Huffman v. McDaniel.

two thousand dollars damages for the detention of the land described in the complaint, without specifying the time the said Huffman detained the land in dispute, or the value of the rent, or the value of the land."

3d. "The court erred in sustaining the second demurrer of the plaintiff to the second answer of defendant."

It is true that the court below sustained the demurrer to the first answer of the defendant, but any error so committed was waived by the interposition of an amended answer. When an answer is demurred to, and the demurrer sustained, if leave is obtained therefor, and an amended answer is filed, all right to insist upon error in the sustaining of such demurrer is waived. A party may demur to a pleading, and he may stand by his demurrer, and if it is well taken this court will give him whatever he was entitled to receive from the court below; but if he answer over, he waives all benefit of his demurrer; he has his election to stand by his demurrer or to answer over, and, having taken his election, he is bound by it. The second matter assigned as error is sufficiently answered by saying that the record, as it comes before us, does not show that any "damages" are adjudged to the plaintiff. Damages were awarded, but they were afterwards remitted, and the judgment, at the time the writ of error was sued out, permitted no damages to the plaintiff.

The third matter assigned as error presents the main question arising in this case: Did the court err in sustaining the second demurrer of the plaintiff? One point in the demurrer was, "It is not alleged in said answer, that the sums therein pretended to have been expended by the defendant in extinguishing the titles of Badger and Collier were so expended within the time limited by the lease. By giving the utmost latitude of construction which can be claimed as the life of a lease," from day of A. D. 1856, for and during, and until the full end and term of eighteen months from the last day of the year "1856." Suit was instituted in August, 1858, and the answer does not show that the sums, or either of the sums therein alleged to have been paid

Fargo v. County Commissioners.

in extinguishing the titles of Badger and Collier, were so paid within the eighteen months subsequent to the last day of the year 1856, or at any other particular time. Hence, the demurrer was properly sustained, and the judgment of the court below should be and is affirmed.

SHELDON B. FARGO, JAMES A. BENNETT, JOHN FOSTER and AARON RICHARDSON, Plaintiffs in Error, v. COUNTY COMMISSIONERS OF BENTON COUNTY, Defendants in Error.

Error to Benton.

1. An uncertified tax-list is not proof of a certified tax-list.

2. An uncertified tax-list having been permitted by the court below to be read in evidence, "to show any indebtedness of said Fargo to the county, by reason of his having collected any of the taxes in said list," there being no allegation in the pleadings of indebtedness for "moneys had and received,” was

error.

Surr was brought in the court below, by the board of the county commissioners of Benton County, against Sheldon B. Fargo, sheriff, and his sureties on sheriff's bond, to recover damages for an alleged breach of the penalty of said bond, in not returning the certified tax-list and warrant to said board, on or before the first day of April, A. D. 1858. The complaint charged that Fargo was elected sheriff; that he took the oath, and gave the bond of office, in which the other defendants are securities; that on the 28th of November, 1857, T. H. B. Odeneal, auditor of Benton County, issued to Fargo, as such sheriff, a certified list of the unpaid taxes of said county, amounting to $3,823 23, with warrant attached; and that he failed to make return, as above stated, and thereby made breach of the condition of the bond.

The answers of the defendants admitted the election, oath,

Fargo v. County Commissioners.

bond and security, as charged in the complaint; but deny that a certified tax-list was placed in the hands of Fargo, and also deny any indebtedness or liability to the plaintiff.

The answers also alleged that Fargo offered to make return and settlement on the first Monday in April, 1858; that time, from month to month thereafter, was given him by plaintiff for such return and settlement, and that he did return, and the plaintiffs did credit him with $711 542, delinquent taxes in said list.

The reply denied any offer to make return and settlement; and all those portions of the answers relating to the giving of time, and the crediting of the delinquent taxes, were stricken out, on motion of the plaintiff, and excepted to by the defendants.

Judgment, on verdict for plaintiffs, in $991 94.

Thayer & Williams, for plaintiffs in error.

J. Kelsay, for defendant in error.

WAIT, C. J. Several matters have been assigned in this court as error, for which the judgment in the court below is sought to be reversed.

From the view taken by this court, it will be unnecessary to consider other than the second point assigned as error, viz.: the admitting in evidence of the uncertified tax-list.

By law, the tax-list should have been certified by the county auditor, before delivery to the sheriff.

The complaint alleges, that the tax-list issued to Fargo was a certified tax-list. It appears, from the bill of exceptions, that upon the trial of the cause, the plaintiffs offered in evidence an uncertified tax-list, which was objected to by the defendants, and permitted by the court to be read in evidence, "to show any indebtedness of said Fargo to the county, by reason of his having collected any of the taxes in said list."

The complaint does not allege a liability by the defendants,

Frisbie v. State.

on account of moneys received by Fargo, nor is any issue found by the "answers and reply," to which the testimony would be pertinent; nor could an uncertified tax-list be given in evidence, to prove a breach of a bond, for not returning a certified tax-list. An uncertified tax-list is not proof of a certified tax-list.

The evidence ought not to have been admitted; and, having been objected to, and the ruling of the court excepted to, the judgment should be reversed, and a new trial granted.

Judgment reversed, and a new trial granted.

HENRY M. FRISBIE, Plaintiff in Error, v. STATE OF OREGON, Defendant in Error.

Error to Polk.

1. A pack of playing-cards is a "gambling device" within the meaning of the statute.

2. The terms, "suffering such gambling device to be set up and used," &c., are properly used in charging said offence.

PLAINTIFF in error, at the November term of the Circuit Court for Polk County, 1859, was indicted for suffering a gambling device to be set up and used, in a certain house then occupied by him, for the purpose of gaming.

There was a trial, and conviction for the offence as charged.

G. H. Williams, for plaintiff in error.

J. G. Wilson, for State.

STRATTON, J. The instructions of the court upon the trial of this case, to which exceptions were taken, were founded wholly upon the construction of our gaming act; and the question now is, was the interpretation of those statutes given

Frisbie v. State.

by the court below correct? The facts, as they appear by the bill of exceptions, are, "that witness and others met at defendant's (below) grocery in the after part of the day; made up a game of what is familiarly known as poker; half a dollar ante; played with common playing-cards on a card table; played all night. Defendant was in the game; he sometimes won and sometimes lost. Used several packs of cards; they were paid for out of the common fund.”

The indictment substantially charges the plaintiff in error with suffering a gambling device to be set up and used for the purpose of gaming, &c. With this state of facts, and under the indictment, the counsel for plaintiff in error asked the court to charge, substantially:

1st. That a pack of playing-cards was not a gambling de vice, as described in the indictment.

2d. That such a pack of cards was not a gambling device within the meaning of the statute.

Several other instructions were asked and refused, as being too general, and not applying to the case.

The court did instruct the jury, that "if they believed from the evidence, that the defendant suffered gambling with cards in his house, it was a sufficient setting up of a gambling device to warrant a conviction. Also, that evidence showing that the defendant engaged in, and suffered gambling with cards in his house, all of one night, it would be a sufficient setting up and using a gambling device, to warrant a conviction."

To the refusal to charge as requested, and to the charge as given, exceptions were taken. Two questions arise in this

case:

1st. "Is gaming with cards, in the manner as the evidence here tends to disclose, a gambling device to bring the game within the description of a gambling device, as set forth in the indictment.

2d. "If so, was there sufficient evidence of such a setting up and use, as warranted the judge in charging the jury in manner as set forth in the bill of exceptions."