Volume 1 — Washington Reports

<p>APPEAL-FINAL ORDER —VACATING- JUDGMENT.</p> <p>An order of the district court vacating a judgment on the pleadings rendered during the term in plaintiff’s favor, and permitting defendant to file an amended answer, is not a final order from which an appeal may be taken to the supreme court.</p>

On the 21st day of March, 1888, final judgment was entered in favor of defendants in error, and it was not until the 3d day of June, 1889, that notice of appeal was served and filed in this cause, by plaintiffs in error. No appeal having been taken in the time allowed by law, consent of parties, or willingness of judge to hear, can not give the supreme court jurisdiction. Stark v. Jenkins, 1 Wash. T. 421j Blinn v. Crosby, 2 Wash. T. 109; Code Wash.

Tbe facts are stated in tbe opinion. Tbe section under wbicb tbe proceeding is brought is practically a legislative adoption of the common-law writ of scire facias, the only material difference being, that at common law tbe execution could not be issued after tbe lapse of a year and a day. Tbe proceeding is a continuance of tbe original action in order to revive tbe judgment, and is not a new action. 8 Bac.

<p>REMOVAL OE CAUSES-FEDERAL QUESTION.</p> <p>The question whether a patent from the United States conveys part of the sea-shore below ordinary high-water mark in front of "the land conveyed by the patent, is a “ federal question,” authorizing the removal of the cause from the state to the United States ■court.</p>

<p> Appeal from District Court, King County. </p>

The southern end of Pacific avenue, in the city of Tacoma, for a distance of about one-fourth of a mile, had been opened as a narrow road through standing timber.. The land adjoining was the property of the Tacoma Land Company, who gave appellant the privilege of cutting the timber thereon, and taking the logs. The trees had been cut by appellant about the month of February, 1887, and allowed to remain where they fell all summer.

<p> Appeal from District Court, King County. </p>

Action by appellee in tbe district court, bolding terms at. Tacoma, to recover certain real estate. On tbe 20tb day May, 1888, tbe case came on regularly for trial before the judge at bis chambers. No proof to sustain the allegations-of tbe complaint was offered, and tbe court made its findings, and decree in favor of appellant.

<p>APPEAL — REFUSING TEMPORARY INJUNCTION — VOLUNTARY DISMISSAL.</p> <p>An order refusing a temporary injunction is not a final decision under the organic act (Rev. Stat. IT. S. § 1869), and no appeal can ■be taken therefrom.</p> <p>A judgment summarily dismissing a suit, when the complaint states a cause of action, is appealable; but when the order dismissing the action is made at appellant’s request, it is a voluntary dismissal and no appeal can be taken therefrom.</p>

Action by appellee on promissory note against Joseph E. Shaw, and appellant herein as guarantor. December 18, 1888, appellee filed with the clerk of the district court his affidavit that appellant had departed from Washington Territory, and could not be found therein. Summons was duly issued and published, and thereafter a default was entered against appellant, and judgment thereon was filed upon the 9th day of March, 1889.

Action by O. C. Tripp against David Magnus upon an open account of goods sold; demurrer by defendant alleging that the complaint did not state facts sufficient to constitute a cause of action. Plaintiff appealed “from the order, decision and judgment” of the district court sustaining said demurrer. An order overruling or sustaining a demurrer is not a final order, and no appeal can therefore be taken from it.

The facts are stated in the opinion. All parties to the judgment should have joined in the so-called writ of error. §454, Code Wash. T.; Owing v. Kincannon, 7 Pet. 402: Simpson v. Greeley, 20 Wall. 152; Wilson v. Ins. Co., 12 Pet. 140; Williams v. Banlc of U. S., 11 Wheat. 414; Toddv.

The facts are fully stated in the opinion. Where the deceased was at the time of his death residing with his family on the premises, the probate court bad no discretion but to set aside the homestead. Code Wash. T., H 1460-1; Acts 1883, p. 44; Acts 1885-6, p. 170-1; In re Estate of James Ballentine, 45 Cal. 696; In re Estate-of Bridget Davis, 69 Cal. 458; In re Estate of II. S. Burton, 63 Cal. 36; In re Estate of W. H. Moore, 57 Cal. 437.

The facts are fully stated in the opinion. The court had no jurisdiction of the defendant on the case made; defendant’s appearance to the action afterward did not waive his right to question the jurisdiction in this court. Harkness v. Hyde, 98 U. S. 478-9; Yesler v. Ogles-bee, 1 Wash. T. 605; Bentz v. Eubanks, 4 Pac. Hep. 271; Pennoyer v. Neff,95 U. S. 714; Wald v. Wilson, 2 Wash. T. 376. The motion for nonsuit should have been granted.

Ap2>ecd from District Court, King County. Injunction by appellant to restrain the sheriff of King county from levying upon his household goods and other property to satisfy appellant’s delinquent tax, with penalty and costs.

<p>JUSTICE OP PEACE — JURISDICTION — APPEAL — AMENDMENT OP RETURN.</p> <p>On an objection raised by a corporation, in an action against it before a justice of the peace, that its principal place of business is in another county than the one where rhe action is brought, the defendant in the absence of any offer to amend the return of service, or make other showing to aid the jurisdiction of the justice, may have the action dismissed without prejudice, under the provisions of § 1780, Code Wash. T.</p> <p>Under the provisions of said § 1780 the defendant may take advantage, on appeal, of any error in overruling its objections, even after a trial upon the merits.</p> <p>On an appeal from a justice of the peace to the district court the constable’s return cannot be amended for the purpose of aiding the transcript from the lower court, and showing jurisdiction in the</p>

Action .by the County of King against George D. Hill, as treasurer of said county, and his sureties, on his official bond, to recover an alleged deficit in public funds. Judgment for defendant, and plaintiff appeals.

<p> Appeal from District Court, Pierce County. </p> <p>The facts sufficiently appear in the opinion.</p> <p>This proceeding is in no way warranted by law, or by the statutes of Washington Territory. The only way the judgment could be corrected, as insisted by the appellee, is by a petition filed as in other eases. Code Wash. T., §§436-9; Freeman on Judgments, §§ 69-75; Lewiston v. Swan, 33 Cal. 480.</p> <p>The $40 as attorney’s fee having been improperly and inadvertently included in the judgment, a motion to strife© it out, followed by a distinct order striking it out, is the proper mode of procedure. Freeman on Judgments, § 70; Clark v. Hall, 7 Paige Oh. 382; Gardner v. Dering, 2 Edw. Ch. 131; Matheson's Adm'r v. Grant’s!- Adm'r, 2 How. (U. S.) 263.</p>

The appellee, Charles Langert, obtained a judgment against appellant’s husband, M. Brotton, for $1,000, because the latter, as constable, had sold on execution personal property in which the appellee had a special property, as mortgagee.

On tbe 20th day of March, 1888, Robert Wilkins was appointed, by the probate court of Chehalis county, administrator of the estate of Oliver Seeley, deceased, and on the 5th day of April, 1888, he presented to himself as administrator of said estate, a claim of his own of $100 against said Seeley, and as such administrator allowed the claim against said estate, and presented the same to the judge of the probate court for allowance.

The facts are fully stated in the opinion. The taking by said sheriff of the entire property of JD. Mace & Company upon the writ of attachment or execution in case of I 11. Dawson v. J. D. Mace, was unlawful. Gibson v. Stevens, 7 N. H. 352; Wilson v. Conine, 2 Johns. 280; Paige v. Carpenter, 10 N. H. 77; Dow v-Sawyer, 12 N. H. 271, and 14 N. H. 9; Morrison v. Blod-gett, 8 N. H. 238. Especially if he afterward sell the whole property, as in this case. 1 Gall. 370; 15 Mass. 82.

<p>CONSTITUTIONAL LAW — DELEGATING- LEGISLATIVE JUNCTIONS TO COURTS.</p> <p>A statute authorizing the creation, of a municipal corporation by a judicial court, upon petition of a majority of the inhabitants of the territory to be incorporated, is unconstitutional, as delegating legislative functions to the court. (Dunbar, J., dissents.)</p>

The facts are stated fully in the opinion. “ The meaning of a law is ascertained from its words. Where these are obscure, regard is to be had to its (1). context, (2) subject-matter, (3) effect and consequences, (4) reason and spirit.” Robinson’s Elementary Law (1st ed.), p. 2; Blackstone, Com. (Cooley’s 3d ed.),vol. 1, p. 59.

Action of replevin by Aldridge and others against Silsby to recover two oxen and their yoke, mortgaged to plaintiffs by third persons, and afterwards delivered by mortgagors to defendant, though the debt was not yet due, and the mortgage contained the usual provision against removal and disposition by the mortgagors. The mortgagee is not in a position to maintain replevin.

The facts are fully stated in the opinion. Plaintiff had, at the time of filing his complaint, no title upon which a cloud could be cast.

<p>APPEAL — PARTIES.</p> <p>AVhere judgment has been rendered against three defendants in the district court, and two of them sue out a writ of error, and, in lieu of serving notice thereof on the third defendant, as required by the code, file their affidavit that the defendant not joining in the writ is not within the Territory of Washington, and that diligent endeavor has been made to serve him with a copy of said notice, the appeal will be dismissed.</p>

<p> Appeal from District Court, Pacific County. </p> <p>The facts are fully stated in the opinion.</p> <p>Tbe plaintiff did not demur to tbe new matter stated in tbe answer, but filed a reply denying tbe same. Tbe motion for judgment on tbe pleadings, therefore, came too late. A judgment on tbe pleadings, while such an issue of fact is pending, is erroneous. Tbe statute does not authorize a plaintiff to demur, orto make such motion, after filing a reply denying tbe new matter in tbe answer. Code, 86-8; 15 Iowa, 438; Van 'Valen v. Lapham, 13 How. Pr. 240.</p> <p>Tbe office of a demurrer, and of a motion for judgment on the pleadings, is to admit tbe facts for tbe purpose of testing their sufficiency; neither can be interposed while tbe plaintiff is denying tbe facts.</p> <p>The complaint shows that tbe “Ilwaco Steam Navigation Company” is the owner of tbe alleged subscription paper, —not tbe “ Ilwaco Kailway and Navigation Company. ”</p> <p>A corporation cannot sue or be sued otherwise than in its corporate name.</p> <p>A corporation can only change its name by complying with § 2422 of tbe code, namely, by filing “supplemental articles.” This is not alleged.</p> <p>Tbe complaint shows on its face that tbe so-called corporation plaintiff is not, and was not at any time, incorporated as or in the name of “ Tbe Ilwaco Kailway and Navigation Company.”</p> <p>cited Blair v. But-tolph, 33 N. W. Rep-. 349; 2 Pars. Cont. 769.</p>

<p>JUSTICE OF THE PEACE — PLEADING — FORCIBLE ENTRY AND DE-TAINER -EVIDENCE.</p> <p>In an action for forcible entry and detainer, an answer alleging that defendant had been in the quiet possession of the premises for more than one year preceding the filing of the complaint, but which fails to allege that defendant’s estate in the premises had not ended, is insufficient under the provisions of § 1836, Code Wash. T.</p> <p>The failure of plaintiff to reply to the defendant’s allegation of quiet possession for more than one year, in an action before a justice of the peace, cannot be regarded as an admission of its truth, as, under § 1757, Code Wash. T., all new matters in the answer constituting a defense, except set-off, are presumed to be denied.</p> <p>In such an action, no question of title being involved, there was no error in excluding evidence that defendant had paid taxes on the premises in controversy for two years last past, no other proof of possession or right of possession being offered by defendant.</p> <p>It -was assigned as error that the court erred in excluding evidence “that during the two years last past, defendant had been in the actual, open and notorious possession of large portions of the said tract of several hundred acres of land which originally included the said land in controversy.” Held, that such evidence was irrelevant to the issue in an action of forcible entry and detainer.</p> <p>Where plaintiff proved his quiet and lawful possession for a long time prior to and up to the time of the alleged forcible entry, and defendant offered no evidence of its right of possession, and none in contravention of plaintiff’s proof, while its answer admitted it was in possession of the premises at the commencement of the action, the evidence will sustain a verdict in favor of plaintiff.</p>

<p> Appeal .from District Gourt, Pierce Gounty. </p> <p>The facts are sufficiently stated in the opinion.</p> <p>Under Code Wasb. T., §§ 468, 762, the facts stated in the complaint did not constitute a good cause of action. For the time covered by any stay bond plaintiffs were by statute limited to their remedy upon that bond. The penalty, terms and conditions of that bond are essential facts to constitute a cause of action for withholding possession during the appeal for which it was given.</p> <p>Express statute makes it the course of the court for the sheriff to select the talesmen. Code Wash. T. § 206.</p> <p>Evidence of any highest market value was inadmissible unless prefaced by issue of willfulness and evidence of willfulness. No evidence of market value was so prefaced, and the true measure of damages was actual value of crops and pasturage, unharvested and ungrazed, at the place and fit times for harvesting and depasturage; or, to put it differently, the actual values then and there of the pasturage when grazed, and of the harvested crops, less the reasonable expenses of harvesting, curing and baling. StocJcbridge Iron Go. v. Gone Iron Worlcs, 102Mass. 80; Egev. Kille, 84Pa. St. 883 ; E. E. Bolles Wooden Ware Go. v. United States, 16 Otto, 432; Code Wash. T., §541. Evidence of any market value prior to the time of harvesting, or taking away the crops or pasturage, was inadmissible, no matter what the custom of farmers as to selling crops before ripe may have been. For no damage mentioned in the complaint accrued, until the crops, etc., were taken and appropriated; and no evidence of custom was admissible, unless in aid of the admissibility of such prior market value. A special damage, by reason of the withholding possession during that part of the year prior to harvest, making it impracticable for plaintiffs to dispose of the crops for prices that might otherwise have been realized, should have been averred in the complaint to prepare the way for proof of the custom, and of the prior market value. The district judge erred in giving the jury as a measure of damages, “the highest market price during the year for any or all the produce or use of the farm, allowing nothing to the defendant for any expense or labor on the same.” Moore, v. Oróse, 43 Ind. 30-34; Stilwell v. Barnett, 60 Ill. 219; Tripp v. Qrouner, 60 Ill. 474; Stockbridge Iron Go. v. Cone Iron Works, 102 Mass. 80.</p> <p>Though there are cases in our reports deciding that specification by assignment of error is necessary, there is no case to the effect that it is necessary to specify exclusively in an exception the particular instruction complained of. The British Bark Latona v. McAllep, 3 Wash. T. 3326, 342; Swift v. Stine, 3 Wash. T. 518-520.</p> <p>Appellant contends, that for the time covered by the stay bond plaintiffs in the court below were by statute limited to their remedy upon that bond. We answer, that there could be no liability upon the bond until the damages sustained had been fixed by the judgment of some court of competent jurisdiction. In an action to so establish the damages sustained, the bond would be wholly immaterial.</p> <p>Calling talesmen is no exclusive right of the sheriff. In contemplation of law, the court calls the talesmen. The sheriff only acts under the direction of' the court. Code Wash. T., § 206.</p> <p>When appellant accepted the juror without objection he waived all objection to the manner in which he was called. Territory v. Hart, 7 Mont. 42 (14 Pac. Eep. 768, 774); State v. Elliott, 45 Iowa, 486; Erwin v. State, 29 Ohio St. 190; Lum v. State, 11 Tex. App. 483.</p> <p>Evidence of the market value of hops before harvesting was properly admissible, it being shown that it was the custom of farmers to sell tbeir hops before they are ripe. It being admitted by appellant that if Meeker’s conduct was willful, that then he was liable for the highest market price obtainable for the hops, and his willfulness being shown, it follows that plaintiffs had the right to show the value of this crop from the time it had an established market value up to and including the time of its removal from the premises. Defendant is not charged with taking and carrying away this crop, but he is charged with unlawfully withholding these premises from plaintiffs. For doing this, without right, the highest market value of the crops raised has been fixed by the decisions of numerous courts as the measure of damages. Ellis v. Ware, 33 Ind. 191 (5 Am. Rep. 189); Willie v. Carter, 11 Am. Dec. 562, and note; Stewart v. Phillips, 39 Iowa, 18; Silslmry v. McCoon, 3 Comst. 379; Patckin v. Kelley,Pac. Rep. 347; Dewey v. Osborn, 4 Cow. 388; Gaines v. City of New Orleans, 17 Fed. Rep. 30.</p> <p>This court will not review the action of the court below in giving and refusing to give certain instructions because the exceptions to the ruling of the court were general. Woods v. Berry, 14 Pac. Rep. 759; Cadwell v. Murphy, 11 N. T. 416; Walsh v. Kelley, 40 N. T. 556; Ayrault v. Pacific Bank, 47 N. Y. 576; Beaser v. Taylor, 93 U. S. 46; Yates v. Bachley, 33 Wis. 185; Hopkins Manufacturing Go. v. Aurora, etc., Co., 48 Mich. 148.</p>

<p> Appeal from District Court, Jefferson County. </p> <p>The facts are fully stated in the opinion.</p> <p>The general rule as to the measure of damages in an action for conversion is the value of the property at tbe time of its conversion, with interest. Jefferson v. Hale, 31 Ark. 286; Skinner v. Finney, 19 Fla. 42; Coffey v. National Bank, 46 Mo. 140; McCormick v. Railroad Co., 49 N. Y. 803; Shepard v. Pratt, 16 Kan. 209.</p> <p>The measure of damages in trespass against sheriff for goods wrongfully obtained is the value of said goods at time of wrongful taking. 12 Oal. 457; Nightingale v. Scannell, 18 Cal. 315; Crowell v. Gilmore, 18 Cal. 372; 20 Cal. 56; Story v. Robinson, 32 Cal. 206; Empire Gold Mining Co. v. Bonanza Gold Mining Co., 67 Cal. 406.</p> <p>The mortgagee in possession of mortgaged property has tbe right of possession against the whole world, and can not be deprived of that possession until the debt for which the mortgage is executed has been satisfied. Howe v. Keller, 27 Conn. 538; Marsh v. Wade, 20 Pac. Hep. 578.</p> <p>If the value of the goods taken by the defendant sheriff had not been stated anywhere in the complaint, the evi-dentiary stipulation or the findings of the judge, the defendant would still be liable to the mortgagee for the amount of the mortgage debt, with interest. Norris v. McCanna, 29 Fed. Eep. 757; Fox v. Oronan, 47 N. J. L. 493 (S. C. 4 Atl. Hep. 314); Williams v. Raper, 34 N. W. Hep. 890; Wood v. Franks, 56 Cal. 217; Cretin v. Levy, 37 La. Ann. 182; WhitaJcer v. Sumner, 9 Pick. 308.</p> <p>Even if the value of the goods were nowhere stated in the case, then the burden of proof of less damage than the amount of the mortgage debt, or of no damage, from the defendant’s negligence or breach of duty, rests on the defendant, and in the absence of such proof the judgment of the court below should be sustained. Smith v. Tooke, 20 Tex. 751; Sedgwick, Dam. (7th ed.), 449; Bank of Rome v. Curtis, 1 Hill, 275; Purdee v. Robertson, 6 Hill, 550; Ransom v. Halcott, 18 Barb. 56; Humphrey v. Hathorn, 24 Barb. 278.</p>

The facts are slated in the opinion. The smoking and inhaling of opium is a vice, and the validity of all laws having for their object the restraint of such vice, must be construed by the same rules of construction as laws having for their objects the restraint and regulation of other vices. It cannot be made a legal wrong for one to become intoxicated in the privacy of his room. Tiedeman on Limitation of Police Powers, ?¿ 68.

<p>decedent’s ESTATES — PRESENTATION OE CLAIM SECURED BY MORTGAGE.</p> <p>Failure to present a claim against a decedent’s estate, secured by-mortgage on Ms land, within one year after publication of notice to creditors, as provided by Code Wash. T., §1467, will not bar the mortgagee’s rights under the mortgage as to the lands mortgaged, but will only operate to prevent his making any deficiency that remains after exhausting the m irtgage 1 property out of the decedent’s other estate.</p> <p>Where the mortgagee of a decedent’s lands applies to the probate court, under Code Wash T., §1523, to compel the redemption of land from his mortgage lien, or to have the lands sold, under § 1524, and the proceeds applied upon the mortgage debt, he must apply within the year allowed for the presentation of claims against the estate.</p>

The facts are fully stated in the opinion. It is admitted by the pleadings and confirmed in the' findings of the court, that Charles Gilbert died intestate, and there being no heirs to said estate, the property es-cheated instanter on the death of said Gilbert to the Territory of Washington. 4 Kent Com. 424; Sands v. Lynd-ham, 27 Gratt. 295 (21 Am.

<p> Appeal from District Court, Walla Walla County. </p>

<p>EJECTMENT — EVIDENCE — ESTOPPEL — CONFIRMATION OF FORECLOSURE SALE — SERVICE OF PROCESS.</p> <p>Under § 66 of the civil practice act as amended by laws of 1871, the sheriff was authorized, in ejectment, to serve the subpoena on the defendant to answer the complaint, and his certificate as to the facts of such service was sufficient proof thereof.</p> <p>Where there are no errors sufficient to oust the court of jurisdiction, an order confirming a sale under decree of foreclosure concludes inquiry into irregularities attending the sale, such as departure from the terms of the decree, and from the course and practice of the court.</p> <p>In an action of ejectment, defendant may, under a general denial, introduce evidence of equitable estoppel, where the complaint does not state the source of plaintiff’s title.</p>

<p> Appeal from District Court, Walla Walla County. </p> <p>The facts sufficiently appear in tbe opinion.</p> <p>The act relating to fencing of railroad tracks, approved November 28, 1883, is unconstitutional. If the purpose of a statute is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portions. Cooley, Const. Lim. 178-9; Warren v. Charleston, 2 Gray, 84; Fisher v.McGirr, 1 Gray, 1; 61 Am. Dec. 381; Com. v. Hitchings, 5 Gray, 482; Fíate v. Ferry Coimty, 5 Ohio St. 497; Jones v. Robbins, 8 Gray, 329; Taylor v. Ross County, 23 Ohio St. 22, 84; Slauson v. Racine, 13 Wis. 398; State v. Dousman, 28 Wis. 541; Campau v. Detroit, 14 Mich. 276; Com. v. Potts, 79 Pa.- St. 164.</p> <p>The complaint does not state facts sufficient to constitute a cause of action. It is necessary to aver in the complaint and to prove that the cattle came upon the track at a point where the railroad company was bound to fence and failed to do so. Morrison v. Railroad Co., 32 Barb. 568; Railroad Co. v. Brevort, 30 Ind. 324; Belfontaine R. R. Co. v. Schuman, 28 Ind. 40; Toledo R. R. Co. v. Howell, 38 Ind. 447; Jeffersonville R. R. Co. v. Lyon, 32 Ind. 107; Nance v. St. Louis, etc., Ry. Co., 79 Mo. 196; Asher v. St. Louis, etc., Ry. Co., 79 Mo., 432; Louisville Ry. Co. v. Quade, 91 Ind. 295; Louisville Ry. Co. v. Hall, 93 Ind. 245; Wabash R. R. Co. v. Tretts, 96 Ind. 450; Bremmer v. Creen River, etc., R. R. Co., 61 Wis. 114 (S. C. 19 Am. and Eng. By. Cases, 575).</p> <p>The decision of the court relating to the constitutionality of tbe act of November 28, 1883, on tbe former appeal (20 Pac. Rep. 601) establishes tbe rule of lawfor tbis court, and neither tbe parties nor tbe court can depart therefrom. Adams County v. Burlington, etc., R. R. Co., 2 N. W. Rep. 1054; Parlcer v. Pomeroy, 2 Wis. 112; Continental Life Ins. Co. v. Houser, 111 Ind. 266; Leighton v. Stuart, 19 Neb. 546; Pittsburgh, etc., R. R. Co. v. Hixon, 110 Ind. 225; Hiatt v. Brooles, 17 Neb. 33; Pager. Fowler, 37 Cal. 100; Galveston County v. Galveston Gas Co., 72 Tex. 509.</p> <p>No more of tbe act should be held unconstitutional than is plainly so; tbe parts not repugnant to tbe constitution should stand and be given full force and effect. Tiernan v. Rinker, 102 U. 8. 123; BanJcv. Dudley's Lessee, 2 Pet. 492; Robinson v. Bidiuell, 22 Cal. 379; Fisher v. McGirr, 1 Cray, 1 (61 Am. Dec. 381); Keokuk v. Keokuk, etc., Packet Co., 45 Iowa, 196; Knox County v. Davis, 63 Ill. 405.</p> <p>Under our statute railroad companies are made liable for cattle killed by them without reference to their negligence. Nashville, etc., Ry. v. Peacock, 25 Ala. 229; Williams v. Neto Albany, etc.,R. R. Co., 5Ind. Ill; 1 Redf. Railways-(4thed.)490; International, etc., Ry. Co. v. Cocke, 64Tex. 151; McCall v. Chamberlain, 13 Wis. 637; Conuin v. New York, etc., R. R. Co., 13 N. T. 42; Cressey v. Northern R. R. Co., 59 N. H. 564 (47 Am. Rep. 227); Burlington, etc., R. R. Co. v. Webb, 18 Neb. 215 (53 Am, Rep. 809).</p> <p>A railroad company cannot lease its road and thus relieve itself of liability. New York, etc., R. R. Co., v. Winans, 17 How. 30; Ohio, etc., R. R. Co. v. Dunbar, 20 Ill. 624; Abbottv. Johnstown, etc., R.R. (7o.,80N.Y. 27; Toled,o,etc., Ry. Co. v. Rumbold, 40 Ill. 143.</p>

The facts are sufficiently stated in the opinion. There was no particle of evidence in this case of negli-' gence. No one testified as to any negligent construction or management of the engine. There can be no recovery against railroad companies, in the absence of negligence, for fires set out, “ though they fire every rod of the country through which they run. Phil. etc., R. R. Co. v. Schultz, 93 Pa. St. 341.

<p> Appeal from District Court, Walla Walla County. </p> <p>The facts sufficiently appear in tbe opinion.</p> <p>The act relating to fencing of railroad tracks, approved November 28, 1883, is unconstitutional. If the purpose of a statute is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portions. Cooley on Const. Lim. 178-9; Warren et al. v. Mayor, etc., 2 Gray, 84; Fisher v. McGirr et al., 1 Gray, 1; Taylor v. Commissioners, etc., 23 Ohio St. 22, 84; State ex rel. Walsh & Walsh v. Dousman, 28 Wis. 541-547; Campau v. City of Detroit, 14 Mich. 276, 283, 45; Commonwealth v. Potts, 79 Pa. St. 164. The act cannot be justified as a police regulation, since it effects no purpose and regulates no evil, in fact, does nothing other than to compel railroad companies to pay for cattle killed by reason of no neglect or omission of sncb companies. Such an act is unconstitutional. Bielenberg v. Montana, etc., Ry. Go., 8 Mont. 271; Cairo R. R. Go. v. Parks, 32 Ark. 131; Zeiglerv. South, etc., R.R.Go., 58'Ala. 595; Ohio, etc. R. R. Oo. v. Lackey, 78 Ill. 55.</p> <p>It lias been repeatedly held that where cattle come upon a railroad track at a point where the railroad company is not bound to fence, the company is not liable for the injury to them wherever it occurs, Morrison v. R. R. Go., 32 Barb. 568; Jefferson, etc., R. R. Go. v. Brevoort, 30 Ind. 324; Wabash, etc., B. R. Go. v. Tretts, 96 Ind. 450; Louisville, etc., R. R. Go. v. Hall,. 93 Ind. 215; Bremmer v. Green Bay, etc., R. R. Go., 61 Wis. 114 (S. C. 19 Am. & Eng. R„ B. Cas. 575).</p> <p>No fencing acts have been construed by any of the courts as making railroad companies absolutely liable, irrespective of the question as to what the acts or defaults of the owner of cattle may have been in allowing them to stray upon the track. Many cases have held that contributory negligence on the part of the owner would prevent a recovery. Kansas City, etc., R. R. Go. v. McHenry (Kan.), 6 Am. and Eng. R. R. Cas. 581; Van Horn v. Burlington, etc., R. R. Go. (Iowa), 7 Am. & Eng. R. R. Cas. 591; Richards v. Chicago, etc., R. R. Go. (Wis.), 13 Am. & Eng. R. R. Cas. 624; Hines v. S. F. & K. P. R. R. Go- (Cal.), 20 Am. and Eng. R. R. Gas. 486.</p>

<p> Appeal from District Gourt, Kittitas County. </p> <p>Tbe facts are fully stated in tbe opinion.</p> <p>Tbe assignment of a mere expectancy or possibility will be supported as a contract entitling tbe assignee to a specific performance as soon as tbe assignor bas acquired tbe power to perform. Mitchell v. Winslow, 2 Story, 630; Woodworth v. Sherman, 3 Story, 171.</p> <p>That tbe vendee may maintain an action where tbe obligation of tbe vendor is in tbe form of a title bond, under tbe authorities cannot be questioned. 1 Hill, Vend., p. 430, §5; Ensign v. Kellogg, 4 Pick. 1; Doolittle v. Gook, 75 Ill. 354; Sterling v. Klepsattle, 24 Ind. 94.</p> <p>Whether a deed is demanded or not is not essential to tbe right to maintain an action for a specific performance. Morris v. Hoyt, 11 Mich. 17; Swanson v. Maxwell, 2 Gomst. 316; Pom. Spec. Perf. 435.</p> <p>There is no allegation that either Freytag or the railroad company ever refused to execute a deed upon demand. There must be both demand and refusal, and the complaint should show it. Wat. Spec. Perf., § 97.</p> <p>The bond fixes no consideration. Such a bond cannot be enforced. Smith v. Reynolds, 8 Fed. Bep. 696; Wat. Spec. Perf., p. 121, § 93; 3 Pom. Bq. Jur., § 1405.</p> <p>The complaint fails to allege the facts showing the char) acter of the consideration. The statements which are made in the complaint in this respect amount only to conclusions of law. Mayger v. Cruse, 5 Mont. 485; Wagonblast v. Whitney, 12 Or. 83.</p> <p>The bond merely stipulates for the making of a conveyance in the event of obtaining title, or tbe payment of $500, in lieu thereof. Equity will not interfere to decree a specific performance of the first alternative, but will leave the injured party to his remedy of damages at law. 1 Pom. Eq. Jur., § 447; Cathcart v. Robinson, 5 Pet. 264.</p> <p>The complaint contains no sufficient allegation to show that there ever existed any contract between Craig and the railroad company which could be the subject of an action for specific performance. If there was no such contract between Craig and the railroad company, the attempted agreement between Craig and Freytag was a mere nullity, and never became of any binding force on either party. If Craig had any agreement with him, it was merely an agreement on his part to convey the estate to Freytag, and not that the railroad company should convey it. Wat. Spec. Perf., § 69.</p>

Action by Charles A. Cook to recover the sum of 1150 as commission due him for effecting the sale for Clinton Going of a certain lot in the city of Tacoma. The lot belonged to one Goldsmith, of the city of Portland, who had directed the defendant, Going, to place the lot in the hands of Sawyer & Co., real-estate agents in Tacoma, for sale, which direction had been complied with.

<p>EVIDENCE — MEMORANDA-EXCESSIVE VERDICT.</p> <p>In an action by a mortgagee to recover damages for the conversion of mortgaged personalty, where the mortgagee testifies that he has received certain sums of money from the mortgagor to be applied on the mortgage debt, but is unable to state the amounts, it is error to permit him to read in evidence from a memorandum prepared by his clerk as to the items of payment made by the mortgagor, when he does not know how the clerk made up such memorandum.</p> <p>Where, in such action, the evidence shows the value of all the property covered by the chattel mortgage was about $1,200; that only a portion of such property was converted by the defendant, and that the value of the goods not taken by him was at least $700, plaintiff can only recover the value of the goods converted, not exceeding in amount the balance unpaid upon the mortgage, and a verdict for $1,000 will be set aside as excessive.</p>

<p>SALE — DELIVERY — EVIDENCE — TIME OF PAYMENT — INTEREST.</p> <p>Where, in an action for the price of certain logs, the place of delivery of the logs, by the terms of the contract, is in controversy, evidence that the agent making the contract had only a special and limited authority to contract for the purchase of the logs to be delivered at the mill is admissible, as a circumstance to be weighed in connection with the agent’s testimony as to what the contract was.</p> <p>Where, by the terms of a contract, payment was to be made within sixty days from the presentation to defendant at San Francisco of a draft drawn by its agent in this state, and there was no proof that the draft was ever issued, though payment was demanded of the agent several days after the contract was made, a judgment, including interest from a date sixty days after the making of the contract, was unauthorized.</p>

<p>CONSTRUCTION OR CONTRACT — EXTRA COMPENSATION.</p> <p>Where a contract for the construction of a ditch provided for the payment of eighteen cents per cubic yard for the removal of earth and gravel between certain points, the fact that plaintiff, in excavating between those points, encountered a large amount of “ cement gravel,” or hard pan, will not entitle him to recover more than the contract price, on the ground that the removal of cement gravel was not contemplated by the parties to the contract.</p>

Action by N. F. Holman, Rosamond Holman and Phoebe B. Green against George McGlauflin and F. B. Handley, to recover possession of certain premises in the city of Spokane Falls. Defendants held possession under a lease for three years from one Henry L. Tilton, given them on the 15th day of May, 1888, properly signed, sealed and witnessed, but not acknowledged. The defendants took possession under the lease, paid rent to the lessor and erected a blacksmith shop thereon.

<p> Appeal from District Court, Wahlcialcum County. </p> <p>Action by North Pacific Lumbering and Manufacturing Company against William Kerron and S. F. Alberts, to recover possession of certain saw-logs. In the spring of 1887, one Kimball was engaged in cutting and putting into one of the streams emptying into the Columbia river saw-logs from timber growing upon the land of the defendant Kerron. At that time plaintiff was furnishing supplies and money to Kimball to carry on such logging operations, in consideration of which Kimball agreed to deliver to plaintiff all saw-logs manufactured by him at an agreed price. During the whole of the year 1887, there existed a contract between Kimball and defendant Kerron, whereby the latter granted to Kimball the right to cut and remove from said lands all the timber thereon. The plaintiff continued to furnish money and supplies to Kimball for said logging operations during the year 1887, and Kimball cut from said lands a large number of saw-logs. On the 17th day of October, 1887, Kimball executed the contract set out in the opinion of the court, which contract was duly recorded. On March 12, 1888, Kimball executed and delivered. to defendant Kerron a promissory note due one day after date, and secured by a chattel mortgage on the logs in controversy, which mortgage was duly recorded. When said note became due, Kerron proceeded to foreclose his mortgage, and directed the defendant Alberts, as sheriff of Wahkiakum county, to seize and sell said saw-logs. Plaintiff thereupon brought suit for possession of the logs, and damages for detention of the same by defendants. Yerdict and judgment for plaintiff, and defendants appeal.</p>

Action commenced before a justicejof the peace, wherein plaintiff sought to recover from defendant the snm of $275 as the balance due upon his stock in the Spokane Falls and Cceur d’ Aleñe Transportation Company, which was indebted to plaintiff in the sum of $616, which had been reduced to judgment. Judgment was entered against defendant, and he appealed to the district court.

<p> Error to Distñct Court, Spokane County. </p>

<p>Error to District Court, Spokane County.</p>

<p> Appeal from District Court, Pierce County. </p> <p>Suit by Charles Langert against Frank C. Koss and J ames M. Ashton for the specific performance of an agreement to convey real estate, or, in case specific performance cannot be decreed, for damages. On the 16th day of March, 1888, the defendant, Frank C. Ross, offered to sell lots one and two, in block eighteen hundred and six, in the city of Tacoma, to plaintiff for the sum of $4,000, $2,500 of which was to be paid on or about the 20th day of March,. 1888, and the balance of $1,500 was to be paid by the plaintiff in the future, there being a mortgage then on the property of $1,500, which plaintiff was to assume as part of the consideration. The plaintiff accepted this offer, and thereupon defendant Ross delivered to him the memorandum set out in the opinion. On the 21st day of March, 1888, the defendant James M. Ashton applied to defendant Ross to purchase this same property, and Ross informed him that the plaintiff had an option on the property, which had expired, but out of good faith to the plaintiff he would not sell the property at that time, but give plaintiff until about noon of the next day, the 22d of March, to fulfill the agreement. On the 22d day of March, 1888, between the hours of ten and twelve in the forenoon, plaintiff found defendant Ross and demanded a deed of the premises, stating his readiness to pay the consideration.- Ross informed plaintiff that he was too late; that the property was already sold. Afterwards, between the hours of twelve and one of the same day, the defendant Ross executed a deed of said premises to the defendant Ashton. The action was tried upon testimony taken before a referee, and decree entered in favor of defendants, from which decree plaintiff appeals.</p>

<p>CONTRACT — CONSTRUCTION — COLLECTION OF DELINQUENT TAXES.</p> <p>Where plaintiff contracted with a county to “ make a tax list of all taxes delinquent ” in the county, for which he was to receive “ five per cent, on the total amount of said tax list, to be paid out of the tax due the county on said tax list as it is collected,” plaintiff is entitled to receive five per cent of the total amount of the delinquent list out of the taxes first collected, and not merely five per cent, of the amount collected.</p>

Action brought in the superior court of Jefferson county for divorce upon the ground of incurable chronic mania'or dementia of the defendant, existing for more than ten years prior to the commencement of the action. There was a general demurrer to the complaint interposed by defendant. An order was entered sustaining the demurrer, from which order plaintiff appealed.

<p>APPEAL —■ PINAL ORDER — INJUNCTION.</p> <p>In an action for injunction, where defendant moves to dissolve the temporary injunction granted plaintiff, and also for an injunction against plaintiff, an order denying both branches of the motion without adjudicating upon plaintiff’s prayer for a a permanent injunction, is not a final judgment, from which appeal will lie to the supreme court.</p>

<p> Appeal from District Court, Whitman County. </p>

Thomas H. Campbell commenced an action against Hans Nelson, one of the appellants, in the justice’s court of H. F. Jones, justice of the peace in the Seattle precinct, King county, for $100 commission on sale of real estate. A change of venue was had to the justice’s court of N. Sod-erberg, justice of the peace in the same precinct. December 28, 1888, the case was tried before Justice Soderberg and a jury. The jury failed to agree, and were discharged.

<p>MURDER — INDICTMENT —■ EVIDENCE —RES G-ESTJE — GR4ND JURY-VENIRE.</p> <p>Under Code Wash. T., making murder a purely statutory crime, an indictment for murder which alleges that the defendant did, purposely and of his deliberate and premeditated malice, assault the deceased, and that the defendant, of his premeditated malice, fired the shot which killed the deceased, but does not allege that the defendant, purposely and of his deliberate and premeditated malice, killed the deceased, is fatally defective as charging murder in either the first or second degree; nor is the indictment aided by the concluding part, that the said defendant “so in the manner and by means aforesaid, feloniously, purposely and of his deliberate and premeditated malice, did kill and murder ” the deceased. An objection as to the sufficiency of such an indictment may be made for the first time in the supreme court. (Hoyt, J., dissents.)</p> <p>Such an indictment, though insufficient to sustain a conviction of murder in the first or second degree, does sufficiently charge the crime of manslaughter, and is, therefore, valid to that extent.</p> <p>Where the crime, for which the defendant was in custody, was committed shortly after the discharge of the regularly empanneled grand jury of the county, it is competent for the court, then in session, to re-summon the grand jury to inquire into the matter; and the defendant being present when the grand jury was empanneled, and given an opportunity to challenge either the entire panel, or the individual jurors, and declines so to do, he cannot afterwards question the legality of the empanneling of the grand jury by a motion to quash the indictment.</p> <p>In a prosecution for murder it is not error for the court to allow a witness to testify that, at the time of the commission of the homicide, the deceased and two other persons were walking together on the sidewalk, and that, as they were passing the defendant, he suddenly drew a revolver from his pocket and shot the deceased, and almost immediately turned and fired at the two persons with him, such evidence being admissible as part of the res gestee.</p> <p>It is a mere irregularity, not at all prejudicial to the rights of the defendant, for the court to order a venire for additional jurors before the regular panel was exhausted, especially where the record shows that none of the additional jurors or talesmen were drawn as trial jurors until the original panel was entirely exhausted.</p>

<p> Error to Superior Court, Walla Walla County. </p>

<p> Error to Superior Court, Walla Walla County. </p>

Indictment against J. E. Terry for larceny. The facts sufficiently appear in the opinion. The omission to charge in the indictment that the defendant was an agent “ for hire ” is fatal.

Indictment for forgery against William M. White, verdict of guilty, and defendant- sentenced to fourteen years in the penitentiary. Defendant appeals. The facts are stated in the opinion. In an indictment for forgery, or for uttering a forged instrument, the instrument must be set forth exactly as it is, and proved exactly as set forth. Whart. Crim. PI. and Pr., § 167; Brown v. People, 1 Am. Or. Eep. 229; Lut-trell v. State, 4 Am. State Eep. 764; State v. Street, 1 Am.

Certified from the Superior Court, Pierce County. This is a proceeding for what is termed in the statutes a writ of mandate. In 1888 the inhabitants of the town of Puyallup, Pierce county, instituted proceedings under the act of February 2, of that year, for the incorporation of that town.

<p>CONSTITUTIONAL LAW— REPEAL OF ACT BY IMPLICATION — TITLE OF STATUTE — EXTENSION OF CORPORATE LIMITS.</p> <p>The act of the legislature approved February 26, 1890 (Laws Wash. 1889-90, p. 227), entitled “An act to provide for extending and enlarging the corporate limits of any city, town or village in this state, and for consolidating and uniting cities, towns and villages, and declaring an emergency,” is repealed by implication by the act approved March 27, 1890 (Laws 1889-90, p. 131), on the same subject, entitled “An act providing for the organization, classification, incorporation and government of municipal corporations, and declaring an emergency.” (Hoyt, J. dissents.)</p> <p>Where there is a conflict in the statutes on the same subject passed by the legislature at the same session, and the result of action under the one would be substantially different from what it would be under the other, the statute last enacted will prevail, and the prior statute will be considered as having been repealed by implication.</p> <p>The title of the act approved March 27, 1890, in relation to the incorporation of cities and towns is broad enough to include the sections in the act providing for their enlargement and consolidation.</p>

Injunction against defendants, as mayor and finance committee of the common council of the city of Seattle, to restrain them from selling or otherwise disposing of bonds theretofore issued, in the sum of $955,000, under ordinance No. 1343, of said city, for the purchase of water-works, and the construction of a sewerage system.

Action by D. B. Baker to enjoin the defendants and ap-pellees, who were the auditor, treasurer and county commissioners,respectively, of Clarke… Held: there being more than three-fifths of the votes cast in favor of the issuance of forty thousand dollars in county bonds, the appellees were about to negotiate said bonds to raise money for the building of a court house and jail in said county, when the appellant procured a restraining order to prevent the sale of said bonds.

<p> Appeal from Superior Court, Spolcane County.' </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from, Superior Court, King County. </p> <p>The facts are fully stated iu the opinion.</p>

<p> Error to District Court, Pierce County. </p> <p>The facts are fully stated in the opinion.</p>

Appeal from, Superior Gourt, Skagit County. Motion by appellee to affirm tbe judgment of tbe superior court. Tbe facts sufficiently appear in tbe opinion.

<p> Error to Superior Court, Chehalis County. </p> <p>The facts are fully stated in the opinion.</p>

The appellant, J. S. Stewart, made his homestead filing upon the southeast quarter of section 26, township 35 north, range 5 east, under the homestead laws of the United States, on the 5th day of January, 1880. He was unmarried, and lived on the land, improved it by clearing five to eight acres of land, set out a small orchard, built a board dwelling house 16x20 feet, and a barn, the value of the improvements on the 19th day of February, 1883,being eight hundred dollars.

<p> Appeal from Superior Court, Chehalis County. </p> <p>Action commenced in the district court for Chehalis county, Washington Territory, December 24, 1888, by the appellee, A. Chandon, against David Wilkie, the appellant, upon a promissory note made by one John Wilkie to David Wilkie and by David Wilkie indorsed, with protest waived, and delivered to appellee. The note was made at Marysville, California, on February 1, 1884, and was payable one year after date at the banking house of Decker & Jewett, of that place, for the principal sum of $1,100, being'a pre-existing debt due the appellee from John Wilkie, the maker of the note. The action was commenced against the appellant as indorser of the note. The action was tried before a jury, who returned a verdict in favor of the appellee, upon which judgment was rendered against appellant, from which he appeals.</p>

<p> Appeal from Superior Court, King County. </p>

Action to compel a specific performance of an alleged agreement to sell and convey certain real estate in the city of Seattle, King county, State of Washington.

<p>DEMURRER— MISJOINDER OP CAUSES — APPEAL—JURISDICTION OP SUPREME COURT — PLEADING.</p> <p>Where two causes of action are improperly joined, the failure of the court to pass upon a demurrer on that ground is not cured by sustaining a demurrer to one of the paragraphs for want of sufficient facts to state a cause of action.</p> <p>Where the first paragraph of a complaint contained an allegation of §200 damages against defendant, for which demand had been made before suit, and the second paragraph alleged damages at §500, the sustaining of a demurrer to the latter paragraph does not reduce the amount in controversy to §200, there being no amendment reducing the demand below §700; and the supreme court has jurisdiction thereof on .appeal, under article 4, § 4, of the constitution, restricting jurisdiction to cases where the original amount in controversy is above §200.</p> <p>Where appellees were not present when the statement of facts was settled, nor had any notice thereof, the supreme court will disregard the statement.</p> <p>A complaint in an action for the recovery of commissions on the sale of real estate, -which alleges that the property was placed in the hands of plaintiffs, and that they found a purchaser at the price named, and completed the bargain with the purchaser for the sale of the same, hut which does not allege that they communicated knowledge of then-action to the defendant, or that he carried out the arrangement made for the sale, or refused to carry it out, after such notice, is defective for want of sufficient facts.</p> <p>An answer denying “ generally each and every allegation ” of the complaint, is good as a general denial, and it is error for the court to refuse to allow the defendant to introduce evidence competent undej^ such a plea.</p>

<p>FINDINGS OF PACT.</p> <p>A recital in a judgment that “the court finds the matters and things set forth in the complaint are true” is not a sufficient finding of facts, as required by § 246, Code Wash. T.; especially when the reply admits that one of the allegations of the complaint is untrue.</p>

<p> Appeal from Superior Court, Pierce County. </p> <p>Proceeding by information on the charge of grand larceny for the stealing of ninety-three railroad passenger tickets of the aggregate value of $120, of the chattels and property of the Northern Pacific Railroad Company. A trial was had before a jury, and a verdict returned finding defendant guilty as charged. From the judgment and sentence rendered defendant appeals to this court.</p> <p>These railroad tickets not having been delivered or stamped, or sold, were not of any value as railroad tickets, and consequently not a subject of larceny. As the information does not charge the stealing of a piece of paper, and even if it did it would have no intrinsic value, the demurrer should have been sustained. People v. Loomis, 4 Denio, 380; Payne v. People, 6 Johns. 103; People v. Wiley, 3 Hill, 194; 1 Whart. Crim. Law, § 880.</p> <p>The price and value of each of the tickets should have been stated. 2 Bish. Crim. Proc., §$ 712, 732-5; Whart. Crim. PL & Pr., § 206; Whart. Crim. Ev., §§ 121-6; People v. Littlefield, 5 Cal. 355; People v. Coon, 45 Cal. 672; 2 Hale P. C. 182-3.</p> <p>When the alleged offense was committed defendant could only be tried by indictment, and if limited to indictment he could not be tried on information. 1 Bish. Crim. Proc., § 144; Com. v. Cheney, 6 Mass. 347; Twitchell v. Com., 7 Wall. 321; People v. Campbell, 2 Parker Cr. Cas. 386. Where the statute requiring an indictment is repealed, an information will not lie for an offense committed before the repeal. Rapalje, Crim. Proc., § 110; People v. Tisdale, 57 Cal. 104; Bish. St. Cr., § 194.</p> <p>The United States guarantee an indictment by grand jury in certain cases. But this is true only so far as it applies to offenses against the United States or in trials by United States courts, and is not applicable to the state courts; and the territorial courts when trying an offense of this nature, under territorial laws, were not United States courts. State v. Keyes, 30 Am. Dec. 450; Barron v. Baltimore, 7 Pet. 243; Pom. Const. Law (Bennett Ed.), §§ 231-4; Good v. Martin, 95 U. S. 90; American Ins. Co. v. Canter, 1 Pet. 511; Benner v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434; Hornbuclde v. Toombs, 18 Wall. 648; Reynolds v. United States, 95 U. S. 145.</p> <p>A change from presentment by indictment to presentment by information is only a change in the form of procedure, and cannot come within any of the definitions of an ex post facto law as enunciated in Colder v. Bull, 3 Dali. 386. See Kring v. State, 107 U. S. 221, and cases cited; Hopt v. Utah, 110 U. S. 574; Cooley, Const. Lim., p. 272.</p>

<p>HABEAS CORPUS — JURISDICTION OF SUPBEMB COUBT — PRACTICE— CONSTITUTIONAL LAW.</p> <p>Under § 24 of the Enabling Act, and the legislative act of December 13, 1889 (Sess. Laws 1889-90, p. 94), continuing all laws in force applicable to the state form of government, the provisions of chapter 58, Code Wash. T., in regard to habeas corpus, are applicable to the supreme court.</p> <p>Section 4, article 4, of the state constitution, giving the supreme court original jurisdiction in habeas corpus, is self-executing; and in the absence of legislation on the subject, the supreme court has authority to establish rules defining the course to be pursued in issuing the writ. 7</p> <p>Under the authority of the supreme court to issue writs of habeas corpus, the court, or one of its judges, can grant an order nisi to show cause why the writ should not issue. In such case the writ should be issued by the clerk of the supreme court.</p> <p>The supreme court has original jurisdiction in habeas corpus to issue the writ or make the order nisi, in all cases, and the provisions of § 4, article 4, of the state constitution do not confine its jurisdiction to state officers.</p> <p>The provision of the state constitution, article 1, § 2, that “the constitution of the United States is the supreme law of the land,” only relates to those matters wherein the general government assumes to control the individual states, and the requirement of a presentment by a grand jury is not one of them.</p> <p>Where the title of an act relates only to proceedings by information, a section of the act dispensing with grand juries, unless ordered by the judge, is properly within the title, and does not bring another subject into the act.</p> <p>Where an act containing a clause repealing a former law is declared void, the former law remains in force.</p> <p>Under § 677, Code of Wash. T., prohibiting inquiry into the legality of any commitment issued on a final judgment of a court of competent jurisdiction, defendant is restricted to his remedy by appeal; and the writ of habeas corpus will only lie where the court had no competent jurisdiction in the premises.</p>

<p> Appeal from Superior Court, King County. </p>

The facts are fully stated in the opinion. In the case of a municipal ordinance, the question is, whether it is within the powers granted in the charter, or necessary, as an implied power, to the exercise of the powers expressly granted. The propriety and mode of exercising the power is a question solely for the legislative body exercising it. It is a legislative and not a judicial question. Knoxville v. Bird, 47 Am. Rep. 326; State v. Mott, 48 Am. Rep. 105.

Action for damages for breach of contract to convey certain lands, together with the amount expended by plaintiff in making improvements thereon. The jury returned a verdict for plaintiff for the sum of |175, being the value of plaintiff’s improvements only. From the judgment on the verdict, plaintiff appeals to this court.

<p> Error to District Court, King County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Appeal from Superior Court, King County. </p> <p>Action by the Littell & Smythe Manufacturing Company to foreclose a mechanics’ lien upon the building of defendant, Phillips, and upon id'' leasehold interest in certain land, and against the defendants, George and Harriet Misener, as owners of the fee in the land, and against M. Y. Kellogg, as the contractor who erected the buildings. Judgment for plaintiffs, and defendants appeal.</p>

<p>GAMING — FARO—INDICTMENT—JUDGMENT—EXCESSIVE FINE.</p> <p>As 'b'b 1253 and 1258, Code Wash. T., are sufficiently explicit to enable the court, with reasonable certainty, to determine what the legislature intended, and as they describe the offense of dealing faro, or permitting the same to be done on one’s premises, with sufficient certainty, they cannot be held void for uncertainty and ambiguity.</p> <p>As the gravamen of the offense consists in permitting the game of faro to be dealt in prohibited places, an indictment is sufficient, without specifying with whom the game was played, or in what particular manner it was conducted.</p> <p>Under ?¿ 1258 of the code, imposing a fine not exceeding five hundred dollars on conviction, and providing that defendant shall stand committed until the same is paid, but making no provision for costs, a judgment for five hundred dollars and costs is not void for the reasons that it exceeds the limitations of the statute, and does not fix a definite period of imprisonment in the event of non-payment of the fine, as said section should be construed in connection with § 2105, providing that on conviction the defendant shall be liable to pay costs in all cases, and \ 1125, providing that in default of payment or security of fine and costs, a warrant shall be issued for defendant’s commitment, specifying that he be imprisoned one day for every two dollars of such fine and costs.</p>

Indictment against E. W. Way for the crime of permitting faro to be dealt upon his premises. Plea of guilty, motion in arrest of judgment denied, and defendant sentenced to pay a fine of $500 and costs amounting to twenty dollars. The court also ordered the destruction of certain gaming apparatus which was seized in the possession of defendant. Defendant appeals.

<p> Appeal from. Superior Court, King County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from, Superior Court, King County. </p> <p>Action by William Wadhams, doing business under the firm name and style of Wadhams & Co., against Alfred Page and Joseph Green, partners doing business under the firm name of Page & Green, to recover a balance upon an account for goods, wares and merchandise sold and delivered by Wadhams & Elliott to defendants. Prior to trial, the firm of Wadhams & Elliott assigned in writing all their accounts and claims to William Wadhams, the appellant herein. The facts appear in the opinion.</p>

<p>DECEDENT’S ESTATES — MORTGAGE—PRESENTATION OE CLAIM — INTEREST — ATTORNEY’S PEES.</p> <p>The failure to present a claim secured by mortgage upon a decedent’s land to the administrator ,of the estate within one year after notice of his appointment, will not prevent a foreclosure of the mortgage where no recovery is sought beyond the proceeds of the mortgaged lands.</p> <p>An agreement in a mortgage to pay interest semi-annually at the rate of li per cent, per month, which, if not so paid, is to be added to the principal and draw like interest, and further providing for 10 per cent, attorney’s fees upon principal and interest, in case of foreclosure, is valid under the laws of this state.</p> <p>In a suit for foreclosure of a mortgage on real estate, where the mortgagor dies pending the suit, it is not necessary, in order to recover costs and attorney’s fees, that the claim should have been presented to the administrator of the mortgagor’s estate within one year after his appointment.</p>

Action by J. R. Griffiths and Edward Metcalfe against William Ritchie for the possession of certain land in Port Angeles, Clallam county, State of Washington.

<p> Appeal from Superior Court, Clallam County. </p>

<p> Appeal from Superior Court, Pacific County. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Clallam County. </p>

<p>FIRE INSURANCE — RIGHT OF ACTION — CONDITIONS OF POLICY — WAIVER — EVIDENCE OE VALUE.</p> <p>Under an insurance policy which provides that any loss incurred shall not be payable until sixty days after notice and satisfactory proof thereof, a suit brought against the insurance company before the expiration of sixty days after proof and notice is unwarranted, unless there has heen an unqualified refusal on the part of the company to pay the loss.</p> <p>A declaration by a trustee of an insurance company, showing hostility to the payment of a certain loss under a policy of insurance, will not be regarded as the refusal of the company to pay, unless he is specially charged by the board of trustees with the duty of communicating such decision to the policy holder.</p> <p>In an action on an insurance policy, where there is no other evidence of the value of the pi'operty destroyed by fire than the proof of loss made by the claimant, as requjj^by the terms of the policy, the plaintiff should be non-suited. flH¶ ,</p> <p>Where an insurance policy is conditioned to be void if assigned in case of sale, unless the assignment is approved by the president or secretary, the policy becomes forfeited on sale and transfer of the property without such approval, unless there is waiver thereof.</p> <p>Where a policy of fire insurance is made payable in case of loss to the agents of the insurance company to secure advances made by them to the insured, the consent of the agents to an assignment of such policy does not amount to a waiver of the condition as to assignment, as the agents are beneficiaries under the policy, and can not bind the company by their acts.</p>

<p> Appeal from Superior Court, Pierce County. </p> <p>Tlie facts are fully stated in tlie opinion.</p>

Action by Frank Morley against H. E. Morgan, for damages for injuries due to defendant’s negligence in constructing, maintaining and operating a certain wharf in and upon Tyler street, in the city of Port Townsend, State of Washington.

Action by John W. Wentworth against the Installment Building & Loan Company to foreclose a mechanics’ lien. Defendant answered by general denial, s/ 'ing up also the insufficiency of the lien notice, and plaintiff’s failure to complete his contract, and setting out its counter claim for damages. Plaintiff filed his reply, admitting the contract substantially as alleged in defendant’s answer, but denying generally all other allegations.

Action to foreclose a mechanic’s lien claimed by plaintiff upon a certain building in the city of Seattle, State of Washington, known as the Winehill building. Theplaint-iff was a subcontractor under the defendants Charles E,. Brown and Isaac Percival, who were contractors with Gus-tave Winehill and Henrietta Winehill, the owners of said building, for the erection thereof.

This was an action originally brought by Caroline Ball, personally, and as guardian of her infant children, together with J. F. Terry and J. B. Alexander, Jr., as co-plaintiffs, against Harrison Clothier and J. E. Smith, administrators of the estate of Jesse B. Ball, deceased, the husband of said Caroline, and J. E. Millett and Charles yon Pressentin, as defendants, to set aside and vacate the sale of the land of said intestate, made under the order of the probate court by…

Action by Griffith Davies against the defendants to have a deed from the Territory of Washington to Thaddeus Hanford adjudged not to affect the title of certain premises, and to have a deed from- Thaddeus Hanford to Frank Hanford covering said premises decreed void, and that defendants be enjoined from setting up any claim of title under said deeds. The trial court made the following findings of facts: • “1.

<p> Certified from Superior Court, Pierce Coimty. </p>

<p> Appeal from District Court, Asotin County. </p>

<p>COSTS — EIGHT TO COSTS IN CONDEMNATION PROCEEDINGS.</p> <p>Defendant constructed its railroad on plaintiff’s land without any proceedings to acquire title. Plaintiff procured the appointment of householders, who appraised his damages at §1,425. Defendant elected to have the case tried, which was done, a verdict being returned for $1,000. On appeal, a new trial was ordered, on which a verdict for $1,000 was again rendered. Defendant then moved for judgment for costs and disbursements, amounting to $306. No offer to compensate plaintiff or to pay either of the awards was ever made. Code Wash. T., § 2475, provides that costs are to be taxed against the corporation only when the verdict and judgment are for a larger amount than the householders awarded, or the case has been tried at the instance of the corporation to reduce the award, and it is not reduced; otherwise costs shall be taxed against the land owner. On the particular facts of the case, held, that plaintiff was entitled to costs and disbursements, including $15 attorney’s fees.</p>

<p> Appeal from District Court, Garfield County. </p>

<p> Appeal from District Court, Whitman County. </p>

Action before a justice of the peace by William C. Bell against A. L. McCoy and Con O’Brien, copartners doing business under the firm name of McCoy & O’Brien. The justice rendered judgment for plaintiff, which was affirmed by the district court, on certiorari. Defendants bring error.

<p> Appeal from District Court, Whitman County. </p> <p>Action by David Marsh against John B. Standley to recover indemnity for a judgment obtained against plaintiff as sheriff. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from District Court, Asotin County.</p>

Action by Yan Burén Clark against Lincoln County for personal injuries sustained by stepping upon an alleged defective sidewalk. A demurrer to the complaint was sustained, and plaintiff appeals.

<p> Appeal from, District Court, Walla Walla County. </p> <p>Action by tbe Walla Walla Printing & Publishing Company against Daniel Stewart to recover unpaid installments on subscriptions to capital stock. Yerdict and judgment for plaintiff, and defendant appeals.</p>

Action by George Dacres against the Oregon Nail way & Navigation Company for damages for the killing of stock. Judgment for defendant, and plaintiff appeals.

<p>COUNTIES — COUNTY COMMISSIONERS — EXPENSES OP TAX LIST— CONTRACT— CAUSE OP ACTION.</p> <p>Code Wash, T., § 2673, subds. 5, 6, authorizes the county commissioners to allow accounts chargeable against the county not otherwise provided for, and to have the care of county property and management of county funds and business. Held, that they could make a contract to pay five per cent, for making a tax list of all delinquent taxes in a county.</p> <p>The contract being to pay five per cent, on the total amount of the tax-list, and the list being made and presented, and the board having made an order that five per cent, of the delinquent taxes be paid on the contract as collected, a cause of action arises immediately against the county, under Code Wash. T., § 2695, such order being a substantial disallowance of plaintiff’s claims.</p>

<p> Error to District Court, Whitman County. </p> <p>Replevin brought by F. M. Wade against David Marsh to recover possession of a stock of goods. Judgment for plaintiff, and defendant brings error.</p>

<p> Error to District Court, Lincoln County. </p>

<p>RUBLIC LANDS — ENTRIES-REPLEVIN.</p> <p>An entry upon inclosed and improved land occupied and claimed under a certificate from a railroad company is not authorized by 23 U. S. St. at Large, 321, forbidding the fencing of public land, or preventing settlement thereon, but the person so entering is a naked trespasser.</p> <p>In replevin for hay which plaintiff claims by reason of his alleged ownership of the land on which it was grown, and of which defendant has possession, the title to the land may be inquired into.</p>

<p>PUBLIC LANDS — ENTRY ON COAL LANDS — PUBLIC POLICY — PLEADINGS — CURED BY "VERDICT.</p> <p>When a person has entered as much coal land as the statutes of the United States permit, a contract whereby another person is to enter additional coal land, obtain the title, and then convey it to the first, is contrary to public policy.</p> <p>After verdict, when no motion has been made to make more definite and certain, the pleadings will be liberally construed to sustain the judgment.</p>

<p> Appeal from District Court, Kittitas County. </p>

<p>WATER-COURSES —APPROPRIATION — ESTOPPEL — PUBLIC LANDS.</p> <p>Water-courses on the public lands of the United States are subject to appropriation by use in accordance with local customs and laws; and vested rights so acquired can not be divested by relation back of a patent granted to one who had preempted the land through which the water-course passes, and who did not make final proof until after such appropriation had been made.</p> <p>One who is present and aids in the appropriation of a watercourse, and afterwards sells his interest in the water-rights so acquired, is estopped from asserting any claim to such water-rights under a patent afterwards obtained by him as a preemptor of the land through which the water-course passes.</p>

<p> Fh-ror to District Court, Spokane County. </p> <p>Action by William Glassford against H. M. McCartney, H. D. Sanborn, and L. H. Burton, copartners, to recover damages for alleged breach of a written contract. Plaintiff obtained a verdict and judgment. Defendants bring error.</p>

<p> Appeal from District Court, Yakima County. </p>

<p>HOjMICIDE — DYING- DECLARATIONS — CHARACTER.</p> <p>When, in a trial for murder, the dying declarations of the deceased are offered in evidence, and a preliminary examination is made to determine whether such declarations were made by the deceased in view of speedy death, the extent of such preliminary hearing is within the discretion of the trial court, and reviewable only when it appears that such discretion has been abused.</p> <p>Evidence of the good character of the defendant is always admissible in a criminal case; and, if it is sufficient to raise a reasonable doubt in the minds of the jury as to the guilt of the accused, it is their duty to acquit.</p>

<p> Appeal from District Court, Kittitas Coionty. </p> <p>Action by George W. Parrish against S. R. Geddis to enjoin the obstruction of an irrigating ditch. Judgment for plaintiff, and defendant appeals.</p>

<p>EJECTMENT — PUBLIC LAND «BANTS — ALIENS.</p> <p>Where plaintiff is not, and defendant is, in possession of land claimed by the former, the proper form of remedy is ejectment.</p> <p>Organic act Or., g 1, provided “that the title to the land, not exceeding 640 acres, now occupied as missionary stations among the Indian tribes of said territory, together with the improvements thereon, be confirmed and established in the several religious societies to which said missionary stations, respectively, belong.” Held, That the grant was confined to land occupied as a mission station, and to not exceeding 640 acres, including improvements. If, in anj-ease, there was no land so occupied, no land was granted; if less than 640 acres was so occupied, then only the less quantity was granted.</p> <p>The purpose of the grant, as shown by the history of the time, was to encourage settlement in that territory by American settlers, and to reward them for overcoming British occupation, and not to grant land to British subjects, nor to foreigners, nor to those acting under the Hudson Bay Company.</p>

<p>MASTER AND SERVANT — NEGLIGENCE—PLEADING—EVIDENCE.</p> <p>The plaintiff, with others, was employed as a laborer by the defendant in “surfacing” defendant’s track. While being taken to his work by a gravel train furnished for that purpose by defendant, the plaintiff was injured by a collision with a “wild train” in charge of defendant’s servants. The gravel train was on its regular time, and the “ wild train ” had orders to flag it. The rules of the defendant company required the person flagging to be three-fourths of a mile ahead of the flagging train, but the “wild train” followed within four hundred feet of its flagman, whose signal, by reason of a curve in the road, could not be seen by the gravel train till upon it. The engine of the wild train was so disabled that it could not be quickly started or stopped. These facts being undisputed, an instruction to the jury that it was gross negligence for the wild train to be where it was when the collision occurred, was not error, as the facts, undisputed, are such as to enable the court to say, as a matter of law, that they constitute negligence. (Allyht, J., dissenting.)</p> <p>Under the facts stated, the conductor and engineer of the wild train were not fellow-servants of the workman on the gravel train, or engaged in the same common employment.</p> <p>The burden of proving contributory negligence rests upon the defendant.</p> <p>Evidence of the defects of the engine was admissible, under the complaint, which alleged, generally, that the collision was caused by defendant’s gross negligence, and though the allegations were not broad enough to cover it, its admission would be no ground of exception under Code Wash. T., <¡> 105.</p> <p>Under the allegations that plaintiff was permanently disabled to-follow his occupation, and rendered unable to earn a livelihood, evidence of his prior occupation and wages is admissible, and, though such allegations were not broad enough, the admission of the evidence would not be ground of exception under 105 of the code.</p>

<p> Appeal from, District Gourt, Spokane County. </p> <p>Action by the Spokane Manufacturing & Lumber Company against J. McCbesney, W. E. Steele, and Peter Due-ber. Plaintiff appeals.</p> <p>The statute is remedial, and is to be liberally interpreted. 2 Jones, Liens, § 1556; Gale v. Blaikie, 129 Mass. 206; Hechmann v. Pinkney, 81N. Y. 211; Code Wash T., g 1981. The amount of a lien given directly to a subcontractor in no way depends on the state of account between owner and contractor. 2 Jones, Liens, § 1304, and cases cited. The lien continues for sixty days after ceasing to furnish materials. Code Wash. T., § 1961; Lonleeyv. Goole, 15Nev. 58; Hunter v. Truckee Lodge, 14 Nev. 24; Association v. Miller, 16 Nev. 327; Andis v. Davis, 63 Ind. 17; Clough v. McDonald, 18 Kan. 114; Laird v. Moonan, 32 Minn. 358, 362; Parker v. Bell, 7 Gray, 429, 432. The material-man is presumed to rely upon bis lien. 2 Jones, Liens, § 1284. The material was sold for the building and consequently to its owner. White v. Miller, 18 Pa. St. 54. The owner, to protect himself, must see the material-men and others are paid. 2 Jones, Liens, §£ 1290,1305; Code Wash. T., | 1966; Laird v. Moonan, 32 Minn. 358, 362; Ballou v. Black, 21 Nev. 131. Defendant “ is in privity of contract, by force of the statute,” with the material-man. Hobbs v. Spiegelberg, 3 N. Mes. 222; Barker v. Buell, 35 Ind. 297. Though the statute was borrowed from California, and at the time it was transcribed had received in that state a certain and settled construction, the courts of this territory are not bound by such construction, because it is absurd, and is not in harmony with the spirit and policy of the general legislation of the territory. Hunter v. Lodge, 14 Nev. 36; Code Wash. T., $ 1981. The statute stands on the same footing, and is subject to the same rules of construction as any other legislative enactment. End. Interp. St., § 371. The constitutionality of a similar statute was affirmed in Shellabarger v. Thayer, 15 Kan. 619; Laird v. Moonan, 32 Minn. 358, 362; Bohn v. McCarthy, 29 Minn. 23; O'Neil v. St. Olafs School, 26 Minn. 329.</p> <p>The statute, at the time of its adoption here, had received a uniform, settled and established construction. Benton v. Conley, 49 Cal. 188; Wells v. Cabin, 51 Cal. 423; Bowen v. Aubrey, 22 Cal. 571; McAlpin v. Duncan, 16 Cal. 127; Knowles v. Joost, 13 Cal. 621; Wiggins v. Bridge, 70 Cal. 437; McCants v. Bush, 70 Cal. 125; Todd v. De La Mott, 9 Colo. 222; Doggett v. Bellows, Cal., Mar. 26,1885, 6 Pac. Pep. 421; Whittier v. Hollister, 64 Cal. 283; Whittier v. Wilbur, 48 Cal. 175; Rosenkranz v. Wagner, 62 Cal. 151. And this construction is approved in Phil. Mech. Liens, § 62b; McKnight v. Washington, 8 W. Ya., 666; Jensen v. Broivn, 2 Colo. 694; Mclntire v. Barnes, 4 Colo. 288; Stewart v. Wright, 52 Iowa, 385; Hooker v. New Haven, etc., Go., 14 Conn. 146; Parrish v. Christopher (Ky., March 24, 1887), 3 S. W. Pep. 603; Shields v. Morrow, 51 Tex:. 393; Horan v. Frank, Id. 401; Loonie v. Frank, Id. 406; Schultz v. Hay, 62 Ill. 157; Rothgerber v. Dupuy, 64 Ill. 452; Pike v. Irwin, 1 Sandf. 14; Lumber Go. v. Osborn, 72 Iowa, 472; Pennock v. Dialogue, by Story, J., 2 Pet. 1; Oathcart v. Robinson, by Marshall, 0. J., 5 Pet. 264; Bank v. U. S., Strong, J., 19 Wall. 227; McDonald v. Hovey, Bradley, J., 110 U. S. 619; Com. v. Hartnett, 3, Gray, 450; Bemis v. Becker, 1 Kan. 226; Poertner v. Russel, 33 Wis. 193; Elclridge v. Kuehl, 27 Iowa, 160; Pang-born v. Westlake, 36 Iowa, 546; Streeter v. People, 69 Ill. 595; Gage v. Smith, 79 Ill. 219; Martin v. Judd, 81 Ill. 488; Attorney General v. Brunst, 3 Wis. 689; Campbell v. Qwinlin, 3 Scam. 288; Rigg v. Wilton, 13 Ill. 16; State v. Rowley, 12 Conn. 101; Ad.ams v. Field, 21 Yt. 265.</p> <p>The Minnesota cases are distinguishable. Bar dwell v. Anderson, Minn., Jan. 3, 1880, 4 N. W. Pep. 47. A statute is presumed to be framed and passed in view of settled rules of construction, which form a part of it. End. In-terp. St., §§ 8, 371; notes,' 1-3. This statute is to be strictly construed. Phil. Mech. Liens, §§ 17,18; Rupev. Association, 3 N. Mes. 312.</p>