formed to the law in every particular, he was not entitled to purchase nor to appeal; and the case of State v. Forrest, 13 Wash. 268, 43 Pac. 51, is cited as sustaining that proposition. But the application there was for a writ of mandamus, and in order to grant such a writ the rights of the relator must be clearly established, while in this case the matter came before the superior court by way of an appeal upon the merits, and we think the court erred in dismissing it upon the motion. Reversed and remanded for further proceedings.

DUNBAR, ANDERS, and REAVIS, JJ.,

concur.

(32 Or. 95)

STATE v. HANLON. (Supreme Court of Oregon. April 5, 1897.) CRIMINAL LAW-NOTICE OF APPEAL-SUFFICIENCY -LARCENY-DEGREES-"SHOP" DEFINED.

1. Where the first paper in the transcript states the title of the court and cause, the objection that the notice of appeal does not show the court in which, and the party against whom, the judgment was rendered, is untenable, though the word "title" does not appear immediately before said notice, as provided by the note to supreme court rule No. 2 (37 Pac. vi.).

2. A notice of appeal, which states the nature of the action, the parties, the title of the court, and the judgment rendered, is sufficient to confer jurisdiction, though it fails to designate the time when said judgment was rendered.

3. A building wherein a workman pursues his business and keeps his tools, or the products of his labor, though no article is sold or offered for sale therein, is a "shop," within Hill's Ann. Laws, 8 1764, punishing larceny "in any # * store, shop," etc.

4. Where an indictment under Hill's Ann. Laws, § 1764, punishing larceny in any "store, shop," etc., alleges that the value of the property taken was $30, and the jury find that the building where the theft was committed was not within the enumerated class, defendant may be convicted of petit larceny.

Appeal from circuit court, Multnomah county; T. A. Stephens, Judge.

George Hanlon was convicted of larceny in a shop, and appeals. Reversed.

John L. McGinn and John F. Logan, for appellant. C. M. Idleman, Atty. Gen., W. T. Hume, Dist. Atty., and D. J. Malarkey, for the State.

MOORE, C. J. The defendant, George Hanlon, having been indicted, tried, and convicted of the crime of larceny in a shop by stealing a watch therefrom, was sentenced to imprisonment in the penitentiary for the term of four years, from which judgment he appeals, assigning as error of the trial court its failure to charge the jury as requested. At the threshold of this cause we are confronted with a motion to dismiss the appeal, counsel for the state contending that the notice thereof does not identify the judgment complained of, and therefore no jurisdiction is conferred by its service. The transcript, containing a 48 P.-23

copy of this process, has the following recital: "And afterwards, on the 22d day of September, 1894, the defendant filed his notice of appeal in words and figures as follows: "To W. T. Hume, district attorney of the Fourth judicial district, and attorney for the state of Oregon, in the above-entitled criminal action, and to Dan J. Moore, clerk of the above-entitled court: Notice is hereby given that the above-named defendant, George Hanlon, appeals to the supreme court of Oregon from the proceedings and judgment had in the above-entitled criminal action, and from the sentence therein pronounced against him; said sentence being that said George Hanlon be confined in the penitentiary of the state of Oregon for the period of four years. McGinn & Logan, attorneys for defendant.'" A summary of the objections urged against this notice is as follows: (1) There are no parties named in the notice of appeal; (2) the notice does not specify the county from which the appeal is taken; (3) it does not designate the time when the judgment was rendered; and (4) it does not show that any court having jurisdiction of the cause or person pronounced the judgment. The title of the court and cause is stated in the first paper set out in the transcript, and a comparison of the foregoing notice of appeal with the form prescribed in rule 2 of this court (see Rules of the Supreme Court, 24 Or. 591, 37 Pac. vi.) shows that the manner of setting out a copy of this process has been strictly followed. In a note to said rule 2 it is said: "The title of the court and cause, unless otherwise directed, may be omitted from all papers except the first paper in the cause, but the word 'title' shall be used, the character of the paper, whether complaint, summons, answer, etc., shall be designated." The word "title" does not immediately precede the notice of appeal, to show its omission therefrom, but it is manifest that this is a mere clerical error in making up the transcript, and that the title of the court and cause is understood to be prefixed to every separate paper, a copy of which is set out in the record, and that the notice of appeal showed the court in which, and the party against whom, the judgment was rendered. The rule above referred to was framed with a view to saving expense to parties litigant in the preparation of transcripts on appeal, and the note thereto from which the extract is taken amounts to a suggestion only in explanation of the rule; but, if the note had the effect of a positive enactment on the subject, the alleged error in the record would not be fatal to the appeal, because it could be rectified by obtaining from the clerk of the trial court a certified copy of the notice of appeal, which, in our judgment, would clearly show that the title of the court and cause was prefixed to the process relied upon to give this court jurisdiction. Believing, as we do, that the omission of the word "title," preceding the notice of appeal, in the record, was immaterial, this disposes of

all the objections to this part of the transcript except that the notice of appeal does not designate the time when the judgment was rendered. If the notice of appeal informs the adverse party that a party to the judgment intends to appeal therefrom to the supreme court, and is so specific in its description of the judgment complained of as to acquaint a stranger to the record of the judg ment alluded to in the notice, it is sufficient to confer jurisdiction; and this object may be accomplished without alluding to the time when the judgment, was rendered. The notice of appeal states the nature of the action, the names of the parties, the title of the court rendering the judgment, and specifies the sentence pronounced by it upon the defendant; and under the liberal rule announced by this court in Crawford v. Wist, 26 Or. 596, 39 Pac. 218, we deem it sufficient to advise a stranger to the record what judgment was thereby intended, and adequate to confer jurisdiction.

2. Turning now to the evidence contained in the bill of exceptions, it shows that on July 2, 1894, one Andrew Armstrong was the engineer in charge of the boiler and engine situate in a building known as the "pumping station of the East Side Water Company," a corporation, then engaged in pumping water and supplying it to the citizens of Portland; that no business was transacted, nor were any goods, wares, or merchandise offered for sale in this building, nor was any property kept therein, in addition to the machinery, except a few tools used in the operation of the engine and pumps; that on said day the defendant entered this building, and, seeing the engineer's watch hanging on the wall, took and carried it away, but, being observed by Armstrong, who pursued him, he ran until overtaken by the latter, when he threw the watch on the ground, thereby breaking it. Defendant's counsel requested the court to give the following instructions to the jury: "You are charged that a pumping station or boiler room is not a shop within the meaning of the law, unless there are goods stored there and actually sold," and that they might find the defendant guilty of petty larceny; but, the court refusing to comply therewith, exceptions were saved. The statute under which the defendant was indicted is as follows: "If any person shall commit the crime of larceny in any dwelling-house, bankinghouse, office, store, shop, or warehouse,

*

* such person, upon conviction thereof, shall be punished," etc. Hill's Ann. Laws Or. § 1764. A shop is defined to be "a buildIng in which goods, wares, or merchandise are sold at retail, or in which mechanics labor, and sometimes keep their manufactures for sale." 22 Am. & Eng. Enc. Law, 778. In England the word "shop" is understood to be a structure or room in which goods are kept and sold at retail. Bish. St. Crimes, § 295. In this country, however, such a building is usually called a "store." and universally so in the Western and Pacific

coast states, where a shop is understood to be a building in which an artisan carries on his business, or laborers, workmen, or mechanics, by the use of tools or machinery, manufacture, alter, or repair articles of trade. Under this definition it will be observed that the sale of these products in the building where manufactured, altered, or repaired is not necessarily an ingredient in determining what constitutes a shop. In Massachusetts it would appear that the words "store" and "shop" were synonymous. Com. v. Riggs, 14 Gray, 376. But in New Hampshire the court reached a different conclusion in State v. Canney, 19 N. H. 135, in which Gilchrist, C. J., in rendering the decision, says: "In conversation we speak of a store as a place where goods are exposed for sale, thus giving it the same meaning as 'shop.' Still we recognize a difference between the meanings of these two words. Thus we do not call the place where any mechanic art is carried on a store, but we give it the name of shop. as a tailor's shop, a blacksmith's shop, a shoemaker's shop. We usually understand by the word 'store' a place where goods are exhibited for sale, but we do not always mean a store when we use the word 'shop,' Now, as we do not use the word 'shop' and 'store' as synonymous, there is no reason to suppose that they were intended to be so used in the statute; for if they were so considered, only one of these appellations would have been necessary, and, as there is a recognized difference in their meaning, we cannot consider them synonymous." "There are few, if any," says Brickell, C. J., in Sparrenberger v. State, 53 Ala. 481, "who would understand that a man had a store, and was engaged in buying and selling goods or merchandise, if we said he had a shop. We never speak of the place in which the mechanic exercises his trade as a store, nor do we speak of the place in which goods are bought and sold as a shop." The legislative assembly of this state, in classifying the buildings in which the law vigilantly guards property which might be left therein, evidently understood the local meaning of the structures which protected the commodities within their walls, and by making use of the words "store" and "shop" recognized the fact that they were not synonymous, for, if this were not so, one of these words would be useless.

Under the definition, as above given, we will examine the instructions which defendant's counsel requested the court to give, to the effect that a building is not a shop, within the meaning of the statute, unless goods are stored and actually sold therein. We think there was no error in the court's refusal to so charge the jury, for, as we view the statute, a building is a shop whenever a workman pursues his business and keeps his tools or the products of his labor therein, notwithstanding such articles of trade may not be offered for sale or be sold on the premises.

The court having instructed the jury that they must find the accused either guilty as charged in the indictment or not guilty, counsel for the defendant contend that the court erred in its refusal to charge them that they might also find him guilty of simple larceny. The indictment having alleged the value of the watch taken to be $30, could the defendant have been convicted of simple larceny, under a charge of larceny in a shop? The answer to this question must necessarily depend upon a consideration of the question whether the crime charged in the indictment consists of different degrees. In State v. Taylor, 3 Or. 10, which was an action tried in the circuit court of Multnomah county, Upton, J., in answering the question here presented, said: "There is a form given in the Code for larceny in a dwelling that omits to state the value of the property stolen, and I think under that form of indictment a convic

tion of simple larceny could not be sustained; but, if the value of the property be also alleged, the indictment will charge all the facts to constitute the latter crime." The law, in order to encourage the transaction of business, and to guard the safety of the home, throws its mantle of protection over all goods in the class of buildings enumerated in the statute without regard to their worth, and hence the value of such property is not an ingredient in the crime of larceny in a shop; but, if the indictment allege the value of the property so appropriated therein, we, see no just reason why the accused might not be found guilty of simple larceny, and particularly so if the jury should find that the building in which the property was taken was not among the class enumerated in section 1764. Under the testimony given at the trial it is quite evident that the building in which the watch was stolen was not a shop, within the meaning of the statute, but, the value of the property taken having been alleged in the indictment, the crime therein stated consisted of different degrees, in which case it was the province of the jury to find the accused guilty of an inferior degree (Hill's Ann. Laws Or. $ 1359, 1382); and hence the court erred in its refusal to so instruct the jury. It follows that the judgment is reversed, and a new trial ordered.

(30 Or. 573)

GETTY v. AMES et al. (Supreme Court of Oregon. April 5, 1897.) MECHANICS' LIENS LIENABLE AND NONLIENABLE WORK-CLAIM OF LIEN-SUFFICIENCY.

1. One employed on salary to do such work as may be required, and doing lienable and nonlienable work indiscriminately, is not entitled to a mechanic's lien.

2. A claim of lien stated that claimants "have by virtue of a special contract made with A. and T. in the construction of a certain building used as a dwelling and barn, constructed and being on the following described land," describing the land; that A. was the owner of the land, and T. had an interest therein, and

joined in the contract; "that the contract and reasonable price of such building" was a certain sum, and a statement of the account was affixed. Held, that the claim was insufficient, because it did not state directly or by necessary inference for whom the labor was done and material furnished, or that claimants had in fact performed labor upon or furnished material for the building mentioned.

Appeal from circuit court, Coos county; J. C. Fullerton, Judge.

Action by R. W. Getty against Kate F. Ames and others to foreclose a mechanic's lien. From a decree declaring void the liens of plaintiff and defendants Christensen & Johnson, plaintiff and said defendants appeal. Affirmed.

This is a suit to foreclose two alleged mechanics' liens claimed by plaintiff upon a building and fence belonging to the defendants Ames and Thibault. The defendants Christensen & Johnson, by their answer, deny the validity of said liens, and set up

and seek to foreclose a mechanic's lien of their own upon the same property for labor performed and material furnished. The defendants O'Connell and Flanagan are mortgage lien claimants, and by their answers controvert the validity of the Christensen & Johnson lien, and also those claimed by the plaintiff, and set up their mortgages, and ask to have them foreclosed in this suit. After issue joined, a trial was had, resulting in a decree declaring the liens of plaintiff and defendants Christensen & Johnson void, and foreclosing the mortgages of O'Connell and Flanagan; and from such decree this appeal is taken.

B. B. Beekman and A. M. Crawford, for appellant Christensen. J. W. Bennett, for plaintiff. John F. Hall, for Ames and Thibault. J. W. Hamilton, for O'Connell and Flanagan.

BEAN, J. (after stating the facts). Although an oral argument was made for plaintiff, and a brief filed in his behalf, it is not clear that he has perfected an appeal to this court; but, waiving that point, it is obvious that as to him the decree below must be affirmed. From the evidence it appears that about the 1st of May, 1893, he was hired by the defendants Ames and Thibault for the term of one year at a monthly salary of $125, to perform such labor and render such services for them as they might from time to time direct, and to furnish a team and carriage. In pursuance of this contract, he immediately entered upon and continued in their service until about the 15th of October, 1893, during which time, at irregular intervals, when not otherwise employed, he worked on a dwelling house and fence his employers were then building; but no separate account was kept of, or charge made for, the time actually employed in such labor, and the plaintiff's estimate of the value thereof is the merest guess. He was employed by the month, to

render such services as his employers might require or demand, which it now seems included lienable and nonlienable work indiscriminately; but this does not entitle him to a lien for such labor or services as might otherwise come within the provisions of the lien law, for the court cannot undertake from extrinsic evidence to apportion the amount of his monthly salary between the lienable and nonlienable work performed by him. This question was considered in Allen v. Elwert, 29 Or, 444, 44 Pac. 826, and 48 Pac. 54, and the rule there announced is that: "Where lienable and nonlienable items are included in one contract for a specific sum, or are made the basis of a lumping charge, so that It cannot be perceived from the contract or account what proportion is chargeable to each, the benefit of the mechanic's lien law is lost. In such cases the court cannot, by extrinsic evidence, apportion the amount of the entire charge or contract price between the lienable and nonlienable items. But where the claimant's demand, made in good faith, consists of several different items, separately charged, some of which are by law a lien upon the property, and others do not come within the scope of the statute, he may enforce his lien so far as given by law, and it is not vitiated because he has included therein nonlienable items." Within this rule, it is clear that plaintiff is not entitled to enforce the liens claimed by him.

The only other question to be determined in the case is the sufficiency of the claim of lien filed by the defendants Christensen & Johnson. That portion thereof material to this case Is as follows: "Know all men by these presents: That W. O. Christensen and C. A. Johnson, partners as Christensen & Johnson, have by virtue of a special contract heretofore made with Kate F. Ames and Frank Thibault in the construction of a certain building, used as a dwelling and barn, constructed and being upon the following described land, to wit. [Here follows the description of the land.] That Kate F. Ames is the legal owner of said blocks 6 and 7 in Schetter's addition to Marshfield, Coos county, Oregon, and that Frank Thibault has some interest in said property, and joined with said Kate Ames in the contract for constructing said building. That the contract and reasonable price of such building so constructed was the sum of sixteen hundred and eightythree and 66/100 dollars, lawful money of the United States. That the sum of sixteen hundred and eighty-three and 66/100 dollars is now due. Said demand and account being hereinafter specifically set forth and stated." Then follows a declaration of the intention to hold the lien upon the building and such convenient space around the same as may be required for its use and occupation, and the statement of account. Within the rule announced by this court in Rankin v. Malarkey, 23 Or. 593, 32 Pac. 620, and 34 Pac. 816; Dillon v. Hart, 25 Or. 49; and Leick v. Beers, 28 Or. 483, 43 Pac. 658,-this claim or notice of lien is clearly

insufficient, because It does not state, either directly or by necessary inference, the name of the person to whom the claimants furnished material, or for whom they performed the labor for which they seek to enforce the lien, or, indeed, that they furnished any material or performed any labor whatever on the building of the defendants. Upon these questions the notice is entirely silent, and is, therefore, insufficient under the mechanics' lien law of this state. It follows that the decree of the court below must be affirmed, and it is so ordered.

Hill's Ann. Code, § 44, provides that transitory actions "shall be commenced and tried in the county in which the defendants or either of them reside, or may be found, at the commencement of the action; or, if none of the parties reside in [the] state, it may be tried in any county which plaintiff may designate in his complaint." Held, that such an action against a nonresident temporarily in the state need not be commenced in the county in which he is served, but may be brought in any county designated by plaintiff.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Francis Fratt against H. C. Wilson. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

A. S. Hammond, for appellant. Wm. M. Gregory, for respondent.

BEAN, J. The defendant, a resident of California, was sued in Multnomah county in an ordinary action to recover money, and service made upon him while temporarily in Lake county, and the sole question to be determined on this appeal is whether the judgment subsequently rendered by default is void for want of jurisdiction. The contention for the defendant is that personal service of a summons in this state on a nonresident, in a transitory action, does not confer jurisdiction of his person, unless made in the county where the action is pending, while the plaintiff claims that the action may be commenced in any county which the plaintiff may designate in his complaint, and service be made elsewhere in the state. The statute regulating the place of trial of such actions provides that they "shall be commenced and tried in the county in which the defendants or either of them reside, or may be found, at the commencement of the action; or if none of the parties reside in this state, it may be tried in any county which the plaintiff may designate in his complaint." Hill's Ann. Code, § 44. In Brown v. Bridge Co., 23 Or. 7, 35 Pac. 177, and in Dunham v. Shindler, 17 Or. 256, 20 Pac. 326, it was held that a transitory action against a resident of the state must, under this statute, be

a Rehearing pending.

commenced in the county where he resides or is found at the commencement of the action, or the judgment is a nullity; and the defendant claims that all persons personally present in the state, whether temporarily or not, are residents of the county in which they are found, for jurisdictional purposes, and under these decisions can be sued only in such county. In support of this position his counsel cite several authorities to the effect that the bodily presence of a nonresident is equivalent to residence for jurisdictional purposes. Alley v. Caspari, 80 Me. 234, 14 Atl. 12; Murphy v. Winter, 18 Ga. 690; Thompson v. Cowell, 148 Mass. 552, 20 N. E. 170. These authorities only announce the familiar and universally recognized doctrine that a citizen of one state, upon going voluntarily into another, submits himself to the jurisdiction of the courts of the latter. The question before us, however, is not whether process served upon a nonresident while temporarily in the state will confer jurisdiction of his person, but whether such process can be served out of the county in which the action is pending, and therefore the authorities cited are not in point. The question of the sufficiency of such service must be determined by the provisions of the statute quoted, and, if we are to give to the language thereof its ordinary and generally accepted meaning, there can, in our opinion, be no difficulty in the matter. The statute was manifestly designed to fix the place of trial of transitory actions against two different classes of persons, viz. persons residing in the state and those not so residing. The first clause of the section clearly refers to persons who are residents of the state, and as to them the action must be commenced "in the county where the defendants or either of them reside, or may be found, at the commencement of the action," while the latter clause just as clearly refers to persons residing out of the state, and as to them it provides that the action may be commenced "in any county which the plaintiff may designate in his complaint." This is but giving to the words of the statute their general import and customary meaning, and we do not see why they should not be so construed. The legislature evidently thought a different rule should prevail in actions brought against its own citizens and those brought against nonresidents, and it is not for the courts to speculate as to the sufficiency of the reasons therefor. The defendant claims, however, that the latter clause of the section referred to was intended to apply only to nonresidents who could not be served with process in the state, and not to such persons when found therein; but the statute itself makes no such exception, and we are not authorized to make any. By the language of the statute it is declared that, if the defendant does not reside in the state, the action may be commenced in any county which the plaintiff may designate in his

1. Under the constitutional provision requiring every act to have a title expressing the subject-matter, the title is a necessary part of the act; and. where the title clearly shows that the act amends a particular statute, it is immaterial that the body of the act does not so declare.

2. Laws 1895, p. 67, entitled "An act entitled an act to amend section 1733 of chapter XI of title XI of the Criminal Code of Oregon, as compiled and annotated by William Lair Hill," is not void because there is no title 11 or chapter 11 in such Code, since the reference to the title and chapter may be disregarded as surplusage, and a sufficient title will remain.

3. In a prosecution for carnally knowing a female child under 16 years of age, it was not error to admit evidence that she gave birth to a child a short time before the trial, the state having given evidence that she was at the time under 16 years old.

4. Evidence showing more than one act of intercourse was admissible.

5. Statements voluntarily made by defendant before the grand jury as to the age of prosecutrix were admissible.

6. It was within the discretion of the court to refuse to allow prosecutrix to be recalled for further cross-examination after she had been fully cross-examined and excused.

7. In a prosecution for carnally knowing a female child under 16 years old, under Hill's Code, § 1733, as amended by Laws 1895, p. 67, which requires defendant to be over 16 years old at the time the act is committed, the question of want of evidence to show he was over that age cannot be raised by him for the first time on appeal.

8. The opinion of a witness as to the age of prosecutrix was not admissible, she being present and testifying.

Appeal from circuit court, Marion county; George H. Burnett, Judge.

Andrew Robinson was convicted of rape, and appeals. Affirmed.

O. H. Irvine and Geo. Bingham, for appellant. C. M. Idleman, Atty. Gen., and S. L. Hayden, Dist. Atty., for the State.

BEAN, J. The defendant was indicted and convicted of the crime of rape by carnally knowing a female child under the age of 16 years, and, having been sentenced to imprisonment in the penitentiary, brings this appeal to reverse the judgment. The conviction was had under the act of 1895 (Laws 1895, p. 67) entitled "An act entitled an act to amend section 1733 of chapter XI of title XI of the Criminal Code of Oregon, as compiled and annotated by William Lair Hill," and is as follows: "Be it enacted by the legislative assembly of the state of Oregon: Sec. 1733. If any person over the age of sixteen years shall carnally know any female child under the age of sixteen years, or any person shall forcibly ravish any female, such