Volume 1 — Washington Territory Reports

<p>An attachment is but an auxiliary proceeding under the laws of Washington Territory.</p> <p>A defective affidavit for attachment not cause for disturbing a judgment.</p> <p>Defective affidavit for attachment may be cured bysupiilemental affidavit.</p> <p>Defect in the record not materially affecting the merits not sufficient cause for setting aside judgment.</p>

<p>Error to the Third Judicial District holding terms at Steilacoom.</p>

<p>Trial of prisoner witliout entry of plea ground for reversing judgment.</p>

<p>At the September term 1854 of the District Court held at Port Townsend, Plaintiff in Error and an Indian named Jack, were found guilty of murder. By mistake of the Clerk, two sentences were entered against Jack — no judgment was entered against Plaintiff in Error. A warrant issued for the execution of Plaintiff in Error, pursuant to the unrecorded sentence of the Court. A supersedeas was granted by a Justice of the Supreme Court, and upon a hearing in the Supreme Court the supersedeas was made absolute.</p> <p>Error to the Third Judicial District holding terms at Port Townsend.</p>

<p>Error to the Second Judicial District holding terms at Olympia.</p>

<p>The general rule is, that statutes take immediate effect.</p> <p>Pending prosecutions fall with the repeal of criminal statutes.</p> <p>The act of Congress, Aug. 16,1856, limiting the times and places of holding District Courts in this Territory, is not an act affecting jurisdiction; but simply designating times and places for the exercise of jurisdiction; and until such designation of times and places, of holding the Courts, is made by the Judges of the Supreme Court, the laws of the Territory, on the subject, are controlling</p> <p>Does the VI amendment of the Federal Constitution apply to cases in Territorial Courts? Qtum'e.</p> <p>The act of the Territorial Legislature assigning Pierce County to the Second Judicial District, does not divest the prisoner of any constitutional right, nor does the fact, that the jury came from the body of the District instead of Pierce County; as such enlargement of venue is but an enlargement of Pierce County.</p> <p>An indictment charging murder, as at common law, is sufficient to sustain a verdict of murder in the first degree under our statutes.</p> <p>The peculiar circumstances distinguishing murder in the first degree, under-our statutes, need not be set out in an indictment.</p> <p>In case of a statutory offense, unknown to the common law, an indictment should charge the offense to have been under the circumstances and with the intent mentioned in the statute; but even in such case, the exact words of the statute need not be followed, provided words of equivalent meaning be employed.</p> <p>The jury are to determine from the evidence the degree of the murder.</p> <p>If the record shows the jury were duly sworn, this shows a proper oath was administered.</p> <p>In this case the jury returned a “verdict of guilty as charged, and that he suffer death.” Held, sufficient to sustain a verdictfor murder in the first degree.</p> <p>If some counts in an indictment are good and some had, a verdict is presumed to he based on the good counts.</p> <p>A new trial should not he granted for newly discovered evidence, unless it is apparent to the Court that the evidence would alter the verdict.</p> <p>Courts have power to restrain counsel, so as to keep them within the proper limits of the law.</p> <p>It sufficiently appears, that the- prisoner was present when the verdict was rendered, and sentence passed.</p>

<p>Error to the Third Judicial District holding terms at Port Townsend.</p>

<p>Appeal from the Second Judicial District, holding terms at Olympia.</p>

<p>Essential facts must be alleged in the pleadings.</p> <p>A complaint against a corporation, upon a contract made with it, without any averment as to its incorporation, or the members of the company, is bad upon demurrer. Such defect may be cured by amendment; but when the defendant goes to trial, without exception, this Court, under the Code, will regard the pleading amended, as it might have been, in the Court below.</p> <p>The clause in the Civil Practice Act of 1854, providing that an action may be dismissed upon the trial — when the plaintiff fails to prove a sufficient cause to the jury, does not render the dismissal discretionary with the Court. In such case the words “ may he,” are equivalent to “ must be.”</p> <p>Where a party has once duly excepted to a ruling of the Court, it is not necessary to renew the exception in the motion for a new trial, oi in arrest of judgment in order to preserve it.</p> <p>The want of jurisdiction or the failure to state facts sufficient to constitute a cause of action, are never cured except by supplying the defect. Where it is made apparent to this Court that no cause of action exists, it should take action to dismiss.</p> <p>The object of the modern codes, is to enable courts to administer justice in such a manner, that a good cause may not be defeated by a legal quibble. Whether a writing offered in evidence, creates a contract, is a question of law, to be determined by the Court.</p> <p>A new trial should not be granted when apparent by the proofs, it would avail nothing.</p>

<p>A -letter containing an account, or otter statement of business transactions between tbe parties — rendered by one, to tbe other, and not objected to witbin a reasonable time, may be oifered in evidence for the purpose of establishing tbe matters contained in it; and when tbe genuineness of a written answer to such letter is made an issue in tbe case, tbe letter is also admissible, as a circumstance tending to show whether tbe answer be genuine or forged.</p>

<p>A decree of divorce is not subject to review, though there are proceedings in the suit that may be reviewed in this Court.</p> <p>The provisions in the Practice Act, requiring in case of waiver of jury trial, that the Court render its decision in writing, stating conclusions of fact and law separately, does not apply to suits for divorce.</p> <p>This Court will not review the decision of the lower Court, upon facts, further than it would the verdict of a jury.</p> <p>The action of the District Court requiring the husband to pay the wife’s . counsel fees, and decreeing a certain sum of money — into the hands of a a trustee, who was to pay its interest to the wife, at intervals, during her life, and upon her death allow the principal to revert to the husband — is sanctioned by the divorce act.</p> <p>No binding order can be made upon a person in nowise made a party to the suit.</p>

<p>If the record shows the empannelling of a grand jury null and void, an indictment returned by it is a nullity, and the Court should stay proceedings so soon as its attention is directed thereto.</p> <p>Irregularities having occurred in the selection of a grand jury, by an order of the Court it was discharged, and the* sheriff directed to summon sixteen qualified grand jurors from the bystanders; held that such order was authorized by section 7, act of January 36,1857, and that a selection of such jurors was a compliance with the statute.</p> <p>As preliminary to the introduction of admissions of a prisoner, the public are not compelled to show that the whole conversation in which it was made, is recollected by the witness. Cross examination affords the means of obtaining a full statement.</p> <p>This Court will not review erroneous instructions upon mere abstract principles of law.</p> <p>The bill of exceptions must show, whether instructions given or refused, were pertinent to the case, in order for this Court to examine them.</p> <p>There is no evidence tending to show a state of war, in anywise affecting this case.'</p>

<p>Under an indictment for a crime of high- grade, a verdict may be rendered for a crime of a lower degree, necessarily contained in the offense charged.</p> <p>If objection be not taken, to a juror, at the time of empannelling the jury, the same is waived.</p> <p>A resident of this Territory, two years absent, with a fixed purpose however of returning, does not thereby lose his residence. The circumstances of such person voting in another state, at a Presidential election, would not establish his residence out of the Territory, against his sworn statements of residence here and his unchanged intention of returning.</p> <p>The ruling of this Court in the case of Yelm Jim vs. Washington Territory, relative to the organization of a grand jury, affirmed.</p>

<p>A motion in arrest of judgment, made, and afterwards waived in the lower Court, cannot he considered in this Court.</p>

<p>The amount claimed, and not that recovered, is the test, hy which the jurisdiction of a Justice of the Peace is determined.</p> <p>The term costs, is used in section 369, page 202, laws of 1854, in a popular sense, and not limited to costs “to he allowed to a party,” as provided-in section of the practice act of 1854.</p>

<p>Error to the District Court holding terms for Pierce county.</p>

<p>The District Court has no jurisdiction, even with consent of parties, to enter, ’ as of a past term, a decree rendered at Chambers, in vacation.</p> <p>The code provides for no such judgment.</p>

<p>Under the statutory regulations, authorized hy the Organic Act, an appeal lies to this Court, only in those cases, specified in section 356, page 199, laws of 1854.</p> <p>If the record of the lower Court, fails to show a compliance with the statutory requirements in such cases, this Court is without jurisdiction to entertain the appeal.</p>

<p>It is as imperative upon a steamship navigating Puget Sound, as like vessels navigating the seas, to observe the rules established by the Board of Inspectors, under the act of Congress of August 30,1852.</p> <p>The failure of a steamship to exhibit the required lights, when approaching another steamship, complying with the law, in this respect, does not excuse the latter from faults contributing to a collision.</p> <p>A steam vessel without lights is in fault, if she fails to govern her movements in accordance with the lawfully presented lights of an approaching steamer.</p> <p>When a collision is the result of mutual faults, damages and costs should he equally apportioned.</p>

<p>Appearance and filing of demurrer cures defects in service of process.</p> <p>A party in Court must take notice of all orders of the Court in the case, and pleadings filed pursuant thereto.</p> <p>When the Court directs the amendment of a pleading, copy need not be served unless the Court so orders.</p> <p>If defendant demurs to a complaint, and the Court orders that the complaint be amended, such ruling is in effect a sustaining of the demurrer.</p> <p>The members of the Court do not agree as to whether the count for destruction of a building, may be joined with counts upon contract.</p> <p>Acceptance of lumber, under a special contract, precludes a defense ^f its unmerchantable character, or of its being different from that contracted for.</p> <p>An erroneous ruling upon an attachment, will not affect a judgment rendered upon the merits.</p> <p>The memory may be refreshed by a bill of particulars, in the hand-writing of the witness, and the loss of a writing being proved, the witness may testify as to its contents.</p> <p>A claim, in which a stranger to the suit is interested, is not a proper subject of set off.</p> <p>A mere voluntary payment of the debt of another, does not create a cause of action in favor of the party so paying.</p> <p>This Court will not set aside the verdict of a jury, unless it appears there was no evidence to sustain it. »</p>

<p>From the time a person enters into possession of public land in this Territory in pursuance of the pre-emption law, whether the same be surveyed or not, such person is entitled to the protection of the Court in his possession.</p> <p>By affording such protection the Courts do not encroach upon the jurisdiction of the land department of the government. In such cases the Court will not decide questions arising out of conflicting boundaries — priority of settlement, or other questions properly belonging to the land office, but they will protect actual possession, and if need be protect from waste or irreparable injury, by injunction.</p> <p>In this case the jury finding in favor of the plaintiff for the possession of the whole of the premises, the Court was unwilling to grant a writ of restitution, unless the plaintiff would concede to defendant the possession of a sufficient part thereof to enable him to preserve his rights as a claimant before the land office.</p>

<p>Appeal from the Second Judieial District, holding terms at Olympia.</p>

<p>A sheriff may he compelled to perfect a defective return, but the Court has no power to compel him to alter a return regular upon its face.</p> <p>If a sheriff make a false return, the party injured thereby, has his action against the sheriff for damage.</p> <p>Doubtless, to prevent surprise or injustice, the Court, on a proper showing, might stay proceedings, in such case.</p>

<p>Appeal from the Second Judicial District.</p>

<p>Error* to the District Court holding terms for Pierce county.</p>

<p>Error to the Second Judicial District holding, terms for Pierce county.</p>

<p>Ebeoe to the Senond Judicial District for Lewis county.</p>

<p>The record showing a jury trial — a motion for new trial overruled, with the following entry, “Whereupon the Court orders that plaintiff pay the costs of suit, and that execution issue therefor.” Held a valid judgment.</p> <p>Amount of costs need not be stated in the judgment, but may be taxed by the clerk from his records and papers on file.</p>

<p>Matters of defense must be stated, specially.</p> <p>Due diligence must be shown to entitle a parly to a continuance.</p> <p>The judgment upon a note, payable on demand, with interest at three per cent, per month, cannot bear a higher than the legal rate of six per cent.</p>

Thé organic act requires that the Supreme Court be held at the seat of government of the Territory. The December term, 1861, convened at Olympia. A plea in abatement of a writ of error was interposed, on the ground that since the passage of the act of Dec. 11, 1860, set out in the opinion, Vancouver had become the seat of government.

<p>Error to the Second Judicial District.</p>

<p>Error to the Third Judicial District.</p>

<p>A party is not entitled to have alleged errors, occurring on the trial, reviewed by this Court unless excepted to, at the time of the ruling.</p> <p>The defendant, a mere intruder, having had the use of property, held by plaintiff under color of title, is liable to plaintiff for such use. The fact that plaintiff’s title is defective is no defense.</p>

<p>Error to the Second Judicial District.</p>

<p>Appeal from the Third Judicial District.</p>

<p>Appeal from the District Court of Pierce County.</p>

<p>Appeal from the District Court of Lewis County.</p>

<p>Appeal from District Court for Lewis County.</p>

<p>Error to tbe First Judicial Districts.</p>

<p>Doctrine of last case, in affirming judgment of Court below by production of transcript by defendant in error, sustained.</p>

<p>Pleadings under the code are not to be subjected to rules of tbe old system of pleading.</p> <p>Amendments in pleading should be liberally allowed, in appeals from jus- • tices of the peace, if the issue tried in the Justice Court, be not made different thereby. However, under Sec. 53, page 249, laws 1859-60, amendments should be allowed in the discretion of the Court to promote the ends of substantial justice, and the refusal to allow such amendment would be error.</p> <p>Such proposed amendment of pleading must be made clearly to appear to this Court before it will review the action of the District Court refusing to allow the same.</p> <p>An erroneous ruling that works no prejudice to the party, not cause for new trial.</p> <p>If costs have been improperly taxed, the remedy is by re-taxation in the District Court.</p>

<p>Dower of the common law, is recognized by the laws of this Territory. Same to be assigned by the rules of the common law.</p> <p>Dower extends to donation claims. The reserved right of eminent domain does not defeat the right of dower therein.</p> <p>Withholding dower entitles the claimant to damages.</p> <p>No statutory method of admeasuring such damages being prescribed, that adopted by the lower court approved.</p>

<p>If a portion of a complaint is defective, such defect must be reached by a special demurrer, and not by a general demurrer to the whole complaint.</p>

<p>The homicide, being on an Indian reservation, is within federal jurisdiction, and the rules of the common law govern.</p> <p>In capital cases presumptions are not made in-favor of the regularity of the proceedings.</p> <p>The record in this case does not show the -prisoner was in Court, when the verdict of the jury was rendered, nor does it show what disposition was made of the jury, in the adjournment from one day until the next, during the trial.</p> <p>Wyche, J., dissenting, decides that by fair intendment and necessary implication the record is sufficient in the foregoing particulars.</p>

<p>Error to First Judicial District.</p>

<p>Error to Eirst Judicial Distriet;</p>

<p>Error to Second Judicial District.</p>

<p>Error to First Judicial District.</p>

<p>There is no record evidence in this case showing error in the Court below.</p>

<p>The terms of the treaty of 1864, between the United States and Great Britain as affecting the rights of the Puget Sound Agricultural Company, are discussed in the argument of this cause, but not considered by the Court.</p> <p>Whether the right of the United States to demand possession accrued upon the ratification and proclamation of the treaty, or whether this right arises only after the amount that may be found due the Company shall have been ascertained by the Commissioners and paid, would be a question to be considered were the United States here asserting their rights ; and whatever the law may be as between the United States and the Company, does not concern Lucas unless he is authorized to assert the rights of the government, or in some way connect his rights with the rights of the government.</p> <p>Boberts had possession, and that is good against Lucas, unless he shows some better title, which does not appear in this case.</p>

<p>The Board of Trustees of Olympia had the right to vacate the alley in block 13, upon a petition of all the lot owners in said block, and upon a compliance of the requirements of the Statute.</p> <p>Upon a vacation of the alley, under both the common and the statute law, the fee to the soil of the same vests in equal proportions in the owners of lote abutting on both sides of the alley, but if a different disposition was made by the ordinance, upon a petition of all the lot-holders, then these lot-holders and their grantees are estopped from setting up any right in contravention of said ordinance.</p> <p>By the acts of the lot owners, seven feet from off the lots fronting on Main street have been dedicated to the public, and the trustees had the power to make the replatting of block No. 13, in this case, and after this was done, and rights acquired under this replatting, the owners of lots who petitioned for this replatting and their grantees are estopped from questioning rights so acquired.</p> <p>The action under out statute to recover the possession of real estate, not an action to try merely the abstract legal fee to the soil, but to determine who is entitled to the possession and, therefore, the holder of the naked fee may not recover possession, if by his acts the equitable title be in the adverse party.</p> <p>The ordinance of March 3,1860, moved the west half of block No. 13 seven feet eastward, and the lines and corners of the block moved with the block, and all lines and corners mentioned in deeds subsequent to the change of the block will be considered the lines and corners fixed by the ordinance, and not as they formerly existed.</p> <p>And so in this case, beginning the measurements of the parties from the corners as fixed by the ordinance, and there is no conflict in the description of their several deeds, and no part of the land conveyed in one deed is conveyed in the other.</p> <p>The power of Municipal Corporations, to be strictly construed and closely pursued, but within the scope of their authority, their ordinances have the force of statutes, and all persons to be affected thereby must take notice of the same, and so the parties here are charged with notice of the ordinance, and take their righfe under their deeds, charged with the legal and equitable rights flowing from the ordinance.</p>

<p>Error to Third Judicial District.</p>

<p>Section 338, page 154, statutes of 1863, construed with reference to the right of the adverse party to be examined as a witness when the “ assignor of a thing in action or contract” has been so examined.</p> <p>Whoever transfers an estate is an assignor, whether the estate be real or personal property,-and whether the assignment he by deed or parol, and' hence the vendor in a quit claim deed an assignor.</p> <p>A thing in action, is something of which a man has not the actual possession, but the right to demand possession by action, or other proceeding.</p> <p>The vendor by quit claim deed of the right to take water from off the land of another, which right was not reduced to possession, and where the vendor had no legal title to such right, but claims only under a contract giving him the equitable right, an assignor under Section 338 of the Statute.</p> <p>The vendor in such a case having no legal fee to convey, the quit claim deed, not an executed conveyance, but an executory contract, and the Court will give it effect in the last capacity, and the vendor in such a case the assignor of a right resting in contract under Section 338.</p> <p>The assignee can take only such interest as the assignor has to convey, and in this case the only right Roberts, the vendor, had was to demand the possession and enjoynjent of this water right, and a legal conveyance of the same, and hence his assignees, the plaintiffs, could assert no other right in this case.</p>

<p>Error to Second Judicial District.</p>

<p>Error to Second Judicial District.</p>

<p>Error to Third Judicial District.</p>

<p>The trial of a cause by a court of competent jurisdiction not reviewáble on writ of habeas corpus.</p>

<p>Error to Third Judicial District.</p>

<p>Error to the First Judicial District.</p>

<p>Error to Second Judicial District.</p>

<p>A brought suit against B for damage done his crops by cattle of B. Upon the trial, it being disclosed, that Chad an interest in the crops, the Court summarily dismissed the action, because of the non-joinder of C. Held, The Court erred in so doing; that the interest of C might be consistent with right of A to recover for the trespass and at most could only operate as a partial failure of proof.</p>

<p>Error to the District Court holding terms at Seattle.</p>

<p>Appeal from the District Court holding terms at Olympia.</p>

<p>Error to the District Court for King County.</p>

<p>In an action of damages for a malicious arrest and prosecution, the plaintiff cannot be asked to state tbe amount of damages be sustained by reason of the alleged tort. It is for the witness to state facts, and the jury to estimate the damages.</p> <p>If the complaint does not show the proceeding upon which the prosecution was based and the arrest had terminated favorably to the party bringing the suit for damages, it fails to state facts sufficient to constitute a cause of action.</p> <p>In mitigation of damages, claimed for continued imprisonment, it may be shown the defendant refused to accept bail.</p>

<p>If parties do not treat on equal grounds, equity will interfere for the protection of the weaker.</p> <p>When a bargain is made by a person of strong mind, with one of weak mind, and, in a measure, under the control of the former, equity will modify the bargain, so far as is necessary for the protection of the weaker party; and for such purpose may rescind the contract.</p> <p>While equity grants relief to those who have thus been overreached, it exacts equity as the condition upon which relief is granted.</p>

<p>A covenant, made between citizens of Washington Territory, and a corporation, in the State of Oregon, not to run a steamboat or allow its machinery to be employed on any other boat in any of the waters of the States of Oregon or California and many of the navigable waters of this Territory, is void, on the ground that it is against public policy.</p> <p>A greater restraint cannot be imposed, than the interest to be protected requires.</p>

In this case Watts was indicted by the grand jury of the United States, for the crime of murder committed on San Juan Island, within the limits of the Third Judicial District, in the month of June, 1869. Both the defendant and deceased were citizens of the United States. At the time of the homicide, San Juan Island was claimed both by Great Britain and the United States.

<p>Jurisdiction of the Court over the person of a defendant cannot he questioned after appearance and pleading to the merits.</p> <p>When a plaintiff brings suit in replevin, gives bond, obtains possession of the property, and by the defendant giving bond, retakes the same, after which the plaintiff discontinues the replevin suit, Held, That the plaintiff is not estopped from bringing suit for damages, for breach of the replevin bond. Held, Also, that a complaint, alleging the above proceedings, a discontinuance of the suit, and damages, by reason of the . taking of the property, states facts sufficient to constitute a cause of action.</p> <p>Case of Boyer vs. Fowler, decided in this Court, commented upon.</p>

<p>Appeal from Third Judicial District, holding terms at Steilacoom.</p>

<p>The rule is general, that one partner cannot sue his co-partner in a court of law for a recovery upon an unsettled co-partnership indebtedness.</p> <p>A somewhat different rule obtained in Massachusetts, when courts of that state had no equity powers in matters of co-partnership.</p> <p>An act of the Legislative Assembly, destroying the distinctions between law and equity and prescribing a single form of action to establish and enforce private rights, is in violation of the Organic Act.</p> <p>The Organic Act plainly contemplates courts of law,.of chancery and of admiralty, with the modes of procedure that are peculiar to each respectively.</p> <p>By virtue of the ninth section of the Organic Act, the Supreme and District Court of this Territory, in- cases arising under the laws of the Territory, and constitution and laws of the United States, possess all the jurisdiction of Circuit and District Courts of the United States, and in the absence of any local system of practice, have no other system of procedure than such Courts; and hence, in the absence of a local equity system, the rules in equity adopted by the Supreme Court of the United States, are binding on the Territorial Courts when acting as Courts in chancery.</p>

<p>After tlie close of the next term of a District Court, subsequent to the one in which a judgment was rendered, the District Court has no power to grant relief from such judgment.</p> <p>The ruling of the District Court, on a motion to vacate a final judgment, or decision, is not itself a final judgment within the meaning of the code. Hence a writ of error will not lie to review the act of the District Court upon such motion.</p>

<p>Error to the Third Judicial District.</p>

<p>A verdict arrived at by a resort to the determination of chance or lot, is contrary to the Statute.</p> <p>Resorting to arithmetical average of the views of a jury by each juror writing the amount of the verdict, and dividing the aggregate amount by the number of jurors, and taking the quotient as the mediate views of the jury, is not an act of misconduct on the part of the jury, but a final verdict reached by such a process is a verdict arrived at by chance, and is such an act of misconduct on the part of the jury as should cause their verdict to be set aside.</p> <p>The word “chance,” as used in the Statute, is not one of technical meaning and was employed in a popular sense. As popularly understood, any. thing happens by chance to one, which was neither understandingly brought about by his act, nor pre-estimated by his understanding.,</p>

<p>An official bond with no penal sum named in it, but left in blank where the penally should be inserted, is a nullity.</p> <p>When the penal sum is not written in such bond, until after it has been signed and sealed by the sureties and passed from their control, for de_ livery, the sureties are not estopped from denying their liabilty, although the bond has been accepted without knowledge of the alteration-</p> <p>Pleadings in the case criticised.</p> <p>An alteration of an instrument under seal, after delivery has been consummated, avoids the instrument.</p> <p>An alteration of a deed should be sanctioned by the same acts, as are required in the execution and delivery of the original instrument.</p> <p>Alterations in a deed, after it has been signed and sealed, and placed beyond the control of the maker, for delivery, but before the same has been delivered, renders the deed void, as against the maker, unless he afterwards in due form assents to such delivery.</p> <p>Alterations in a deed after the same has been executed, but. before it has left ■ the control of the grantor for delivery, do not avoid the deed, the grantor, being estopped from denying its validity as altered.</p> <p>Authorities to the effect that a sealed, like an unsealed instrument, may, until delivery, be altered by parol authority, reviewed, and shown to be a departure from the ancient and generally accepted current of the law.</p> <p>A rule like that of caveat mvgtor applies in the case of one who accepts a sealed instrument — he must assure himself of its validity.</p> <p>The leaning of the law being in favor of sureties their contracts are strictly construed.</p> <p>Whether the people appoint a ministerial officer, or judicial tribunal agentj to accept an official bond, the quality and effect of the acceptance is the same, as in other cases..</p>

<p>Error to tbe Second. District.</p>

<p>Error to Third Judicial District.</p>

<p>Under the practice act of 1869, a change of venue from one district to another cannot he demanded as a right, hut as a matter to be granted, or refused, in the exercise of sound judicial discretion.</p> <p>In case a sub-district is composed of more than one county, the court are of opinion, that the better construction of section 281, page 250,1 aws 1869, would require, upon proper motion and affidavit, the exclusion of jurors from the designated county. Such showing is not made in this case.</p> <p>The court was asked to instruct the jury to the effect, that where one of two combatants kills a third person, who interferes, without reasonable notice, to prevent one of the contestants from killing the other, such killing cannot be murder in first degree.</p> <p>Held, The refusal, so to instruct, was not error.</p> <p>The court properly refused to instruct the jury, that if, while two persons are engaged in fighting, a third person assaults one of the combatants, and is killed by him, such killing is no more than manslaughter.</p> <p>Insanity is a matter of independent defense and, as such, must be proven to the satisfaction of the jury, unless the facts upon which it is based are part of the res gestee.</p> <p>A mere blow inflicted upon defendant, nothing appearing to show its severity, or other physical consequence resulting from „it, is not evidence from which insanity may be inferred.</p>

<p>Notice of suing out writ of errorunder statutes of 1869,must be to the adverse party; such, notice directed to the attorney insufficient.</p> <p>Acknowledgment of sucfi notice, not good, unless it discloses time, place and manner of service.</p> <p>Imperfect endorsement of signature (“ J. D. M., for Deft.”) to said notice, may be made perfect by aid of tbe record.</p>

<p>Error to Second Judicial District holding terms at Vancouver.</p>

<p>Appeal from the Third District for King County.</p>

<p>A- losing party cannot be allowed to try bis cause over .again in a counter suit for tbe reason be was not prepared to meet bis adversary upon tbe trial of tbe first suit.</p>

<p>Error to the Third District holding terms at Port Townsend.</p>

<p>Error to Third District holding terms at Port Townsend.</p>

<p>Error to the District Court holding terms at Seattle.</p>

<p>The precipe must contain a particular description -of the .judgment to correct which the writ of error is sued out.</p>

<p>Where proceedings are instituted in the District Court, to compel the indi, vidual members of the board of county commissioners, to perform duties devolving upon them by law, not as a board, but as individual members thereof, the county is in no sense a party, and has no right to sue out a writ of error.</p>

<p>Error to Second District.</p>

<p>Where two or more persons have signed a promissory note jointly but'nothing- " appearing in the note to show whether as principals or sureties, it is competent for one of the parties to show, by extrinsic evidence, that he executed the note as surety, simply, and that the payee had knowledge of the fact.</p> <p>Such showing may be made in an action at law, especially under the practice adopted by our code.</p> <p>If the payee forbear suing the principal, after being requested thereto in' writing by the surety, as by section 582 of our code provided,, such delay will operate to the discharge of the surety.</p> <p>A verbal request to sue, on the part of the surety, is not sufficient. Fraudulent conduct on the part of the payee that lulls the surety into groundless confidence and prevents him from obtaining indemnity, is sufficient to discharge the surely.</p> <p>The payee must act in good faith towards the surety.</p>

<p>Error to Second Judicial District, holding terms at Vancouver.</p>

<p>lathis case, the summons not having been published for the time required by the order of publication, and there' being no evidence that a copy had been mailed to defendant, as by the order required, and the defendant having been defaulted before the time for answering had expired, it was held no jurisdiction was obtained of defendant, and the judgment rendered against him was void.</p>

<p>Motion to strike out assignment of errors..</p> <p>The manner of transferring eases to our Supreme court is entirely statutory. In the suing out of a writ of error, no assignment of errors can he made, except in the precipe.</p> <p>Neither in a civil nor criminal case does a writ of error, in fact, issue hut •upon taking the proceedings required hy statute — which are pointed out in the opinion — the writ of error is deemed to have issued.</p> <p>Opinion in case. It is not necessary in a case of; murder, that the records in the trial-court should show a copy of the indictment was served upon, the prisoner:</p> <p>The contents of the record in a case of felony at the common law, as well as of statutory law as administered in this country, enunciated.</p> <p>The sentence in a criminal case constitutes the final judgment.</p>

<p>Error to Second Judicial District.</p>

<p>Error to the Second District holding terms at Vancouver.</p>

<p>Error to Third Judicial District holding terms at Seattle.</p>

<p>This court will uphold a description of land approved by the Executive Department of the government, contained in the notice filed in the Surveyor General’s office, pursuant to Section 6, of the Donation Act, although the description he loose and somewhat indefinite.</p> <p>Ordinarily the issuance of patent is such a final decision of the Executive Department respecting title to the land patented, as will give the courts jurisdiction, and especially in favor of the party seeking to set it aside.</p> <p>A plaintiff, claiming title under the Donation Act, is not required to state in his complaint that the land claimed was not within one mile of a military post or reservation (Section 9.) If advantage is to be taken of this fact it must be by way of defense.</p> <p>Title to land cannot be acquired under the Donation Act, by virtue of settlement and cultivation subsequent to December 1850, without first making affidavit to the several requirements prescribed by Section 12 of that act.</p> <p>When the object of a_ complaint is to establish title under the Donation Act, and it does ncft show compliance with the several requirements enumerated in Section 12 of that act, it fails to state facts sufficient to constitute a cause of action.</p>

<p>Error to Third District for King County.</p>

<p>Error to the Third District holding terms at Seattle.</p>

<p>If a party, by an oral contract, sell a tract of land to another and tlie contract is so far consummated as to entitle his purchaser to a specific performance of the contract, and afterwards fraudulently conveys the land to a third party, such vendor is liable to the first purchaser in damages to the amount of the value of the land at the time of such fraudulent conveyance.</p> <p>Petition eor Re-hearing. Findings of fact, by tbe judge below, answer to a special verdict, while the conclusions of law are in the nature of a general verdict.</p> <p>Special findings of fact, being inconsistent with the general verdict, the former should control under our practice act; all the facts of a case, being before this court on appeal, it may render such judgment as the District court should have rendered. Such practice prevails in California.</p> <p>Taxation op Costs. When a judgment is affirmed as to one of the appellees, such appellee is entitled to recover costs to the extent of statutory attorney fee, and disbursements for brief against the appellant, but not against his sureties.</p>

<p>By accepting the fruits of a decree rendered in the District, court, a party is estopped from appealing from the decree, and the fact that all money received, excepting the statutory attorney fee, was afterward returned» does not change the doctrine.</p> <p>Such acceptance hy the attorney, as a general rnle, will he regarded as an acceptance hy his client.</p> <p>The receipt hy the attorney of a parly to a judgment given to the clerk df the District court, for money paid into the clerk’s office, in satisfaction of the judgment, and filed with the papers in the case wherein the judgment was rendered is, under Section - 435, Code 1873, one of “all matters pertaining to the case,” and hence, is properly sent to this court as a part of the transcript.</p>

<p>Error to the Third District, holding terms at Steilacoom.</p>

<p>Error to Third Judicial District.</p>

<p>When a notice of appeal is filed upon the Justice of the Peace, and- a copy thereof served upon the adverse party or his attorney, the aqypeal is taken; but in order to stay the proceedings, it is necessary to file a bond, and an entry of the allowance of appeal in the Justice docket.</p>

<p>Motion to dismiss writ of error.</p> <p>The term “civil action” in the code of 1869 included actions at law and suits in equity, and pleadings and proceedings, original and appellate, in both classes of cases were to be governed by its provisions.</p> <p>By the amended code of 1871 the distinction between law and equity was affirmed.</p> <p>Actions at law thereafter were to be regulated by the code, while the laws of the United States and the rules of the Supreme court thereof, were to control in equity cases, except to the limited extent pointed out in the code.</p> <p>The manner of appeal to this court was prescribed by its own rules, authorized by the code of 1871, while the time of appeal was fixed at two years by federal statute.</p> <p>While the right of appeal was yet subsisting in this case, the Territorial Legislature repealed the amended code of 1871, and adopted a new code. The latter code abolished all former methods of pleading and practice, and adopted one method of pleading and procedure for the enforcement of private rights and the redress of private wrongs, to be tested by the-rules of the new code. It also provided that the. review of all final-judgments of the District courts should be by writ of error.</p> <p>A writ of error, under the statutes of 1873, is not the beginning of a new action, but a proceeding in a pending action.</p> <p>An action is pending in the District court until the time for suing out a writ of error has elapsed.</p> <p>The time for appeal not having expired in this action, before the adoption of the code of 1873, the manner of review must be as prescribed in that code.</p> <p>Courts will give statutes a retrospective effect, if such be the obvious intent of the legislature, notwithstanding such construction may modify remedies, and give advantages to a party he did not before possess.</p> <p>The time for suing out a writ of error did not begin to run against the plaintiff, who was absent from the Territory, until he began to sue out the same.</p> <p>The writ of error need only be prosecuted in the name of the party aggrieved by the decision of the lower court.</p> <p>Opinion on merits,</p> <p>The Civil Practice Act of 1869 was radically amended by the Civil Practice Act of 1871; by Section twenty-one, of the latter act, all common-law-forms of action were abolished, but the distinctions between law and equity were in express terms preserved.</p> <p>Pleadings and proceedings in cases at law were to be regulated by the code, while all pleadings and proceedings in chancery suits were to be as prescribed by laws of the United States, and the rules of the Supreme ■court of the United States, so far modified, however, that sheriffs and ■their deputies might serve the writs of subpoena, and further, that service of process in suits in chancery might be had by publication under the provisions of the code, applicable to law cases, where not inconsistent with the Federal laws and the rules of the Supreme court of the United States.</p> <p>'The rules of the Supreme court of the United States based, upon the acts of Congress, prior to June, 1872, forbade the service of personal process by publication; hence the service of such process in a chancery suit by publication, upon a defendant out of the Territory, would be inconsistent with the laws of the United States and rules of the Supreme court of the United States, in force at the time of the adoption of the amended code of 1871. *</p> <p>The court incline to the opinion, that process could not be served by publication, since the passage of the act of Congress of June, 1872, authorizing service in given cases by publication, because our cbde only authorizes service by publication in chancery cases, not in conflict with the laws of the United States, and the rules of the Supreme court of the United States, in force at the date of the adoption of the code of 1871.</p> <p>The requirements of the act of Congress, of June, 1872, respecting service of personal process by publication pointed out.</p> <p>If it be conceded that service could be had by publication, the record in this case fails to show compliance with the requirements of said act of Congress, which are essentially different from those of the Territorial code.</p> <p>"Where the record shows that an absent defendant, against whom, or whose property, judgment was rendered, was served with process, by publication, it must also affirmatively show that he was duly cited to appear, as required by statute, and has been afforded an opportunity to be heard.</p> <p>The act of Congress, of June, 1872, not having specified how the proof of service, by publication, should be made, this court decides it proper to make the showing by affidavit.</p> <p>We have no statute, or rule of court, giving to a master in chancery authority to administer oaths in such cases.</p>

<p>Error to First Judicial District holding terms at Walla Walla. ,</p>

<p>There being no certificate showing the transcript contains all the evidence, introduced on the trial, in the court below, as required by Section 16, statutes 1875, page 34, this court has no jurisdiction except to dismiss the appeal, and does so of its own motion, upon discovering the want of jurisdiction.</p>

<p>Error to the Eirst Judicial District holding terms at Walla Walla.</p>

<p>A pro forma judgment cannot be recognized as a final judgment entitled to review in tliis court, unless the transcript contains the certificate prescribed in Section 18, page 25, laws 1815.</p>

<p>It devolves on the legislature (Sec. 9, Organic Act) to provide a mode in which the appellate power of this court is to be exercised.</p> <p>The statute of 1875 repealed prior laws relating to the review of cases in this court; and in Section 16, page 24, enacted that where a case was fried by the court it should be reviewed in this court upon the evidence introduced during the trial below, and specified how, in each case, the evidence was to be authenticated, and shown to be all the evidence introduced upon the trial below.</p> <p>'Unless it satisfactorily appears that the transcript contains all the-evidence introduced at the trial in the court below, this court is without jurisdiction and must dismiss the appeal.</p> <p>The ruling in the case of Light vs. Pincus &Packscher, at this term, affirmed.</p>

<p>While the power of a District court, during term, to direct the entry of a judgment, mine pro tune, is undoubted, an omission from the records in term-time cannot be supplied by the order of the judge in vacation, unless provision has been made for such action by statute, and it must appear on the faee of the records of his doings, that he acts within the statute.</p> <p>Such authority does not appear for entering "the judgment, mine pro tuna, by the judge in vacation in this ease, to have relation as of terms.</p> <p>The court intimate the opinion that the term “month,” occurring in the statutes when the contrary is not therein indicated means a lunar month as at common law.</p>

<p>Error to Third Judicial District holding terms at Seattle.</p>

<p>Admiralty jurisdiction is vested in tire District court of Washington Terrir tory.</p> <p>The word “ law ” defined.</p> <p>The phrase “ laws of the United States ” as employed in the Organic Act conferring jurisdiction upon the District courts, does not relate simply to statute law, but embraces all other rules of property and conduct in which the Supreme power exhibits, and according to which it exerts its governmental force; and by the phrase “laws of the Territory” occurring in the same grant of jurisdiction, is meant not alone the regulations and customs having the force of law in this Territory, but the laws which the Territory of Washington, considered as a political power, subordinate to the general government, has authority to administer as emanating from itself.</p> <p>Only those are to be regarded laws of the United States, which have the force of law, within the area of our Territory, either by virtue of provisions of the federal constitution, or direct federal enactment, or by promulgation of an authorized constitutional branch of the general government. All others are Territorial laws.</p> <p>The line of separation between state and national power, furnishes a reliable analogy between that of the nation and Washington Territory.</p> <p>Before the adoption of the federal constitution, admiralty and maritime law were necessarily local and territorial, but within the states of the union by the adoption of the constitution such law, and with it, its procedure, became a part of the laws of the United States.</p> <p>Law maritime and admiralty was in this Territory as a part of the law of the locality, when our Territorial government was erected, and was to be classed among the “laws of the Territory,” as the same existed throughout the States of the Union, to be administered in the federal courts, and classed among “the laws of the United States.”</p> <p>By the act of Congress creating the Territorial government, the federal laws not inapplicable (R. S., Section 1891,) were extended over chis Territory.</p> <p>The law admiralty as a federal law not being inapplicable, thus displaced, or merged within itself, the same law existing here as part of the law of the locality.</p> <p>The right and status of a married woman at common-law reviewed.</p> <p>A woman has certain inalienable personal rights that are not relinquished by marriage. Among these would be the right to contract for the safe transportation of her own body, and the right to sue for damage resulting from a breach of such contract.</p> <p>The objection that her husband joins her in such suit, cannot first be taken advantage of in this court.</p> <p>The husband with the wife’s consent might sue to recover in such an action.</p> <p>The name of a libellant unnecessarily inserted in a libel at a proper stage of the case should, if motion be made therefor, be stricken out, otherwise it will not be noticed.</p> <p>That a suit in rem in this case is proper, both principle and authorities con.. our; even if the action be deemed based on the quasi tort, upon principle and perlia/ps on the authorities, it would also be proper.</p> <p>The circumstance that the subject of transportation is. a person, instead of merchandise, should not alter the rule.</p> <p>There was no right of trial by jury in this case.</p> <p>A statement of the facts of the case.</p> <p>To warrant a reversal of the finding of facts, by the judge in the lower court, there should be such a preponderance against the finding as would justify the granting of a new trial in a court of common-law.</p> <p>The method of estimating the damage in this case set forth in the opinion.</p>

<p>Tile object of-the requirement of Section 7, of the Criminal Practice Act, that the accused “shall he tried at the next term after he was imprisoned” was to secure speedy trials and not to promote delay.</p> <p>One charged with a crime is entitled to a continuence only in case he make the showing therefor required in other cases.</p> <p>An application for continuance is a matter addressed to the sound discretion of the court.</p> <p>The panel of the petit jury having been discharged, the court below was authorized, under Section 8, page 401, laws 1863, to summon a jury to to try this case.</p> <p>Section 1, page 472, laws 1873, providing that all jury trials in the District court shall be within the first three weeks of the term, was repealed by Section 7, page 37, Acts 1875.</p> <p>Whether statements claimed to be dying declarations were such, is to be decided by the judge presiding at the trial., The showing upon which the dying declarations were made in this case are not disclosed in the record. The presumption therefore is, that such showing was sufficient.</p> <p>No error in the refusal of the lower court to strike out evidence.</p> <p>Statements of a witness, made out of court, cannot be offered in evidence to impeach his testimony, unless his attention be first directed to the time, place and person involved in the supposed contradiction.</p> <p>:This court will not review the action of the trial court in giving or refusing instructions, unless there be a bill of exceptions, showing the evidence to which the instructions pertain.</p> <p>■If the prisoner testifies upon the trial, he subjects himself to the rules controlling the examination of other witnesses.</p> <p>The provisions of chapter 1, page 20, laws 1875, respecting new trials, are not applicable to criminal cases.</p>

<p>A general statute does not repeal a prior special statute upon the same subject, unless expressly so stated in general acts, or unless the general act he in direct conflict with the special statute.</p> <p>The special act of the legislative assembly, passed January 81,1859, ineorating plaintiff in error, was not repealed by the general incorporation act of 1873.</p> <p>Plaintiff in error, if it so elects, may proceed to condemn land for its railway under the general statute.</p>

<p>A promissory note for the payment of a given sum of money at a fixed time, made payable in wheat at a given price per bushel, at a place stated, is payable in money or wheat at the election of the maker.</p> <p>The rulings and findings of the lower court approved.</p>

<p>A steamer was sold by a bill of sale containing tbe following clause: “And it is understood and agreed that this sale is upon this express condition, that said steamboat * * is not to be run upon any of the routes of-travel.</p> <p>Held, such- clause does not contain a covenant, but that the.same is a condition.</p> <p>There is no ambiguity latent or patent in the language made use of by the parties, in the bill of sale.</p> <p>In the absence of mistake, inadvertence, duress, or- some extraordinary state-of facts, which would have to be pleaded, words so explicit as.those employed in this contract, must be accepted as controlling.</p> <p>Surrounding facts should not be received to show the intent of the parties in such a case.</p>

<p>Error to First Judicial District holding terms at Walla Walla.</p>

<p>Whether the incorporation, of the City of Seattle under a special charter of the Territorial Legislature was authorized by law not passed upon; as by subsequent act of congress it is declared Section 1889, R. S., shall not be construed as prohibiting the legislatures of the Territories from creating towns or cities by special acts and prior territorial legislation of such character is thereby ratified and confirmed.</p> <p>Congress has power to so legislate.</p> <p>This act of Congress does not restrict Section 1934, R. S., which provides for the equality and uniformity of taxes — forbids discriminations in the assessment of different kinds of property, and requires all assessments to he according to valuation.</p> <p>The legislative grant of power, in the charter of the City of Seattle, is within the restrictions of Section 1924, E. S.</p> <p>A town or city in this Territory may make an assessment for a local improvement, a lien on the property benefited, to the extent of its value, but cannot make the tax a personal charge against the owner.</p> <p>The word “ assessment” in the Organic Act, is employed in a common and general sense.</p> <p>In this Territory, a town or city making a special assessment on property for street improvements, must apportion to each lot benefited, an assessment, bearing the same proportion to the ascertained cost of the improvement, as the value of such lot bears to the value of the property determined to be benefited by the improvement.</p> <p>The municipality must fix a method of determining such proportions and facts.</p> <p>The assessment in this case is neither uniform nor in accordance with the value of the property taxed.</p> <p>The ordinances regulating the assessments are inconsistent with the provisions of Section 1924, E. S., and void.</p>

<p>This ease rested upon the'question of mental capacity of Crosby, Sen., to intelligently and understandingly execute the note and mortgage sued upon, and the farther question of -imposition practiced upon Crosby in procuring the execution thereof.</p> <p>Justice Wingard finds nothing in the evidence to support the charges of imposition, and farther finds that 'Crosby fully comprehended the terms of •the mortgage sued upon; that he voluntarily executed it, and could not in honesty and fair dealing have done otherwise.</p> <p>Chief Justice Lewis finds, that from the effects of paralysis and advancing age, Crosby had been for some time previous to the execution of the mortgage in controversy, slowly but continuously becoming feebler of body and mind, but that he fully comprehended the terms and provisions'of'the mortgage and voluntarily executed the same.</p> <p>Justice Greene while not differing materially from the other justices in his view of the facts of the case, differed from them as follows in .conclusions of law:</p> <p>1. He finds the mortgage, sought to be foreclosed, essentially different from the mortgage it was given to correct in its conditions.</p> <p>2. He finds the description of property in the last mortgage different from the first.</p> <p>3. He finds from the condition of Crosby as disclosed by the evidence, that the burden of proof, as to mental capacity shifted upon plaintiff, and that plaintiff had failed to show that Crosby executed the mortgage with a knowledge of its contents, and an intelligent assent thereto.</p>

<p>One seeking to recover a larger rate of interest than the legal rate, must make certain that the language of his contract in that respect is clear and unmistakable.</p> <p>The court being unable to conclude with certainty, what was intended by the clause in the note set forth in the opinion respecting interest, and the same being repugnant to the rest of the instrument, is rejected in construing the note.</p>

<p>Error to Third Judicial District holding terms at Seattle.</p>

<p>Error to the Third Judicial District holding terms at Seattle.</p>

<p>The following endorsement, upon a mechanic’s lien, offered as evidence, showing a filing of the same for record as by law required: “Filed for record at 9 A. M., August 16th, 1877. Recorded page 205, book 6; records, Island county. Robert O. Hill, county auditor.” Held not in itself evidence of anything.</p> <p>Proof that such lien was handed to the auditor after office hours, with request to record, not sufficient proof that the same was recorded.</p>

<p>A motion for a new trial, because of insufficiency of evidence, or because the verdict is contrary to law, must be made upon the written statement required ‘by Section 582, Civil Practice Act; if no such statement be made, the exception to the ruling of the court, refusing a new trial, is void, and a bill of exceptions based thereon falls.</p>

<p>Error to the Third Judicial District holding terms at Seattle.</p>

<p>Error to Third Judicial District holding terms at Seattle.</p>

<p>Error to the Third Judicial District holding terms at Seattle.</p>

<p>The contract pleaded contains two mutual inter-dependent promises; the one being in consideration of the other, and conditional upon its performance.</p> <p>A contract to pass title to a chattel after payment of its purchase price is by the law regarded as if it read upon such payment. However, the promise on the one part cannot be enforced until that on the other part is performed.</p> <p>Where, without violence to its language, an agreement is open to two interpretations, the one fair to both parties, the other altogether favorable to one party, the former will be preferred.</p> <p>If the parties to a contract do not fix the time for its performance and the law cannot presume a time the contract is void for uncertainty in that respect.</p> <p>The court discuss the statute of frauds, as bearing upon this case, arid intimate an opinion that where a contract contains such mutual promises as are found in this case, and is signed only by the party suing upon it, the other party may successfully interpose the defense of the statute.</p> <p>The court hold the contract in suit is good, but that the complaint is bad, in that it fails to shows either a sale, or a tender.</p>

<p>Upon a proper showing made, new proofs may, on appeaP in an admiralty cause, be introduced in this court. The decision in Griffin vs. Nickels to t the contrary overruled.</p> <p>A deposition, to be used as evidence in an admiralty cause, may properly be taken before a notary public.</p> <p>The notice of ten days for the taking of the deposition herein was a reasonable notice.</p> <p>The statute of the United States providing for the taking of depositions is to be strictly construed. The certificate of the notary does not show that •the witness was duly cautioned as by the statute required.</p> <p>The opening of such deposition by the clerk of this court and placing the same on file without an order of the court precludes its .being received in evidence.</p>