a false token or writing. It is not always easy to determine what constitutes "a false token or writing," as that phrase is used in our statute. 12 Am. & Eng. Ency. L. (2d Ed.) 809 says: "Equally as at common law, the use of a false token was essential to constitute a cheat of a private nature, under the statute (33 Hen. VIII, c. 1) providing punishment for obtaining property by cheats effected by privy tokens. What was such symbol or token was sometimes difficult to determine, but it was settled that it guished from mere words, as a ring, a key, or a should be something real and visible, as distinwriting, and even a writing would not suffice, unless it was in the name of another, and of such a character as to afford more credit than the mere assertion of the party defrauding. In order to constitute the offense, there must be a false pretense or representation of an existing or past fact.” [4] A token is a mark or sign; a material evidence of a fact. Cheating by "false tokens" implies the use of fabricated or deceitfully contrived material objects to assist the person's own fraud and falsehood in accomplishing the cheat. Black's Law Dictionary (2d Ed.) p. 1159. It will be observed that section 1964, supra, does not require the false pretenses to be evidenced by any writing; but section 1541, supra, contains certain provisions as to the kind of evidence necessary to support an Under section 1541, supra, where the false indictment for that crime. Where the false pretense is expressed orally, and no note or pretense is expressed orally and is accommemorandum thereof is in writing subscribpanied by a false token or writing, it is noted by the defendant or in his handwriting, necessary that there be any note or memorandum thereof in writing, either subscribed by the defendant or in his handwriting. Where, however, the false pretense is expressed orally and is not accompanied by a false token or writing, there must be some note or memorandum thereof in writing either subscribed by or in the handwriting of the defendant. This court in State v. Whiteaker, 64 Or. 302, 129 Pac. 536, construed said section 1541 thus: "There are two ways in which the crime defined by section 1954, L. O. L., may be accomplished: By false pretense, or by privy or false token. Section 1541 distinguishes the evidence essential in establishing each: If the false pretenses are expressed orally, they must be accompanied by a false token or writing; if not accompanied by a false token or writing, then the false pretense, or some note or memorandum thereof, must be in writing, signed by or in the handwriting of defendant. The meaning of section 1541, L. O. L., is not rendered obscure or doubtful by the latter clause. That clause cannot be held to refer to a false pretense expressed orally and accompanied by a false token or writing." In People v. Gates, 13 Wend. (N. Y.) 320, the court says: “Writing, as used in the statute [concerning false pretenses], must mean some instrument, or at least letter-something in writing, purporting to be the act of another, or certainly of some person; but the paper presented in this case does not answer any such description. It was no writing at all, because it did not purport to be the act of any person. Writing, as used in the statute, cannot mean anything written up on paper, not purporting to be of any force of efficacy; but some instrument in writing, or written paper, purporting to have been signed by some person; and such writing must be false." If a false pretense is expressed orally, it is sufficient to support an indictment under it must be accompanied by "a false token or writing." As is stated in the authorities, a false writing may be a false token. This certainly is true under said section. But the writing, to constitute a false token, must be false. This does not mean that the writing must be a forgery. [5] In his Law Dictionary (2d Ed.) p. 480, Mr. Black defines "false" thus: "Untrue; erroneous; deceitful; contrived or calculated to deceive and injure. ** In law, this word means something more than untrue; it means something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud." The mortgage made by O'Donovan to the defendant for $4,500 upon the 40-acre tract of land in Skamania county, Wash., was a false writing within the foregoing definition. The defendant knew the land to be practically worthless, and he deeded it to O'Donovan, and had O'Donovan execute to him the note for $4,500 and the mortgage upon said land, to create a pretended security to be assigned to Dr. Denny to pay $4,500 of the purchase price of the latter's land. It was a sham and a fraud from beginning to end, and said pretended security was practically worthless. Said land was not worth enough to pay the and sell said land. expense of a suit to foreclose said mortgage During the negotiations leading up to the making of the deed in question, and just before the deed was signed by Dr. Denny and his wife, the defendant executed an assignment of said mortgage to Dr. Denny. It was subscribed by the defendant and by two witnesses and sealed, and it had attached thereto a certificate of a notary public show the execution thereof. That document had price thereof. The person to whom he rebeen executed with all the usual formalities. | ferred testified that he had not paid him anyIt was presented and delivered to Dr. Denny thing for said land. The defendant knew by the defendant for the purpose of transfer- said mortgage to be a sham and a fraud, ring to him said mortgage and the note de- and, when he made said assignment, he did scribed therein. It recites that it was execut-it with the intent to defraud Denny and his ed in consideration of the payment to the wife. We cannot agree with appellant's defendant by Dr. Denny of the sum of $4,500. counsel that said assignment was not false. It describes the note and mortgage for $4,500 It was a false token and writing, and it ac that it purports to assign to Dr. Denny.companied the making of the false pretenses. Near the end of the instrument, it contains The evidence tends to show that it was rethe following false provision: lied on by Dr. Denny and his agents. They read and considered it before the deed was executed. A person purchasing a $4,500 mortgage would be likely to place some reliance on the assignment. "And the said party of the first part [the defendant] does hereby covenant to and with the said party of the second part [M. J. Denny] that the said party of the first part is the lawful owner and bolder of the said note and mortgage, and that he has a good right to sell, transfer and assign the same as aforesaid, and that there is now due and owing upon said note and mortgage four thousand five hundred ($4,500.00) dollars, with interest," etc. * Black, in his Law Dictionary (2d Ed.) p. 481, defines false pretenses thus: "False representations and statements, made with a fraudulent design to obtain money, goods, etc. A representation of some fact or circumstance, calculated to mislead, which is not true. A pretense is the holding out or offering to others of something false or feigned," etc. [6] The rule is elementary that a false pretense, to constitute a crime, must relate either to past or present facts, and that representations or promises as to things to be done in the future by the party making them are not false pretenses, within the Criminal Code. In re Snyder, 17 Kan. 542; State v. Tull, 42 Mo. App. 324; Allen v. State, 16 Tex. App. 150. 4. The covenants in the assignment that the defendant is the lawful owner and holder of said note and mortgage, that he has a good right to sell, transfer, and assign the same, and that there is now due and owing to the defendant on said note and mortgage $4,500 are shown by the evidence to be false. The defendant was not the lawful owner of said fraudulent mortgage, under the facts shown by the evidence, and he did not have a good right to convey it to Dr. Denny, and really nothing was due or owing to him upon it. The note and mortgage were vitiated by fraud. The covenants referred to facts then existing and not to things to be done in the future. To make a solemn covenant that certain facts are true is equivalent to representing or pretending that they are true. We hold that said assignment was a false token or writing, and that it accompanied the false pretenses orally made, and that there was sufficient evidence to require the case to be submitted to the jury and to supinstructed verdict was properly denied. [7] Referring to the said assignment of mortgage, counsel for the appellant says: "Besides being genuine and not false, the state's evidence shows affirmatively and posi-port the verdict found. The motion for an tively that no reliance was placed on the assignment of the $4,500 mortgage (State's Exhibit A), and therefore the court erred in admitting in evidence said exhibit." [8] 5. The appellant filed a motion for a new trial, and the trial court overruled it. It is a well-settled rule of practice in this state, in criminal as well as civil cases, that an order of a trial court denying a motion for a new trial is not an appealable order. Hence we cannot review the action of the court below in overruling said motion. [9] 6. There are some other points mentioned in the brief; but we do not deem it necessary to discuss them at any length. After the jury retired to consider the verdict that should be rendered, they returned into court and asked for instructions as to whether they should take into consideration the civil remedy that Dr. Denny may have against the defendant for the damages done him by the defendant's fraud, etc. The court properly instructed them that they should not. We cannot agree with counsel for the appellant as to said assignment. While it was not a forgery, we hold that it was false, within the meaning of the statute relating to false pretenses and false tokens or writings. The term "false," in law, signifies, as shown supra, "something designedly untrue and deceitful, and implies an intention to perpetrate some treachery or fraud." The mortgage and note that it purports to assign were executed for the express purpose of being transferred to Dr. Denny for $4,500, and the defendant knew that it had no real value. He represented that the land had been "just sold" by him for $9,000, and that it was worth that, when he knew that it was practically valueless. He represented that there were a house, a barn, and an orchard on the land; but the evidence shows that there The defendant's ability or inability to rewere no improvements whatever on it. He spond in damages for the injury done by the represented that it was a pretty piece of fraud neither exonerated him from convicland; but the evidence shows that it is tion nor mitigated his guilt to any extent. "scab" land and mostly rock. He represent- Those matters had no relevancy to the issue ed that the person to whom he had "just to be determined. sold" it had paid him $4,500 of the purchase, [10] 7. We have read the instructions given and think that they, as a whole, submitted | decide such cases in favor of the city, and the case to the jury as favorably for the de- thereupon, without hearing counsel further fendant as the law relating to the matters or examining the record herein, ordered and in issue would permit, and we do not think adjudged that the writ of review herein be that there was any error in rulings upon the and the same is hereby quashed," etc. From evidence that was prejudicial to the defend- this judgment the plaintiffs appeal. ant. A judgment can be reversed only for error that was prejudicial to the appellant. Section 1626, L. O. L., governs the action of the court on appeals in criminal actions. It is as follows: "After hearing the appeal the court must give judgment, without regard to the decision of questions which were in the discretion of the court below, or to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." We find no reversible error in the record, and the judgment of the court below is affirmed. R. R. Duniway, of Portland, for appellants. E. Latourette, of Portland (Frank S. Grant, of Portland, on the brief), for respondents. BURNETT, J. (after stating the facts as above). It is disclosed by the record that the city published notice of its purpose to pass a reassessment ordinance to cover the expenses of the improvement named, and that the plaintiffs filed their objections to the proposed action setting forth many errors of law and others based on questions of fact. At MCBRIDE, Ɑ J., and BURNETT and the time and place appointed for hearing, the MOORE, JJ., concur. (73 Or. 299) COOK et al. v. CITY OF PORTLAND et al. (Supreme Court of Oregon. Oct. 20, 1914.) MUNICIPAL CORPORATIONS (§ 514*)-PUBLIC IMPROVEMENTS ASSESSMENTS HEARING. Where objections were filed to a reassessment ordinance, for errors of law and raising questions of fact, and the council, without any determination of the questions involved, on the next day referred the proposed ordinance and objections to a committee which, after delay, advised the overruling of all the objections, which was done without further hearing, and without making any findings respecting the facts, it was error. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1207-1215; Dec. Dig. § 514.*] McBride, C. J., dissenting. Department 2. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Writ of review by George H. Cook and others to determine the regularity of the proceedings of the Council of the City of Portland. From a judgment dismissing the writ, plaintiffs appeal. Reversed and remanded with instructions. This is a writ of review to determine the regularity of the proceedings of the council of the city of Portland in attempting to make a reassessment for the improvement of Karl street from the east line of Milwaukie street to the west line of East Twentieth street in that city; a former assessment having been declared void by the judgment of the circuit court of Multnomah county in a proceeding similar to this. The plaintiffs complain here, among other things, that the circuit court erred in refusing to examine the record and in announcing that the proceedings of the city would be presumed regular, that it was useless to rehash these reassessment proceedings over and over, and that the court would council, without any determination at all of the questions involved, adjourned until the next day, when the proposed ordinance and the objections were referred to a committee. This committee, after considerable delay, reported in general terms advising the overruling of all the objections. The council, without making any findings respecting the facts involved, ignored the objections and passed the ordinance. No notice was given of any proposed action of the council after the first one already mentioned. Much space in the plaintiffs' brief is devoted to the discussion of the action of the circuit court in declining to hear argument on the question and summarily dismissing the writ. In the view we take of this case it is not necessary to consider this question. In refusing to make specific findings on the questions of fact involved in the objections and in disposing of all the objections both of law and of fact by a mere omnibus denial of them, the council was in error as decided by this court in Hochfeld v. City of Portland, 142 Pac. 824. The principles involved in this case and in that are identical, and our decision there is controlling here. The substance of that precedent is that in such cases the taxpayer who must meet the expenses of public improvements is entitled to know for what he is taxed and to have nothing charged against him except what has been actually expended. It is the duty of the council to defend the citizen against willful violations of contracts and the omission of work agreed to be done in making public improvements. It is for the protection of the taxpayer that the provisions of law involved have been enacted. In short, he is entitled to a record showing in detail for what he is taxed and the items going to make up the burden imposed. This is a matter which the council cannot delegate for final action to a mere committee, nor dismiss with a wave of the hand. It is required to make and place its findings on record for the information of those compelled to contribute to the expense | company by whom it was indorsed to a trustee, involved. who indorsed it in blank and left it in the custody of the bank with the notes, the cashier's check was not negotiated within L. O. L. § 5863, providing that an instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof, and, if payable to order, it is negotiated by the indorsement of the holder, completed by delivery. The conclusion is that the decision of the circuit court dismissing the writ is reversed and the cause remanded with directions to instruct the defendants to give the notice required by the charter and ordinances of the city for hearing objections appearing in the record and to proceed to the determination of them in accordance with this opinion. EAKIN and McNARY, JJ., concur. BRIDE, C. J., dissents. (73 Or. 302) [Ed. Note.-For other cases, see Bills and BROWN et al. v. CITY OF PORTLAND et al. (Supreme Court of Oregon.' Oct. 21, 1914.) In Banc. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Application by David Brown and others for writ of review to determine the regularity of proceedings of the Common Council of the City of Portland in making a reassessment for street improvements. From a judgment sustaining the reassessment, plaintiffs appeal. Reversed, with directions. Ralph R. Duniway, of Portland, for appellants. L. E. Latourette, of Portland (Frank S. Grant, of Portland, on the brief), for respondents. BURNETT, J. This is a proceeding under writ of review to determine the regularity of the proceedings of the common council of the city of Portland in making a reassessment of the property of plaintiffs to pay for certain street improvements. The case is governed by the principles announced in Hochfeld v. Portland, 142 Pac. 824, and Cook v. Portland, 144 Pac. 120, decided October 21, 1914, and not yet reported; the facts and questions involved being substantially alike in all three instances. The judgment is accordingly reversed, with directions to the council to proceed anew to the reassessment as suggested in those cases. MCBRIDE, C. J., and RAMSEY, J., dissent. (72 Or. 583) SEAMAN v. MUIR et al. (Supreme Court of Oregon. Oct. 20, 1914.) 1. BANKS AND BANKING (§ 154*)-DEPOSITS -ACTIONS-EVIDENCE-WEIGHT AND SUFFI CIENCY. In an action against a bank to recover the amount of plaintiff's claim against a traction company out of proceeds of sale of the property of the company alleged to have been deposited in the bank for the benefit of the company's creditors, evidence held not to show that the bank knew anything of the proposed liquidation of the traction company till after the sale, or that any agreement was made or attempted to be made to bind the bank to pay the creditors of the traction company on the bank's acceptance of notes of the purchasers and the issuance of a cashier's check for the amount which was left in the custody of the bank. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. $$ 502-512, 515, 516, 518533; Dec. Dig. § 154.*] 2. BILLS AND NOTES (§ 176*)—INDORSEMENT"NEGOTIATED." Where, after sale of a traction company's property, the purchasers deposited notes for the price with a bank and a cashier's check was issued payable to the secretary of the traction Where a traction company has sold its property and deposited the proceeds in a bank, the bank becomes a debtor to the company, and the creditors of the company have no title to or interest in the debt of the bank to the traction company, except by virtue of attachment or execution. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 312-315, 326, 388; Dec. Dig. § 129.*] Department 1. Appeal from Circuit Court, Multnomah County; Henry E. McGinn, Judge. Action by Milton W. Seaman against Jane Whalley Muir, executrix of the estate of William T. Muir, deceased, and the Merchants' National Bank. From a judgment for plaintiff against the defendant bank, it appeals. Reversed and remanded. The complaint in this action states substantially that the Oregon Traction Com pany, a corporation, was indebted on March 15, 1906, to sundry persons in amounts aggregating $2,680.53. These further allegations appear in that pleading: "That on the 15th day of March, 1906, the ed as hereinbefore set out, the defendants and said Oregon Traction Company being so indebteach of them, on the said 15th day of March, 1906, agreed by and with the said creditors of the said Oregon Traction Company hereinafter the receipt of the amounts of money hereinbefore set out, that they, the said defendants, would, on mentioned in this complaint, from the said Oregon Traction Company, receive, and safely keep the same as the money of the said creditors of fore named, and set out, and would pay the the said Oregon Traction Company as hereinbesame over to the said creditors as herein before in this complaint set out, whenever they, the defendants, should be afterwards requested; that on the said 15th day of March, 1906, the said Oregon Traction Company, through its offiand each of them, the full sum of $2,680.53, cers and agents, did pay over to the defendants which payment was made for and to the use and benefit of the said creditors of the said Oregon Traction Company as hereinbefore set out, and in accordance with the agreement made by the said defendants to hold and safely keep the said money to and for the use of the said creditors as hereinbefore named, and in the amounts as hereinbefore set out." For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep' Indexes Alleging an assignment to himself of the | It is unquestioned that the traction company demands against the traction company before was indebted to the plaintiff's assignors in mentioned, and his demand of the defend- the amounts mentioned in the complaint. It ants for the payment of their aggregate the was hopelessly involved financially and deplaintiff asks for judgment in that amount. termined to sell its property and satisfy its The answer alleged, in substance, that debts. Negotiations had been pending with neither of the defendants at any time had certain individuals, members of the United any money or property in their possession Railways Company, to purchase the property or under their control belonging to the Ore- with a view of liquidating the liabilities of gon Traction Company or to any of the as- the traction company, and with that end in signees of the plaintiff, and that the United mind the individuals mentioned had bought Railways Company acquired all the property and taken an assignment of about $25,000 of the Oregon Traction Company and agreed worth of the claims against that concern. to pay its debts including the amounts men- At this juncture it held a public auction of tioned in the complaint. Otherwise the de- all its property, the terms of the sale being fendants deny everything in the complaint for cash. The property was struck off to one except the corporate character of the de- Lemcke for $36,000, when for the first time fendant Merchants' National Bank. During the purchaser and those associated with him the trial the plaintiff filed an amended reply stated to the defendant Muir, who was the denying the new matter of the answer ex- legal adviser of the traction company in the cept the corporate character of the United matter, that the money was not at that time Railways Company, and set out affirmative available but was coming from Los Angeles matter designed as a plea in estoppel to the in a few days. After some talk on the subeffect that the defendants ought not to be ject, the purchasers and the secretary of permitted to say they have no property be- the traction company accompanied Mr. Muir longing to the traction company, because the to the Merchants' National Bank, where the plaintiff alleges in effect that the defendant United Railways Company, by its president, Muir was an officer and director of the trac- executed to the bank a demand note for tion company and held like positions in the $25,000, which was indorsed by three of the United Railways Company, besides being an individuals concerned in the purchase, and officer and attorney of the Merchants' Nation- Lemcke gave his individual note to the bank al Bank; that the defendants knew that the for $11,000, payable on demand, which note traction company was indebted to the plain- was also indorsed by three individuals contiff's assignors in the sums set out in the cerned in the purchase. The bank then and complaint, among others its total indebted- there by its vice president executed a cashness amounting to about $35,000; that the ier's check for $36,000, payable to the order defendants represented to the plaintiff and of W. L. Gould, secretary of the Oregon his assignors in common with others that Traction Company. Gould in his official cathe traction company would go into liquida- pacity then and there indorsed it to the ortion disposing of its assets at auction, and der of William T. Muir, trustee, who likewise out of the proceeds of such sale would pay indorsed the same in blank. The notes and the indebtedness of the traction company, in- this check were pinned together and left in cluding the claims of the plaintiff's assign- the custody of the bank. The testimony of ors; that they were thereby induced to re- Mr. Muir on that subject is uncontradicted frain from exercising their legal rights by any one and constitutes a clear statement against the traction company for the satis- of the matter. After narrating the fact that faction of their claims; and that the auction the purchasers said they would have the was held and the property sold, but the pro- money from Los Angeles in two or three days ceeds were not applied to the payment of the and that it was all arranged for coming, the claims. During the trial, on motion of the witness continued as follows: plaintiff, the action was dismissed as to the executrix of the defendant Muir; he having died during the pendency of the action. The court made findings of fact and conclusions of law in favor of the plaintiff as against the defendant bank and entered judgment thereon, from which the bank appeals. Richard W. Montague, of Portland, for appellant. W. T. Hume, of Portland (John . F. Logan, of Portland, on the brief), for respondent. BURNETT, J. (after stating the facts as above). The question presented is whether there is any evidence to support the findings, they being equivalent to the verdict of a jury. A brief résumé of the testimony, therefore, "So I said this: 'I will do this, I ought not to, but I will-I will go down and see Mr. if I can arrange with him so that this thing Hoyt of the Merchants' National Bank, and see can be tided over two or three days,' and I did go down. I said to Mr. Hoyt: 'Now, Ralph, have a certified check for $36,000, on this bank couldn't we arrange it this way: Couldn't you made in the name of W. L. Gould, secretary of the Oregon Traction Company, and have him as trustee, and then I will hold that as trustee immediately indorse that check to me, payable for this bank, see that it will not be disposed of until these men have brought that money here from Southern California, which they have assured me will be but very few days.' Mr. Hoyt said: 'Can I do that? Is it regular? Is it against the national banking laws?' I was attorney for the bank, and I told him it was not. was not in any peril, in no danger of losing I knew of nothing against it, because the bank anything, because that check would remain in |