that it was necessary that the state should make out the proof beyond a reasonable doubt; that it was necessary, also, in order to constitute the crime, that the act should have been done purposely and maliciously, with the teeth, and that the lip of Joseph Morin should have been cut, slit, or mutilated by the appellant in order to make out the crime; that if they found that his lip had been cut or injured, but were in doubt as to how it was done, or if they should find that it was done by accident, or by merely striking him with his fist, or with some instrument than his teeth, then the appellant would not be guilty of the crime with which he was charged in the indictment; that the state must establish satisfactorily that the appellant with his teeth purposely and maliciously cut, slit, and mutilated the lip of the prosecuting witness, Joseph Morin; that that was the charge in the indictment; that if they were not satisfied beyond a reasonable doubt that the appellant committed the crime by doing the acts alleged in the indictment, as has been explained to them under the law, then they could not find the appellant guilty, etc.; that, on the other hand, if they were satisfied beyond a reasonable doubt that the appellant with his teeth purposely and maliciously did the act charged, with the intent to maim and disfigure the said Morin, then they should find the appellant guilty as charged in the indictment. This instruction was not authorized by the evidence in the case, as there was no proof whatever that the appellant slit or mutilated Morin's lip, and not suflicient evidence that he cut it purposely and maliciously. To "slit," according to Webster, is to cut lengthwise; to cut into long pieces or strips; to cut or make a long fissure; to cut in general; to rend; to split. And to "mutilate" is to cut off a limb or essential part of the body; and the latter term, in criminal law, is, according to Bouvier, to deprive a man of the use of any of those limbs which may be useful to him in fight. There is no pretense that the lip in question was cut into long pieces or strips, or rended or split, or cut off; and the instruction, as given, presented to the jury only one of two alternatives, either to find the appellant guilty or not guilty of the crime charged in the indictment. The jury had the right under section 1383, Hill's Crim. Code, to find him guilty of any crime the commission of which was necessarily included in that with which he was charged, or an attempt to commit such crime; and section 1359, Hill's Crim. Code, provides that "when it appears that the defendant has committed a crime, and there is reasonable ground of doubt in which of the two or more degrees he is guilty, he can be convicted of the lowest of those degrees only." The jury in this case may have understood that they had the right to find the appellant guilty of a lesser offense than that charged in the indictment, though I think it exceedingly doubtful whether they did so understand. It was therefore highly important to the proper administration of justice that the court inform them in regard to that matter. But whether it was error of the court in failing to give such an instruction when the appellant's counsel neglected to request it is the particular point for determination. Trial courts, in many matters, have a duty to per form of their own motion. For instance, it would be error on the part of such court to permit a petit jury to return a verdict in a case of felony, in the absence of the accused, and it would also be error for the court to pass sentence upon him after a conviction, without putting the formal question as to whether he had anything to say why the sentence of the law should not be pronounced against him; and in People v. Murray, 40 N. W. Rep. 29, the supreme court of Michigan, in a late decision, held that, without any request from counsel, it was the duty of the judge of the circuit court to see that a case was fairly submitted to the jury. The court, by SHERWOOD, C. J., there said: "While this court cannot reverse a judgment or set aside the verdict upon a review of the facts, when such facts have been properly submitted to a jury, and will not ordinarily depart from such rules of practice as have been adopted as the results of the longest experience, yet, under the general superintending power and control over all inferior courts and their proceedings given under the appellate jurisdiction of this court, I have no doubt in a criminal case, upon a review of all the proceedings had which have resulted in the conviction of a respondent, if a court can see that a fair trial has not been had, and it is made manifest that injustice has been done, it then becomes the imperative duty of the court, with or without objections and exceptions by the respondent's counsel, to set aside such proceedings, and order a new trial; and we all think the present presents such a case. ** The respondent was sworn, and some of his testimony contradicted the people's witnesses, yet no charge was made stating what weight the jury might give to his testimony. Without any requests from counsel, it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he shall state to them fully the law applicable to the facts. Especially is this his duty in a criminal case. * *Too much reliance is often placed upon counsel by the court in this respect for requests, but this should not be done. The court must do its duty in a criminal case, whether counsel do so or not. It is to the court that the accused has a right to look to see that he has a fair trial." * * This view accords entirely with my own idea regarding the duties of courts of justice charged with the administration of criminal law. The constitution guaranties to the accused in criminal prosecutions the right to a fair and impartial trial, and the duty of enforcing that guaranty is committed to the ju dicial branch of the government, and no department of the government has power to deprive the accused of such right. Nor can the latter alienate or waive it. In Cancemi v. People, 18 N. Y. 128, in a trial for murder, one of the jurors was withdrawn, under a stipulation of the prisoner, consenting thereto, and also that by the record the cause should appear to have been tried by 12 jurors. It was held by the court of appeals that a conviction by the remaining 11 was erroneous. The court there says: "Criminal prosecutions involve public wrongs, a breach of public rights and duties,' which affect the whole community, considered as a community, in its social and aggregate capacity.' 3 Bl. Comm. 2; Id. 4, 5. The end they have in view is the prevention of similar offenses, not atonement or expiation for crime committed. Id. 11. The penalties or punishments for the enforcement of which they are a means to the end are not within the discretion or control of the parties accused; for no one has a right, by his own voluntary act, to surrender his liberty or part with his life." Pages 136, 137. The constitution of this state provides that, "in all criminal cases whatever, the jury shall have the right to determine the law and the facts, under the direction of the court as to the law, and the right of a new trial as in civil cases," (article 1, § 16;) and it requires the judge of every court, before entering upon the discharge of the duties of his office, that he will support that fundamental law upon which all the institutions of the government are built. How can a trial court neglect to direct a jury as to the law applicable in such cases consistently with the discharge of its duty. The jury must take as their guide in their deliberations the law as laid down by the court, which is an important means for securing to the accused a fair trial and just decision. In Lang v. State, 1 S. W. Rep. 319, a Tennessee case, the court says: "In all criminal prosecutions, the accused is entitled to a full, fair, and plain statement, by the court to the jury, of the law applicable to his case;" and in State v. Banks, 73 Mo. 592, the majority of the court held that it was the duty of the trial court, in criminal cases, to give correct instructions covering the whole law arising on the facts, whether such instructions were asked or not; and such has been the uniform rule of decision of the courts of that state for the past half century. In the latter case Mr. Justice NORTON dissented, stating as the grounds thereof the following: "Whether error was or not committed by the trial court in not instructing the jury as to some lower grade of homicide than murder in the first degree (which was the point the trial court had failed to instruct upon) was a matter of exception, and as the attention of the trial court was not pointedly and specifically called to the alleged error, either in the motion for a new trial or in arrest of judgment, it cannot be raised in this court for the first time; and we have no power to reverse a judgment v.23P.no.15-57 in a matter of alleged error not excepted to in the trial court, and to which the attention of said court was not called." According to this view of the question, the learned judge would seem to attach more importance to technical rules of practice than to the obligations imposed by the fundamental law. The reason for his dissent was, in effect, that the accused should be precluded from alleging error, on account of the neglect of the trial court to give proper instructions to the jury, because he failed to point out its neglect in that particular. If the reason were a valid one, it must be upon the ground that the accused, by his failure to point out such neglect of the court, waived the error; at least, I cannot discover any other ground upon which it can be based. The waiver of a legal right in the trial of a civil action may properly be maintained. The doctrine of waiver depends upon the maxim, consensus. tollit errorum, and it may consistently be resorted to and enforced in civil cases; as the parties in such cases are free to act and their consent only affects individual rights. But in criminal prosecutions the accused is proceeded against on behalf of the state, to be dealt by in accordance with the law, which is the only warrant for the proceeding. His attendance in court in that case is enforced. He is there by compulsion, to do and exercise whatever the court may deem proper, under the rules of law, to inflict upon him. He is entitled to the benefit of certain reserved rights, but is not authorized to consent to anything beyond formal matters, or which subserve his interest. Nor is the court justified in acting upon the consent of the accused in any matter affecting his right to a fair and impartial trial. The law marks out the line which the court is required to pursue, and, if it deviate therefrom in any particular which might operate prejudicially to the accused, it is no excuse to claim that he consented thereto or waived his right to challenge the irregularity. I do not see how it can be maintained that the appellant in this case or the accused in State v. Banks, supra, was required to except to the omission of the trial court to instruct the jury fully upon the law applicable to the case, in order to enable him to take advantage of such omission upon appeal, if the accused in Cancemi v. People, supra, were entitled to claim error on account of being tried by a jury composed of only 11 jurymen when he expressly consented to it. If a party charged with a public offense may consent to a waiver of one of the immunities which the constitution of the government throws around him to insure a fair and impartial trial of the case, I do not see why he could not dispense with them all. Of course, there are a number of rights the accused is entitled to, which must be demanded by him before the court can know that he desires the benefit of them. The right to have compulsory process for obtaining witnesses in his favor belongs to that class. The accused must show in such case that the demand was made to the court before he can claim that the right has been denied him. But where the court fails to discharge a specific duty of its own which it is required to perform of its own motion, and which may operate to the prejudice of the accused, I do not think it can be claimed that the latter waived its performance by neglecting to interpose an objection or to call the attention of the court "pointedly and specifically" to the fact. The accused could not give his consent in advance that the court might neglect the duty, and I do not see, therefore, any reason for claiming that he could thereafter ratify it. The weight of authority, estimated by the number of decisions, may be against the view here indicated, but I think it is correct in principle. Where the offense charged includes a lesser offense, and there is any question as to the accused being guilty of the greater, it is highly essential that the trial court instruct the jury in regard to their right to find him guilty of the lesser one, in order that he may have the benefit of any reasonable doubt in the premises. The importance of such an instruction was exemplified in this case. The jury evidently belieyed that the appellant was guilty of an act for which he should be punished; but, as I would infer from their recommending him to the mercy of the court, they were reluctant to find him guilty of the crime as charged in the indictment. He could very properly have been convicted under the evidence of assault and battery, which, according to my view, was the highest grade of offense he committed; and I think it highly probable that, if the trial court had given the jury the instructions suggested, they would have found him guilty of that offense, instead of finding him guilty of one of the degrees of felony. There is no good purpose to be served in attempting to rush men into the penitentiary on account of matters growing out of ordinary broijs which are liable to occur between good citizens. Such affairs are to be deplored, but community will never become free from them, so long as men possess temper and combativeness, and are in such juxtaposition that their interests and passions collide. Several other questions are presented in the bill of exceptions, but it is not necessary to consider them. The judgment appealed from should be reversed, and the case remanded to the circuit court for a new trial. (19 Or. 163) FISK v. NORTHERN PAC. R. Co. (Supreme Court of Oregon. April 23, 1890.) Appeal from circuit court, Columbia county. Dolph Bellinger, Mallory & Simon, for appellant. R. & E. B. Williams and Sears &Beach, for respondent. PER CURIAM. The court below held in this case that the railway company was required, under the statute, to fence its depot. In a recent case, ante, 498, we held otherwise; and the reasons therein stated render it unnecessary to further consider that question. The judgment must be reversed, and a new trial ordered. (19 Or. 172) SCHEIFFELIN et al. v. WEATHERRED. (Supreme Court of Oregon. May 1, 1890.) EQUITY-CROSS-BILL-REMEDY AT LAW-DEMUR RER-APPEAL. 1. A defendant, iu an action at law, has no right to file a complaint in equity, in the nature of a cross-bill, unless the complaint shows that he "is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense;" and where it appeared from the complaint filed in such a case that the facts alleged, if true, would be available as a defense in the action at law, held, that a general demurrer to the complaint was properly sustainable. 2. Held, also, that a decree dismissing such a complaint after a demurrer to it had been sustained, and the plaintiff had not answered over, was a final decision, from which an appeal would lie to the supreme court. (Syllabus by the Court.) Appeal from a decree of the circuit court for the county of Washington, sustaining a demurrer to a cross-complaint in equity. The respondent commenced an action at law in the said circuit court against the appellants upon two promissory notes executed by them to the respondent, and bearing date February 14, 1887, one of which was due in six months, and the other eighteen months, from date; each bearing interest at the rate of 10 per cent. per annum; and upon which he claimed to be due the principal sum and interest, and the sum of $110 attorney's fees. The appellant filed an answer to the said complaint, denying the amount claimed to be due upon the notes as claimed therein; denied that the sum of $110 was a reasonable attorney's fee therein; denied that no part of the said notes had been paid; but alleged that the appellant E. L. Schieffelin had paid the respondent $100, of which $31 was to be applied upon account, and that the balance, $69, was to be credited upon the notes; also the sum of $42. The said appellants, for a further answer, alleged that on the 15th day of November, 1886, the respondent was associated with one C. W. Ransom in the drug business; that said Ransom owned an undivided interest in a large number of accounts and notes, of the probable value of $2,000, which were due and to become due to said Ransom and respondent; that on said 15th day of November, 1886, the said E. L. Schieffelin, with the knowledge of respondent, purchased of said Ransom his undivided half interest in said accounts and notes, and at the time of the execution of the notes in suit it was agreed between respondent and said Schieffelin that the former was to retain possession of said accounts and notes, collect the same, and apply the one-half so collected as credits upon the notes in suit; that he had collected thereon divers large sums, the amount of which was unknown to appellants, but he had failed to credit the same as But of the action at law as though it were commenced by original summons. The object of the provisions of the Code regulating the proceeding was to avoid the necessity of waiting until the action at law was determined before equity jurisdiction was invoked, and it saved the necessity of procuring the issuance of an injunction to restrain the execution of the judgment at law. whether the complaint contains facts surficient to entitle the appellants to the relief claimed is a much more difficult question to solve in their favor. The Code provides that in an action at law, where the defendant is entitled to relief, arising out of facts requiring the interposition of a court of equity, and material for his defense, he may, upon filing his answer therein, also as plaintiff file a complaint in equity, etc. Unless, therefore, the relief sought does arise out of facts requiring the interposition of a court of agreed; and the appellants set out in the answer a long list of the names of persons, and amounts which the respondent had collected from each. The appeilants further alleged that they had requested from respondent an accounting and settlement of the matter, but that he had neglected to render any account whatever thereof. And they further alleged that the crediting the notes in suit with onehalf of all the sums collected by respondent upon said accounts and notes, and with the sums paid thereon, the same would be almost, if not fully, paid and discharged; that they had always been willing to pay respondent any balance that might be found due him upon an accounting between them; and they demanded, as relief, that the action be stayed, and the respondent be compelled to account to appellants for all sums collected by him upon the said accounts and notes. The respondent filed a reply to the said answer, denying the new matter therein al-equity, and material to the defense, the deleged; whereupon the appellants filed a crosscomplaint in equity, in which they alleged the purchase from the respondent of his stock in trade, consisting of all the goods, drugs, and fixtures in a certain drug-store which was the consideration for the two promissory notes sued upon in the action at law; also another note executed by them to respondent, and which they had since taken up. They further alleged in the cross-complaint that the said respondent falsely represented to them that he had invoiced said stock of goods, and that the invoice price or value thereof was $1,400, which he knew to be false, and that it did not exceed $800; that they were induced to purchase the same through said false representation. Said appellants further allege, substantially, the said matters set forth in their answer to the complaint in the action at law, and demand that the respondent be compelled to account for all of said matters, and that the said notes sued upon be surrendered up. The respondent filed a demurrer to the said crosscomplaint, demurring to certain portions thereof, and to the whole of the same, upon the grounds that the allegations contained therein did not constitute a cause of suit. The circuit court sustained the demurrer, and decreed that the said complaint be dismissed; which is the decree appealed from herein. fendant is not entitled to file such complaint. I was strongly impressed at the hearing with the belief that the appellants had not shown in their complaint such a state of facts as required the aid of a court of equity to render them available as a defense to the action upon the notes, and a further consideration of the case has confirmed me in that belief. The matter of the alleged fraudulent representations claimed to have been made by the respondent to the appellants upon the sale by him to them of the drugs and other articles for the payment of which the notes were executed, and the matter of the alleged partial payments upon the said notes are matters clearly cognizable at law, and the appellants are entitled to the benefit of them as a defense in said action. Partial payments upon a note may, under the Code, be pleaded as payment pro tanto thereof. And a fraud or warranty in the sale of goods could, before the Code, be set up as a recoupment of the plaintiff's claim in an action to recover the consideration price of the goods, and since then may be interposed as a defense by way of counter-claim, notwithstanding a promissory note was given for such price, where it had not been transferred to an innocent holder. Nor do I see any difficulty in the appellant's availing themselves of the matter of the alleged agreement of the respondent to collect the said accounts and notes belong S. B. Huston, for appellants. Thos. H. ing to him and said E. L. Schieffelin, and to Tongue, for respondent. apply one-half of the amounts collected as THAYER, C. J. The respondent's counsel insisted at the hearing that the appeal herein would not lie; that the cross-complaint was merely ancillary to the defense in the action at law; and that the decision upon the demurrer was only interlocutory; but it will be observed, from an inspection of the language of the Code upon the subject, that the filing of a complaint in the nature of a cross-billions of the Code are sufficiently broad to adstays the proceedings at law, and the case mit of as full a discovery at law in such a therefore proceeds as a suit in equity. The case as can be obtained in a court of equity. suit in such a case is really as independent The appellants do not, in my opinion, show by their complaint a case requiring the interposition of a court of equity, and material for their defense in the action at law. The circuit court, therefore, properly sustained the demurrer, and the decree appealed from will be affirmed. (19 Or. 181) ROSTEL v. MORAT. (Supreme Court of Oregon. May 1, 1890.) ADMINISTRATORS' ACCOUNTS-ALLOWANCE-AP PEAL. 1. It is the duty of every executor or administrator, within six months after notice of his appointment, and every six months thereafter until the estate is settled, to file a semi-annual account; and the county court must, at the first term after any such account is filed, ascertain and determine if the estate be sufficient to satisfy the claims presented and allowed within the first six months, or any succeeding six months thereafter, after paying the funeral charges and expenses of administration, and, if so, it shall so order and direct; but, if the estate be insufficient for that purpose, it shall ascertain what per centum it is sufficient to satisfy, and direct accordingly. 2. By paying claims in advance of an order by the court, an executor or administrator takes the risk of securing the approval of his acts by the court when his accounts and vouchers shall be presented. 3. If the final account of an executor or administrator be disapproved by the court, he may either appeal from the decree disallowing the same, or file another account, which shall meet the objections of the court. 4. A decree for the payment of money in probate proceedings cannot be enforced as for a contempt. The proper process is an execution. (Syllabus by the Court.) Appeal from circuit court, Jackson county; L. R. WEBSTER, Judge. This controversy has arisen in the course of the settlement of the estate of Julius Raspot, deceased. The defendant, Rapheal Morat, is the executor of the last will of said deceased, and the plaintiff is endeavoring to secure the payment of a claim in the form of a judgment which he obtained before a justice of the peace in Jackson county against said Julius Raspot in his life-time. The cause was transferred from the county court of Jackson county to the circuit court of that county, for the reason that the newlyelected judge of that county was directly interested as counsel for one of the litigants. Raspot died on the 7th of March, 1884. On the 23d day of August, 1884, the will was duly proven and admitted to probate, and the defendant qualified as executor, and entered upon the duties of his trust. The inventory was not filed until the 23d day of October, 1884, by which it appears the appraised value of the property of the estate was $222.92. On the 4th of March, 1885, the executor filed a final account. On March 21, 1886, he filed another final account; and on the 5th day of July, 1887, he made "a full and final statement of his proceedings." To each of these accounts the respondent filed objections, and said accounts were disallowed by the court; but each account showed disbursements enough to absorb the estate, if the claims paid were such as the executor had the right to pay in the order in which they were paid. On the 7th day of September the court made an order adjudging that the executor pay Rostel's claim forthwith, or that he show cause at the next term of court why he failed or refused to pay it. On the 5th day of October, 1886, the executor served and filed a notice of appeal from said order; but no undertaking on appeal was executed, and the same was not prosecuted. Afterwards, on the 2d day of May, 1887, C. B. Rostel filed in said court a petition for a citation requiring the executor to appear and show cause why he did not pay petitioner's claim theretofore allowed and ordered paid. The executor, in answer to this citation, undertook to show cause by filing one of his final settlements. There was a hearing on this account on the 6th day of July, 1887, at which the court refused to set aside its order of September 7, 1886, and directed the executor forthwith to comply with the same. Finally, on the 30th of June, 1888, the executor still failing to comply with said order by paying Rostel's claim, the court awarded a warrant for his arrest, and committed him to the jail of Jackson county, to be "there kept in close confinement and custody until he submits, and obeys 'the orders of this court." It was admitted on the argument, though it does not appear from this record, that Morat was afterwards discharged from said confinement, by the circuit judge of the first district, on habeas corpus. When this cause reached the circuit court, it appears to have been tried by the court as to whether the executor should pay Rostel's claim, being the same, precisely, which had been previously tried and determined by the county court; and said circuit court ordered him to pay it within 15 days. It is from this order or judgment that this appeal is taken. C. W. Kahler, for appellant. H. K. Hanna, for respondent. STRAHAN, J. The proceedings in this cause seem to be so irregular, as well as prolix, that it is difficult to determine just what the rights of the parties really are. There have been an unnecessary number of papers filed-many of which were copied into the journal-in the county court, when there was no occasion for it; and where the record ought to be full and explicit, it is frequently wanting in particularity. The appellant's contention is that the county court is a court of record, (article 7, § 1, Const.,) and that whatever judgment or decrees it may enter ought to be justified by the record in the particular case; that probate jurisdiction is conferred on the court by the constitution, art. 7, § 12, and by the Code, § 895, and the manner in which it shall be exercised is fixed by the various provisions of the law applicable to the particular subject; that section 1170, Hill's Code, makes it the duty of an executor or administrator, within six months from the date of the notice of his appointment, and every six months thereafter until the administra |