a doubtful boundary, and to locate and establish it by agreement, acquiescence or otherwise. Nor is there anything which shows that the boundary line between the grantors of the parties to this action was doubtful, uncertain and in dispute, and that such grantors settled and fixed upon a boundary line between them, and then built their fence, and severally occupied up to such line accordingly. It follows, therefore, that the judgment must be reversed. Judgment reversed. SMITH V. BUTLER. Filed, 1884. REFORMATION OF DECREE-MISTAKE-DEGREE OF EVIDENCE.-Equity has jurisdiction to correct and reform a decree of partition, for a mistake in the description of a division line in the report of the referee, which not being noticed at the time, was confirmed by the court without objection, and incorporated in sucli decree. Such mistake must be clearly shown by satisfactory evidence. Mere preponderance of evidence is not enough. APPEAL from a judgment of the circuit court for Polk county. The opinion states the facts. Daly & Butler, for the appellant. J. W. Rayburn, for the respondent. BY THE COURT, Lord, J. This was a suit to correct a mistake in a decree of partition. The mistake originated in the description of a division line in the report of referees, and not being noticed at the time, was confirmed by the court without objection, and incorporated in its decree. The complaint is subject to some criticism for much redundant matter, but no pleading was resorted to to expunge these objectionable features in the court below. It does, however, allege facts sufficient to show the mistake, and in what it consisted, and pray the equitable interposition of the court for the purpose of correcting that mistake, and to make the division line conform, in fact, to the division line intended and supposed to have been reported by the referee to the court for its action and judgment in the partition suit. In the consideration of this case, we are not confronted with fact or evidence, which involves the question of notice, or the rights of innocent purchasers-it is presented on the bare issue of mistake. When denuded of all superfluous matter, the mistake is precisely alleged in the complaint, but before a court of equity is authorized to correct mistakes or reform written instruments, the mistake must be clearly and satisfactorily proved. Plain mistakes, like fraud, constitute one of the exceptions to the admission of parol evidence to modify or contradict written instruments (Gump's Appeal, 65 Penn. St., 478,) but courts of equity have adopted a rigid rule in respect to such evidence, and require the most clear and convincing proofs to establish mistake, or reform written instruments: 1 Story's Eq. Jr., sec. 157; 2 Pomeroy's Eq. Jr., sec. 858, and cases cited. Mere preponderance of evidence is not sufficient: Stockbridge Iron Co. v. Hudson R. Iron Co., 102 Mass., 45. But the mistake must be clearly made out by satisfactory proofs: Nevins v. Dunlap, 33 N. Y., 689. So, too, equity will grant relief in cases of mistake in judgments, decrees, and other matter of record, when the mistake is not judicial, and there is no other means of obtaining relief: Loss v. Obry, 22 N. J. Eq., 55; 1 Story's Eq. Jr, sec. 1662; Pomeroy's Eq. Jr., sec. 871, and cases cited in note. A case is, therefore, presented by this suit, of which courts of equity will take jurisdiction, and the only question for us now to consider is, whether the proof of that mistake is clearly and satisfactorily made out. Without recounting particulars, the evidence of the referees shows that the line located and intended to be the division line was not exactly the line they described in their report, and which the court confirmed and incorporated in its decree in the partition suit; that in the survey a monument was established at the beginning of the line, and posts set and marked each change of the line, and this was the line actually run, and intended and supposed by them and the parties at the time to be the division line established, but that a mistake was made in the report in the description of the line at the starting point, which had escaped their notice, and the notice of the parties, which makes a slight variation in the line contrary in fact to what was actually done, and what they supposed and intended to report. The evidence also shows that the parties soon after built their fences on the line as staked out by the referees, supposing it to be the line of division made out in the report of the referees, and have possessed and occupied since according to that division. The evidence is clear and correct, free from contradictions, and testified to by parties whose business it was to know the facts. Nothing is offered in contradiction of this evidence, nor is there any evidence in conflict with it. We are satisfied there was a mistake, and the parties were ignorant of it, and to correct that mistake, and place the parties where they supposed they were, we conceive to be our duty in the premises. Of course, no question of disputed boundary is involved or decided. The decree must be affirmed. Decree affirmed. WATKINS v. MASON. GOODS SOLD FOR FAMILY USE-ACCOUNT-WIFE'S LIABILITY-CAUSES OF ACTION.After the passage of the act of October 21, 1878, the wife is liable in an action jointly with her husband for goods sold for family use and so used, although the same were sold to the husband on his individual credit. An account for goods so sold partly prior and partly subsequent to the passage of such act contains two causes of action, one against the husband for the prior sales, and the other against the husband and wife for the subsequent sales. APPEAL from a judgment of the circuit court for Multnomah county, entered in favor of the defendant. The opinion states the facts. J. G. Chapman, for the appellant. BY THE COURT, WALDO, J. The respondent, O. P. Mason and Mary Mason, his wife, were sued jointly before a justice of the peace for meats furnished their household, in the city of Portland, between February 1879, and July 30, 1880. The action against Mary Mason was founded on the act of October 21, 1878. The respondents appealed from a judgment against them to the circuit court, where a demurrer to the complaint by Mary Mason was sustained. The case against O. P. Mason was referred to a referee to report the facts. The referee found that there was an open mutual account between the plaintiff and O. P. Mason, beginning December 1, 1874, and ending July 30, 1880. That all of said meats were furnished O. P. Mason at his request. That plaintiff had brought an action against O. P. Mason, severally, for the meats furnished up to February 1, 1879, and an action against O. P. and Mary Mason, jointly, for meats furnished from February 1, 1879, to July 30, 1880. On these facts the court found, as a conclusion of law, that the claim against O. P. Mason could not be divided into two actions and that the recovery in the first was a bar to this action. In this court a motion was filed to dismiss the appeal as to Mary Mason because not taken within six months from the determination of the case as to O. P. Mason. The cases hold, however, that an appeal lies only when the controversy as to all the parties to the action has been finally determined: Peck v. Vanderberg, 30 Cal., 11; Chittenden v. Missionary Society, 8 How. Pr., 328; Martin v. Crow, 28 Tex., 618; Simpson v. Bennett, 241 Tex., citing Freeman on Judgments, secs. 28, 34; Wills v. The State, 4 Tex. App., 616. It is next urged that Mary Mason is not liable to the appellant because there is nothing to charge her except that she is the wife of O. P. Mason, and that the meats were used in their household. Section 10 of the act of October 21, 1878, laws of 1878, 94, provides: "The expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately." This section is identical with section 2,214 code of Iowa, 1873. It has been held in that state upon that section that the wife may be compelled to pay for goods sold for family use and used in the family, although sold to the husband on his individual credit: Smedley v. Felt, 41 Iowa, 588; S. C., 43 Iowa, 607; see also Jones v. Glass, 48 Id., 345; Sherman v. King, 51 Id., 182; Fitzgerald v. MeCarty, 55 Id., 702. If, by the law of these cases, the meats sold by the appellant to O. P. Mason for family use was used in the family, then Mary Mason, the wife, is liable. The cases of Wilson v. Herbert, 12 Vroom, 484, and Way v. Peck, 47 Conn., 23, cited by respondents, are not in point. It follows that when the act of 1878 went into effect, Mary Mason became jointly and severally liable for the meat used in the family after that time. Two actions, therefore, would lie-one against O. P. Mason alone, and the other against Mary Mason alone, or Mary Mason and O. P. Mason jointly. Had the demand otherwise been indivisible, the law had severed it into two causes of action. Had the second action been against O. P. Mason, severally, there is high authority to have sustained it: See Badger v. Titcomb, 15 Pick., 409, 415; Sear v. Sturgis, 16 N. Y., 555. Other questions in the case are substantially involved in those determined. Judgment reversed and new trial ordered. SURLES v. SWEENEY. Filed, 1884. REPLEVIN-DEMAND UNLAWFUL TAKING.-No demand is necessary, in an action to recover the possession of personal property, where the original taking was unlawful, although the defendant came into the possession of the property without any imputation of fraud, or intention to do a wrong. APPEAL from a judgment of the circuit court entered in favor of the plaintiff. The opinion states the facts. George W. Yocum and Robt. L. McKee, for the appellant. BY THE COURT, LORD, J. This was an action of replevin. The plaintiff in substance alleges that he was the owner and entitled to the possession of a certain horse, and that the defendant, without his consent, wrongfully and unlawfully took said horse from his possession, and still unlawfully and wrongfully detains said horse from his possession to his damage, etc. The answer of the defendant denies each and every allegation of the complaint, and alleges affirmatively as separate defenses: First-that he is the owner and entitled to the possession by purchase, etc. Second-That the plaintiff is estopped by reason of his authorizing one Barnes, as his agent, to sell or trade the horse, and that the defendant, knowing such facts and relying on the good faith of plaintiff's authority to said Barnes to trade or sell said horse, did, etc. A verdict was found for the plaintiff and the appeal is brought here on a bill of exceptions. The main ground of objection is that the defendant is an innocent, bonu fide purchaser for value; and before the plaintiff could maintain this action, he should have made a demand upon the defendant and been refused, and such demand and refusal should have been alleged and proved. It is claimed that the evidence in the bill of exceptions shows the defendant to be an innocent purchaser for value. Of this we are not fully satisfied, nor fully prepared to judge, as the bill of exceptions does not purport to contain all the evidence, but we shall con cede the point in the decision of this case. It appears by the evidence in the bill of exceptions that the horse is the property of the plaintiff; that he authorized Barnes to sell the horse for one hundred dollars; and that one Zed Wilson, without any authority from Barnes, took and traded the horse to one Gustell, and Gustell again with the defendant. The action is for the unlawful taking and detention of the horse, and no demand is alleged or proved. In Morse v. Jenkins, 5 Or., 447, it is held that the action for the recovery of personal property, under the code, is substantially the former action of replevin, and is governed by the same principles and rules, especially in relation to demand and refusal. And in that case, Mr. Justice McArthur said: "In an action for wrongful taking and wrongful detention, demand is not necessary. When, however, the plaintiff relies upon wrongful detention, demand must be pleaded as well as proved. When he relies upon wrongful taking, or upon wrongful taking and detention, demand is not necessary. For the purposes of this case, let it be conceded that the defendant acquired possession of the horse from one who was apparently the owner, in good faith and for value, and that his possession is without taint of moral turpitude. The question then is, had he such a rightful possession in law as to require that the real owner must make a demand before commencing his action? Where a party is rightfully in possession of property belonging to another, he does not unlawfully detain it, until after a demand from the true owner, and a refusal. But if the taking is tortious, no such demand is necessary. Whoever takes the property of another without his assent, express or implied, or without the assent of some one authorized to act in his behalf, takes it in the eye of the law tortiously. His possession is not lawful against the true owner. That is unlawful which is not justified or warranted by law; and of this character may be some acts which are not attended with any moral turpitude. The defendant came honestly by the horse, but he did not receive possession of him from any one authorized to give it, and is, therefore, liable civiliter to the true owner for the taking as well as for the detention. Weston, J., in Galvin v. Bacon, 11 Maine, 28. In Frude v. Anderson, 10 Mich., 369, the court say: "It is not easy to give a satisfactory reason why the true owner, who has been guitly of no wrong or negligence, should be prejudiced by a transaction between the wrongful taking of his property and a third person, or how such transaction can impose upon him a new obligation. In many cases a previous demand would impose upon the owner a serious inconvenience, and in some cases might be equivalent to a denial of his right; and if he happen to find in whose possession his property lies, a demand will perhaps raise an alarm, and hurry both the wrong doer and the property beyond the plaintiff's reach. Why should the right of the plaintiff to recover his property be made to depend upon the good faith of the defendant, when that good faith is no defense against the plaintiff's right of property, or possession |