large sum, and yet, if subjected to the true test of its actual market value in cash, it might not appear to be so desirable as an investment. At least there is room for differences of opinion, and, in the absence of a positive direction by the county court on the subject, the executor might lawfully forbear making the redemption without subjecting himself to the charge of the devastavit. Second. It does not appear from this complaint that there were any assets in the hands of the executor available and applicable to the purposes of such redemption. The fact that he had property is not enough. Whether the county court would have ordered it converted into money, and applied to the exclusive purpose of this redemption, without regard to all other claimants, cannot be known; and to assume that it would have been so ordered, and that the money necessary could have been realized by a sale of the property in time to have made the redemption, would be going further to sustain this action than the facts would justify.

But there is another objection equally fatal to this complaint. The constitution, § 12, art. 7, provides: "The county court shall have the jurisdiction pertaining to probate courts * * * as may be prescribed by law." And Hill's Code, § 895, provides: "The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is,

(3) to direct and control the conduct and settle the account of executors, administrators, and guardians."

money could not have been thus raised, or even that the interest of the estate would not have been promoted by the redemption; in either of which cases, if he honestly exercised his best judgment, he would not be personally responsible for a mistake. Besides this, if other persons interested in the estate differed with him on this subject, it was their right to ap ply to the county court and obtain its direction in relation to the redemption which, when given, the defendant would have been bound to obey. It follows that the judgment appealed from must be affirmed.

(19 Or. 528)

STATE V. TAMLER et al. (Supreme Court of Oregon. Nov. 10, 1890.) INTOXICATING LIQUORS-ILLEGAL SALE-INDICT

MENT.

1. In an indictment for selling spirituous liquor without a license, under the act of 1889, it is not necessary to allege in the indictment that such sale did not take place within an incorporated town or city.

2. A motion asking the court to direct an acquittal in a criminal case on account of the failure of proof on the part of the state unless such failure is a total one, must specify wherein it is claimed such proof fails.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county; L. B. STEARNS, Judge.

The defendants were jointly indicted, tried, and convicted of the crime of selling spirituous liquors without first having obtained a license therefor, as provided in the act of 1889. The charging part of the indictment is as follows: "M. Tamler and Joseph Petty are accused by the grand jury of the county of Multnomah, state of Oregon, by this indictment of the crime of

less quantities than one gallon, without having first obtained a license from the county court of the county of Multnomah for that purpose, committed as follows: That said M. Tamler and Joseph Petty on the 5th day of July, A. D. 1889, in the county of Multnomah, and state of Oregon, did unlawfully and willfully sell spirituous | liquors in this state, namely, whisky, in less quantities than one gallon, to-wit, about one gill of whisky, to one Timothy Maloy for ten cents, the said M. Tamler and Joseph Petty not having first then and there obtained a license from the county court of Multnomah county for that purpose, namely, for the purpose of selling that quantity of liquor, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon. Dated at Portland, in the county aforesaid, this 15th day of July, 1889."

The complaint attempts to charge the defendant with what would have constituted devastavit at common law. It is defined to be a violation of duty by the executor or administrator such as renders him personally responsible for mischiev-selling spirituous liquors in this state in ous consequences, and which the law styles a devastavit,-that is, a wasting of the assets; or, to take the definition of the courts, a mismanagement of the estate and effects of the deceased in squandering and misapplying the assets contrary to the duty imposed on him. For a devastavit the executor or administrator, it is said, must answer out of his own means, so far as he had, or might have had, assets of the deceased. Schouler, Ex'rs, § 383. To the same effect is 7 Amer. & Eng. Enc. Law, 346, where the authorities are very fully collated. For a devastavit an executor or administrator is liable to be called to an account in the county court. 2 Woerner, Adm'n, § 534; Schouler, Ex'rs, § 383; In re McEvoy's Estate, 3 N. Y. Supp. 207; Stiles v. Burch, 5 Paige, 132; Brown v. Brown, 53 Barb. 217: Irwin v. Backus, 25 Cal. 214. And the decision of this court in Adams v. Petrain, 11 Or. 304, 3 Pac. Rep. 163, very fully sustains the exclusive jurisdiction of the county courts in such matters, to the authority of which we fully accede. Counsel for appellant argued that it was the defendant's duty to have gone into the county court and endeavored to obtain an order for the redemption of this stock, and that his failure to do so constituted a devastavit. But the defendant may have honestly believed that method of procedure to have been impracticable, or that the

Sears & Beach and Ed. Mendenhall, for appellants. T. A. Stevens, Dist. Atty., for the State.

BEAN, J., (after stating the facts as above.) The bill of exceptions in this case contains several assignments of error, but, upon the argument, they were all abandoned by counsel except that the indictment does not state facts sufficient to constitute a crime, and the refusal of the

the plaintiff fails to prove a case sufficient to be submitted to a jury, but we have already held in State v. Jones, 18 Or. 256, 22 Pac. Rep. 840, that such practice is not applicable to criminal cases; but the proper practice is to ask the court to direct an acquittal. But, treating this as a motion to direct an acquittal of the defendants, we still think it is insufficient to raise the question argued by counsel in this court. As this is an appellate tribunal, constituted to revise and correct the errors committed by the trial court, it is only when that court has acted, and the act is claimed to be error, and disclosed by the record, that such error becomes the subject of our power and duties. The motion in this case is a general one, and only challenges the general sufficiency of the evidence; that is, says, in effect, there is a total failure of evidence upon a motion of this kind. The only question raised is whether there is any evidence tending to prove the crime charged, not whether the evidence fails in some particular matters. In a motion asking the court to direct an acquittal, where it is claimed that the evidence is insufficient to prove the crime charged, it ought to specify the particulars in which it is claimed the evidence is insufficient, unless there is a total failure of proof, oth

court to sustain defendants' motion for a judgment in favor of the defendants on the ground of the insufficiency of the evidence to justify a verdict made at the close of the testimony of the state. The appellants contend that the indictment is insufficient, in that it does not allege that the sale therein charged was not made within an incorporated town or city. The contention is that, as section 11 of the act of 1889 provides that "nothing in this act shall be so construed as to apply in any manner to incorporated towns and cities of this state," it is necessary that the indictment should negative this section. The general rule on this subject is that where the exception or proviso is stated in the enacting clause it is necessary to negative them in order that the description of the offense may in all respects correspond with the statute, but where such exception or proviso is contained in another or subsequent section of the statute it is a matter of defense; and need not be negatived in the indictment. 1 Bish. Crim. Proc. §§ 631, 633; Mills v. Kennedy, 1 Bailey, 17. While this seems to be the general rule, there is much diversity of judicial utterances, as to the proper application, and to attempt to reconcile the authorities would be a useless, if not hopeless, task. When the exceptions or provisos are a material part│erwise the attention of the trial court will of the description of the offense, it is necessary to negative them in the indictment. The indictment must contain such averments as show affirmatively an offense; and, where the exceptions or provisos are a material part of the description of the offense, the indictment must aver that the act charged does not come within the exception or proviso. The exceptions should be negatived only when they are descriptive of the offense, or a necessary ingredient of its definition; but, when they afford matter of excuse merely, they are matters of defense, and therefore need not be negatived in the indictment. The offense defined in the act of 1889 is that of selling spirituous, vinous, or malt liquors in certain prescribed quantities, without first having obtained a license in the manner prescribed by law. The provision of section 11 is no part whatever of the description of the offense, nor a necessary ingre dient of its definition, but is simply a limitation in the application of the provisions of the act. The description of the offense of selling liquor without a license is full and complete without reference to the provisions of this section; and, since it forms no part of the definition thereof, it is mere matter of excuse or defense, and need not be negatived in the indictment.

As to the remaining point urged by counsel for appellants, we are of the opinion that the record before us does not properly present the same for our consideration. The record discloses the fact that, after the state had rested, "counsel for defendants moved the court for a judgment in favor of the defendants on the ground of the insufficiency of the evidence to justify the verdict." This motion being overruled, an exception was duly taken, and this ruling is now assigned as error. This motion was no doubt intended to follow the practice provided in civil cases where

be directed to the evidence as a whole, that is, whether there is any evidence upon which a verdict may founded, and wholly omit to consider the particular matter in which the alleged insufficiency consists, and which is relied upon in this court, and perhaps subsequent research may have suggested. It is true, unless there is some evidence upon which a jury can found a verdict for the party producing it, such verdict ought not to staud, nor will it, under a motion of this kind, when the evidence considered as a whole reveals a total failure of proof, or want of any evidence upon which to found a verdict. But where there is some evidence tending in a general way to prove the offense charged, but its alleged insufficiency lies in some particular matter or specific objection which requires to be designated or specified to make apparent in what particular that insufficiency consists, and to attract the attention of the court to it, it ought, as a general rule at least, to be specified in the motion of nonsuit, to be entitled to consideration in this court. The evidence in this case tends to show that three and one-half miles from Portland, on the MacAdam road, there is a place known as the "Blue House;" that it is fitted up as a saloon, with bar and other fixtures, with glasses and bottles on the shelves; that it is known as a "saloon:" that defendant Petty usually had charge of the place in the forenoon, and sometimes defendant Tamler in the afternoon, and the general reputation was that the defendants, Tamler and Petty, were the proprietors thereof; that about the 5th day of July, 1889, defendant Petty sold to one Malloy a drink of liquor, which the witness supposed to be whisky, and that Malloy paid for the same; that neither Petty nor Tamler had a license to sell spirituous liquors. A witness by the name of Timothy Malloy was

tration of justice, which requires that, when an error is supposed to have been committed, there should be an opportunity to correct it at once before it has had any consequences. The law should not permit a party to make a general motion, as in this case, and lie by without making the particular grounds of his motion known to the court, and take the chances of success, on the grounds which the judge may think proper to put his ruling, and then if he fails to succeed, with either court or jury, avail himself of an objection, which, if it had been stated, might have been removed. This works no injustice to a party, for if there be merit in his motion or objection, he has the full benefit of it, and if there be no merit he certainly ought not to succeed. In the midst of a trial at nisi prius, the judge is necessarily com

called, and testified in the case, and said he had purchased liquor at different times, and about July 5, 1890, in the saloon claimed to belong to defendants, and had paid for the same. A cursory examination of this testimony would naturally lead a court to think there was sufficient evidence to be submitted to a jury; and while there may be a failure in some particular, unless the particular instance in which the failure occurs is pointed out, it would probably escape attention. The contention of counsel on this appeal is that the evidence is insufficient in this: (1) There is no sufficient evidence of the value of the liquor alleged to have been sold by defendants; (2) no sufficient evidence that the sale was made to Timothy Malloy named in the indictment; and (3) there is no sufficient evidence that the liquor sold was spirituous liquor, as alleged in the indict-pelled to rule upon many questions of law

ment. These objections are technical in their character, and do not go to the general sufficiency of the evidence. If counsel for defendants relied upon the grounds urged here for asking the court below to direct an acquittal of his clients, he should have so stated, and thereby given the court an opportunity to have passed upon them, and, if the ruling was against him, preserve the same on the record, so we could be advised thereof. It is very possible that the grounds upon which the appellant now contends the motion should . have been granted might have been obviated at the trial, had they been stated. We are not advised from the record what reason, if any, was assigned in the court below, why this motion should have been allowed, nor what question the court actually did decide. We have repeatedly held that error is never presumed, but must be made to affirmatively appear; and, in a case of this kind, the motion should direct the attention of the court and opposite counsel to the precise point made, and the grounds thereof. In other words, as was said by FIELD, J., in Kiler v. Kimbal, 10 Cal. 267: "The party must lay his finger upon the point of his objection." To the same effect, McGarrity v. Byington, 12 Cal. 429: "It is a wholesome rule," says CHURCH, C. J., in Schile v. Brokhahus, 80 N. Y. 620, "that the attention of the court must be drawn to the precise point intended, otherwise an exception will not prevail." In Edwards v. Carr, 13 Gray, 238, SHAW, C. J., says: "It is very important that no objection to a verdict be brought before this court by an exception which was not in some form taken at the trial, especially in a case where there is ground to believe that if it had been brought to the attention of the judge and adverse counsel it might have been avoided by an amendment, or by a more specific 'direction by the judge sustaining or overruling it. The party objecting would have the full benefit of his objection in matters of law, if well founded, either by a ruling in his favor or by an allowance of the exception, and the rights of both parties be secure. This court, in the case of Kearney v. Snodgrass, 12 Or. 311, 7 Pac. Rep. 309, has announced substantially the same rule. These rules have their foundation in a due regard to the fair adminis

without the opportunity for deliberation the importance of the questions demand, and it is but an act of justice to him that such rulings be not reversed, unless his mind was specifically drawn to the point upon which the reversal was asked and acted upon as deliberately as time and circumstances would admit. In this case, how can we say that the court below committed an error in overruling the mo tion, unless we knew upon what grounds he was asked to allow it? His attention was not called to the points upon which we are asked to reverse the judgment, nor was there any suggestion as to what counsel would have him hold. Had the court below been asked to sustain this motion upon the grounds argued before us, we cannot say how it would have ruled, and certainly, before we can be asked to reverse this judgment, it must sufficiently appear that the court committed some error justifying such reversal. It follows, therefore, that the judgment below must be affirmed.

(20 Or. 86)

MEIER V. KELLY et al.
(Supreme Court of Oregon. Nov. 17, 1890.)
MORTGAGES DESCRIPTION-REFORMATION-STAT-
UTE OF LIMITATIONS.

1. Where the terms used in the description contained in a deed or mortgage are clear and intelligible, the court will put a construction on those terms, and parol evidence is not admissible to control the legal effect thereof.

2. In a suit to reform a deed or mortgage on the grounds of mistake, complaint must allege distinctly what the original agreement was, and point out with clearness wherein there was a mistake, and that it did not arise from gross negligence of the plaintiff.

3. Section 2840, p. 1314, 2 Hill's Code, does not apply to land sold for delinquent street assessment.

(Syllabus by the Court.)

Appeal from circuit court, Multnomah county; L. B. STEARNS, Judge.

This was a suit for injunction, and to quiet title to certain land in subdivision block 26, of large block C, of Carter's addition to the city of Portland. The only defendants served were Penumbra Kelly, the sheriff, V. B. De Lashimutt, H. B. Oatman, and Sidney Dell, judgment creditors. A temporary injunction was had which, on