreement "to furnish" lighterage may, under ordinary circumstances, be construed to include the necessary expense of so doing. But an agreement "to pay" for lighterage, in terms, no more includes the physical act of furnishing or providing the same, than the less does the greater or a part the whole.

Keen v. Audenried, 5 Ben., 535, is a case on all fours with this. A schooner was chartered to carry coals from Baltimore to Pawtucket, R. I., the charterer to pay freight at a certain rate per ton, with towage from Providence to Pawtucket.

There was a delay in procuring towage at Providence, and the master of the schooner sued the charterer for demurrage, alleging that he was bound to furnish the towage, and was therefore responsible for the delay.

But Mr. Justice Blatchford, before whom the case was tried, construed the somewhat ambiguous phrase "with towage," as used in connection with the stipulation for the payment of freight, as binding the charterer "to pay" the cost of the towage, but not "to provide" it.

If the defendant, by reason of its employment, was under any legal obligation to furnish the libellant lighterage, which it failed to comply with, the libellant may sue it for the damage actually sustained in consequence of such breach of duty. But such suit, if maintainable, would have to be brought, not upon the charter party or for the demurrage provided for therein, but on this legal obligation of the defendant to furnish lighterage to any vessel under like circumstances, and its failure to do so in this instance.

The exceptions to the libel are sustained, and the same dismissed.

SUPREME COURT OF NEVADA.

ELDER V. FREVERT ET AL.

Filed December 20, 1884.

EXECUTION-SEIZURE OF PROPERTY EXEMPT FROM EXECUTION.-An execution creditor under whose direction a levy is unlawfully made is liable and may be sued with the sheriff in an action for the trespass. In such case both are wrongdoers.

THE SAME COUNTER-CLAIM-MEASURE OF DAMAGES.-In an action against a judgment creditor for unlawfully seizing two horses and a wagon of the debtor, exempt from execution, the defendant tannot set up, as a counter-claim, the judgment under which the seizure was made. The measure of damages in such action is the value of the use of the team and wagon during the period of detention.

APPEAL from a judgment of the second judicial district court, Ormsby county, entered in favor of the plaintiff. The opinion states the facts.

R. M. Clarke, for the appellants.

T. Coffin, for the respondent.

BELKNAP, J. Elder recovered judgment against defendant Williams as sheriff, for the recovery of a wagon and two horses exempt from execution, together with damages for their detention. The cause was appealed and the judgment of the district court affirmed. Pending the appeal Williams retained the possession of the property. The present action was brought for the recovery of damages for the detention during the period of time intermediate the rendition of the former judgment and the return of the property.

The property was taken and held by defendant Williams at the instance of Frevert, Wagner and Boles, under process of attachment issued in actions severally commenced by them against Elder. Appellants claim that this action will not lie against the defendants other than Williams, because they are not guilty of trespass against the property of plaintiff. It has long been settled that an execution creditor under whose direction a levy is unlawfully made is liable. and may be sued with the sheriff in an action for the trespass. In such cases both are wrongdoers: Marsh v. Backus, 16 Barb., 483; Allen v. Crary, 10 Wend., 349; Acker v. Campbell, 23 Wend., 371; Flewster v. Royle, 1 Campb., 187.

In the actions commenced by Frevert, Wagner and Boles, judgments were recovered against Elder. These judgments were pleaded by way of counter-claim to this action. The defense was disallowed. One of appellants' exceptions involves the ruling upon this point.

The statute exempts two horses and their wagon for the purpose of enabling the debtor to earn a living. The plaintiff has been deprived of the means of earning a living by the use of his team by the wrongful detention for five hundred and one days. If the judgment recovered for this detention can be applied to the payment of the debts of the claimant, the benefits intended by the exemption laws would be unavailing to the debtor. The law must be construed so as to protect him in the possession and use of his team, as well as in the property itself. This must be done by holding the judg

ment recovered for damages for the conversion not subject to counterclaim.

At the trial the district court admitted in evidence, the judgment roll and statement on motion for new trial in the case of Elder v. Williams. A general objection was made to the introduction of this evidence. If it was admissible for any purpose the objection is ineffectual. Parol evidence was first introduced for the purpose of establishing the interest of the defendants in the subject matter of the litigation, and to show that they controlled the proceedings of the former suit. They were then parties to the litigation within the principle that they were concluded by the former judgment. Among the issues determined by that judgment was that of the character of the property. This was an issue in the present case, and the former judgment was conclusive evidence upon that issue and admissible for this reason. It is unnecessary to consider the admissibility of the records further, because the other facts were established by other testimony.

It is urged that the district court erred in allowing the value of the use of the team and wagon as damages during the period of detention. The measure of damages in cases of this nature is compensation to the injured party for the loss of the use of his property. The team and wagon were valuable for a present use.

Interest on the value of property wrongfully taken ordinarily affords an indemnity to the injured party for the detention of his property, but in this case it is apparent that the rule would not afford compensation.

The damage suffered by the detention was the value of the use of the team and wagon, and the court was correct in adopting this measure of damages: Allen v. Fox, 51 N. Y., 562; Williams v. Phelps, 16 Mo., 80; Crabtree v. Clapham, 67 Me., 326.

In this connection it is said that since the judgment in Elder v. Williams was fully satisfied, upon the fourteenth day of April, 1882, by the return of the property and the payment of interest to that date upon the damages assessed, the plaintiff has been compensated for the detention, and this action cannot be maintained.

The damages assessed in that case for the detention of the property were for the period of time between the seizure and the trial. The interest paid was the penalty imposed by the law for delay in the payment of these damages. At the time of the trial of the former suit the law could not presume, nor could the plaintiff have proven, that the detention would have continued. The detention from the time of the trial of the former cause was a new trespass, and the damage a fresh cause of action.

Judgment affirmed.

SUPREME COURT OF OREGON.

WILHELM V. WOODCOCK ET AL.

Filed December 11, 1884.

DEED ABSOLUTE IN FORM WHEN A MORTGAGE.-The facts showing that a deed absolute on its face was intended as a mortgage, must be clear and decisive, so as to satisfactorily estab lish the intention of the parties. Tested by this rule, the deed under consideration held not a mortgage.

THE SAME--AGREEMENT TO RECONVEY. -An agreement to reconvey, executed by a grantee to his grantor, at the time of conveyance, is not sufficient to render a deed absolute on its face a mortgage.

INJUNCTION AGAINST EXECUTION SALE-JUDGMENT AGAINST THIRD PERSON.-The owner of real estate may enjoin the sale thereof under a judgment against a third party who has been privy to the title, when such judgment is not a lien or charge thereon, and such owner is in no way liable to the payment thereof.

APPEAL from the circuit court of Benton county. The opinion states the facts.

M. S. Woodcock and R. S. Strahan, for the appellants.

J. R. Bryson and Jno. Burnett, for the respondent.

THAYER, J. This appeal is from a decree rendered in favor of the respondent and against the appellants, enjoining them from selling certain real property consisting of two hundred and seventy-seven acres of land, situated in the county of Benton, state of Oregon, by virtue of an execution issued out of the said circuit court, upon a judgment at law recovered in favor of the appellant, Woodcock, against one David Huggins, and delivered to the appellant King, sheriff of said county of Benton, for service. It appears from the pleadings in the suit, that on the first day of February, 1876, said Huggins was the owner of said real property, having the legal title in fee to a hundred and forty acres thereof, and the equitable title to the remainder, the legal title thereof being in one Alexander Lamb, in trust for Huggins; that on said first day of February, 1876, said David Huggins executed in due form a deed to said one hundred and forty acres to one John Rickard, and at the same time the said Alexander Lamb executed a deed to said one hundred and thirty-seven acres to said Rickard. That said deeds were absolute in terms, and each contained a covenant of warranty; that at the same time said John Rickard executed to the said Huggins an agreement under seal whereby he agreed to sell to the said Huggins the two parcels of said real property for two thousand five hundred and thirty-six dollars gold coin, in consideration of which said Huggins agreed to pay to the said Rickard on the first day of February, 1877, said sum of two thousand five hundred and thirty-six dollars; also to pay all state, school and county taxes or assessments of whatsoever nature which were or might become due on the said premises, and which said agreement further provided that in case said Huggins neglected to comply with his said agreement, the said Rickard should be released from all obligations in law or equity to convey said property, and that said Huggins should forfeit all right thereto, and that said Rickard, on receiving such payment as provided in said agreement, would exe