ELBERT, J. This is not the case of an entire contract "where an entire promise is made on an entire consideration." It consequently does not fall within the class of cases cited by counsel for the appellant, where, in case of loss by fire or otherwise before the work is completed, the owner loses his property, and the laborer his work. It is a separable contract. No given number of tons were to be cut. No specific number of acres were to be mowed. Neither the work to be done, nor the amount to be paid, was in gross. The plaintiff was to "cut, cure, and stack hay upon the defendant's ranch at $2.75 per ton, to be measured in thirty days. Of the legal character of such a contract there can be no difference of opinion. 1 Add. Cont. 392 et seq.; 2 Pars. Cont. 517 et seq. Under it the plaintiff cut, cured, and stacked 296 tons of hay. Two hundred and thirty-six tons were measured, and no controversy arises respecting them. Sixty tons were destroyed by fire, and the contention is as to where the loss must fall. Two points are made by the appellant: First, that all the hay was not stacked; second, that it was not measured. If all the hay cut was not stacked, it would not preclude the plaintiff from recovering compensation for what was stacked; nor does it appear that he was allowed to recover for hay unstacked, either burned or unburned. If the fact that the 60 tons burned were not measured could in any case affect the right of the plaintiff to recover therefor, it can have no such effect in this case, in view of the evidence showing that the time in which it should have been measured had expired, and that the default was that of the defendant.

The loss must fall upon the party having the title to the property destroyed. The hay was cut, cured, and stacked on the ranch of the defendant. The grass, before the cutting, was the property of the defendant. It was none the less so after it was cut, cured, and stacked. The plaintiff had expended labor upon the grass at an agreed price per ton,--had made it into hay,—but he had no property in the product. The legal possession was also that of the defendant, and neither delivery nor acceptance is a feature in the case. If it can be said that the hay, after it was stacked, was to any extent in the care and custody of the plaintiff, the evidence shows that he exercised reasonable diligence and prudence touching its safety, and the jury so found. The plaintiff was entitled to recover for the 60 tons destroyed by the fire.

If the work was not well done, the defendant could recoup his damages; and this he sought to do, under his pleadings, by evidence showing that the meadow was not well cut, and also that the hay was not well stacked. The evidence, however, upon these points, was conflicting, and we see no reason for disturbing the verdict of the jury. There was a fatal defect in the case made by the defendant in this behalf, in this: that, while the evidence tends to show that a portion of the hay was not well stacked, it does not show that the defendant paid any given sum for the restacking, or that it was worth any given amount. The jury were left to conjecture how much, if anything, the restacking was worth. In view of this, the objection that the plaintiff, Williams, was permitted to testify "all that was stacked was reported to me, from time to time, as perfectly sound and good," becomes unimportant. If the testimony thus objected to can be taken (which is doubtful) to refer to the character of the stacking, and not to the condition of the hay when stacked, it nevertheless concerns an issue upon which, as we have seen, the defendant could not recover by reason of his failure to prove any damage.

The second assignment argued by counsel goes to the refusal of the court to poll the jury, before the verdict was recorded, upon the request of the defendant. Upon this point our statute is silent. It provides that the names of the jurors, upon their return into court, shall be called, "and they shall be asked by the court or the clerk whether they have agreed upon their verdict; and, if the foreman answers in the affimative, they shall, on being required,

declare the same;" and, further, that "when the verdict is given, and is not informal or insufficient, the clerk shall immediately record it in full in the minutes, and shall read it to the jury, and inquire of them whether it be their verdict. If any juror disagree, the jury shall be again sent out; but, if no disagreement be expressed, the verdict shall be complete, and the jury shall be discharged from the case." Sections 177, 179, Amended Code.

Upon the right of a party to demand a poll of the jury before the verdict is recorded, the rulings differ in different states. In some of the states, in both civil and criminal cases, it is regarded as a right which may not be denied. Jackson v. Hawks, 2 Wend. 619; Fox v. Smith, 3 Cow. 23; James v. State, 55 Miss. 57; Johnson v. Howe, 2 Gilman, 342; Blackley v. Sheldon, 7 Johns. 32; Rigg v. Cook, 4 Gilman, 336; Labar v. Koplin, 4 N. Y. 550; Hubble v. Patterson, 1 Mo. 392; Stewart v. People, 23 Mich. 76. To some extent these decisions rest upon the proposition that opportunity should be given to the juror to correct a verdict which he has mistaken, or about which, upon further reflection, he has doubt; and it is to be observed that such opportunity is fully provided for by the provisions of the Code above quoted. In other of the states it is regarded as a matter resting entirely in the discretion of the court, but which the court will generally allow when there are any circumstances of suspicion attending the delivery of the verdict. Blum v. Pate, 20 Cal. 70; Martin v. Maverick, 1 McCord, 24; Landis v. Dayton, Wright, 659; Rutland v. Hathorn, 36 Ga. 380; Fellows' Case, 5 Greenl. 333; Com. v. Roby, 12 Pick. 513; Proff. Jury Trial, 465. It is a matter of practice, and in civil cases we see no reason for holding that either party may demand that the jury be polled as a matter of right. We think that such a request may safely and properly be left as resting in the sound discretion of the court. If there should be any good reason for allowing either party, by a poll, to test the unanimity of the jury, the request should be granted.

The foregoing constitutes all the assignments argued by counsel. The judgment of the court below must be affirmed.

(14 Or. 207)

RAMSEY V. PETTINGILL.

(Supreme Court of Oregon. November 29, 1886.)

REVIEW, WRIT OF JUDGMENT APPEALABLE-TIME FOR APPEAL PASSED-CIVIL CODE OR. 575; GEN. LAWS, ? 119.

Under the Oregon statute (Civil Code, 2 575, and Gen. Laws, p. 478, ? 119) providing that a writ of review will lie from a justice's court to the circuit court in cases where there is no appeal, a review will not be allowed where an appeal could have been taken, but the party seeking a review neglected to take an appeal within the time limited therefor.

Appeal from the judgment of the circuit court, Josephine county, Oregon, dismissing the writ of review, sued out by appellant, to determine the regularity of a judgment rendered against him, and in favor of the respondent, in the justice's court for Wolf Creek precinct, in said county. The writ of review was sued out after the time for appeal had passed.

George H. Burnett, for appellant, Ramsey. W. H. Holmes and B. N. Hayden, for respondent, Pettingill.

STRAHAN, J. The Civil Code, § 575, provides: "The writ shall be allowed in all cases where there is no appeal, or other plain, speedy, or adequate remedy, or where the inferior court, oflicer, or tribunal, in the exercise of judi cial functions, appears to have exercised such functions erroneously, or to have exceeded its or his jurisdiction, to the injury of some substantial right of the plaintiff, and not otherwise."

In construing this section of the Code, the course of judicial opinion has not been uniform in this state. One case decided that appeal and review were

concurrent remedies. Schirott v. Philippi, 3 Or. 484; following Blanchard v. Bennett, 1 Or. 329.

In Evans v. Christian, 4 Or. 375, this court held that appeal and review were not concurrent remedies, and, to that extent, overruled the preceding cases on that subject. In that case it was further said: “We do not question the correctness of the decision of the court in Schirott v. Phillippi, so far as it determined the real question in that case. That was that a writ of review might issue in a case (otherwise proper) when the right to an appeal once existed, but had been lost by lapse of time. Miliken v. Huber, 21 Cal. 166; People v. Shepard, 28 Cal. 115."

I have examined both of these cases. Neither of them supports the doctrine stated. The first holds directly the reverse. In that case the court said: "If there was an appeal in this case, the limitation, by statute, of the right to bring that appeal within one year, does not make it, after a year has been suffered to elapse without taking an appeal, a case in which there was no appeal. In any view of the case, therefore, the writ was improperly issued.” Further: "If it was the exercise of an appellate jurisdiction, it could not be done, by the proceeding of a writ of certiorari, after the time to exercise the right of appeal had elapsed." Miliken v. Huber, supra. In the second case cited the court appears to have decided that the remedy of the defendant was by appeal, and not by writ of review. The other matter stated in the extract was not referred to or noticed. Subsequent cases in California on the subject show that this court, in Evans v. Christian, supra, misapprehended the real point in Miliken v. Huber, supra. Thus, in Bennett v. Wallace, 43 Cal. 25, it is said: "* * * But it is insisted that, as the time limited by statute for the taking of the appeal has been suffered to elapse, the case has thereby become one in which there is no appeal, and is thus brought within the terms of the statute referred to. This view is answered by Miliken v. Huber, 21 Cal. 166. The statute was intended to supply a remedy where none existed in the first instance, and not to supplement one lost through the laches of the party himself." Newman v. Superior Court, 62 Cal. 545.

It thus appears that the rule of practice supposed to have been sanctioned by this court in Evans v. Christian, supra, is not supported by authority, and has never been satisfactory to the bar; and, in my opinion, it is at variance with the true construction of the Code. If an appeal is given by law, then it must be deemed to be an adequate remedy, and a party aggrieved must avail himself of it. He cannot be suffered to neglect this remedy until he has lost his right of appeal, and then claim that he has thereby gained a new remedy by his laches. The law favors the diligent, but we have yet to learn that a litigant ought to be rewarded because of his negligence. In many of the states the right to the writ of certiorari is discretionary. In those cases, if a party once had a right of appeal, certiorari is never allowed unless his failure to appeal is excused or accounted for in some satisfactory manner. State v. County Court of Nodaway Co., 80 Mo. 500; Poe v. Machine-works, 24 W. Va. 517; Payne v. McCabe, 37 Ark. 318; Tilton v. Larimer Co. A. Ass'n, 6 Colo. 288.

I concur in what was said on this subject by the supreme court of Michigan in Galloway v. Corbitt, 52 Mich. 460; S. C. 18 N. W. Rep. 218: "This court has heretofore expressed its disapprobation of the practice of taking advantage of technical errors in the proceedings before justices of the peace by the process of certiorari; thus converting what was designed to be a speedy and inexpensive court for the trial of causes into a costly and dilatory tribunal, and often, in its practical operation, through serious delays, defeating the ends of justice; and we are of the opinion that, except for errors which go to the foundation of the action, the proper remedy is by appeal." Erie Pres. Co. v. Witherspoon, 49 Mich. 377; S. C. 13 N. W. Rep. 781.

It is proper to say, in this connection, that no attorney or party is respon

sible for this practice. They did not introduce it, and they could not abolish it. It owes its origin entirely to what must be regarded as an oversight on the part of this court; and, as long as that rule is recognized here, it must be expected that parties will avail themselves of it. Therefore the case of Ev

an sv. Christian, supra, and other cases in this court which hold that a party may have a writ of review in cases where he once had a right of appeal, but lost it by lapse of time, or neglected or omitted to avail himself of it, must be regarded as overruled. The writ of review can issue "where there is no appeal;" but where the right of appeal once existed, and is lost by lapse of time, the controversy cannot be reopened by means of the writ.

The application of these principles disposes of this case. Here the appellant had a right of appeal from the judgment of the justice in favor of Pettingill. He did not avail himself of that right within the time limited by law. I do not think the right to have a writ of review exists in such case. It follows, therefore, that the judgment of the court below must be affirmed.

ON PETITION FOR REHEARING.

(December 13, 1886.)

STRAHAN, J. The appellant has filed a petition for a rehearing in this cause, mainly for the reason that, in the opinion filed, section 119, p. 478, Gen. Laws, was not noticed. In reaching the conclusion already announced the effect of that section was considered, but by oversight it was not referred to. It is insisted, in effect, that section 119 makes appeal and review concurrent remedies, and that the party can pursue either at his pleasure. That section provides: "No provision of this act in relation to appeals, or the right of appeal in either civil or criminal cases, must be construed so as to prevent either party to a judgment given in a justice's court from having the same reviewed in the circuit court for errors in law appearing upon the face of such judgment, or the proceeding connected therewith, as provided in title 1, chapter 7, of the Code of Civil Procedure." That title authorizes review “when there is no appeal," and therefore section 119 must be held to recognize the right of review, subject to that limitation. As I understand it, Evans v. Christian, 4 Or. 375, and Sellers v. City of Corvallis, 5 Or. 272, each involved this construction of section 119, and to that extent they are approved. If section 119 had been construed to give a general right of review, as now contended for by appellant's counsel, the court could not have reached the conclusion which it did in those cases. The rehearing will be denied.

(14 Or. 300)

STATE v. SAUNDERS.

(Supreme Court of Oregon. December 15, 1886.)

1. EVIDENCE-DYING DECLARATIONS-CONSTITUTIONAL LAW.

In a trial for murder the admission of declarations of the deceased as to the cause of his death is not a violation of the constitutional right of the accused to meet the witnesses face to face.

2. SAME-WHEN ADMISSIBLE.

There being other evidence of the killing does not necessarily preclude the admission of dying declarations.'

3. SAME WHETHER CONCLUSIONS OF DECEASED OR NOT.

The statement of deceased, "He shot me like a dog," is descriptive of the manner of the killing, and not inadmissible as a conclusion of the deceased.1

4. JURY-COMPETENCY-CHALLENGES FOR CAUSE-DISCRETION OF COUrt.

The allowance of challenges for cause is a matter of discretion for the trial court; and where, in a trial for murder, it appeared that the jurors challenged had, to some extent, formed an opinion as to the guilt or innocence of the accused, which they

1 As to when dying declarations are admissible in evidence, and of what such declarations must consist, see State v. Leeper, (Iowa,) 30 N. W. Rep. 501, and note.

said would require evidence to remove, but thought they could try the case impartially, and their impressions had been formed from newspaper accounts and general rumor, the judgment will not be reversed; the discretion of the court not appearing to have been abused.

5. CRIMINAL LAW-INSTRUCTION AS TO KEEPING JURIES TOGETHER TILL THEY AGREE. An instruction telling the jury the effect of a disagreement at common law, and of how juries were kept together until they did agree, the mitigation of the rule in the United States, and remarking to them that they would have to remain together and could not separate until they agreed on a verdict, and brought it into court, is

not error.

6. WITNESS-CROSS-EXAMINATION-ACCUSED WITNESS IN OWN BEHALF.

Under Laws Or. 1880, p. 28, providing that, when the accused offers himself as a witness in his own behalf, "the offer, when so made, shall be deemed to have given to the prosecution a right to cross-examine him upon all the facts to which he has testified, tending to his conviction or acquittal," it is error to permit the accused to be asked on his cross-examination questions not relating to facts to which he has testified on his examination in chief with a view to discrediting him.1

Weatherford & Blackburn and John Burnett, for appellant, Saunders. J. J. Whitney and William M. Ramsey, for the State.

THAYER, J. The appellant was indicted, tried, and convicted of murder in the first decree before the circuit court for the county of Linn. From that conviction he has appealed to this court, and alleges several grounds of error for which he claims the judgment should be reversed and a new trial granted. The main errors assigned are: First, the admission of the dying declaration of the party whom he is alleged to have murdered; second, permitting improper questions to be asked the appellant when on the stand as a witness in his own behalf, and compelling him to answer them; third, erroneous instructions given by the court to the jury in regard to the manner of their deliberations, of the necessity of their agreeing upon a verdict, and remarking to them in the charge that they would be kept together until they had agreed upon their verdict; and, fourth, error in the court in overruling certain challenges made for cause to certain of the jurors drawn to try the appellant upon the charge. We have examined these various grounds with a considerable diligence, and will briefly state the conclusions at which we have arrived.

In regard to evidence of dying declarations in such a case, it is contended by the appellant's counsel that they are not admissible at all, in view of the constitutional immunity that a party accused of an offense shall have the right to be confronted by the witnesses against him; and that, if receivable at all, it must be in a case where no other evidence of the killing is obtainable; that their admission as evidence is only upon the ground of necessity, which did not exist in this case, as the killing was admitted. This character of testimony has been regarded as competent for a very long time,-long before the adoption of the constitutional guaranty in favor of accused parties above referred to, and has universally been admitted since,-and we could not determine that the bill of rights contained in the constitution of this state had changed the rule without exhibiting great arrogance upon our part. The appellant's counsel seemed to think that the declaration that "in all criminal prosecutions the accused shall have the right to meet the witnesses face to face" could have been nothing less than that they should be living and present in court when their testimony is delivered. But the right to offer that character of proof is not restricted to the side of the prosecutor; it is equally admissible in favor of the party charged with the death. 1 Greenl. Ev. § 159. The objection to it, therefore, might, if sustained, operate very injuriously to an accused; and the clause in the bill of rights, if construed as the counsel contended it should be, have the effect to deprive the latter of an important right. The rule, although sanctioned by constitutional declaration,

1See State v. Pfefferle, (Kan.) ante, 406, and note; State v. Elliott, (Mo.) 2 S. W. Rep. 411; State v. Beeman, Id. 407.