We note that it is contended by counsel for plaintiffs (1) that the complaint is defective in that it is not direct and certain as to the parties charged except as to the defendant Ah Poo. Proceedings in the municipal court of Portland are governed by the general laws of the state applicable to Justices' Courts. Charter of Portland, Section 332.

Section 2482, L. O. L., relative to procedure in criminal actions in Justices' Courts is as follows:

"The complaint is to be deemed an indictment within the meaning of the provisions of Chapter VII of the Code of Civil Procedure (Title XVIII), prescribing what is sufficient to be stated in such pleading, and the form of stating it."

Section 1437, L. O. L., declares that an indictment must contain:

"(1) The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties; (2) a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended."

3-5. The criticism is that the names of all the defendants do not appear in the body of the complaint. An indictment or complaint must be positive in respect to the charge that the person accused committed the act which renders him amenable to the charge: 10 Enc. Plead. & Prac. 476. It is not necessary, however, that the defendant's name should be constantly repeated in a complaint. After once stated in full, the name or description of the person may be abbreviated, when it occurs in the same count with a reference to the prior statement of it, by the use of the words "said" or "aforesaid": State v. Coppenburg, (S. C.) 2 Strob.

273; State v. Eddy, 46 Or. 625, 627 (81 Pac. 941, 82 Pac. 707). The effect of Section 1437 of the Code is to make the title an integral part of the pleading. The complaint in the municipal court set forth the names of the plaintiffs, 27 in all, in its title as defendants. Thereafter in the body of the complaint they are referred to as "said defendants Ah Poo and 27 others.' It was unnecessary to repeat the names of the defendants in the main part of the complaint otherwise than as "the said defendants" or "the said defendants Ah Poo and others" or "the said defendants Ah Poo and 27 others." If necessary, the words "Ah Poo and 27 others" found in the complaint after the words "said defendants," may be treated as surplusage and rejected, and still there will be sufficient in the complaint to designate the persons accused: 37 Cyc. 614; State v. Horne, 20 Or. 485 (26 Pac. 663). It is possible in certain cases for a complaint to describe a defendant without giving his name. The complaint is sufficiently definite as to the parties charged in order to inform defendants who were accused thereby.

6, 7. It is further contended on the part of plaintiffs that the complaint charging the defendants with a violation of the city ordinance by visiting a place where gambling implements are exhibited and exposed to view and which names as gambling implements articles which are ordinarily put to an innocent use, such as a table and beans, should further charge that such articles were actually designed and used for purposes of gambling. The complaint designates the apparatus as "gambling implements." A "gambling implement, and a "gambling device," are synonymous terms. A "gambling device" is defined as:

An "invention often used to determine the question as to who wins and who loses, that risk their money on a

contest or chance of any kind; anything which is used as a means of playing for money or other thing of value, so that the result depends more largely on chance than skill; a gambling device": 20 Cyc. 871.

The fact that an implement, such as a table, is susceptible of lawful use, does not make it as a matter of law impossible that the article should be a gambling im plement. It was a matter of proof whether as the game is usually actually carried on, the utensil is used as a material instrument in ascertaining whether the player should win or lose. In the absence of the evidence which is not before us it must be presumed that the necessary proof was produced: Commonwealth v. Adams, 160 Mass. 311 (35 N. E. 851).

8. The complaint designates the table and other apparatus as gambling implements. These words were just as effective to inform the defendants of what was intended as though it had alleged that such articles were actually designed and used for purposes of gambling. The complaint was sufficient fully to inform the defendants of the nature of the accusation against them; and to say the least, was good after verdict. It is not consistent with the administration of justice or reasonable that the proceedings of a court of such limited jurisdiction as the municipal court should be scrutinized with the same technicality as to the defendants as are those of courts of general criminal jurisdiction with power to sentence the defendant to imprisonment in the penitentiary for a long term: Wong v. City of Astoria, 13 Or. 538 (11 Pac. 295); McQuillin, Mun. Corp., §§ 1059, 1060.

9. In the case at bar it does not appear that a harsh or unreasonable administration of the ordinance was indulged in by the imposition of a fine of $20 against each of the defendants for the violation of an

ordinance designed to prevent and suppress gambling which is a proper matter for prohibition by police regulations. There is some discussion in the briefs. of plaintiffs in regard to the facts disclosed by the evidence. This feature of the case is not before us as we have indicated and we are not in a position to retry the facts or comment on the evidence. For the two reasons suggested the judgment of the lower court will be reversed and the cause remanded with directions to dismiss the writ of review.

REVERSED AND REMANDED WITH DIRECTIONS.

MR. CHIEF JUSTICE MCBRIDE, MR. JUSTICE MOORE, and MR. JUSTICE MCCAMANT concur.

Argued January 21, affirmed March 7, 1916.

Argued on rehearing January 5, decree of lower court reversed January 30, 1917.

Second petition for rehearing granted and opinion of first rehearing reversing former opinion and decree below, approved March 27, 1917.

STADELMAN v. MINER.*

(155 Pac. 708; 163 Pac. 585; 163 Pac. 983.)

Executors and Administrators

Notice.

- Administrator's Sale - Validity

1. Under Section 1254, L. O. L., providing that on the filing of an administrator's application to sell real property a citation shall issue to the devisees and heirs to appear at a term of court therein mentioned, not less than 10 days after the service of such citation to show cause, if any, against the sale, and Section 1255 providing for service of the citation by summons and by publication, the County Court's failure to allow the parties cited 10 days after the service of notice in which to make an appearance was fatal to its jurisdiction, and its order of sale, made 10 days too soon, was void.

*On the liability of the heirs for obligations of the ancestor, see note in 21 L. R. A. 89.

On presumption of innocence in a civil action, see note in 33 L. R. A. (N. S.) 841. REPORTER.

Executors and Administrators-Sale of Realty-"Proceedings in Rem." 2. A proceeding to subject the realty of a decedent to the payment of his debts is not a "proceeding in rem," and is not even a commonlaw proceeding, but is purely statutory.

Descent and Distribution Title of Heir-Debts of Decedent Statute.

3. Under Section 7348, L. O. L., providing that the property of a decedent shall descend on the heirs, subject to the debts of the decedent, and Section 1185, entitling an administrator to the possession and control of both the real and personal property until the administration is completed, the heir takes the title to the decedent's real estate, subject only to the lien of such debts as are proved against the estate, and which the personal property is insufficient to pay.

[As to implied power of executor to sell real estate of testator, see note in Ann. Cas. 1916D, 410.]

Descent and Distribution-Title of Heir-Sale for Debts.

4. The interest of the heir in the real estate of a decedent, burdened with the debts of the decedent, is a valuable property right; and, when it is attempted by statutory means to deprive him thereof the procedure pointed out by the statutes should at least be substantially followed.

Executors and Administrators-"Due Process of Law"-Deprivation of Property-Administration of Estates-Curative Statute.

5. The County Court's order for an administrator's sale of realty, made 10 days earlier than allowed by Sections 1254, 1255, L. O. L., providing for notice to heirs, etc., and void for such defect in its jurisdiction, was not cured or validated by Laws of 1907, page 330, Section 3 (Section 7156, L. O. L.), or Laws of 1913, page 752, Section 3, in terms curing such defect, if the legislature had the power to cure it, since to give the acts a curative, validating effect would divest the title of the heirs without notice in an attempt to take away their property and to vest and confirm it in the purchaser, without "due process of law," which means a course of legal proceedings according to the rules and principles which have been established in our system of jurisprudence for the protection and enforcement of private rights, and which, whenever necessary for the protection of the parties, must give them an opportunity to be heard respecting the justice of the judgment sought.

Executors and Administrators - Administrator's Sale- · Invalidity Purchaser's Lien for Purchase Price.

6. On holding an administrator's sale void for want of the court's jurisdiction to order sale, the court properly gave the purchaser a lien upon the property for what he had paid, and for all taxes which had been paid, with legal interest thereon.

Courts Probate Courts-County Court.

7. The County Court sitting in probate acts judicially.

Executors and Administrators-Sale of Land-Judicial Sale.

8.

An administrator's sale of land by order of the probate court to pay debts of the estate is a "judicial sale."