When this cause was before this court on the former appeal (Applegate v. Dowell, 15 Or. 513), the law applicable to the facts then presented was fully stated and discussed. The cause was tried as an action at law under the act of 1885, and finding error, this court remanded the case for a new trial.

Upon the second trial, no new facts that were material were developed, and the court below simply applied the principles of law announced by this court to the facts as they appeared, which resulted in a decree for the plaintiff, from which the defendant has appealed.

Upon this appeal, wo are not at liberty to depart from the law announced in the case on the previous appeal.

The decision then made became the law of the case, binding alike upon the court and the parties on any subsequent appeal. (Powell v. D. S. & G. R. R. Co., 14 Or. 22; 2 Herman on Estoppel, p. 118, note 1.)