vember, 1917, in three public places in said | ticulars; that these proceedings were comschool district." menced too late.

publish in one or more newspapers published on the 27th day of November, 1917," when in the district and having a general circulation, taken in connection with the other allegaa budget statement of the estimated amount of revenue required for the ensuing year for the maintenance of the school district, and in districts in which no newspaper is published the clerk shall post such budget on the door of the schoolhouse in said district at least ten days before such meeting. It shall be the duty of the directors of any such district to make out and deliver to the district clerk of their district, an itemized statement of the amount of revenues which may be required for the purpose of carrying on the district schools for the ensuing year, which statement shall be signed by the board of directors at a legally called board meeting."

C. L. § 286, p. 335; Commissioners v. County O. L. § 177, when made on grounds provided for Commissioners, 20 Md. 449, 460.

in section 174, subds. 1, 2, 3, or subdivision 4. Department 2. Appeal from Circuit Court, Columbia County; J. A. Eakin, Judge.

Tom Kapsales was convicted of sodomy, and he appeals. Affirmed.

The writ charges that the assessor filed a false and incorrect certificate of the several amounts of school taxes and procured a warrant authorizing the collection of taxes as shown by the certificate. The theory of the The defendant was convicted of the crime writ appears to be that the rolls are false of sodomy, sentenced to serve from 1 to 15 and therefore illegal. It attempts to sub-years in the penitentiary, and appeals. stitute for the rolls upon which the sheriff is collecting taxes a different roll in so far as the property in school district No. 25 is concerned. It is manifest that the change

cannot

now be made without causing great confusion in the transaction of the financial business of the county by the county officers, and tending to impede the administration of the tax laws. Kinlein v. Mayor, etc., of City of Baltimore, 118 Md. 576, 85 Atl. 679; McCormick v. City of New Brunswick, 89 N. J. Law, 117, 97 Atl. 777; People ex rel. v. Olsen, 215 Ill. 620, 74 N. E. 785; Board of Education v. Common Council, 128 Cal. 369, 60 Pac. 976; Bibb v. Gaston, 146 Ala. 434, 40 South. 936. The facts in this case as disclosed by the alternative writ are widely different from those in the case of State v. Johnson, 80 Or. 107, 156 Pac. 579, relied upon by counsel for petitioners.

The demurrer to the alternative writ should be sustained. And it is so ordered.

Seneca Fouts, of Portland (Alex Sweek, of Portland, on the brief), for appellant. Glenn R. Metsker, Dist. Atty., of St. Helens,

for the State.

OLSON, J. Defendant bases his appeal on four points: (1) Proof of emission is necessary; (2) corroboration is necessary, other than the testimony of the person upon whom the crime charged was committed; (3) the evidence was not generally sufficient to sustain a conviction; and (4) the district attorney was guilty of improper conduct in his speech to the jury, sufficient to entitle appellant to a reversal.

The first point was waived by counsel in argument, as it is statutory law in this state that no such proof is required.

[1] As to the second point, our statute requires, and all juries are charged, as in this case, that they are not bound to find in accordance with the testimony of any number

MCBRIDE, C. J., and HARRIS and of witnesses that does not satisfy their minds JOHNS, JJ., concur.

as against a lesser number. The requirement of corroboration is statutory or constitutional, as in the case of treason, custom, or adultery. The only question that could arise here on this point was as to whether the subject of this crime was an accomplice. The trial court, by an appropriate instruction, submitted to the jury the question as to whether the person complaining of the criminal attack was an accomplice, and, further, that if the jury found from the evidence that he was an accomplice, corroboration of the testimony of the complaining witness must be found before appellant could be convicted. The complaining witness testified that he resisted the commission of the act, and the jury having found on this point by their verdict this court will not pursue the subject further.

[2] As to the third point, the jury is the Sole judge of the facts. The record discloses sufficient evidence to go to the jury.

[3, 4] The fourth point involves the alleged misconduct of the district attorney in making improper remarks in his address to the jury. He made some reference to Greeks "bootlegging," and counsel for appellant objected. The trial court sustained the objections, and the district attorney dropped the subject. There is no error in this. The court held with appellant, and surely no error can be predicated on a ruling of the court stopping alleged improper remarks. Later the district attorney said:

"A man

A motion for new trial for misconduct of the district attorney and supporting affidavit held to be conclusions drawn from the evidence, and not the evidence nor facts called for by L. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

who will do this once will do it twice." This | and 177, L. O. L., in order to be available on would seem to be merely argumentative, and appeal.

in answer to argument of appellant's attorney, who had argued that the time testified to by witnesses would not have been sufficient for the commission of the offense. The district attorney argued that appellant had probably acquired facility by doing it before, and it would seem to be merely argumentative, and not a stating of a fact that the crime had been actually committed by appellant before. The district attorney further referred to glories of past Greece and her present condition, and inferred that a decline in morals was responsible therefor, and this is complained of as prejudicial. The record, however, discloses that no exception to these remarks was made by counsel for appellant, and necessarily no ruling was had. This court cannot pass upon error of the lower court, where no objection was made and no ruling had. State v. Young, 52 Or. 227, 96 Pac. 1067, 18 L. R. A. (N. S.) 688, 132 Am. St. Rep. 689; State v. Anderson, 10 Or. 448. [5] Upon instructing the jury the court cautioned the jury against statements of counsel not supported by the testimony, and told them to disregard such statements, and further instructed the jury that race or lack of being a citizen of this country should not affect their verdict. Counsel for appellant offered no requests for instructions and did not except to the instructions given. There after appellant's counsel filed a motion for a new trial on the ground, inter alia, of "irregularity in the proceedings of the state of Oregon, in this: That the district attorney for said county, in his argument to the jury during the trial of the said cause, stated that it was his opinion that the defendant was guilty and should be convicted," and annexed an affidavit containing practically the same words. This motion was overruled, and defendant contends that this is error. Section 177, L. O. L.,-provides:

"In all cases of motion for a new trial, the grounds thereof shall be plainly specified, and no cause of new trial not so stated, shall be considered or regarded by the court. When the motion is made for a cause mentioned in subdivisions 1, 2, 3, or 4 of section 174, it shall be upon affidavit, setting forth the facts upon which such motion is based."

Where landlord placed rental notes in hands of bank for collection and deposited lease giving lien on crops, and the bank subsequently took a chattel mortgage on the crops, the bank them in trust for landlord. upon receiving proceeds of sale of crops took

Department 2. Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by the La Grande National Bank of La Grande, Or., a banking corporation, against E. W. Oliver. Judgment for defendant, and plaintiff appeals. Affirmed.

See, also, 84 Or. 582, 165 Pac. 682.

This is an action by the plaintiff against the defendant on a promissory note for $1,700 dated January 30, 1910, upon which there was a credit of $16.33 as of March 27. 1913. The defendant admits the execution of the note, and as a defense and counterclaim alleges that he owned 760 acres of land in Union county, known as the E. W. An examination of the evidence shows that Oliver farm, which he leased to Frank Culboth motion and affidavit are conclusions len for seven years beginning October 1, 1909, drawn from the evidence, and not the evi- taking promissory notes for the amount of dence itself, nor the facts called for by the each annual rent, each note falling due on statute. The particular remarks of the dis- October 1st of the respective year of the trict attorney complained of on appeal are rental for which it was given, and that the not specified in the motion, or the affidavit lease, which was in writing, provided for a supporting the same. The motion and affi- cash rental of $4,333.50 for the year 1910, davit are not a compliance with sections for 1911 a cash rental of $3,420, and the 174 and 177, L. O. L., and the motion was same amount for each of the remaining properly overruled. This court has already | years, to be paid "out of the first moneys reheld that misconduct of counsel in remarks to the jury, not excepted to, and upon which the court makes no ruling, is an irregularity, and must be presented under sections 174 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ceived for said year's crops, the said E. W. Oliver to hold a lien upon said crop until such rental is paid." The lease contained certain other provisions as to how the land

Bank v. Oliver, 84 Or. 582, 165 Pac. 682); and the question is now presented as to whether the proof sustains such allegations. It is undisputed that the defendant was the owner of, and held the record title to, 760 acres of agricultural land in Union county, Or., known as the E. W. Oliver farm; that on October 1, 1909, he leased the farm to Frank Cullen for a period of seven years from that date, at an agreed annual cash rental; and that the lease provided that the rental should be "payable on the first day of October of each year respectively, out of the first noneys received for said year's crops, the said E. W. Oliver to hold a lien upon said crop until such rent is paid, said yearly rentals being evidenced by seven promissory notes of even date herewith." The lease was executed by both parties and duly witnessed, but was never acknowledged and was not filed or indexed as a lease or chattel mortgage, although it was filed and recorded in the office of the county clerk of Union county on October 4, 1909, at page 588 of Book C of what are known as "Miscellaneous Records." It is also undisputed that on March 24, 1911, Frank Cullen, the lessee, executed to the plaintiff his certain chattel mortgage upon the "growing crop of wheat now sown and growing and to be sown and grown in the spring of 1911, on the farm of Lige Oliver, Turner Oliver, and John Smith, situate in the county of Union," to secure one note of $1,500 and five notes of $200 each, all payable six months after date; that said mortgage was duly executed, witnessed, and acknowledged, and was duly filed and recorded as such; that on and between August 4 and September 13, 1911, Grande Ronde Grain Company issued to Cullen its certain warehouse receipts; and that on October 6, 1911, in exchange therefor that company gave to the plaintiff its certain check for $5,328.25, which was paid.

should be cultivated, and the buildings, tiff's cause of action (La Grande National fences, and improvements kept in repair. It is also alleged that on March 24, 1911, Oliver placed the rent note due in 1910, that due in 1911, and the written lease with the plaintiff "for collection," and then notified it that the notes were rental obligations secured by the terms of the lease and made a first lien on the crop; that the plaintiff accepted the notes and lease under an agreement that it would use reasonable diligence in the collection of the notes; that at the time of the delivery to the bank there was due on the 1910 note a balance of $616.64, with interest thereon at the rate of 8 per cent. per annum from October 1, 1910; that the rental note for 1911 was for $3,420 and would become due and payable October 1, 1911, and that after the bank received the notes and the lease for collection purposes it took a chattel mortgage on the 1911 crop to be grown upon the land so leased, to secure a large indebtedness due it from Frank Cullen. It appears from the defendant's answer that on October 6, 1911, the bank received from Cullen and from the Grande Ronde Grain Company $4,109.59, as the proceeds of the 1911 crop grown upon the said lands, and at the time of such receipt there was due and payable on the two rental notes then held by the bank the sum of $4,109.59; that, under the terms of his lease with Cullen, Oliver had a first lien on the grain for which the money was received by the bank; that the $4,109.59 was so received in trust for the defendant, to be applied in payment of said promissory notes; but the plaintiff after receiving this money "wrongfully applied the same upon the said chattel mortgage taken in its own favor as above stated" and wrongfully refused to apply it or any part thereof upon the said notes in its hands for collection. It is further alleged that on January 30, 1913, when the note sued upon by plaintiff was executed, the defendant did not know that the bank had received this money; that an error of $16.33 was made as to the amount, which is the item shown as a payment of March 27, 1913; and that on the latter date there was due from the plaintiff to the defendant the sum of $4,444.25, less $1,683.67, or $2,750.58. All the material allegations of the further and separate answer are denied by the plaintiff in its reply. The case was tried by a jury, which returned a verdict against the plaintiff for $3,638.60, upon which judgment was entered, and from which this appeal is taken. C. H. Finn, of La Grande, and L. R. Webster, of Portland (Emmons & Webster, of Portland, on the briefs), for appellant. James G. Wilson, of Portland, for respond

The real controversy is over the legal force and effect to be given the clause in the lease by which Oliver was "tą hold a lien upon said crop until such rent" should be paid, and whether the plaintiff received the lease and the Cullen notes from Oliver for collection and had knowledge of the terms of the lease at the time it took its chattel mortgage from Cullen.

The court gave the following instructions:

"(1) I instruct you, gentlemen of the jury, that if you find from the evidence that the deland to Cullen, by the terms of which lease he fendant Oliver had entered into a lease of his was given a first lien upon the crops to be raised upon the land-and the meaning of the term 'lien,' as used herein, I will hereinafter explain to you for the payment of the rent thereof, and Oliver placed the lease, together with the notes provided for therein for the rent, with JOHNS, J. (after stating the facts as the plaintiff for collection, and informed the above). On a former appeal, in an opinion bank of the fact that he had and held a first by Mr. Justice Burnett, this court held that lien upon all of the grain that should be raised upon the leased premises for the years 1910 the facts alleged in the answer constituted and 1911 by virtue of the lease to secure the a valid defense and counterclaim to plain- | payment of the two promissory notes described

ent.