armed himself. And evidence tending to show that two organizations, of which deceased was a member, had threatened defendant's life, and that defendant had been informed of such threats, is competent for that purpose.

3. SAME-INSTRUCTIONS-STATING THAT DEFENDANT HAS NOT DENIED THE KILLING. On the trial of an indictment for murder it is improper for the court, in charging the jury, to say that the defendant did not dispute that he killed the deceased, where such admission was neither made at the trial, nor implied in the theory of the defense.

4. SAME-ADMISSION OF KILLING IMPLIED BY THEORY OF DEfense.

Where the theory of defendant, in an indictment for murder, is that he and others were walking peacefully along a street, when they were surprised by shots fired by deceased, and that thereupon defendant and his companions began firing, and were fired at by deceased and others with him, and that in the affray deceased was killed, but by whom was uncertain, this theory does not imply an admission that the deceased was killed by defendant.

In bank. Appeal from superior court, city and county of San Francisco; D. J. TOOHY, Judge.

McAllister & Bergin, Lyman A. Mowry, and Wm. A. Nygh, for appellants. Geo. A. Johnson, Atty. Gen., for the People.

TEMPLE, J. The defendant was convicted for the murder of Yin Yuen, who was killed at about noon, on Washington street, in San Francisco. The witnesses who were present when the homicide was committed are Chinese, and there is a wide discrepancy in their testimony, although the evidence of all the witnesses on either side harmonizes wonderfully with the testimony of the other witnesses on the same side. On the part of the prosecution it is made to appear that defendant, with several other Chinamen, was standing on Washington street when the deceased came peaceably along, and, just as he passed the defendant on the sidewalk, defendant presented his pistol and fired; that Yin Yuen instantly fell, and defendant again fired at him; and thereupon the others who were standing there, some five or six, commenced firing at the deceased, who was lying helpless on the ground. The defendant's witnesses all state that some five or six Chinamen were standing at the same point on Washington street, when the defendant with two other Chinamen came along up Washington street. As they passed the group, Yin Yuen fired a shot at the defendant, who stepped into the street, and looked around. As he did so Yin Yuen fired the second shot, and thereupon defendant and his two friends drew their pistols, and commenced firing, as did also the other Chinamen who were with Yin Yuen. That the two groups fired several shots at each other, and that during the firing Yin Yuen fell.

On the trial Chow Hin was the principal witness on the part of the prosecution. According to his own testimony, he was in company with Yin Yuen, or immediately behind him, walking along Washington street, at the time Yin Yuen was attacked and killed by the defendant. The defense attempted to show, on cross-examination of this witness, that he was hostile to the defendant. I will quote from the bill of exceptions sufficient to show the nature of the controversy: "Question. Who is the person who keeps that book? The Court. What is the object of it? Counsel for Defendant. The object is this, your honor: We are seeking to show the feeling of this witness, and the animus which he has in this prosecution. He is a member of the Bo Sin Sear society. There has been a feud between that society and the Guy Sin Sear society for a long time. The deceased was a member of the Bo Sin Sear society. They had quarreled for two months previous to this shooting. They had been out to the cemetery together to settle their disputes, and had gone through with certain ceremonies. Lee Chuck was out there; this witness was out there. They attacked Lee Chuck the day previous on Jackson street. They also threatened Lee Chuck on the very day previous to this shooting that he should not leave. This witness is a member of that society. The deceased is another. We want to show his connection with the society; we want to

show his previous quarrels. We want to show what his animus is. We want to show that this society has subscribed money to carry on this prosecution, and we want to show this man does not stand here as an impartial witness; that he stands here as a member of the Bo Sin Sear society, with a bitter feud on the part of the society against the Guy Sin Sear society, and against Lee Chuck as a member thereof. That the Bo Sin Sear society has been indulging in threats against the Guy Sin Sear society, the result of which was that Lee Chuck went and got a coat-of-mail, and armed himself with three or four pistols, in order to protect himself, and was attacked on Washington street in this city. We have a right to show the animus of the witness, and show his feelings toward the defendant." The objection that the evidence was incompetent, irrelevant, and immaterial was sustained by the court, and the defendant excepted.

The question was repeated in various forms, with the same result. The last two questions and the rulings were as follows: "Question. Did you and the deceased, two or three months before this shooting, go out to the cemetery as members of the Bo Sin Sear society, and meet there Lee Chuck and certain members of the Guy Sin Sear society? Did you go through there certain ceremonies, such as cutting a chicken's head, and trying to settle the feud between those two societies? Did you part in enmity, and did you and the deceased on that occasion make distinct threats against the life of Lee Chuck? The Assistant District Attorney. The same objection, your honor. The Court. Same ruling and exception. Counsel for Defendant. We shall except on the part of the defendant. Q. Did you and the deceased, representing the Bo Sin Sear society, with a party of other men, go out to the cemetery two or three months before this shooting? Did you meet there Lee Chuck and a number of men representing the Guy Sin Sear society? Did you have any angry controversy at that time? Did you and the deceased both then make threats at Lee Chuck? Did the deceased then draw his pistol on Lee Chuck, and threaten to shoot him at that time? The Assistant District Attorney. The same objection, your honor. The Court. Same ruling. Counsel for Defendant. We except on behalf of the defendant."

There may be some matters in the original offer which would not be proper evidence on cross-examination, but this cannot be said of the subsequent questions. It is implied that there was a feud between two Chinese societies, and that the society of which the deceased and the witness were members were specially hostile to the defendant, and it was sought to be shown, in connection with this, that the deceased and the witness, when the two societies met to arrange their controversy, threatened the defendant. This evidence was clearly admissible. It is no objection to such evidence that it would tend to prove some fact material to the defense, if it were also under the rules of evidence legitimate cross-examination.

The case of Thornton v. Hook, 36 Cal. 223, only sustains the proposition that the court, having a certain discretion to control the order in which testimony may be introduced, may sometimes refuse to allow cross-examination as to matters which would more properly be received as direct testimony from the party seeking to cross-examine. Here the object was to show that the witness was hostile. The defendant could not justly be compelled to recall and make the witness his own to do that. The court erred in sustaining the objection.

Since the case must be reversed on other grounds, it is not necessary to notice the unfortunate remark of the court, made while counsel for the defense was opening his case to the jury, further than to say that the line of defense there indicated seems to have been a proper one, and the judge was not justified in discrediting it in any way.

It appeared from the evidence of the prosecution that, at the time of the homicide, Lee Chuck was incased in a steel coat-of-mail, and was armed with

four pistols. These were brought in and displayed before the jury. They were intended to have, and doubtless did have, great weight in convincing the jury that Lee Chuck had prepared himself for the deadly encounter in which Yin Yuen lost his life. To explain this fact, and to show that the defendant had reason to think his life in danger, and for that reason, and not to prepare himself to make a murderous assault upon the deceased, defendant put on a coat-of-mail and armed himself, the defense offered to show that the Bo Sin Sear society and another organization of which Yin Yuen was a member, had threatened to take the life of defendant, and that defendant had been informed of the fact. This evidence was objected to as incompetent, and the objection was sustained. This ruling cannot be maintained. The fact of the extraordinary armor worn by the defendant at the time of the homicide was important evidence for the prosecution. To refuse to permit the defendant to show that the preparation was for a different purpose, and for reasons which implied no intent to assault the deceased, was a denial of a most essential right.

It is claimed that the court erred in its charge to the jury. The first objection is stated in the bill of exceptions as follows: "The charge of the court to the jury in these words: It is not disputed by the defense that on the twenty-eighth day of July, 1886, Yin Yuen, the person named in the information, was shot and killed on that day by the defendant,'-was an incorrect statement of facts made to the jury, and an incorrect statement of the position taken by the defense. Neither defendant nor his counsel did ever admit on the trial of this action that the deceased, Yin Yuen, was killed on the twentyeighth day of July, 1886, by defendant. The claim of the defense was that on the twenty-eighth day of July, 1886, an affray was commenced on Washington street by Yin Yuen and his associate shooting at Lee Chuck and some two associates who were with him, and that in the course of said affray, so commenced by Yin Yuen, deceased, Yin Yuen, was killed; that neither the defendant nor his counsel, or either of them, in the course of the trial of this case, ever admitted that Yin Yuen was killed by Lee Chuck. This incorrect statement of fact to the jury in charging the jury was never subsequently corrected by the court in any further charge, or in any further observations made to the jury."

The statement fails to show any such admission on the part of the defense, and no such admission was involved in the theory of the defense. On the contrary, the theory of the defense, which was sustained by the testimony of several witnesses, was that the defendant and two others were walking peacefully along the street when they were surprised by shots fired by Yin Yuen; that thereupon they all three commenced firing and were fired at by Yin Yuen, and five or six others, with whom Yin Yuen seemed to be associated. In this affray Yin Yuen was killed, but by whom did not appear. On the other hand, the theory of the prosecution was that defendant shot deceased while he was going peacefully along from his work, and that Yin Yuen did not shoot at defendant, and that there was no affray at all, the shots all being fired at Yin Yuen by defendant and his partisans. It is plain, therefore, that this assumption was not justified by the facts, and that it was favorable to the theory of the prosecution.

Other instructions are objected to, but we do not deem it necessary to discuss them. Some of them, if isolated from the others, are probably defective; but on the whole we think the law was fairly presented on the points complained of. The cause is remanded and a new trial ordered.

We concur: SEARLS, C. J.; SHARPSTEIN, J.; MCFARLAND, J.; MCKINSTRY, J.; PATERSON, J.; THORNTON, J.

(15 Or. 345)

CRANE . LARSEN and others.

(Supreme Court of Oregon. October 25, 1887.)

1. PLEADING-ANSWER-ANOTHER ACTION PENDING-DEFENSE AVAILABLE IN EQUITY. In Oregon the defense that "there is another action pending between the same parties, for the same cause," is made applicable to suits in equity as well as actions at law.

2. SAME ANSWER MUST SHOW THAT SUIT PENDING IS SUBSTANTIALLY IDENTICAL. In Oregon it is not necessary that the parties to two suits should be identical in order to plead as a defense the pendency of another action between the same parties, and for the same cause," but the answer should aver facts showing clearly that the former action or suit was, in substance, between the same parties, and for the

same cause.

3. SAME CONSOLIDATION OF SUITS.

Where two suits can be consolidated, and the controversy closed in one action, the court should either stay the proceedings in one suit until the prior one is determined, or join the two.

Appeal from circuit court, Multnomah county; E. D. SHATTUCK, Judge. H Y. Thompson and Watson, Hume & Watson, for respondent. Geo. W. Yocum, for appellants.

THAYER, J. The respondent commenced a suit in the said circuit court for Multnomah county, against the appellants, for a settlement of partnership business arising out of an alleged partnership between the said parties. The appellants interposed as an answer the following matter, viz., (omitting title:) "Now, on this day, come the above-named defendants, and for answer to the plaintiff's complaint, state that at the time of this suit there was, and now is, another suit pending in the said circuit court of the state of Oregon, for the county of Multnomah, between the same parties to this suit, and for the same cause, in which said suit, pending as aforesaid, the defendants in this suit are plaintiffs, and the plaintiff in this suit is one of the defendants in said suit pending at the time of the commencement of this suit. And these defendants allege that the same subject-matter involving the settlement of the partnership affairs set forth and stated in the complaint in this suit, is set forth and stated in the complaint in said former suit as the cause of suit; and that the plaintiff in this suit appeared in said former suit, by her attorneys, and filed her answer thereto; and that said former suit is now, and has been at all the times herein mentioned, pending in said court, and still remains undetermined. Wherefore defendants pray that the complaint of the said plaintiff may be dismissed, and that defendants may recover their costs and disbursements herein."

The respondent demurred to the answer upon the following grounds: (1) That the said answer did not state facts sufficient to constitute a defense; (2) that it showed upon its face that the former suit pleaded therein was not between the same parties to this suit; (3) that said answer showed upon its face that the plaintiff in this suit was not the plaintiff in said former suit.

The court sustained the demurrer, and the respondents having refused to further plead, their default was entered, and the case referred to a referee to state an account between the parties, which the referee reported to be $3,519 in favor of the respondent and against the appellants. The court confirmed the report, and entered the decree thereon from which the appeal is taken. The only question of law for our determination is 'he sufficiency of the answer as a defense to the suit. The respondents' counsel make two points upon the question of its sufliciency: (1) That the answer shows that the suit herein is not between the same parties as the former suit, and (2) that a defendant, who is plaintiff in a former suit, has no right to interpose such a defense when sued by the former defendant, although the two suits involve the same subject-matter.

The appellants' counsel contend that the same decree of strictness, as to the rule that parties must be the same in both cases, is not observed in equity as at law, and that, therefore, the first ground is not maintainable; and they deny that the second ground is correct. The defense, "that there is another action pending between the same parties for the same cause," under the Code of this state, is made applicable to suits in equity as well as actions at law, and, in view of that fact, I am not able to discover how any discrimination can be made in the two classes of procedure, as contended for. The Code, in certain respects, maintains a distinction between actions and suits; but in others the same provisions are made applicable to both. In its interpretation the rules that formerly prevailed may be consulted, doubtless, with profit; but to undertake to apply the more technical rules of the common law to law cases, and the more liberal ones of equity to equity cases, when the statutes provide the same mode of procedure for both, would, it seems to me, be judicial legislation. The Code provides that "the forms of pleading in court of record, and the rules by which the sufficiency of the pleadings is to be determined, shall be those prescribed by the Code." Section 62, Civil Code. Rules which governed under a former system, therefore, in regard to the effect of the pendency of a former action or suit as an abatement of a subsequent one, are important only as aids in the construction of present ones. The letter of the Code in such cases must govern where its meaning is obvious, and, where its meaning is doubtful, resort must be had to those tests which the wisdom of ages has established as the most reliable means of ascertaining legislative intention. The Code allows the fact that there is another action or suit pending between the same parties, for the same cause, to be pleaded by way of answer, when it does not appear upon the face of the complaint. The meaning of this provision is plain to any person of ordinary intelligence. The evident object of it was to prevent unnecessary litigation; to avoid a second lawsuit where the identical matter was at issue between the same parties in a former one; and, if there were other parties in the former suit not included in the subsequent one, it would not necessarily prevent the pendency of the former one from being a defense to the latter; nor would the fact that the parties, plaintiff and defendant, were reversed in the two suits, prevent the defense, if the issue in the two were the same, and the same relief attainable.

I do not believe, either, that it is necessary that the parties should be identical in both suits, in order to admit the defense. I think privies would be included as well. I think the term "parties" includes privies. If A., therefore, were to commence an action against B., and then assign his cause of action, or some part thereof, to C., and the latter commence an action thereon, the defense of a former action pending between the same parties, for the same cause, would be available under a fair construction of the provision of the Code referred to. But the answer in such cases should aver facts showing clearly that the former action or suit was in substance and effect between the same parties, and for the same cause. It would not be sufficient to allege the mere deduction from facts. Under the former equity practice the defendant's plea had to set forth with certainty (1) the commencement of the former suit, its general nature, and the character and objects and relief prayed; (2) that the second suit was for the same subject-matter as the first; (3) a statement, not only that the same issue was joined in the former suit as in the second, and that the subject-matter was the same, but also that the proceedings in the former suit were taken for the same purpose. And the plea had to aver, also, that there had been proceedings in the suit such as appearance, or process requiring an appearance, at least. Story, Eq. Pl. § 737. The truth of the plea, then, had to be established by proof.

The defendant, at the time of filing the plea, had to obtain an order of reference to a master to examine and report whether the plea be true, and procure his report to that effect; and if he neglected to procure such report