Lombard Investment Company, covering the same premises, one of them, however, including a ten-acre lot additional, which mortgages and the obligations secured thereby have since come into the hands of the defendant Lombard by due assignment and transfer. The plaintiff instituted this suit to foreclose his mortgage, making Lombard a party defendant with others. Among other allegations of the complaint is the following: "That the defendants herein have, or claim to have, some right, title, or interest in or to the said premises, the nature of which is to plaintiff unknown; but whatever the same may be, it is inferior in right, and subsequent in time, to the mortgage lien of this plaintiff upon said premises." Without denying or in any manner controverting any of the allegations of the complaint, Lombard interposed two further and separate answers, which he denominates "cross-complaints," setting up his mortgages, which he prays shall be declared liens upon the premises described in plaintiff's mortgage, second, subsequent, and subject to such mortgage, but a first lien upon the ten-acre lot not included therein; that defendant's said mortgages be foreclosed; and that the equities of the parties be adjusted, and the assets marshaled accordingly. Plaintiff demurred to these answers on the ground that defendant had not commenced his suits to foreclose within the time limited by the Code of Civil Procedure, which demurrers were sustained, and, defendant refusing to plead further, a decree was entered for plaintiff, foreclosing all right or interest of the defendant in the premises comprised in plaintiff's mortgage, from which he appeals. The case was submitted under the proviso of Rule 16: 35 Or. 587, 600. REVERSED.

For appellant there was a brief over the name of Daniel W. Sheahan.

For respondent there was a brief over the name of James A. Burleigh.

MR. JUSTICE WOLVERTON delivered the opinion.

The question involved is whether the plaintiff is in a position. to set up the statute of limitations as a bar to defendant's foreclosures. The defendant is not controverting any right that plaintiff is seeking to maintain, but is aiming only to have his

mortgages foreclosed in the same suit with the plaintiff's, completely subordinating his alleged liens upon the premises described in plaintiff's mortgage, and his rights thereunder, to those of the plaintiff. So that, as to the right of priority of liens, whether for the principal sums or for interest, or for taxes paid there is absolutely no dispute or contest. Such being the case, plaintiff cannot make use of the statute of limitations to cut off defendant's rights of suit. The right to interpose the statute of limitations is a privilege, personal to the debtor, that may be availed of by others only when they stand in the relation of privity of estate to the debtor, as a subsequent purchaser or incumbrancer of the legal title, or are in privity with the claim or demand, or have succeeded to or may be said to occupy the place of the debtor, as executor or administrator, and the like. And the pleader must show that it is a bar as between the parties to the debt. Certainly no person who is not injured by the enforcement of the demand can be heard to insist upon the plea: 2 Pingrey, Mortgages, § 1575; Wood, Limitations (3 ed.), § 41; Grattan v. Wiggins, 23 Cal. 16; Coster v. Brown, 23 Cal. 142; Cartwright v. Cartwright, 68 Ill. App. 74; Board v. Presbyterian Church, 19 Wash. 455 (53 Pac. 671); Ewell v. Daggs, 108 U. S. 143 (2 Sup. Ct. 408); Sanger v. Nightingale, 122 U. S. 176 (7 Sup. Ct. 1109); Blair v. Silver Peak Mines (C. C.), 84 Fed. 737; Hanchett v. Blair, 100 Fed. 817 (41 C. C. A. 76). Now, the plaintiff here sustains no such relation to the defendant appealing, nor is he in privity with the claims or demands that defendant is seeking to have declared liens upon the premises involved. But conceding, as defendant does, that plaintiff's lien is prior and superior in time and right to his, the plaintiff cannot, through the right of the debtor, bar the defendant's right of foreclosure in this suit. The decree of the circuit court will therefore be reversed, the demurrers overruled, and the cause remanded for such other and further proceedings as may seem proper. REVERSED.

Argued 1 March, decided 14 March, 1904.
STATE v. HOUGHTON.

75 Pac. 822.

LARCENY FROM THE PERSON-ASSAULT-LESSER OFFENSE.

1. Under an information charging an attempt at larceny from the person by assaulting and pocket picking a conviction of simple assault is permissible, under Section 1418 of B. & C. Comp.* Whether an assault is necessarily included in an attempt at larceny from the person is not decided.

PUNISHING LARCENY BY CONFINEMENT WITH HARD Labor.

2. Under a statute prescribing a penalty of imprisonment in jail (such as Section 1772, B. & C. Comp.), a further condemnation to hard labor is illegal.

INFORMATION-SURPLUSAGE.

3. In construing a sentence of imprisonment accompanied by "hard labor," this additional penalty cannot be rejected as surplusage, as it is a definite qualification of the judgment pronounced, and its rejection will materially change the punishment.

POWER OF SUPREME COURT TO CORRECT CRIMINAL JUDGMENT.

4. A conviction being regular, a defendant is not entitled to a new trial because of a material error in punishment, but the case should be remanded to the lower court to impose a lawful sentence. The supreme court cannot correct the judgment, but it may direct the trial court to enter an authorized judgment.

From Multnomah: JOHN B. CLELAND, Judge.

Charles Houghton appeals from a judgment sentencing him for assault.

REVERSED.

For appellant there was an oral argument by Mr. Wilson T. Hume, with a brief to this effect.

I. In this case the crime charged consisted of two elements, the criminal intent to steal from the person of another, accompanied by the overt act of placing his hand in the pocket of such other. Both these must be proved. The jury found a verdict of simple assault, which is a distinct crime not charged in the information. If the assault of which he was convicted was the thrusting of his hand into the pocket of the complaining witness, then the verdict should have been guilty as charged; but if it was some other act, then he was convicted of an act with which he was not charged: 3 Enc. Pl. & Pr. 98; Graham v. People, 181 Ill. 477 (47 L. R. A. 731, 55 N. E. 177).

II. In addition to the punishment prescribed by Section 1772, B. & C. Comp., the court added the element of "hard labor."

*Section 1418, B. & C. Comp., reads as follows:

"In all cases the defendant may be found guilty of any crime the commission of which is necessarily included in that with which he is charged," etc.

This part of the sentence is illegal and requires a reversal of the judgment: Fitzgerald v. State, 4 Wis. 395; In re Johnson, 46 Fed. 477; Harman v. United States, 50 Fed. 921; Woodruff v. United States, 58 Fed. 766; In re Christian, 82 Fed. 199; Gardes v. United States, 87 Fed. 172; Ex parte Karstendick, 93 U. S. 399; Ex parte Wilson, 114 U. S. 417; In re Mills, 135 U. S. 262; State v. Ryden, 36 La. Ann. 294; State v. Hyland, 36 La. Ann. 799; People v. Keely, 97 N. Y. 212; Ex parte Cox, 32 Pac. 197; Ex parte Baldwin, 60 Cal. 432; Ex parte Bernent, 62 Cal. 524; Ex parte Kelly, 65 Cal. 155.

III. Some federal courts have held that the judgment may be modified by striking out the words "at hard labor"; this court has no such power, it can only revise the decisions of circuit courts: Const. Or. Art. VII, § 6; Boone v. McClane, 2 Or. 331.

For the State there was an oral argument by Mr. Arthur C. Spencer, with a brief over the names of Andrew M. Crawford, Attorney General, John Manning, District Attorney, and A. C. Spencer, to this effect.

1. We agree with counsel that to accomplish the crime of attempted larceny from the person, two elements must be established by the State, viz, a felonious intent coupled with an overt act by means of which the plan of the thief could be carried to a successful conclusion. We contend in this case the overt act was the provoking and carrying on of a fistic encounter in the midst of which the thief, seeing his victim off his guard, by stealth attempts to take his victim's belongings. We confess that after a careful search and examination of text-books and digests we are unable to afford the court any cases analogous to the one here in question, but are confident that where the "assault" is charged in the information and no demurrer interposed on the ground of duplicity, the court will not disturb a verdict which finds that the assault was made as alleged, but that no larceny was, in fact, intended. The crime of which the appellant stands convicted is charged in the information, and hence the case comes within Section 1418, B. & C. Comp.

2. Tacking the words "at hard labor" to the sentence imposed was not reversible error, if it was error at all. The words

complained of did not vary the mode of punishment inflicted, it being at the worst only superfluous: B. & C. Comp. §§ 4864, 4865; Brown v. State, 74 Ala. 478; Dodge v. State, 24 N. J. Law, 455; People ex rel. v. Baker, 89 N. Y. 461; Murrah v. State, 51 Miss. 675; Weaver v. Commonwealth, 29 Pa. St. 445; Ex parte Shaw, Ohio St. 81 (70 Am. Dec. 55); Ex parte Mooney, 26 W. Va. 36 (53 Am. Rep. 59); Miller v. State, 2 Kan. 174.

3. This court can correct the judgment complained of if it is deemed erroneous: State v. Steele, 50 Tenn. (2 Heisk.) 135; Thomas v. State, 31 Tex. Cr. Rep. 82; Sledd v. Commonwealth, 19 Gratt. 813.

MR. JUSTICE WOLVERTON delivered the opinion.

. The defendant, having been charged with an attempt to commit the crime of larceny from the person, was convicted upon trial of simple assault, and sentenced to imprisonment in the county jail, "at hard labor," for a period of six months. He complains, first, of the conviction, and, second, of the sentence.

1. As to the first, he insists that the crime of simple assault is not necessarily included in a charge of an attempt to commit the crime of larceny from the person, and therefore that he was unlawfully convicted. It is difficult to conceive how larceny from the person could be accomplished without an assault. An attempt to commit larceny from the person might or might not be accompanied with an assault, but the difficulty of its inclusion with the larger offense is obviated here, as the information charges that the defendant assaulted the prosecuting witness, and thrust his hand in the witness's pocket with the intent to steal, take, and carry away from his person the money and chattels, if any such he should find. The crime as alleged could not have been committed without at the same time committing an assault upon the person, and hence the latter, being the lesser offense, was necessarily included in the former.

2. The second complaint is certainly not without merit. The defendant having been convicted of simple assault, he was punishable only by imprisonment in the county jail or by fine: B. & C. Comp. § 1772. In this case the court went further than the statute permits. It condemned the defendant to hard labor,