poker was permitted. There is no evidence, either direct or circumstantial, as to what, if any, game was being played. Therefore the court should not have submitted the case

that he knowingly permitted a game of draw | to the effect that a game of chance was perpoker to be played, or (3) that a game of mitted is the allegation that a game of draw draw poker was played, or (4) that a game of draw poker was played for money, checks, credits, or other representatives of value. The court denied the motion, and the defendant preserved an exception. His coun- to the jury. Many cases may be found in sel now contends that there is in the record no testimony whatsoever tending to prove any of the matters enumerated in the motion. We agree with him; but the Attorney General urges that, as this is an appeal from the judgment alone, and there was no motion for a new trial, we may not consider the alleged error. The point is thus stated in the brief in behalf of the state: "We contend that no 'exception taken at the trial' can be heard on appeal unless the ruling so excepted to has first been presented to the trial court in a motion for a new trial and an exception taken to the order refusing a new trial." The court is of opinion that the point is not well taken.

We

The testimony shows that the sheriff of Silver Bow county and his deputies forced their way into a basement underneath the saloon of the defendant, and there found about 20 men, some of whom had apparently been playing cards. There were card tables, cards, chips, and money scattered about the room. Some of the inmates were in hiding, others tried to escape, and all were much perturbed and apparently attempting to conceal what had been going on. think there was sufficient circumstantial evidence to warrant the conclusion that some sort of a card game had been interrupted by the officers; but the charge against the defendant is specific. He is charged with permitting a game of draw poker to be played, with cards, for money, etc. All of the officers declared on the witness stand that they saw no game of cards and no gambling. One witness testified that he was in the room before the arrival of the officers. He said he saw men playing cards, that he saw chips and tables, but that he did not know what game was being played. He also stated that he saw a man buy $2 worth of chips, with the remark, "We will see if we can win some cigars." The statute (section 8416, Rev. Codes) prohibits the operation, etc., of the game of * draw poker, or any game of chance played with cards. The pleader might properly have alleged that the defendant permitted a certain game of chance to be played with cards, for money, etc.; the name of the game being unknown to him. It is necessary that there should be an allegation that one of the games mentioned in the statute was permitted (see State v. Ross, 38 Mont. 319, 99 Pac. 1056), or that a game of chance, played with cards, for money, etc., was permit

which the courts have held that, although it is not necessary to charge that a particular game was played, if the offense is so charged, it must be proved as alleged. See Dudney v. State, 22 Ark. 251; State v. Anderson, 30 Ark. 131; Windsor v. Commonwealth, 4 Leigh (Va.) 680; 22 Cyc. 448. It is not necessary to hold that this case falls within the rule, for the reason, as aforesaid, that the allegation relative to a game of draw poker is the only allegation going to show that any game of chance was permitted, and this latter allegation is essential in cases where the particular game is not named. Without such an allegation the defendant could not properly be convicted for permitting any game, other than draw poker, to be played. We are not inclined, in applying this statute, to follow too closely those technical rules of pleading, found in some of the books, unless a failure to do so would manifestly result in prejudice to a defendant; but there is a total lack of proof here. The trial court was evidently of opinion that it was incumbent upon the state to prove that a game of draw poker was played, because it charged the jury that, unless they so found, they must acquit. The jury failed to heed this instruction. This alone is a sufficient reason why a new trial should be granted. McAllister v. Rocky Fork Coal Co., 31 Mont. 359, 78 Pac. 595.

It is also urged by counsel for the appellant that the information is insufficient, for the reason that it fails to set forth the names of the persons who were by the defendant permitted to play the game. He cites cases to that effect; but we are not inclined to follow them. We hold that the information is sufficient in that regard.

In attempting to prove the ownership of the saloon, the county attorney brought out, over defendant's objection, the fact that a man had been killed there at some time prior to October 18, 1908. We think it was unnecessary to bring out this fact, and the court ought not to have permitted it. It was prejudicial to the defendant, and the testimony shows that his ownership of the place could easily have been established without touching upon it.

The judgment of the district court is reversed, and the cause is remanded for a new trial.

Reversed and remanded.

BRANTLY, C. J., and HOLLOWAY, J.,

Appeal from Circuit Court, Umatilla Coun- the notes, and until the commencement of ty; Henry J. Bean, Judge.

*For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

SLATER, J. (after stating the facts as above). The contention made by defendant is that the facts stipulated and found by the court will not, as a matter of law, support the judgment. An action at law upon a contract or liability, expressed or implied, excepting upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or upon a sealed instrument, is barred, unless commenced within six years after the cause of action shall have accrued. B. & C. Comp. § 6. As more than 13 years transpired from the date on which each of these notes became due before the commencement of the action, it is evident that the action was barred by the statute, unless plaintiff can bring the facts of the case within the exceptions contained in section 16, B. & C. Comp., which provides: "If when the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited; after the return of such person into the state, or the time of his concealment; and if, after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limited for the commencement of such action."

ation there made was more comprehensive than was necessary under the facts of that case, and perhaps broader than was intended. Under either view it is not binding upon us as applied to the facts now presented. The opinion in McCormick v. Blanchard must be interpreted and controlled by the facts of that case. The cause of action arose in the state of Illinois, between nonresidents of this state. The parties continued to reside there until about three years prior to the commencement of the action, when the debtor removed to, and thereafter resided in, this state. The facts of that case, as well as those in Crane v. Jones, supra, and Van Santvoord v. Roethler, supra, come squarely within the provisions contained in section 26, B. & C. Comp., which reads: "When the cause of action has arisen in another state, territory, or country, between nonresidents of this state, and by the laws of the state, territory, or country where the cause of action arose, an action cannot be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this state."

The reasoning of the court was that if it were held that the provisions of section 16 applied to both residents and nonresidents, as had been the holding of the courts of New York and Massachusetts, in construing statutes in effect the same as that of our own state, but where no statute similar to section 26 (B. & C. Comp.) existed, the result would be to render the latter nugatory, and for that reason it was held that the statute of limitations of this state began to run on the note upon which that

The facts of the present case come within the literal terms of the first clause of this section, for the defendant was out of the state when each of the causes of action accrued, and the term "any person," used in the statute, would ordinarily include a non-action was based, at the time when the cause resident as well as a resident of the state. Defendant was in the state when he executed and delivered each of the notes to a resident thereof. It is therefore a domestic, and not a foreign, contract. He departed from the state, and after the cause of action accrued he came again into the state, although for a transient and temporary purpose. It can therefore be said that he "returned" to the state. This court, however, in the early case of McCormick v. Blanchard, 7 Or. 232, when construing section 16, made the broad declaration that nonresidents are not embraced in either of the exceptions of that section. That case was followed and applied in Crane v. Jones, 24 Or. 419, 33 Pac. 869, and in Van Santvoord v. Roethler, 35 Or. 250, 57 Pac. 628, 76 Am. St. Rep. 472. It is upon these cases that defendant mainly relies to support his position.

If what was said in the first case about the proper construction of section 16 must be taken and applied by us in its full and literal comprehensiveness as the true legislative intent, then plaintiff's case is not within the exception, and is barred, for it has been stipulated that the defendant was at all times a nonresident of this state. We

of action accrued in Illinois, and not at the time when the respondent arrived in this state. To reach this conclusion the provisions of section 16 were considered in connection with section 26, and the former was held to apply to residents only. We are now of the opinion that the court, in so holding, entirely misapprehended the state of the law and the purpose and intent of enacting section 26. Both of these sections are parts of the act of 1862; but prior to the date of the act the substance of section 16 had been incorporated into the statute law of England and some of the states of this country, and the significations of the words there employed had been judicially determined with practical unanimity. In the case of Ruggles v. Keeler, 3 Johns. (N. Y.) 263, 3 Am. Dec. 482, the question was raised upon the construction of the proviso in the statute of New York (Rev. Laws N. Y. 1802, p. 563), which was adopted from the statute of Anne, and of which ours is a substantial enactment. It underwent the scrutiny of that pre-eminently learned and enlightened court, of which Kent was the Chief Justice, who rendered the opinion in that case, and reviewed the English authorities with his

the conclusion that the statute under con- part of them." Now, in the case of Mcsideration included nonresidents as well as residents. "This," he says, "has been the uniform construction of the English statutes, which also speak of 'the return' from beyond seas of the party so absent. The word 'return' has never been construed to confine the proviso to Englishmen who went abroad occasionally." The rule there announced has been reasserted and followed by the Supreme Court of the United States, and also by state courts, in numerous decisions upon statutes substantially the same. Murray's Lessee v. Baker, 3 Wheat. 541, 4 L. Ed. 454; Shelby, Executors, v. Guy, 11 Wheat. 361, 6 L. Ed. 495; Hall v. Little, 14 Mass. 203; Wilson v. Appleton, 17 Mass. 180; Hastings v. Pepper, 11 Pick. (Mass.) 41; Jones v. Jones, 18 Ala. 248; Dunning v. Chamberlin, 6 Vt. 127; King v. Lane, 7 Mo. 241; Kempe v. Bader, 86 Tenn. 189, 6 S. W. 126.

Cormick v. Blanchard, supra, it was not necessary to overturn this well-recognized principle of construction and ignore the judicial interpretation previously given to section 16 in those jurisdictions from which it was taken, in order to arrive at the decision reached in that case, for to give it such a construction would not have rendered section 26 nugatory, as assumed, nor does the enactment of the latter section, in conjunction with the former, indicate any legislative intent to impress upon the former any different interpretation than what it had received in other jurisdictions from which it was taken; but, on the contrary, as we now understand it, the presence in the statute of the latter section points strongly to a legislative intent that the received construction of section 16 was considered as accompanying the statute and forming an integral part of it.

By another principle of law, admitted by all courts, the lex loci contractus must govern as to the validity, interpretation, and construction of the contract; but the remedy to enforce it, or to recover damages for its breach, must be pursued according to the law of the forum. Cases above cited, and Jones v. Jones, 18 Ala. 248. It was held under this principle that where a cause of action arose in another state, territory, or country, between nonresidents of the place of the forum, an action based thereon was controlled by the law of the forum as to the time within which it might be brought, and that the action was not barred until the defendant had been within the forum for the full period of the limitation prescribed by local statute. Thus this particular class of cases was held to come within the exceptions provided by the statutes of Anne and of the states whose decisions have been cited. This doubtless appeared to our Legislature as oppressive to foreign debtors in such cases, and to ameliorate the supposed harshness of the law, section 26 was incorporated into the statute, not to change the previously received interpretation of section 16, but to take out of the domain of its operation such foreign contracts, and, instead of applying thereto our statute of limitations, to make applicable the law of the place of contract in respect to the remedy. To give section 16 the construction sought to be applied to it renders the enactment of section 26 wholly useless, and the law uncertain as to what statute of limitations, the place of contract or the law of the forum, should be applied. To the extent of cases coming within the special facts there stated, we regard section 26 as a limitation upon the effect of the provisions of section 16, as they had been construed and interpreted by

Now, under such known state of the law, "must not the Legislature," says Mr. Justice Wheeler, in an able dissenting opinion, rendered in Snoddy v. Cage, 5 Tex. 106, 117, erroneously cited and referred to in McCormick v. Blanchard, supra, as 3 Tex. 106, "be supposed to have adopted those words with the meaning which had thus been attached to them by judicial construction? Is it reasonable to suppose that they intended the application to this section of the statute of a different rule here from that which a known judicial construction had given to the same language elsewhere?" The first query has been answered many times by this court in the affirmative, which is consonant with the emphatic and pronounced declarations of most, if not all, courts. In Pennock & Sellers v. Dialogue, 2 Pet. 18, 7 L. Ed. 327, Mr. Justice Story said: "It is doubtless true *** that when English statutes, such, for instance, as the statute of frauds and the statute of limitations, have been adopted in our legislation, the known and settled construction of those statutes by courts of law has been considered as silently incorporated into the acts, or has been received with all the weight of authority." So in Kirkpatrick v. Gibson, 2 Brock. 391 (Fed. Cas. No. 7,848), Mr. Chief Justice Marshall said: "I am the more inclined to this opinion because it is reasonable to suppose that, when a British statute is re-enacted in this country, we adopt the settled construction it has received, as well as the statute itself; and such I believe to have been the course of the court in every state of the Union." And again, in Cathcart v. Robinson, 5 Pet. 264, 279, 8 L. Ed. 120, he said: "The rule which has been uniformly observed by this court in construing stat utes is to adopt the construction made by the courts of the country by whose Legislature the statute was enacted." And: "The the courts of other jurisdictions, whence it received construction * * * may very properly be considered as accompanying the

was adopted by our Legislature, and not in conflict with the entire scope of the latter.

circumstances in which a nonresident may
appear as a defendant in the courts of this
state, as the facts of this case well attest,
and to permit its presence in the statute to
alter the entire scope of the previously re-
ceived interpretation of section 16, because
of a supposed conflict in the terms of the
two sections, would be doing violence to the
well-established rules of statutory construc-
tion. In Barbour v. Erwin, 14 Lea (Tenn.)
721, the Supreme Court of Tennessee gave
to a similar statute of that state the same
interpretation as this court gave to section
16 in McCormick v. Blanchard, supra, and
assigned the same reason therefor, viz.:
That to otherwise construe the section would
render nugatory, because of a supposed con-
flict, another section of the statute, declar-
ing, in effect, that an action barred by the
lex loci contractus shall be barred there.
But this was subsequently overruled by that
court in the case of Kempe v. Beder, 86
Tenn. 189, 6 S. W. 126; Mr. Justice Lurton
(page 193 of 86 Tenn., page 127 of 6 S. W.)
saying that: "If he [defendant] should plead
such bar, it would be no answer to rely
upon the section now under consideration.
There is no necessary conflict whatever.
such a bar had accrued in the state where
the right of action accrued, and whilst the
defendant was a resident of such state, it
would be a complete defense; but if no
such bar had been created while such resi-
dent, then he can alone rely upon the local
prescription, and the effectiveness of that
will depend upon the length of his residence
in this state."

If

KING, J. (dissenting). It is stipulated in this case that at the time the causes of action accrued defendant was absent from the state, and that he has ever since, until immediately prior to the institution of this proceeding, continued to remain out of the state. I therefore dissent from the conclusion announced by the majority, but only on the authority of McCormick v. Blanchard, 7 Or. 232, Crane v. Jones, 24 Or. 419, 33 Pac. 869, and Van Santvoord v. Roethler, 35 Or. 250, 57 Pac. 628, 76 Am. St. Rep. 472. My views cannot be more clearly expressed than by quoting from Van Santvoord v. Roethler, where the sections of the statute here involved were under consideration, in referring to which Mr. Justice Wolverton, speaking for this court, says: "It may be inferred from the complaint that the defendant was a nonresident of the state at the time the action accrued. Such being the case, McCormick v. Blanchard, 7 Or. 232, and Crane v. Jones, 24 Or. 419, 33 Pac. 869, are decisive of the controversy. The appellants question the soundness of these cases, and, while we might be disposed to agree with them were it a matter of first impression, we are now bound by the rule of stare decisis. If the practice is to be changed after it has been in vogue for so long a time, it should be by the Legislature, rather than by the courts." See, also, Buchner v. C., M. & N. W. Ry. Co., 60 Wis. 264, 267, 19 N. W. 56; Brown v. C. & N. W. Ry. Co., 102 Wis. 137, 154, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579; Kirby v. Boyette, 118 N. C. 244, 258, 24 S. E. 18.

JENSEN v. CURRY COUNTY. (Supreme Court of Oregon. Nov. 30, 1909.) 1. HIGHWAYS (§ 72*)-ALTERATION-NOTICE OF APPLICATION-WHO MUST SIGN-PETITION

ERS.

highway were freeholders residing in the vicinity of the alteration was equivalent to a finding that the persons who signed the road notice were

such.

We are of the opinion that the facts presented bring the present cause within section 16, that the statute did not begin to run until the defendant returned to the state, and, it being stipulated that he again departed and remained out of the state, excepting that he was thereafter temporarily in the state not to exceed one year from the time The notice of an application to alter a highthe causes of action arose until the com- way must be signed by the petitioners for the alteration, and hence a finding of the county mencement of this action, that it is not bar-court that petitioners for the alteration of a red. Armfield v. Moore, 97 N. C. 34, 2 S. E. 347; Stanley v. Stanley, 47 Ohio St. 225, 24 N. E. 493, 8 L. R. A. 333, 21 Am. St. Rep. 806; Hacker v. Everett, 57 Me. 548; Whitcomb v. Keator, 59 Wis. 609, 18 N. W. 469; Bennett v. Cook, 43 N. Y. 537, 3 Am. Rep. 727. The following cases, cited as holding a contrary doctrine, are not in point, for they are based on statutes materially different from the one now under consideration: Wheeler v. Wheeler, 134 Ill. 522, 25 N. E. 588, 10 L. R. A. 613; Lindauer Merc. Co. v. Boyd, 11 N. M. 464, 70 Pac. 568; Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. 776, 33 L. Ed. 172 (construing the statutes of Virginia); Walsh v. Schilling, 33 W. Va. 108, 10 S. E. 54; Orr v. Wilmarth, 95 Mo. 212, 8 S. W. 258.

From these considerations, it follows that the judgment is affirmed.

[Ed. Note.-For other cases, see Highways, Cent. Dig. §§ 239-252; Dec. Dig. § 72.*] 2. HIGHWAYS (§ 72*)-ALTERATION-JURISDICTION-ROAD NOTICE-NECESSITY.

Proper road notices by petitioners to alter the county court jurisdiction to alter the higha highway were conditions precedent to giving way, and the court has no jurisdiction to do so where it did not find that the subscribers to the notice resided in the road district where the road was to be laid out, as required by Laws 1903, p. 263, § 7.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 241; Dec. Dig. § 72.*] 3. HIGHWAYS (§ 72*)-ALTERATION-PROCEEDINGS - REVIEW - WANT OF JURISDICTION — OBJECTIONS.

Where a defect appears at trial which deprives the court of jurisdiction, it must set aside