tachment without delay, by attaching the property of the defendant therein as mentioned, and thereupon make return of his writ, with his proceedings indorsed thereon. A failure upon the part of a sheriff to comply with the law in the respect mentioned would be a neglect of duty for which he would be responsible to a party injured in consequence thereof. The statute referred to does not specify any definite time in which a sheriff shall so return the attachment, but its language is mandatory, and if he were to fail to make such return within a reasonable time the liability would attach. It is highly important that a sheriff should promptly execute and return a writ of attachment. More specially so since the amendment of 1878, requiring that the judgment direct the sale of attached property, as there is no way of ascertaining what property has been attached except from the return of the sheriff; and that he is liable, in consequence of a failure to perform an official duty, for damages to a party resulting therefrom, is too well established to require any citation of authorities to prove.

The questions to be tried in this case were whether or not the respondent, as such sheriff, performed his duty in regard to the service and return of the writ of attachment as prescribed by the statute? and, if he did not, what damages resulted to the appellants in consequence of his neglect in that respect? The respondent's counsel dwelt with much apparent earnestness upon the fact that the writ of attachment was only to be returned when it should be fully executed; but it must be understood that it is fully executed when the sheriff has attached all the property of the defendant within his county, not exempt from execution, or so much thereof as may be sufficient to satisfy the plaintiff's demand, together with costs and expenses, and he is required to do this without delay. As soon as that is done, he must return his writ, retaining in his custody all property taken by him that has not been sold as perishable property, or that has not been delivered to the defendant, or third person claiming it, and an undertaking given as provided by section 152, Civil Code. The property in the hands of the sheriff is in custodia legis, and it is not necessary that the writ should remain in his hands in order to hold the property.

The case will have to go back, and the issues tendered by the parties in their pleadings be tried. The appellants' action is not barred or affected in consequence of any imperfect description of the property attached in the judgment or order for its sale. The question is whether the respondent improperly neglected to make a return of the writ of attachment, and turn the property attached over to his successor, and whether the appellants were damaged in consequence of such neglect.

(13 Or. 341)

PRETTYMAN v. OREGON RY. & NAV. Co.

Filed April 7, 1886.

1. CARRIERS-CARRIER OF GOODS-FAILURE TO DELIVER-MEASURE OF DAMAGES-MARKET VALUE.

When property has a market value which has been destroyed, and for which a recovery in damages is sought, the inquiry is as to the market value of such property, and in such case that value is the measure of damages. PROPERTY WITHOUT MARKET VALUE-VALUATION.

2. SAME

For the want of a market value, to recompense a party for the injury sustained by the loss of property, other means of valuation must necessarily be resorted to in order to appraise the property which is subject to judicial val

uation.

C. B. Bellinger, for appellant, Oregon Ry. & Nav. Co.
A. S. Bennett, for respondent, Prettyman.

LORD, J. This is an action brought by the plaintiff to recover damages from the defendant for failure, as a common carrier, to deliver a box of pear grafts alleged to have been shipped over defendant's lines. Upon the conclusion of the plaintiff's testimony the defendant moved for a nonsuit on the ground that the plaintiff had failed to make out a case sufficient to be submitted to the jury. The motion was denied. The jury found a verdict for the plaintiff, upon which the court rendered judgment. The denial of the motion for a nonsuit is the ground of the appeal. Among other things, it is alleged in the complaint, in substance, that at the time of the arrival of the grafts at Portland they had no market value, there being none in the market at that place, or within a long distance, but that for general and ordinary purposes the said grafts were of the reasonable value of $500, etc. The contention of counsel for the defendant was to the effect that there could be no general value, except a market value, and that any other value would be necessarily special, and hence the

error.

When property has a market value which has been destroyed, and for which a recovery in damages is sought, the inquiry is as to the market value of such property. In such case, the market value of such property is the proper measure of damages. It furnishes the standard by which the damages may be ascertained and measured; for the money value thus ascertained is the price at which property could be replaced for money in the market. But property may have a value for which a recovery may be had if it is destroyed, although it may have no actual market value. "There may have been no sales in that region," said VALENTINE, J; "there may have been no market value for the corn there. If so, then some other criterion of value must be adopted. It is not necessary in any case that there should be an actual market value for an article in order to entitle the owner thereof to a recovery for its destruction." Atchison, T. & S. F. R. Co. v. Stanford, 12 Kan. 380.

And in Murry v. Stanton, 99 Mass. 348, the court say:

"Property is often the subject of such legal valuation, for which no proof of value in the market could be given, because it is not bought in the course of trade, and it is not known in the market, and is therefore incapable of any estimate in that mode. In such case the real value is to be ascertained from such elements as are attainable. The promissory note of an individual may have no market value, but proof of the solvency of the maker, that the note is secured on real estate, in whole or in part, would require that some value, according to the fair estimate of its probable proceeds, should be put upon it. When there is a market value' it shows the price at which either party may have relief from the consequences of the default of the other, and therefore it properly measures the damages. But when there is no such standard, the damages must be estimated from other means of valuation."

* * *

For the want of a market value, to recompense a party for the injury sustained by the loss of property, other means of valuation must necessarily be resorted to in order to appraise the property which is the subject of judicial valuation. The bill of exceptions discloses that the evidence submitted was in conformity with this principle, and was competent for the purpose offered. There was no error, and the judg ment must be affirmed.

(13 Or. 287)

STATE v. COUNTY OF MULTNOMAH.

Filed March 22, 1886.

1. TAXATION-FIXING AMOUNT-DUTY OF LEGISLATURE-LIMITATION-COUNTIES, HOW BOUND. It is the duty of the legislative assembly to provide no more than an amount of revenue sufficient to defray the necessary expenses of the state for the fiscal year. The determination of a proper estimate, within this limitation, is left to that body, and upon its fixing a rate per cent. of tax to be levied, it is conclusive upon the counties.

The counties have control of the entire machinery for assessing and collecting the tax, and ought to be responsible for a failure to secure the full amount levied. Any serious failure in the matter may be relieved against by the legislature, while the courts have no alternative but to enforce the law as they find it on the statute books.

3. SAME-RECOVERY BY STATE FROM COUNTY-INTEREST.

There can be no interest allowed upon recovery by the state of a balance of the proportion of taxes due from such county to the state.

Raleigh Stott and Samuel Stott, for appellant.

P. L. Willis, for the State.

THAYER, J. This appeal comes here from the circuit court for the county of Multnomah, from a judgment rendered in that court, upon an agreed case, in which the respondent was plaintiff and the appellant defendant. The following are the facts agreed upon between the said parties to said case:

"In the year A. D. 1883, at the time prescribed by law therefor, the defendant caused its assessor to duly make out an assessment roll of the taxpayers and taxable property in said Multnomah county, according to the provisions of the statutes of this state relating thereto, to serve and be used as a basis of taxation for revenue for the purposes of both of the parties hereto, for said year, and the county court duly examined, corrected, and approved

said assessment roll; and thereafter said county court levied a tax upon the taxable property of said county for state purposes, for said year of 1883, which tax amounted to the sum of $98.857.38, and a tax which amounted to the sum of $176,531.05, upon said property, for county purposes, for said year; and thereafter, and prior to the twenty-sixth day of December, 1883, the county clerk of said county, as by law in such cases provided, transmitted to the secretary of state of the plaintiff a certified copy of said assessment roll, under the seal of said county court; that on and by said assessment roll, after it was so corrected and approved, it appeared that the taxable property then in said Multnomah county was $17,653,105; that upon receiving said copy said secretary of state duly estimated and ascertained the amount of tax to be collected in said county of Multnomah, for state purposes, for said year of 1883, and thereby found such amount to be $98,875.38, and, as by law in such cases provided, made a statement thereof, and thereafter, on the twentysixth day of December, 1883, at Salem, Oregon, duly delivered a certified copy of such statement to the treasurer of state of the plaintiff, who recorded the same in a book kept for that purpose, and also then and there charged the defendant with $98,875.38, the amount of tax so ascertained to be raised in said county of Multnomah; that prior to the first Monday of April, 1884, there had been duly collected and paid in to the county treasurer of said county, of said tax by said county court levied, more than the said sum of $98,875.38; that no part of said tax has been paid by the defendant to the plaintiff, except the sum of $92,647.51; that the aggregate amount of the taxable property in the state of Oregon, as it appeared on the assessment rolls of the several counties for the year 1883, certified to the secretary of state by the clerks of the several counties, was $75,306,953; the total amount of tax necessary to meet and pay all the appropriations made by the legislative assembly of the state of Oregon for said fiscal year 1883 was $392,500; that on the said assessment roll of 1883, upon which the said charge of state tax against the county of Multnomah was made by the state treasurer on the twenty-sixth day of December, 1883, for state purposes, for the fiscal year 1883, there were double assessments against land, by the same land being more than once assessed by said assessor in making said assessment roll; that the amount of state tax charged and levied against the said property so more than once assessed was $356.72; that the sheriff and tax collector of Multnomah county, as provided by law, upon the discovery of said double assessment, collected only the taxes justly due thereon, and collected no tax thereon; that in making said assessment and assessment roll the assessor of said county, by mistake, returned as taxable property a greater amount than should have been assessed to certain persons therein named; that the state tax levied and charged in said roll against the property of said persons in excess of what should have been assessed against them amounted to $91.23; that the sheriff and county court of said county prior to this date, and at the time appointed by law, duly remitted the said sum upon the said persons so overassessed, upon said persons duly making and filing their affidavits and lists of property liable to taxation in said county as provided by law; that the sheriff of said county was, on the fifteenth day of March, 1884, duly restrained by an order of the circuit court of the United States for the district of Oregon from collecting $1,188.10 in said roll assessed and charged as state tax for the fiscal year 1883 against the Dundee Mortgage & Trust Investment Company, in a suit wherein said company was plaintiff and the sheriff of said county and others were defendants, and was so restrained until the fourth day of September, 1884, and on said day said court duly decreed and perpetually enjoined this defendant from collecting said tax; that the defendant has proceeded, at the times and in the manner provided by law, to collect the state tax levied and charged against property in Multnomah county in said assessment roll for the year 1883, and has in all things complied with the statutes in that behalf, and after due dil

igence, and exhausting all legal remedies in such cases provided by law, has collected of said tax only $92,647.51, which said sum has been paid to the state of Oregon by the county treasurer of Multnomah county long prior to this date; that after having complied with the law in all things as aforesaid, the sheriff and tax collectors of Multnomah county, on the first Monday in April, 1884, made out a statement, duly verified, of the taxes assessed on said roll then remaining unpaid, including therein a description of the land doubly assessed; that at the date of said sheriff's statement there remained due and unpaid and delinquent of the said state tax $9,269.88; that thereafter the county clerk made from said delinquent tax roll a true and correct list of the taxes returned as unpaid, and a description of .the lands and property therein assessed, and the names of the persons to whom said taxes were charged, and on the twenty-second day of April, 1884, delivered the same to the sheriff with a writ attached thereto, under his hand and seal of the county court, as by law required; that thereafter said sheriff proceeded under said writ as by law required, and duly levied upon all the personal property that could be found belonging to said delinquents, and upon the real property of the said delinquent tax-payers in said delinquent list described and duly advertised, and sold the same in accordance with law prior to the first Monday in July, 1884; that after having sold said property as aforesaid, and used due diligence in the execution of said writ, there remained unpaid and uncollected, and still remains unpaid and uncollected, of said state tax as levied and charged in said roll, $6,209.87; and that no other property can be found by this defendant from which to collect said taxes."

Upon these facts the circuit court rendered the judgment appealed from, which included a principal sum of $6,209.87, and interest thereon at the rate of 8 per cent. per annum from and after the seventh day of April, 1884, amounting to $731.36, making in all $6,941.23. The grounds of the appeal are that the court erred in deciding that the state was entitled to recover from the county either the principal sum or the interest. As stated in the respondent's brief—

"The mode of proceeding in the matter of the levy and collection of state taxes in Oregon, at the time the tax claimed herein was levied (1883) and became due, was as follows: The assessor of each county of the state made out an assessment roll (Code, p. 751, § 16, amended by Laws 1880, p. 51) to be used as a basis of taxation for revenue for state and county purposes for a year. The county judge, clerk, and assessor, as a board of equalization, (Code, p. 756, § 37,) met on the last Monday in August (Code, p. 752, § 19) and examined and corrected the assessment roll, (Code, pp. 756, 757, §§ 3740.) The county court then, at its September term, re-examined, corrected, and approved the assessment roll, (page 760, § 54,) and estimated, determined, and apportioned or levied the amount of state and county tax required by law to be raised in the county, (page 760, §§ 55, 56.) Within forty days thereafter the county clerk transmitted to the secretary of state a certified copy of the corrected and approved roll. Page 760, § 59. Upon receiving such copy the secretary of state estimated the amount of state tax to be collected in the county, and made a statement thereof, and delivered a certified copy of such statement to the state treasurer, and the state treasurer then charged the county with the amount of the tax so ascertained to be raised. Page 761, § 60. On or before the first Monday of February next following the making of such charge the county treasurer was to pay over to the state treasurer the amount of state taxes so charged to the county. Page 766, § 80."

It is not claimed but that the statement made by the secretary of state of the estimated amount of the state tax, certified and delivered to