the decision, alludes to Spencer's Case, 5 Coke, 16, 1 Smith Lead. Cas. 137, and says: "But this nice distinction, originating at a time when it was necessary to use the word 'heirs,' or other words of inheritance, in a conveyance, in order to grant or convey an estate in fee, cannot be now said to exist, as in Norman v. Wells, 17 Wend. 136, it was determined that those covenants run with the land, which are made touching or concerning it, and affect its value, and are not confined to those which relate to some physical act or omission upon it." The word "heirs" is not now necessary to create or convey an estate in fee simple. All of the grantor's estate passes by his deed, unless the intent to convey a less estate appears by express terms, or is necessarily implied from the language of the deed: Hill's Annotated Laws, sec. 3005. The statute not having prescribed that the word "assigns," or other words of like import, shall be necessary to make a covenant run with the land, the omission of such words from a deed by which a right is connected with the dominant estate, or an obligation inheres in the servient estate, does not necessarily evidence an intention that the clause conferring the right or imposing the burden is a condition personal to the party charged with its performance. An examination of the language of the deed for the purpose of ascertaining the intention of the parties, shows that the grantors stipulated, in effect, that, if they neglected to build or maintain the fence agreed upon, the grantee should not be held responsible for any damage resulting from such neglect to stock belonging to them. This exemption from liability is the legal result of the grantors' failure to comply with the terms of their deed, 184 and necessarily follows their neglect to build and maintain the fence, without being recited in the deed; for the rule is well settled that, if an adjoining land owner agree with a railroad company to build and maintain a fence along its right of way, the company is not liable to such proprietor, or to his assigns, who take his estate with notice thereof, for injury resulting from neglect to perform or keep such agreement: 12 Am. & Eng. Ency. of Law, 2d ed., 1071; St. Louis etc. Ry. Co. v. Washburn, 97 Ill. 253; Duffy v. New York etc. R. R. Co., 2 Hilt. 496.

No agreement, however, entered into between a railroad company and an adjoining proprietor, whereby he stipulates to build and maintain division fences, will absolve the company from liability to persons not parties to the contract, or in privity with them, for injury resulting from the land owner's

failure to keep his engagement in this respect: 12 Am. & Eng. Ency. of Law, 2d ed., 1072; Wabash Ry. Co. v. Williamson, 104 Ind. 154; Warren v. Keokuk etc. R. R. Co., 41 Iowa, 484; Thomas v. Hannibal etc. R. R. Co., 82 Mo. 538; Gilman v. European etc. Ry. Co., 60 Me. 235. A tenant, who enters upon land with notice of his landlord's covenant with a railroad company to build and maintain a division fence along the right of way, can acquire by the demise no greater estate in the premises than his landlord possessed therein, and hence he has no remedy against the company for injury to his stock resulting from the landlord's failure to build or repair such fence: Easter v. Little Miami R. R. Co., 14 Ohio St. 48; Duffy v. New York etc. R. R. Co., 2 Hilt. 496; Indianapolis etc. Ry. Co. v. Petty, 25 Ind. 413; St. Louis etc. Ry. Co. v. Washburn, 97 Ill. 253. If Samuel Brown and his wife had leased their land, their tenant's stock could not in any sense, be regarded as their own. The right conferred by their deed upon the railroad company was, so far as they were 185 concerned, to permit it to operate its trains without fencing its right of way, and by exempting it from liability for injury to stock belonging to them they would, in such case, thereby impliedly reserve the right to their tenant, which he could enforce, of compelling it to fence its track across their premises, or be responsible to him for any injury to his stock in consequence of a failure to do so; for by exempting the company from liability for stock belonging to them only they restricted its right to use the track without fencing to the time in which they had possession of the premises, and made it responsible to their tenant for damage done by it to his stock in consequence of its failure to fence the track through said premises; and what is true of their tenant's stock must apply with equal force and reason to the stock of their successor in interest. The failure to include the word "assigns" in the deed is not controlling, if it can reasonably be inferred from the language of the instrument that the parties intended that the covenant should run with the land; but the absence of such word, or other words of like import, may be considered in connection with the context of the deed in arriving at the intent of the parties in this respect. Giving to the deed such construction, we think the parties thereto never intended that the stipulation to build and maintain the fence should be regarded as a covenant running with the land, but that such clause was meant to be a condition personal to the grantors, and binding upon them only.

It is alleged in the answer, and denied in the reply, that plaintiff is the successor in interest of Samuel Brown. The bill of exceptions, however, shows that plaintiff, in answer to the question, "In what way were you occupying this land at the time these cattle were killed respectively?" said: "I was employed by my mother. She had a life lease on the place, but she died since I began this 136 suit against the company. I was working for a salary, and kept my stock on the place." The pasturing of this stock necessarily created a privity of estate, but whether he was the tenant of his mother, or the successor in interest of his father, can be of little consequence, for, in either event, he was not bound by their agreement. Giving to the deed such an interpretation, we think the court erred in instructing the jury to find for the defendant.

2. In view of a new trial it becomes important to consider another error alleged to have been committed by the trial court. The action is founded upon the statute which requires certain railroad companies in Oregon to fence their tracks, and provides that for any neglect in this respect they shall be liable to the owners of stock for any damages which may result thereto in consequence of such neglect, and also for reasonable attorneys' fees; provided, however, that no action shall be maintained until after such owner has given at least thirty days' notice in writing to such railroad company: Laws 1893, p. 28. Plaintiff, more than thirty days prior to the commencement of the action, served upon W. W. Skinner, a station agent of the defendant at Salem, a notice, of which the following is a copy:

"To the Southern Pacific Company:

"Notice is hereby given that Mrs. Elizabeth Brown, a widow residing near Gervais, Marion county, Oregon, and Sam H. Brown, a farmer residing near Gervais aforesaid, claim of and from you the sum of two hundred and forty-five dollars, the reasonable value of four thoroughbred cows, one colt, and one calf, wrongfully and negligently killed by you upon your line of railroad near Gervais aforesaid on and between the first day of February, 1894, and the fifth day of November, 1895; and, unless the said sum be paid within thirty days from the date of service of this notice upon you, an action will be commenced against you in the circuit court of Oregon for Marion county, by said 187 Elizabeth Brown and Sam H. Brown, to recover from you the said two hundred and forty-five dollars,

and the costs and disbursements of said action, together with such further sum as the court may adjudge reasonable to be allowed as attorneys' fees in said action.

"Dated at Salem, Oregon, this nineteenth day of December, 1895. ELIZABETH BROWN, and "SAM H. BROWN,

"By CARSON & FLEMING,
"Their Attorneys."

It was alleged in the complaint, in substance, that plaintiff gave the required notice, including therein a demand for a colt and a calf killed in July, 1895; but said colt and calf were owned jointly by plaintiff and Elizabeth Brown, and plaintiff is not seeking to recover the value of said colt and calf in this action. The answer denies that said notice contained a demand for one colt or one calf, or that said colt or calf were jointly owned by plaintiff and Elizabeth Brown. The plaintiff, being called as a witness, testified that the cows mentioned in the complaint were the ones described in the notice, and were owned by him at the time they were killed, but that his mother, Elizabeth Brown, owned the colt and calf described in the notice. Said notice was then offered in evidence, and, the court having sustained an objection to its introduction on the ground that it was joint, plaintiff's counsel excepted to the ruling, and contends that the court erred in this respect. If the allegation of the complaint with respect to the joint ownership of the stock had been established upon the trial, plaintiff would undoubtedly have been "such owner," within the meaning of the act. The object of the statute requiring notice to be served is to give to the railroad company an opportunity to settle the claim of damages resulting from its neglect, thereby avoiding the expense of an action; and this object was fully accomplished by the service of the notice offered in evidence. The notice is not jurisdictional, nor does the statute prescribe the form thereof, 138 and, in our judgment, the court erred in not receiving it in evidence. It follows that the judgment is reversed, and a new trial ordered.

A COVENANT TO BUILD AND MAINTAIN A PARTITION FENCE does not run with the land, but is personal: Monographic note to Gibson v. Holden, 56 Am. Rep. 162. Compare Hazlett v. Sinclair, 76 Ind. 488, 40 Am. Rep. 254; and see Hickey v. Lake Shore etc. Ry. Co., 51 Ohio St. 40, 46 Am. St. Rep. 545.

THE LIABILITY OF RAILWAYS FOR INJURIES TO STOCK trespassing on their tracks is considered at length in the note to Tonawanda R. R. Co. v. Munger, 49 Am. Dec. 261-273.

MONTEITH v. PARKER.

[36 Oregon, 170.]

MUNICIPAL CORPORATIONS INTEREST ON WAR RANTS.-Warrants for the payment of money against a municipal corporation presented to the city treasurer and indorsed by him "not paid for want of funds," as authorized by ordinance, are there after interest bearing from that date.

MUNICIPAL CORPORATIONS ARE LIABLE FOR INTEREST on their debts the same as individuals.

MUNICIPAL CORPORATIONS INTEREST ON WARRANTS.-If an interest bearing warrant against a city is surrendered and others to an equal amount are issued in lieu thereof, and dated and indorsed as the original, the later issue cannot be regarded as a payment, but merely as an exchange, and they too bear interest the same as the original.

Cox, Cotton, Teal & Minor and J. M. Long, for the appellant. Weatherford & Wyatt, for the respondent.

173 MOORE, J. The charter of the city of Albany contains the following provision: "The city of Albany shall not be bound by any contract, or in any way liable thereon, unless the same is authorized by ordinance," etc.: Charter of Albany, c. 11, sec. 137; Laws 1891, p. 720. At the time the warrants in question were issued, section 4 of ordinance No. 161 of said city was in force, and provided that: "When any city warrant shall be presented to the city treasurer, and there is no money in the treasury to pay the same, the treasurer shall indorse on the back of said warrant, Presented and not paid for want of funds,' also the time of making such indorsement; and he shall keep a record of such orders or warrants, in a book kept for that purpose; whenever the city treasurer shall pay any such warrant so indorsed he shall cancel the same, as other warrants are canceled by him, and enter the 174 same in the book of indorsed orders." If it be conceded that no authority existed for writing on the face of the warrants the clause to the effect that they should bear interest, yet, each warrant having been presented to the city treasurer, and indorsed by him, “Not paid for want of funds," the question is presented whether this indorsement rendered them interest bearing at the legal rate prescribed by statute. The statute regulating the rate of interest, which was in force when these warrants were indorsed, provided: "That the rate of interest in this state shall be eight per centum per annum and no more on all moneys after the same become due": Hill's Annotated Laws, sec. 3587. The