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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.

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 aw, 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. 0. 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 88/100 dollars, lawful money of the United States. That the sum of sixteen hundred and eighty-three and 88/100 dollars is now due. Said demand and account being hereinafter specifically set forth and stated." Then follows a declaration of the intention to bold 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. 638,-this claim or bulice of lieu is clearly

(30 Or. 542) FRATT v. WILSON." (Supreme Court of Oregon. April 5, 1897.) VENUE TRANSITORY ACTION AGAINST NONRESI

DENT. Hill's Ann. Code, 8 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, Multnomab 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

1 Rehearing pending.

complaint, and this provision was admittedly complied with in this case; hence the judgment is not void, and must be affirmed.

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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. 090; Thompson v. Cowell, 148 Mass. 552, 20 V. 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 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 counHy which the plaintiff may designate in his

(32 Or. 43) STATE v. ROBINSON. (Supreme Court of Oregon. April 5, 1897.) STATUTES-AMENDMEST-SCBJECTS AND TITLES


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

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.

0. 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 1995, 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

person shall be deemed guilty of rape, and, purpose of showing that a mistake had been upon conviction thereof, shall be punished made in designating the particular law to be by imprisonment in the penitentiary for not amended in the body thereof, and it was less than three nor more than twenty years.” held that, by reading the body of the act and At the outset it is contended by the defend- the title together, the intent to amend the ant that although this act purports, by its section designated in the title and not the title, to be amendatory of section 1733 of the body was apparent, and the law was given Criminal Code, it is in fact an original act, effect as such. Indeed, in this, as in all simdefining the crime of rape and providing for ilar cases where the requirements of the conits punishment, and is therefore void because stitution have been complied with in the the subject is not expressed in the title. enactment of a law, the controlling question The argument seems to be that a failure to is whether the legislative intent can be cleardeclare in the body of a legislative act that ly ascertained, or whether the act is void for it is amendatory of an existing statute nec- uncertainty. The practice of declaring in essarily renders it inoperative as such, but the body of an amendatory law that it is an our attention has not been called to any de- amendment of a particular act or section cision or constitutional provision to that ef- serves no other purpose than to render cerfect. It is quite true that ordinarily an tain the design of the legislature, and, when amendatory act shows in the body its char- that is otherwise clearly apparent, the law acter, by declaring that a designated act or should not be disregarded because it fails to section of an existing statute is to be amend- conform to this general practice. Where there ed; but an error or omission in this respect is no objection on constitutional grounds, a is immaterial where it is otherwise apparent failure to observe some mere matter of form, that it was so intended, and it can be ascer- of this character, will not operate to defeat tained definitely what section the legislature the legislative intent, when such intent is intended to amend. And for this purpose re- otherwise apparent. Plank-Road Co. sort may be had to the title, where, from the Reynolds, 3 Wis. 258; School Directors of body of the act, the intent of the legislature Dist. No. 5 v. School Directors of Dist No. is doubtful or obscure. By the constitution 10, 73 Ill. 249. Applying these rules to the of this state, every act is required to have a case in hand, its solution presents no diffititle expressing the subject-matter. The ti- culty. It is apparent from the title that the tle, therefore, is necessarily a part of the act in question was designed to amend secact, and renders very important aid, if need tion 1733 of the Criminal Code, defining the be, in its construction, or in determining the crime of rape, and, reading the title in conlegislative intent. End. Interp. St. § 58; nection with the body, there can be no misEby's Appeal, 70 Pa. St. 311; Haldlerman's į taking the legislative intent. There is but Appeal, 101 Pa. St. 251; Binz v. Weber, 81 one section 1733 in the Criminal Code, and Ill. 288; Mathis v. State (Fla.) 12 South. 681. that has reference to the crime referred to; As said by Mr. Chief Justice Marshall in U. and its language is copied into and made a S. v. Fisher, 2 Cravch, 338: “When the mind part of the act of 1895, with the exception labors to discover the design of the legisla- that the age of consent of a female is raised ture, it seizes everything from which aid can, from 14 to 16 years, and it is provided that a be derived; and in such case the title claims male, to be guilty of the crime therein dea degree of notice, and will have its due fined, shall be over that age. share of consideration." And in U. S. v. A suggestion was made at the argument Palmer, 3 Wheat. 610, the same learned jus- that the title was insufficient, even tice said: “The title of an act cannot control amendatory act, because it refers to section its words, but may furnish some aid in show- 1733 as being part of chapter 11, tit. 11, of ing what was in the mind of the legislature." the Criminal Code, when there is in fact no And in Eby's Appeal, supra, Mr. Justice such title or chapter in that Code. But this Sharswood, speaking for the court, said: is a mere mistake in the engrossment of the “However it was in England, where the title bill, and is immaterial, as all reference to was held to be no part of a statute, --indeed, the chapter and title can be wholly disrewas commonly framed by the clerk of parlia-garded as surplusage, and a good and suttiment after the bill had passed, without any cient title still remain. Ex parte Howe, 36 vote being taken upon it,-certainly since the Or. 181, 37 Pac. 536. In our opinion, there first amendment of the constitution adopted fore, the act of 1895 is a valid legislative in 1864 (article 11, $ 8) it is now necessarily enactment, amendatory of section 1733 of a part of the act, and a very important guide the Climinal Code, and the objection to the to its right construction." These and other prosecution in this case on that ground must authorities which might be cited fully sus- fai!. tain the right, and make it the duty, of the Upon the merits there are numerous assigncourt to look at the title of a law for the ments of error in the record, based upon the purpose of ascertaining the intention of the rulings of the court made during the progress legislature, when the body of the act leaves of the trial, and it will be most convenient it uncertain. And so, in Wilson v. Spauld- to consider briefly such of them as were reing, 19 Fed. 304, resort was had to the title lied upon in the argument in the order in of an amendatory act of congress for the which they were presented:

as an

1. It is claimed that the court erred in per- tion to the jury to render a verdict of acmitting the prosecutrix to prove by herself, quittal was properly overruled. There was as well as by the superintendent of the abundant evidence tending to show the comBoys' and Girls' Aid Society of Portland, and mission of the crime charged by the defendby the attending physician, that she was de- ant, the weight and value of which was for livered of a child a short time before the the jury, and not the court. There is obtrial. But this evidence was clearly com- viously nothing in the objection, made in this petent. The state had previously given evi- court for the first time, that the prosecution dence tending to show that the prosecutrix did not prove that the defendant was over was at the time under the age of 15 years, the age of 16 years at the time the crime and, if this was true, the birth of her child is charged to liave been committed. He was was conclusive evidence that the crime char- necessarily present in court, and the jury ged in the indictment had been committed were, no doubt, able to determine from his by some one.

appearance that he was over the statutory 2. It is next insisted that the court was in age. But, however that may be, the queserror · in allowing the prosecution to give tion cannot be raised in this court for the evidence tending to show more than one act first time. If there was a failure of proof of criminal intercourse between the defend- in this particular, it should have been speciant and the prosecutrix. The reason assign- fied in the court below as a ground for the ed for the objection to this testimony is that motion for an order to acquit. The practice it violates the rule which prohibits evidence in such cases was considered by this court of a distinct crime unconnected with that in State v. Tamler, 19 Or. 528, 25 Pac. 71, alleged in the indictment to be given against and it is there said: "In a motion asking the the prisoner. As a general rule, the princi- court to direct an acquittal, where it is ple invoked is unquestioned, although there claimed that the evidence is insufficient to are in fact many exceptions, which it is un- prove the crime charged, it ought to specify necessary to attempt to point out at this the particulars in which it is claimed the time, as the authorities fully sustain the evidence is insuflicient, unless there is a competency of the evidence offered and ad- total failure of proof; otherwise the attenmitted in this case, not for the purpose of tion of the trial court will be directed to the proving a different offense, but to show the evidence as a whole,-that is, whether there relation and familiarity of the parties, and as is any evidence upon which a verdict may corroborative of the prosecutrix's testimony be founded, -and wholly omit to consider the concerning the particular act relied upon for particular matter in which the alleged ina conviction. Strang v. People, 24 Mich. 6; sufficiency consists, and which is relied upon People v. Abbott, 97 Mich. .484, 56 N. W. in this court, and perhaps subsequent re862; Com. v. Merriam, 14 Pick. 518; Hardtke search may have suggested.” And further v. State, 67 Wis. 552, 30 N. W. 723; Taylor on in the same opinion it is said: "The law v. State, 22 Tex. App. 529, 3 S. W. 753; Peo- should not permit a party to make a general ple v. O'Sullivan, 104 N. Y. 481, 10 N. E. 880. motion, as in this case, and lie by, without It was for this purpose alone the evidence making the particular grounds of his motion in question was admitted, as expressly stated known to the court, and take the chances at the trial court at the time, and as subse- of success on the grounds which the judge quently fully explained to the jury in the may think proper to put his ruling, and then, charge.

if he fails to succeed with either court or 3. H. G. Sonneman, clerk of the grand jury | jury, avail himself of an objection which, if which returned the indictment against the it had been stated, might have been removdefendant, was called as a witness, and per- ed. This works no injustice to a party, for, mitted, over defendant's objection, to testi- if there be merit in his motion or objection, sy as to what he said before the grand jury he has the full benefit of it, and, if there concerning the age of the prosecutrix. This be no merit, he certainly ought not to suctestimony was competent. So far as the rec- ceed." ord discloses, the statements of the defend- 6. Joseph Underwood was called as a witant referred to were voluntarily made by ness for the defense, and asked to give his him, and, so far as they were against his opinion as to the age of the prosecutrix, interest, were competent evidence on the but the court refused to permit the witness trial.

to answer; and this ruling is assigned as 4. After the prosecutrix had testified in error. This was not a case for the admischief, and been fully cross-examined and sion of opinion evidence as to the age of a excused from the stand, the defendant's person. The prosecutrix was present at the counsel asked permission to recall her for trial, and testified at great length; and the further cross-examination, but the court re- jury were just as competent to form an opinfused to permit him to do so, and this ruling ion as to her age, from her size, appearance, is assigned as error. This was a matter and development, as the witness. The rule within the sound discretion of the trial that any witness, after carefully describing court, and there is nothing in this record to the appearance of an abse at person, may show that it was abused.

give an opinion as to his age, is unques5. The defendant's motion for an instruc- tioned; but it was not error to exclude such

testimony in the case at bar, wliere the per- when the first ten miles of said railroad is son whose age was in controversy was graded, cora mencing at or near Marshfield, present at the trial, as it would have been Coos county, Oregon, and running eastward of no substantial aid to the jury.

towards Roseburg and via Coquille City and 7. The remaining assignments of error are Myrtle Point twenty per cent. when the equally without merit. In the general charge

rails are laid on the first ten miles; twentyto the jury the court clearly and concisely five per cent. when the second ten miles are stated the law of the case, and, in our opin- / graded; twenty per cent. when the rails are ion, no error was committed either in the laid on the second ten miles; and the balgiving or refusal of instructions. It is, no ance when the road is completed to Myrtle doubt, the better practice, after a cause has

Point, Oregon. As a consideration for the been submitted to the jury, for the court following subscription, the said railroad to refrain from giving any additional in- company will maintain a depot within the structions, or even to re-read a part of the corporate limits of Myrtle Point, Oregon. charge already given to them, unless in the Said road to be finished to Myrtle Point, presence of defendant and his counsel, but Oregon, by January 1st, 1891, and to Roseno substantial injury could have resulted in burg by December 31st, 1891.' That defendthis case on that account. The defendant ant subscribed said contract, and wrote aftwas present in person at the time, and the er his name $1,500. * * Third. That on court simply re-read a portion of the general

or about the 15th day of July, 1890, the said charge already given as to the materiality defendant signed and executed an additionof the date named in the indictment. After al writing, as follows: "We, the undera careful examination of all the assignments signed subscribers to the subsidy of the of error in the record, we are of the opinion Roseburg & Coos Bay Railroad Company, that no substantial error was committed in

hereby agree to extend the time of the conte the trial of this cause, and therefore the pletion of said road from Coos Bay to Myrjudgment is affirmed.

tle Point from January 1, 1891, to May 1, 1891; all other conditions of the contract

signed by us to remain unchanged.' Fourth. (30 Or. 584)

That work in construction of said road was COOS BAY, R. & E. R. & NAV. CO. v. commenced in the month of August, 1890, at DIXON.

Marshfield, and the first ten miles thereof (Supreme Court of Oregon. April 5, 1897.) graded about the 1st of February, 1891. SUBSCRIPTION To RAILROAD-CoxsticCTION.

Fifth. That the said railroad was graded to Where a subsidy subscription to a railroad

Myrtle Point, and the rails laid thereon, in company provided that one installment should the month of August, 1893, and the road be paid when the first 10 miles was graded, a completed to that point at said date. Sixth. second when the rails were laid thereon, a third

That said railroad has not been constructed and fourth, respectively, when the second 10 miles was graded, and when the rails were laid,

to Roseburg, and no work has been done on and the balance when the road was inished to the construction thereof eastward from MyrM., which the company stipulated should be by tle Point." "Eighth. That defendant has a specified date, a right of action to recover the first installment accrued when the first 10

not paid any part or installment of the miles was graded, and was not lost by a subse

amount subscribed.” As a conclusion of quent failure to complete the line to M. within law the court found: “That plaintiff was the stipulated time.

in default in the performance of the conAppeal from circuit court, Coos county; tract in the complaint set out at the time J. C. Fullerton, Judge.

this action was commenced, and therefore Action by the Coos Bay, Roseburg & cannot maintain the action." A judgment Eastern Railroad & Navigation Company of dismissal was entered, and plaintiff apagainst W. I.. Dixon. From a judgment dis- peals. missing the action, plaintiff appeals. Re

J. W. Hamilton, for appellant. S. H. Hazversed.

ard, for respondent. This is an action to recover of defendant the sum of $1,500 upon a subsidy agreement. WOLVERTON, J. (after stating the facts). The case was tried before the court without The agreement which forms the basis of this the intervention of a jury, and the facts nec. action is much the same as the one sued on essary to a determination of the questions in Navigation Co. v. Nosler (just decided) 48 involved are stated in its findings. They Pac. 361, and the interpretation of each is are as follows, omitting such as do not seem governed by the same rules. Hence we shall pertinent for an understanding of the situa- simply make a brief statement of our intertion: “Second. That on the

day of pretation of this agreement without a disMay, 1890, the defendant entered into a writ- cussion of the rules, and in support thereof ten contract with the plaintiff in words and we cite the Nosler Case. Under the agreefigures as follows, to wit: “We, the under- ment in the case at bar, like the Nosler signed, hereby agree to pay to the Cuos agreement, it was no doubt within the conBay, Roseburg & Eastern Railroad Com- templation of the parties that payment of pany the sums set opposite our names, re- the subsidy should and would be made in spectively, to wit: Twenty-five per cent. five installments, and that four of them

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