12 Wash.

Volume 12 — Washington Reports

138 opinions

12 Wash. 1Freeman v. Ambrose (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 3Berry v. City of Tacoma (1895)
INJUNCTION—PUBLIC PRINTING—DISCRETION OP CITY COUNCIL. The refusal of a city council, in letting a contract for city printing, to consider any bid not made by the owner of a newspaper, when the law and the charter of the city impose no such restriction on bidders, is such an abuse of the discretion reposed in the council as to warrant the interference of the courts.
12 Wash. 7Krutz v. Robbins (1895)
MORTGAGES—INCREASE OF INTEREST ON DEFAULT — WHETHER ENFORCEABLE. An agreement in a note and mortgage securing it,, that, in case of default in the payment of any installment of interest, insurance premium, taxes, or the principal, the mortgagor will pay an increased rated of interest is in the nature of a penalty and is unenforceable in a suit for foreclosure.
12 Wash. 15Levy v. Fleischner, Mayer & Co. (1895)
WRONGFUL ATTACHMENT — PROBABLE CAUSE — ACTION ON BOND — DAMAGES. In an action on an attachment bond, under Code Proc., § 295, allowing exemplary damages in case the attachment had been maliciously sued out, the plaintiff is not entitled to damages by way of punishment, hut the term, “ exemplary damages,” must be construed as being in compensation for injury to reputation, feelings and other damage of that character, of an intangible nature. The fact that an attachment was sued out by the advice of attorneys to whom had been submitted all the facts in the case raises the presumption of reasonable cause for the action on the part of the attaching creditor, and, in such case there can be no recovery on the attachment bond even if the writ was wrongfully sued out. Under Code Proc., § 295, exemplary damages cannot be recovered in an action on an attachment bond, when actual damages are not recoverable.
12 Wash. 21Tacoma Grocery Co. v. Barlow (1895)
APPEAL—SUFFICIENCY OF EVIDENCE — OBJECTIONS NOT BAISED BELOW. When the insufficiency of the evidence to support the verdict of the jury has not been alleged as a ground for new trial in the motion therefor in the lower court, the objection cannot be urged on appeal.
12 Wash. 22Columbia & Puget Sound Railroad v. Braillard (1895)
 Appeal from Superior Court, King County.
12 Wash. 24Brick v. Adler (1895)
EXCEPTIONS TO FINDINGS — REVIEW ON. APPEAL. Under Laws 1893, p. Ill, where no exception is taken to the findings of fact made by the court, and they will support the judgment as rendered, such findings will not be reviewed on appeal, even if objection had been made at the trial to the introduction of the evidence upon which they are based. ■ ■
12 Wash. 27Sautter v. McDonald (1895)
MECHANICS’ LIENS — SUFFICIENCY OF CLAIM—VERIFICATION—MATERIALS FURNISHED CONTRACTOR. A verification of a claim of lien to the effect that the affiant believes the same to be true is equivalent to alleging that he believes the claim to be just. The employment of the term lien instead of claim, of lien, in referring to the claim in the verification thereof, will not render the verification insufficient. A contractual relation between the owner and contractors is sufficiently stated in a claim of lien by stating, after naming the owner, and that she caused a building to be erected, that certain persons named are the contractors for the construction of said building. Where it appears from a lien notice, construed as a whole, that certain persons were the contractors for the erection of .a building for the owner of certain premises, and that materials had been furnished to said contractors for such purpose, it is sufficient, although the language employed may not he direct and explicit.
12 Wash. 32Barlow v. City of Tacoma (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 34Spurlock v. Port Townsend Southern Railroad (1895)
 Appeal from, Superior Court, Thurston County.
12 Wash. 35Watson v. Sawyer (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 42Williams v. Geiger (1895)
PLEDGE — INTERMINGLING OP GOODS — PLEDGEES’ LIABILITY. Where a debtor has placed her creditor in possession of a stock of goods and store fixtures under an agreement that he should reconvey same, after selling from said stock a sufficient amount to pay the indebtedness, or would pay her for the same at the valuation fixed in an invoice, the creditor will be held to have elected to pay for the goods, when the evidence shows that he had commingled them with subsequent purchases in such a way as to make it impossible to identify them, and had sold an undivided interest in the entire stock to an incoming partner.
12 Wash. 45Doonan v. Morrison (1895)
 Appeal from Superior Court, Snohomish County.
12 Wash. 46Hooker v. McAllister (1895)
 Appeal from Superior Court, Klickitat County.
12 Wash. 53State v. Voorhies (1895)
CRIMINAL LAW — SEPARATION OE JURORS. Code Proc., § 1811, providing that “juries in criminal cases shall not be allowed to separate except by consent of the defendant and the prosecuting attorney,” is .only applicable to juries sworn to try a cause, and not to jurors sworn on their voir dire to answer touching their qualifications to serve, although they may have been passed for cause.
12 Wash. 59Koontz v. Kurtzman (1895)
 Appeal from Superior Court, Franklin County.
12 Wash. 61Mears v. Strobach (1895)
 Appeal from Superior Court, Spokane County.
12 Wash. 65Hannegan v. Roth (1895)
APPEAL — SUFFICIENCY OP EXCEPTIONS TO FINDINGS — DEATH OP PARTNER — RIGHTS IN PARTNERSHIP REALTY-ACTION BY SURVIVING PARTNER. The failure of appellants to properly except to the findings of fact and conclusions of law of the trial court is not ground for striking the statement of facts on appeal. A general exception to the findings of fact and conclusions of law filed by the trial court, without specifying any particular part or parts thereof as not justified by the evidence, is insufficient to warrant a review thereof on appeal, when some of the findings are manifestly correct. Upon the death of a partner in whose name partnership real property is held, the legal title descends to his heirs who take subject to the debts of the firm, and the interest of the surviving partner therein is merely an equitable one. There being no. survivorship of partnership real property, the legal title of which was in the name of a deceased partner, the surviving partner cannot maintain an action to quiet title thereto until he has acquired the legal title.
12 Wash. 71Bradley v. G. Gotzian & Co. (1895)
FRAUDULENT CONVEYANCES — CHATTEL MORTGAGE—CONSIDERATION — . APPLICATION OF PROCEEDS OF ATTACHMENT LEVIES. The fact that a bona fide creditor who has a mortgage upon the homestead of his debtor, which, under the law, is exempt from execution, releases such mortgage and takes a chattel mortgage upon the debtor’s stock of merchandise, will not render the transaction a fraudulent one, although its effect is to prevent other creditors from realizing on their claims. The proceeds of goods directed to be sold under attachment levies should be applied on the claims of attaching creditors in the order of their levy, and not pro rata.
12 Wash. 74Horton v. Haley (1895)
ESTOPPEL—RECITALS IN MORTGAGE — INDIVIDUAL LIABILITY OP CORPORATE TRUSTEES. The fact that the payee of a promissory note, which on its face binds the makers individually, subsequently accepts a mortgage upon corporate realty, executed by the same parties as trustees of a corporation to secure the payment of the note, will not estop the payee from enforcing the individual liability of the makers, although the mortgage recites that the loan was procured and the note given in behalf of the corporation.
12 Wash. 77State v. Myers (1895)
HOMICIDE — EVIDENCE — JUDICIAL COMMENT — INSTRUCTIONS — REASONABLE DOUBT — INSUFFICIENCY OF EVIDENCE. Upon the trial of a person charged with the crime of murder committed in the perpetration of arson, he is not entitled to introduce proof showing the whereabouts, at the time of the fire, of a certain person hostile to the accused, when neither such proof nor the other circumstances already in evidence tend to show the commission of the crime by such person. Where the court, in excluding as exhibits in evidence certain boxes filled with dirt in which appeared impressions made by the feet of horses, referred thereto as “manufactured testimony,” the language must be construed as applying to the manner in which the exhibits had been manufactured, and not to the course of the defense in conducting the cause. In a prosecution based upon circumstantial evidence a charge to the jury that “ the law, in order to warrant a conviction, does not require that you should be satisfied beyond a reasonable doubt of each link in the chain of circumstances relied upon to establish the defendant’s guilt. It is sufficient if, taking the testimony all together, you are satisfied beyond a reasonable doubt that the defendant is guilty,” is not misleading, as the expression “chain of circumstances,” as used therein, conveys the same idea as the expression “inculpatory facts.” The supreme court will not set aside a conviction on the ground of the insufficiency of the evidence, although the guilt of the accused may not have been made to appear absolutely certain, when the cause has been tried before two juries, each of different counties, with the same result, and the trial court has twice refused to interfere with the verdict.
12 Wash. 84Weir v. Rathbun (1895)
 Appeal from Superior Court, Thurston County.
12 Wash. 88Snively v. Matheson (1895)
 Appeal from Superior Court, Kittitas County.
12 Wash. 99Bailey v. Drake (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 101Peck v. Stanfield (1895)
SPECIFIC PERFORMANCE OF PAROL CONTRACT — STATUTE OF FRAUDS — APPEAL—BRIEFS—HARMLESS ERROR. A parol contract ior the conveyance of land is enforceable on the ground of part performance when .payment therefor has been made and valuable improvements placed upon the land by the purchaser although the purchaser had been in possession prior to the agreement, when it appears that such possession had been held conjointly with the vendor, and that the vendor had surrendered exclusive pos. session after the making of the agreement. Error relied upon for the reversal of a cause cannot be urged in appellant’s reply brief, when not urged in his opening brief. The introduction of incompetent evidence upon the trial of questions before a jury whose verdict is advisory only will not require a reversal, where there is enough competent evidence to warrant the findings of fact as made by the lower court.
12 Wash. 104Shumway v. Orchard (1895)
MORTGAGE FORECLOSURE — PERSONAL JUDGMENT. Under Code Proc., §§628, 630, the court is authorized, upon decreeing a foreclosure of a mortgage, to also direct the entry of a deficiency judgment, upon which execution may be levied against other property of the mortgagor for any balance due, when there is an express agreement to pay the sum of money secured by the mortgaged premises.
12 Wash. 108Pacific County ex rel. Lockwood v. Ellis (1895)
TAXATION — EXCESSIVE ASSESSMENT — REDUCTION BY COURT IN PROCEEDINGS TO COLLECT DELINQUENT TAXES. Where proceedings have been instituted under the statute of 1893 for the collection of delinquent taxes and, upon the trial of objections thereto by the owner of the land against which judgment for suc-h taxes is sought, it is found by the court that the tax levied was excessive and not uniform, the assessment cannot for that reason be declared null and void, but the court is authorized to modify the assessment according to the true valuation, and base its judgment for taxes thereon.
12 Wash. 112Irwin v. Olympia Water Works (1895)
 Appeal from Superior Court, Thurston County.
12 Wash. 118Puget Sound Brick, Tile & Terra Cotta Co v. School District No. 73 (1895)
 Appeal from Superior Court, King County.
12 Wash. 121Schmidt v. City of North Yakima (1895)
 Appeal from, Superior Court, Yakima County.
12 Wash. 135Rauh v. Scholl (1895)
SECONDARY EVIDENCE — WHEN ADMISSIBLE. In an action for the recovery of rents under a written lease to which defendants set up the defense that there had been a surrender of the lease under an oral agreement, it is error to permit the defendants to introduce in evidence a paper purporting to be a copy of a written assignment of the lease and a surrender of the premises by the defendants to plaintiffs, unless the pleadings are amended in that regard and proper foundation for the introduction of secondary evidence is laid.
12 Wash. 138California Safe Deposit & Trust Co. v. Cheney Electric Light, Telephone & Power Co. (1895)
 Appeal from, Superior Court, Spokane County.
12 Wash. 140Kleeb v. Bard (1895)
BONDS—ALTERATION BY INTERLINEATION — EVIDENCE—PLEADING — AMENDMENT OP—CHANGE OP CAUSE OP ACTION — DEPENSES OP SURETIES— DISCHARGE OP INJUNCTION BOND. Where a bond has been given conditioned that the obligors would fully perform and satisfy such judgment, as may be awarded in a certain cause, the interlineation of the words “and other costs,’’ constitutes only an immaterial alteration, as the costs are necessarily incident to judgment. In an action upon a bond, which, when offered in evidence, disclosed interlineation therein, its execution cannot be denied by defendants when their answer has admitted its execution with the interlined words therein, as they must be presumed to have known whether or not the bond pleaded was the one which they had signed. Where interlineations have been made in a written instrument the presumption is, until the contrary is made to appear, that they were made before the execution of the instrument, and the burden of proof as to the alteration is upon those who attack the instrument. Where, pending an action to enforce specific performance of a contract to execute a mortgage to secure the payment of certain promissory notes, the1 notes mature and become due and payable, the filing of a supplemental complaint by plaintiff asking for a money judgment does not so far change the cause of action as to release sureties upon a bond conditioned for payment “of any final judgment that may be rendered against the defendants,” which had been filed in the cause as originally instituted. The sureties upon a bond given to secure the satisfaction of any judgment that may be rendered in a certain action, cannot, in an action upon the bond, set up the defense that their liability had been increased through the dismissal of the original action as to one of the defendants, when such defendant is one of the principals in the bond. An order made by the trial court, without notice to plaintiff, discharging a bond which had been given by defendants to secure the vacation of a restraining order against the disposal of the property in controversy, is a nullity, and the plaintiff is entitled to an order for the reinstatement of the bond without notice to the obligors.
12 Wash. 149Wilson v. Waldron (1895)
 Appeal from Superior Court, Chehalis County.
12 Wash. 152Bucklin v. Miller (1895)
 Appeal from Superior Court, King County.
12 Wash. 154Winsor v. McLachlan (1895)
GARNISHMENT — EXEMPTION OE INSURANCE MONEYS — PLEADING — RECORD ON APPEAL. Money due under an insurance policy for the loss of property by fire is not exempt from garnishment, if it is not made to appear by pleading and proof that the property itself was exempt from execution. The supreme court will not consider proceedings in the trial court unless they are made a part of the record on appeal.
12 Wash. 157Beal v. Nichols (1895)
LOGGERS’ LIENS — RELEASE. Where laborers engaged in getting out saw logs have released all right of lien upon the logs cut within thirty days of the time of filing lien notices, they thereby lose the right of lien upon logs cut prior thereto, although all of the logs may have been cut under one continuous employment.
12 Wash. 160Easter v. Hall (1895)
 Appeal from Superior Court, Clallam County.
12 Wash. 163Cloud v. Lawrence (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 167Raborn v. Mish (1895)
MUNICIPAL CORPORATIONS — ENACTMENT OP ORDINANCES. The provisions of Code Proc., § 635, prohibiting the passage of ordinances within five days after their introduction, and unless they have first been submitted to the city attorney, applies only to such ordinances and resolutions as are intended to grant franchises for any purpose. (Vancouver v. Wintler, 8 Wash. 378, distinguished).
12 Wash. 169State v. Holmes (1895)
JUDGE OP SUPERIOR COURT — AUTHORITY TO HOLD COURT IN OTHER COUNTY—PRESUMPTION — WAIVER OP WANT OF JURISDICTION — HOMICIDE — JURY FROM BYSTANDERS — EXAMINATION IN ABSENCE OP ACCUSED — MISCONDUCT OF JURY—NAMES OF WITNESSES ON INFOR- ' MATION—CHARGE — SUFFICIENCY OF EVIDENCE. The provision of the constitution (art. 43 §7), empowering the judge of any superior court to hold court in any county at the request of the judge of the superior court of such county is self-executing. There being no constitutional or statutory provision in this state requiring the fact to be spread of record, when any visiting judge has been called to hold court in another county, the presumption must obtain, in the absence of an affirmative showing to the contrary, that such visiting judge properly acquired jurisdiction to discharge the duties of judge of the court to which he has been called. Where objection to the jurisdiction of a court on account of the ineligibility of the judge is not urged until after a submission of the cause to the jurisdiction, the objection is waived, as. well in criminal as in civil proceedings. Under Code Proc., § 339, when the jury list has become exhausted before the completion of a jury, jurors may be summoned from the bystanders, even if some of those drawn may have failed to appear, as the presumption is that they had been properly excused by the court. The fact that a portion of a jury were induced to unite upon a verdict of murder in the first degree, upon the representation of another juror that the judge might sentence the prisoner thereunder to imprisonment for life instead of imposing the death sentence, does not constitute misconduct of the jury, as the jury have nothing to do with the penalty to be imposed. The objection that the defendant in a criminal case had been absent during the examination of a portion of the jury cannot be raised in the supreme court by affidavits, when there is nothing in the record as certified and settled showing such fact. The endorsement of additional witnesses upon an information shortly before trial is a matter within the discretion of the court, and does not constitute error unless there is an abuse of such discretion. , Upon the question as to whether the defendant had time to cool his passions between the quarrel and the killing a charge to the jury that “ they must take into consideration the mental power, habits, circumstances and situation in which the defendant was at the time, and the jury must believe beyond a reasonable doubt that the defendant under the circumstances did cool his passions before they can find him guilty of murder in the first degree,” is erroneous. The exclusion of impeaching testimony is not prejudicial error when the facts to which the witness has testified are testified to by a number of other witnesses. A verdict of murder in the first degree will not be disturbed on appeal, although it is a close question under the facts in evidence, when the case has been submitted to the jury under proper instructions, and there is evidence upon which their verdict could be properly based, although it may not be entirely convincing to the appellate court.
12 Wash. 188City of Montesano v. Blair (1895)
 Appeal from, Superior Court, Chehalis County.
12 Wash. 190Willamette Casket Co. v. Cross Undertaking Co. (1895)
 Appeal from Superior Court, King County.
12 Wash. 196Dickson v. Matheson (1895)
JUDGMENT — MOTION TO VACATE — INCLUSION OR IMPROPER COSTS. Error of law committed by the court in including attorney fees in a judgment rendered against a partnership, upon the confession ■of judgment by one of the partners upon a promissory note of the firm, cannot he corrected by petition to vacate the judgment, when no fraud has been practiced upon the court, but must he reached by appeal. (Hoyt, C. J., dissents.)
12 Wash. 199Kohne v. White (1895)
 Appeal from Superior Court, King County.
12 Wash. 207Cook v. Tibbals (1895)
 Appeal from Superior Court, Jefferson County.
12 Wash. 212Lewis v. Bartlett (1895)
12 Wash. 217State v. Craemer (1895)
PROSECUTION FOR MURDER — CONTINUANCE — EVIDENCE — OBJECTIONS TO — SUFFICIENCY OF EVIDENCE. Due diligence in procuring the attendance of a witness is not established by a showing that the defendant had been in the company of the witness on the day before his arrest upon the crime charged, that he knew of the migratory habits of the witness and that he had no fixed abode, that a short time before the trial letters had been addressed to him at the locality where last seen and to another point to which it was supposed he had gone, and that a subpoena had been issued to the sheriff of the county in which he was presumed to be, but without any definite direction as to where the witness could be found. Objections to the reception of evidence cannot be urged on appeal unless first raised in the court below. On a trial for the murder of a woman, evidence of the killing of her infant child is admissible, where the two homicides were committed at the same time and place, and by the same instrument. Where the theory of the state in a prosecution for murder is that robbery was the motive, testimony is admissible to show the presence of defendant in the bushes near deceased’s residence some thirteen days before the murder, and the finding of defendant’s revolver upon the premises of deceased some eighteen days after the crime. The denial of an adjournment of a trial, at the close of the evidence, for the purpose of securing the testimony of a witness of whom counsel had just been advised is not erroneous, when neither the name of the witness, his residence, nor the materiality of the proposed testimony is made to appear. A verdict of murder in the first degree is sufficiently sustained by evidence showing that a murder had been committed and a house robbed; that defendant was seen in the bushes less than an hour before its commission, as well as some days prior, watching the house; that part of the handle of the hammer with which the homicide had been.done, and most of the stolen money, was found on his premises; that he had been in straitened circumstances, but had given his wife some money on the day of the homicide, claiming it as a portion of a payment made him on that day by a certain person, whose testimony was not produced at the trial; and that an alibi set up by him was not clearly established.
12 Wash. 225Seward v. Derrickson (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 230Nicol v. Skagit Boom Co. (1895)
APPEAL PROM ORDER CONFIRMING RECEIVER'S SALE — WHEN MUST BE TAKEN — WHO ENTITLED TO APPEAL. An appeal from an order made upon the hearing of exceptions to a receiver’s report of the'sale of property by him, must, under Laws 1893, p. 120, § 3, be made within five days after the entry of the order, otherwise the appeal will be ineffectual. An appeal from an order refusing to vacate the confirmation of a sale made by a receiver cannot be taken by those who were parties to the hearing at the time the order confirming the sale was made, and who neglected to appeal in time from such original order. One who i% not an active party to proceedings had in the lower court is not entitled to an appeal from any decision rendered therein.
12 Wash. 233Bryan v. Duff (1895)
PAROL EVIDENCE TO VARY NEGOTIABLE INSTRUMENT. Parol testimony is inadmissible for the purpose of showing an agreement between the drawer and payee of a bill of exchange whereby the payee was not to hold the drawer responsible for any default in its payment on the part of the drawee, except for the purposes of showing want of consideration or fraud in procuring the execution of the instrument. (Dunbar, J., dissents).
12 Wash. 241Squires v. Zumwalt (1895)
ACTION BY LESSEE FOE DETENTION OF PREMISES — PLEADING—DIRECTED VERDICT. In an action for damages for the detention of property to which plaintiff claimed the right of possession under the terms of a lease, the complaint is sufficient when it gives a specific description of the property, showing the state and county where situated and alleging that the building on the property is the one covered by the lease set out in the complaint, possession of which had been taken under such lease, although the lease itself gives no indication of the county in which the property is located, other than the name of the town, of whose location the court would take judicial notice, and the file mark for record of the lease, which shows that it had been recorded in a certain county. The plaintiff is entitled to a peremptory instruction charging the jury to find in his favor upon the issues raised by the pleadings, when there is no substantial contradiction of the testimony introduced by him.-
12 Wash. 244McCarty v. Fletcher (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 246Swarm v. Boggs (1895)
DEED OP MORTGAGED PREMISES TO MORTGAGEE—STIPULATION POR REPURCHASE — CONSTRUCTION. Where a mortgagor, for the purpose of saving the expense of a foreclosure suit and in satisfaction of the debt, conveys the mortgagedpremises to the mortgagee by an instrument in the form of a warranty deed, with a provision therein contained that the “ grantors shall have the right to redeem or re-purchase said premises at any time within one year, by paying the said sum of $1175, together with interest until said redemption at the rate of fifteen per cent, per annum, and all costs and taxes paid by the grantee; the grantors to have possession for said year,” the instrument must he construed, not as a mortgage, but as an absolute deed, with a right in the grantors to re-purchase upon the conditions set forth.
12 Wash. 251Fremont Milling Co. v. Denny (1895)
BEVIEW ON APPEAL — EXCEPTIONS TO FINDINGS. In order to raise any question as to the evidence there must be specific exceptions to the findings of fact to which objections are urged, a general exception being insufficient, when the findings as made will support the decree.
12 Wash. 254State v. Isensee (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 259Murray v. Okanogan Live Stock & Dressed Beef Co. (1895)
EQUITY — EIGHT TO JURY TRIAL — CONVERSION — MEASURE OF DAMAGES— CONTRACT OF CORPORATION NOT TO ENGAGE IN BUSINESS — EFFECT ON STOCKHOLDERS — FAILURE OF CONSIDERATION — PLEADING. A defendant is not entitled to a jury trial, although the action against him is substantially one for damages, when the remedy is sought against him in an action seeking equitable relief against other parties, to which he is a proper party defendant by reason of his relations to the subject matter of the suit. In an action for damages by the owner of the good will and personal property connected with the operation of a certain business against his lessees and a purchaser to whom they had negotiated a sale thereof, a judgment against the purchaser for the price contracted to be paid his grantors is not prejudicial to him, when he has gone into possession of the property and business under an agreement with his grantors that said sum should be paid them or their successors in the trust in case of a decision against the purchaser at the suit of the alleged owner. An agreement that a corporation is not to engage in a similar business in a certain locality within a stipulated period of time, is inoperative against the individual members of the corporation. Evidence of a failure of consideration is inadmissible in the' absence of a plea setting up such defense.
12 Wash. 266Hart v. Maney (1895)
 Appeal from Superior Court, Snohomish County. One of the causes of action set up in the suit of J. F. Hart & Co. against J. J. Maney was for the sum of $82.86, the value of lumber delivered to him under a contract with his agent Goerig. The defendant put in a counterclaim for $121.63 on the ground that all the lumber contracted for had not been delivered. The plaintiffs sought to avoid the counterclaim on the ground that the contract had been made with Guerig as a principal and that upon discovering that he was acting as agent of Maney they refused to deliver any more lumber unless Maney should pay cash therefor.
12 Wash. 272Washington Bridge Co. v. Land & River Improvement Co. (1895)
 Appeal from Superior Court, Snohomish . County.
12 Wash. 279Blackinton v. Rumpf (1895)
ATTACHMENT—GROUNDS FOR — AFFIDAVIT — EVIDENCE OF FRAUD. Under the attachment law of this state a plaintiff is entitled to a writ of attachment in an action to recover upon a debt which has been fraudulently contracted. Under the statute, an affidavit in attachment which alleges that the defendant has assigned, etc., his property with intent to delay and defraud his creditors and that he is about to assign, etc., his property with like intent, is not open to the objection of being inconsistent and bad in form. In an action to recover the price of goods, in which the complaint alleged a secret partnership between the two defendants and that ' they conspired and colluded to defraud their creditors, the business being carried on in the name of one, who subsequently disposed of his property to the other and fled the country, the refusal of the court to dissolve an attachment which had been issued on the ground that defendants had secreted and disposed of their property and were about to do so with intent to delay and defraud creditors, and that they had been guilty of fraud in contracting the debt, is warranted, when it appears that the two had been partners, and after an alleged dissolution had maintained intimate relations; that on the night of the departure of the defendant conducting the business in his own name, they were seen removing goods from the store in a clandestine manner; that the alleged secret partner, while allowing an overdraft to be charged up to him at the bank, was able to pay the sum of $5,000 to the absconding debtor, which sum had been carried by him on his person for sixteen days; and that there had been a transfer of all the absconding debtor’s real estate to the other defendant.
12 Wash. 288State v. Krug (1895)
GRAND JURY—MANNER OF SELECTION — EMBEZZLEMENT BY CITY TREASURER — WHAT CONSTITUTES — INDICTMENT — INSTRUCTIONS — COMPETENCY OF JURORS. The provisions of § 58, Code Proc., requiring the county commissioners to select annually a list of persons qualified to serve as grand jurors is not mandatory; and an indictmént found by a grand jury selected from a venire of the preceding year which had not been exhausted is not prejudicial to defendant when the jury is otherwise qualified to serve. Sec. 57 of the Penal Code, providing that “if any state, county, township, city, town, village or other officer elected or appointed under the constitution or laws of this state shall, in any manner not authorized by law, use any portion of the money intrusted to him, in order to make a profit out of the same, or for any purpose not authorized by law, he shall he deemed guilty of a felony,” applies to the city officers chosen under a freeholders’ charter, which cities of the first class are authorized by the constitution and legislature to frame for themselves. Under Penal Code, §§ 57, 58, an indictment charging a city treasurer with unlawfully, feloniously, and in a manner not authorized by law, using a certain amount of public money, under his care and control as such treasurer for safe keeping, in! order to make a profit out of the same, is sufficiently direct and certain as to the crime charged, and specifies with sufficient particularity the acts and circumstances necessary to constitute tbe crime of embezzlement of public funds under said provisions of the law. The fact that a juror is a tax-payer is not ground for challenge upon the trial of a public officer charged with the embezzlement of public funds. In a prosecution of a public officer for having made a profit out of public funds, it is not ground for challenge to a juror that he has formed an impression that the defendant had loaned money, either that of his own or of the city, the juror having no idea to whom the money belonged and having formed no opinion as to the defendant’s guilt or innocence. The fact that a juror has formed an impression as to the defendant’s guilt or innocence, but disclaims having formed any opinion, will not subject him to challenge on the ground of actual bias. In charging a jury as to the inference of guilt from defendant’s silence, it is not erroneous to employ the words “ no inference of guilt should arise in the minds of the jury,” instead of the words ‘‘no inference of guilt shall arise,” etc. In regard to the presumption of innocence it is not erroneous to charge that “ the law presumes the innocence of a person accused of a crime, and this presumption is not a matter of form merely which the jury may disregard at pleasure, but it is a part of the law of the land, and it is a right guaranteed by that law to every person accused of crime, and this presumption continues with the defendant throughout all the stages of the trial until the case has been finally submitted to the jury and the jury has found that this presumption has been overcome by the evidence of the prosecution in the case beyond a reasonable doubt.” In regard to reasonable doubt, it is not erroneous to charge, in effect, that a reasonable doubt is such a doubt as a man of ordinary prudence, sensibility and decision, in determining an issue of like concern to himself, as that before the jury is to the defendant, would allow to have any influence upon him, or cause him to pause or hesitate in arriving at his determination; that such a doubt should grow out of the evidence in the case and not be merely speculative, conjectural or imaginary. In a prosecution against a public officer for embezzlement it is not erroneous for the court to charge the jury that the purpose of the statute, under which the prosecution was had, was to restrain public officers from using for their own profit, or in any other manner than is authorized and directed by law, the public money intrusted to them for safe keeping. In a prosecution of a city treasurer for appropriating public funds to his own use for purposes of profit, in which the evidence showed that the treasurer, as such officer, had given a check to a certain individual, drawn on a bank having city funds on deposit, which had been paid by New York exchange, it is not erroneous tf> charge the jury that, if the defendant drew an instrument, signing the same as city treasurer, directing a bank, in which money was deposited to the credit of the city, to pay a given sum to a certain individual, and that the bank obeyed the direction and charged on its books the money to the city and lessened its credit in said sum, that such was a payment of money; and that the jury should construe the check or instrument merely as the instrumentality by which the city’s money was transferred from the possession of defendant to another, and, if the transfer was a profit, they must find the defendant guilty.
12 Wash. 310Buddress v. Schafer (1895)
ASSUMPSIT — EVIDENCE ADMISSIBLE UNDER GENERAL DENIAL — RES JUDICATA. In an action to recover for the value of services rendered, the defendants cannot, under mere denial of their value, prove that the services were not rendered, but are confined to proof of the value of the services. A judgment in a former suit on an express contract is not a bar to a second suit on a quantum meruit for the same services, when it takes different evidence to establish the two causes of action.
12 Wash. 313Owen v. St. Paul, Minneapolis & Manitoba Railway Co. (1895)
 Appeal from Superior Court, Snohomish County.
12 Wash. 322Curry v. Catlin (1895)
 Appeal from, Superior Court, King County.
12 Wash. 326Robertson v. Woolley (1895)
ASSUMPSIT — PLEADING — VENDOR AND PURCHASER—RECOVERY OF PAYMENTS MADE—'APPEAL—SUFFICIENCY OF EVIDENCE—INSTRUCTIONS. In a complaint in an action to recover for work performed at the special instance and request of defendant; no allegation of demand is necessary, when there is no allegation showing that the action was based upon a mutual current account. Where money has been advanced as part payment for land under an agreement that a bond for a deed should be executed therefor, which the vendor refuses to do, the failure of the purchaser to demand repayment within a reasonable time will not constitute a forfeiture of the money advanced, as there is no contract to be rescinded. The verdict of the jury will not be disturbed when there is evidence supporting it, although it might not be sufficient to convince the appellate court. A charge to the jury, that there was no evidence that would entitle defendants to recover any amount under the pleadings, is proper when the issue made by defendants was that plaintiff was to pay for certain land in work and labor, and there was no proof introduced to show that the plaintiff refused to continue to perform work and labor in payment therefor.
12 Wash. 331Blumenthal v. Pacific Meat Co. (1895)
PLEADING — WAIVER OF SUFFICIENCY — APPEAL — ABSENCE OF EXCEPTIONS— SUFFICIENCY OF EVIDENCE—ASSIGNMENT OF ERROR — JUDICIAL NOTICE. Although a complaint may be subject to attack by motion or demurrer on the ground that it does not allege facts sufficient to state a cause of action, yet, if the objection thereto is not raised until after answer, the complaint will be held sufficient, if the facts stated will justify a recovery upon any theory upon which a right can be founded. Where no exceptions are taken to the instructions it must be conclusively presumed that the cause was submitted to the jury upon proper issues and upon a theory warranted, by the proofs; and if there is sufficient evidence upon any theory, which maybe suggested to support plaintiff’s cause, a verdict in his favor will not be disturbed. On appeal, witnesses who testify to the market price of cattle will be held to have been competent, where the errors assigned do not raise the question of their competency. Judicial notice of the distance between Seattle and Puyallup and of their relation to each other will be taken by the court for the purpose of determining from the market price of cattle in one place what it must be in the other.
12 Wash. 335McQuesten v. Morrill (1895)
 Appeal from Superior Court, Snohomish County.
12 Wash. 342Flint v. Long (1895)
 Appeal from Superior Court, King County.
12 Wash. 349State v. Robinson (1895)
ACCESSORY TO MURDER — CONVICTION OF MANSLAUGHTER. The legal character of the offense of manslaughter is such as to exclude the possibility of an accessory before the fact. Such ofíense consists in the unlawful killing of a human being “ without malice" and hence does not admit of preconcerted design. One charged as guilty o£ murder in the first degree as an accessory before the fact cannot be properly convicted of manslaughter, when the evidence shows he.was not present at the commission of the homicide, and that, if guilty at all, it was in conspiring with others to procure the murder of the deceased. (Hoyt, O. J., dissents.)
12 Wash. 358Neis v. O'Brien (1895)
SALE—REFUSAL OF PURCHASER TO ACCEPT GOODS—RIGHTS OF PARTIES. Where the purchaser of hops, after advancing part payment of the price, has refused, upon tender of the hops in accordance with the terms of the contract, to accept them and pay the balance due, under the alleged mistaken belief that they are not of the quality and description provided for by the contract, he cannot recover any portion of the advance payments made, although the hops are subsequently resold by the seller to another party, when the quality and description of the hops could have been determined by inspection, which it was the privilege of such purchaser to make, but which privilege he neglected to avail himself of.
12 Wash. 362Williams v. Shoudy (1895)
INJUNCTION —APPLICATION TO CHANGED CONDITIONS — COUNTY WARRANTS — VALIDATION BY SUBSEQUENT ELECTION — LEGALITY OF ELECTION — INTEREST ON VALIDATED WARRANTS. The fact that a county treasurer had been enjoined from paying certain warrants for the reason that they had been issued in excess of the limit of indebtedness allowed by law, affords no ground for refusing to pay such warrants after the illegal indebtedness has been validated by the assent of three-fifths of the voters in an election 'held for that purpose. Where it is sought to validate by popular election an illegal county indebtedness in excess of the limit allowed by law,, it is sufficient under Laws 1893, p. 181, § 2, that the resolution of the board of commissioners providing for the election and the election notice specify the dates between which the several items of indebtedness were incurred, and it is unnecessary that such dates should be set forth in the ballots voted at such election. The fact that an election notice specified that the polls would be kept open until six o’clock p. m., while the law and the resolution calling the election required they should be kept open till seven o’clock p. m., will not render the election illegal, when the polls were actually kept open the full.time required by law, and there is no showing that .the electors were prevented by reason of the mistake in the notice from giving a free and fair expression upon the question submitted. Where county warrants have been issued for indebtedness illegally incurred, which has been ratified by subsequent vote of the electors in a special election for that purpose, the holders of the warrants are entitled to the legal rate of interest thereon from the date of their original presentation to the county treasurer for payment.
12 Wash. 369West v. City of Chehalis (1895)
 Appeal from Superior Court, Lewis County.
12 Wash. 373McLaughlin v. Barnes (1895)
 Appeal from Superior Court, King County.
12 Wash. 377Moyer v. Van de Vanter (1895)
ELECTIONS AND TOTEES—FAILTJEB OF INSPEOTOE TO INITIAL BALLOTS-CONSTITUTIONALITY OF ACT — EXCEPTIONS TO FINDINGS. The evidence introduced at the trial of a cause, or any errors in reference thereto, will not be reviewed on appeal, upon an exception to the findings of the lower court, which merely states that “to these findings of fact and conclusions of law and to each-of them the contestant excepts.” The failure to place the stamp required by Gen. Stat. § 384, upon official ballots used in an election, until they are returned by the voter to be deposited in the ballot box', is an irregularity which would not vitiate the ballots in the absence of fraud. The provision of Gen. Stat. § 391, directing that in the canvass of the votes any ballot, which is not indorsed by the initials of some one of the election officers, shall not be counted, is in conflict with the constitutional provision entitling all male persons having certain qualifications to the right to vote at all elections, since the effect of such statutory provision would be to debar voters of their constitutional right to vote, without fault on their part. The fact that election officers fail to have booths erected which comply with the law, is a mere irregularity insufficient to vitiate the election.
12 Wash. 386Haugh v. City of Tacoma (1895)
APPEAL—ASSIGNMENT OF ERRORS IN BRIEF. Under Laws 1893, p. 127, and Rule 12 of the supreme court, the brief of appellant will be stricken and the judgment appealed from affirmed, when the brief does not clearly point out the errors relied on for a reversal. (Hoyt, O. J., and Dunbar, J., dissent.)
12 Wash. 391Dillon v. Whatcom County (1895)
 Appeal from Superior Court, .Whatcom County.
12 Wash. 417State v. White (1895)
’ Appeal from Superior Court, King County.
12 Wash. 420State ex rel. Swerdfiger v. Whitney (1895)
 Appeal from Superior Court, Snohomish County.
12 Wash. 424Smythe v. New England Loan & Trust Co. (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 428Krieschel v. Board of County Commissioners (1895)
INJUNCTION — REMOVAL-OF COUNTY SEAT—FRAUD OP COMMISSIONERS. Under the constitution and laws of this state a board of county commissioners is not vested with exclusive discretion in the matter of declaring the result of an election held for the removal of the county seat, but an attempt on their part to declare a result contrary to the law is sufficient to give the superior court jurisdiction of an action seeking to enjoin them. Injunction will lie at the instance of a county commissioner, a resident taxpayer of the county, to restrain the proposed illegal removal of the county seat upon the order of the majority of the board of commissioners. Semble, that under art. 4, § 6 of the constitution, giving the superior court original jurisdiction “ of such special cases and proceedings as are not otherwise provided for,” the superior court is authorized to assúme jurisdiction to enjoin the officers of a county, who, in excess of their powers, are seeking to create a burden on taxpayers by directing an illegal expenditure of public moneys.
12 Wash. 440State ex rel. King v. Trimbell (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 446Lawry v. Board of Commissioners (1895)
 Appeal from Superior Court, Snohomish County.
12 Wash. 449Weigle v. Cascade Fire & Marine Insurance (1895)
INSURANCE — MISREPRESENTATION OP MATERIAL PACT—APPEAL — OBJECTIONS NOT RAISED BELOW. Where a case in equity has been permitted to go to trial by jury without objection, the error cannot be urged on appeal. The concealment by the assured of any material fact or circumstance concerning the insurance or the subject thereof, whether wilful and intentional or through mistake, is sufficient to avoid the policy, except in cases where the assured does not undertake to state the matter charged to be false as a matter of positive knowledge on his part.
12 Wash. 456Gurney v. Morrison (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 461State v. Feamster (1895)
ASSAULT WITH INTENT TO MURDER — SUFFICIENCY OP INFORMATION — MOTION IN ARREST OF JUDGMENT — WHEN MAY BE URGED. An objection that a motion in arrest of judgment was not seasonably made cannot be first presented on appeal. A motion in arrest of judgment on the ground that the information does not state facts sufficient to constitute.a crime, may he ■interposed by defendant even after having gone into two trials of the case on the merits without objection. An information charging an assault with intent to commit murder, sufficiently charges an assault, though not following the words of the statute defining that offense, when it alleges that the deféndant, having the present ability, attempted to kill a certain person with a pistol.
12 Wash. 465Thomas & Co. v. City of Olympia (1895)
 Appeal from Superior Court, Thurston County.
12 Wash. 468Gilmore v. H. W. Baker Co. (1895)
 Appeal from Superior Court, King County.
12 Wash. 475Schoonover v. Condon (1895)
APPEAL—SUFFICIENCY. OF EXCEPTIONS — FOBECLOSÜBE OF CHATTEL MORTGAGE — INJUNCTION TO PREVENT DESTRUCTION OF PROPERTY. A general exception to the findings of fact made by the court is insufficient to raise any question as to the evidence introduced on the trial. Pending proceedings to foreclose a chattel mortgage, the court, upon a proper application showing threatened impairment of plaintiff’s security, has authority to restrain the destruction of the property by the issuance of a temporary injunction.
12 Wash. 476Benjamin v. Puget Sound Commercial Co. (1895)
ACTION FOR DAMAGES — NON-SUIT— BREACH OP CONTRACT — MEASURE OP DAMAGES—ANTICIPATED PROPITS. In an action for damages for breach of contract to float a wreck, in which the only element of damages claimed was the difference between'the value of a wrecked vessel and what she would probably have been worth as a vessel afloat, the plaintiff should he non. suited when the evidence shows that the only contract entered into was that two tugs should use their best efforts, pulling together at high tide, to raise the wreck, for a fixed price for the pull, and that all chances of getting the vessel off were to be taken by plaintiff. In an action for damages for breach of contract, there can he no recovery of expected profits when they are of an uncertain and speculative character.
12 Wash. 483State ex rel. Bartlett v. Forrest (1895)
TIDE LANDS—PURCHASE BY PLAT — ESTOPPEL — EXTENSION OF STREET OYER TIDE LANDS — RECOGNITION BY STATE—RIGHT OF PURCHASE. Where one'has purchased lots, partly upland and partly tide land, by reference to a plat thereof, he is estopped from claiming anything as an upland owner beyond the lines of the lots conveyed to him, although he may have erected improvements on the adjoining tide land prior to the passage of the act of March 26,1890, giving a preference right of purchase to improvers and upland owners. Where a street platted upon tide land has been dedicated to the public and subsequently extended by ordinance over adjacent tide lands an d recognized as a street by the refusal of the state to appraise same for that reason, it must be held to be a valid street, notwithstanding it is'not an extension of an upland street. Sec. 2172, Gen. Stat., relative to preference rights to the purchase of tide lands, does not bind the state to offer for sale .all portions of the tide lands upon which improvements had theretofore been made. The right of cities to extend streets over tide lands is not confined to those of the first class, but applies to all incorporated cities.
12 Wash. 488Slater v. Stevens County Bank (1895)
 Appeal from Superior Court, Stevens County.
12 Wash. 491State v. Robinson (1895)
12 Wash. 500Thomas v. Grand Lodge of Ancient Order of United Workmen (1895)
MUTUAL BENEFIT INSURANCE—RIGHTS OF BENEFICIARY — APPLICATION' FOR INSURANCE—MATERIALITY OF REPRESENTATIONS. It will be presumed, until the contrary is made to appear, that a member of a mutual benefit society, to whom an insurance certificate has been issued, has the right to change the beneficiary named therein at any time before his death. A beneficiary certificate in a mutual benefit society being within, the control of the member to whom it is issued, his declarations against interest, made after its issuance, are admissible in evidence against his beneficiary, as the latter has no vested interest in the certificate or policy issued to the member. Misrepresentation by an applicant for insurance in his answers to questions propounded in the application, upon which the policy was issued, will not invalidate the policy if the applicant did not-know at the time that his representation was untrue. In an action upon a beneficiary certificate of an insurance society it is error for the court to refuse a charge that each question propounded in the application and its answer must be considered material, and that it is not the province of the jury to inquire into the materiality of such questions and answers, when it appears that the-applicant had certified his answers as correct and that they were given with full knowledge that any perversion of facts would work a> forfeiture of all his rights as a beneficiary.
12 Wash. 507Guarantee Loan & Trust Co. v. Galliher (1895)
 Appeal from Superior Court, Thurston County.
12 Wash. 510Hamilton v. Carter (1895)
JUDICIAL SALE—PURCHASE OP MORTGAGED CHATTELS — ESTOPPEL OP MORTGAGEE — LIABILITY OP SHERIFF FOR ACTS OF DEPUTY — FORECLOSURE — LACHES. One who purchases, at an execution sale, personal property which is subject to a chattel mortgage of which he has notice, acquires no title therein prejudicial to the interests of the mortgagee. The fact that the mortgagee of personal property stands by at the time of its sale on execution to satisfy a judgment of a third person and makes no objection to the representation of the sheriff to the purchaser at the execution sale, that the proceeds would be applied in satisfaction of the mortgage, will not estop the mortgagee from subsequently enforcing his lien on the property, when the proceeds of the sale were paid into court for the use of the execution creditor and were not applied in satisfaction of the mortgage. The promise of the sheriff to apply the proceeds of an execution sale upon one judgment to the satisfaction of another judgment is illegal and cannot be enforced by the courts. A sheriff is not bound by the false representations of his deputy made outside the scope of his official duties, and anyone misled thereby to his injury, must look to the deputy and not to the sheriff for redress. The withholding of an order of sale upon a decree of foreclosure of a chattel mortgage for a period of five months does not constitute laches.
12 Wash. 518Cochrane v. County of King (1895)
STATUTES—REPEAL BY IMPLICATION — ERECTION OF COUNTY BUILDING. Code 1881, §§ 2682, 2683, 2684, providing that where there are no funds in the county treasury sufficient for the erection of a county building, the county commissioners shall, if they deem the public good requires a county building, submit an estimate of the cost thereof to the people, and, if a majority vote in favor of the proposition, shall then levy and collect a special tax therefor, are repealed by implication by the subsequent enactment of the act of February 1, 1888 (Laws 1887-88, p. 74), which in substance relates to and covers the whole of the same subject matter as those sections. Semble, that Laws 1887-88, p. 74, was repealed by implication by the act of March 21, 1890 (Laws 1889-90, p. 37), covering the entire subject of the incurring of indebtedness by counties for general county purposes; but the effect of such repeal would not be the revival of the sections of the code of 1881 (§§ 2682, 2683, 2684), which had been repealed by the act of 1888.
12 Wash. 524Winston v. City of Spokane (1895)
MUNICIPAL CORPORATIONS — LIMIT OF INDEBTEDNESS — CONSTITUTIONAL LAW. A city may legally enter into a contract with one advancing moneys to it for the completion of a system of water works, whereby a special fund for the repayment of the moneys is to be created out of a certain percentage of the receipts of the water works, and no obligation is assumed by the city except to make payment out of the special fund, as such contract is not an incurring of municipal indebtedness within the meaning of the constitutional provisions on such subject. (Dunbar and Scott, JJ., dissent).
12 Wash. 528Marquis v. Willard (1895)
OFFICIAL BONDS — LIABILITY OF SURETIES — ACTS DONE UNDER COLOR OF OFFICE. The sureties upon the official bond of a chief of police cannot he held liable for his acts in receiving and detaining in the city prison persons arrested without warrant or other process, by police officers of the city, as such acts at most are not done virtute officii but colore officii.
12 Wash. 536Chapin v. Kenoyer (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 538Taggart v. First National Bank (1895)
 Appeal from Superior Court, Skagit County.
12 Wash. 541State ex rel. Jones v. McGraw (1895)
 Original Application for Mandamus.
12 Wash. 547State v. Oliver (1895)
REPEAL OP PENAL STATUTE—EPPEOT ON PRIOR OPPENSES—ADULTERY. The repeal o£ Penal Code, § 192, by Laws 1895, p. 371, without any saving clause as to prior offenses, or pending cases, operated as a bar to the prosecution of parties charged with adultery committed prior to the passage of the act of 1895.
12 Wash. 548State ex rel. Pacific Coast Steamship Co. v. Superior Court (1895)
 Original Application for Mandamus.
12 Wash. 554State ex rel. Tremblay v. McQuade (1895)
APPEAL—RECORD-OFFICERS — TOWN MARSHAL — APPOINTMENT AND REMOVAL—QUO WARRANTO — SUFFICIENCY OF PETITION. Upon appeal from a judgment in a cause tried upon complaint and demurrer, it is unnecessary lo file a statement of facts or bill of exceptions, as the pleadings constitute a part of the record otherwise. The fact that plaintiff in an action of quo warranto has been removed from the office to which he seeks possession cannot be urged on appeal, when the matters establishing that fact do not appear in the record. A petition in quo warranto to obtain possession of the office of town marshal and to oust the prior incumbent thereof, is sufficient when it alleges the latter’s appointment by the common council to hold office at its pleasure, his due removal' for cause deemed sufficient, the due appointment of the relator to fill the vacancy, his acceptance of the office and due qualification therefor in accordance with law. Under Gen. Stat. § 663, providing that the marshal of a town of the fourth class shall be appointed by the common council and hold office during the pleasure of said council, and under §691, providing that all officers elected by the council are subject to removal by that body at any time for cause deemed sufficient, the council have the right, at their pleasure, to remove the marshal without notice-and hearing.
12 Wash. 559Northern Counties Investment Trust v. Hender (1895)
 Appeal from Superior Court, Garfield County.
12 Wash. 567Pease v. Baxter (1895)
CONDITIONAL SALE OF LAND “RESCISSION — FORFEITURE OF PAYMENTS —PAROL EVIDENCE. When- a contract for tbe sale of land provides for payment of the purchase price in installments, that convéyance shall be made only after full payment, and that, in case of default in the payment of the whole or any part of the purchase price or interest on the day when payable by the terms of the contract, the vendor may rescind the contract at his mere option, and all payments and improvements made by the purchaser shall be forfeited, the contract must be construed as one of conditional sale and not as an equitable mortgage. (Gordon and Scott, JJ., dissent.) A contract, upon its face a conditional sale of land, providing for forfeiture of payments in case of the purchaser’s default, cannot be shown by parol evidence to be in fact an equitable mortgage. Where a contract for the sale of land provides for a forfeiture of payments made upon the failure of the purchaser to strictly comply with the terms of the contract, and also provides for a penalty against the vendor in case of a failure on his part to give a good and sufficient deed upon the fulfillment by the purchaser of his part of the contract, a forfeiture on account of default of the purchaser may be enforced in an action to recover possession and quiet title, notwithstanding the fact that the vendor’s title may be defective.
12 Wash. 576Patton v. Barnett (1895)
ÉSTOPPEL— SALE BY ONE PARTNER OP PIRM PROPERTY — ACQUIESCENCE BY CO-PARTNER. Where a silent partner stands by and permits a bona fide purchaser of the partnership property from his co-partner to take possession of the goods, he is estopped from claiming any interest in them; and, in such a case, partnership creditors are not in a position to assert that the sale was merely that of a partnership interest, which would be subject to the firm debts. •
12 Wash. 579McKay v. Elwood (1895)
CORPORATIONS — INSOLVENCY — COMMON LAW ASSIGNMENT — UNPAID STOCK SUBSCRIPTIONS — ACTION BY ASSIGNEE TO COLLECT — PLEADING — EVIDENCE. In an action by a corporation upon an unpaid, stock subscription, the complaint is not demurrable on the ground that it fails to allege that the capital stock of the corporation had all been subscribed, when the complaint otherwise alleges that plaintiff is and has been a duly organized and existing corporation, during all the time referred to in the complaint. , A corporation, unless restrained by some statutory provision, may assign its property to a trustee for the purpose of selling same and applying the proceeds to the payment of its debts. The fact that no call for unpaid stock subscriptions had been made by the directors of the corporation prior to a deed of assignment of the corporate property to a trustee is no defense to an action by the trustee to enforce- payment of the stock subscriptions, when corporate indebtedness is in excess of corporate assets. Where an assignment for the benefit of creditors has been made by a corporation, the court in which the insolvency proceedings are pending has authority to make an order requiring payment of unpaid stock subscriptions. In an action upon a stock subscription to which a plea of general denial was set up, the introduction of prpof showing that all the stock had not been subscribed and of proof in rebuttal showing estoppel is immaterial; and error, if any, in the court’s instruction upon the question of estoppel is not prejudicial.
12 Wash. 588State ex rel. Dodge v. Langhorne (1895)
PROHIBITION, WRIT OP — UNWARRANTED ASSUMPTION OP JURISDICTION BY COURT. A person not a party to insolvency proceedings has no right to appear in the action by petition and ask to have a judgment which had been rendered therein set aside, and the filing of a petition under such circumstances will not give the court jurisdiction either of the subject matter or of the person of the defendant. In such case; the proceedings of the court being without jurisdiction, prohibition will lie to prevent the court enforcing its orders therein..
12 Wash. 596Caine v. Seattle & Northern Railway Co. (1895)
 Appeal from Superior Court, King County.
12 Wash. 601Riddell v. Prichard (1895)
ACTION BY ASSIGNEE OF NOTE — FINDINGS OF COURT — REVIEW ON APPEAL. An assignment of a promissory note to an attorney at law for the purpose of collection is sufficient to warrant the bringing of suit thereon in his own name. A finding of the trial court, that a promissory note in suit had not been paid, nor its time of payment extended, will not be disturbed when there is a substantial conflict in the testimony.
12 Wash. 602State ex rel. Barton v. Hopkins (1895)
COUNTY COMMISSIONERS — CONTROL OF COUNTY FUNDS — AUTHORITY TO CREATE INCIDENTAL FUND. The county commissioners have no authority to order the treasurer to transfer moneys from the general county fund to a so-called “incidental fund,” created, by them for the purpose of paying the necessary current expenses of the county therefrom.
12 Wash. 605Kuhn v. City of Port Townsend (1895)
MUNICIPAL CORPORATIONS — ANNEXATION OF TERRITORY — PRIVATE ACTION — COLLATERAL ATTACK — ESTOPPEL. A private citizen cannot, in an action to restrain the collection of taxes, question the right of a municipal corporation to exercise the authority, powers and functions of an incorporated city; this can be done only in a direct proceeding prosecuted by the proper public officers of the state. Participation in annexation proceedings whereby one’s land has been included in the corporate limits of a city, and acquiescence for three years in the jurisdiction of the city authorities thereover, will estop such person from questioning the validity of the annexation, when raised in a collateral proceeding and based upon mere irregularities and informalities not affecting the jurisdiction in the pro' ceedings to annex the territory.
12 Wash. 615Rotting v. Cleman (1895)
NEW TRIAL — DISCRETION OF COURT—REVIEW ON APPEAL. A motion for a new trial is addressed to the sound discretion of the court; and the granting of a new trial on the ground of the insufficiency of the evidence to justify the verdict will not be disturbed on appeal, when there is a substantial conflict in the testimony, unless it is manifest that the discretion vested in the court was grossly abused. Where the record shows that the motion for a new trial was made on several grounds, but does not show upon which of them the ruling of the court was based, the order will not be reversed if it was within the sound discretion of the court to make it upon any of the grounds stated.
12 Wash. 619Blake v. State Savings Bank (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 627Howe v. Barto (1895)
 Appeal from Superior Court, King County.
12 Wash. 629State ex rel. Ruth v. Prather (1895)
Mandamus by the relátor, as county surveyor of Thurston county, to compel the board of commissioners to audit and allow his claim for collecting, perfecting and recording field notes, construction notes and plats of surveys on county highways, which notes and surveys had been executed prior to his term of office, and were in the possession of the county, but had not theretofore been recorded in his office. From a judgment for the relator, the commissioners appeal.
12 Wash. 631Ward v. Springfield Fire & Marine Insurance (1895)
 Appeal from Superior Court, King County. On motion to recall remittitur and to reconsider the order of dismissal of the appeal.
12 Wash. 634Turner v. Bailey (1895)
 Appeal from Superior Court, King County.
12 Wash. 647Rockford Watch Co. v. Rumpf (1895)
12 Wash. 651Barlow v. Gamwell (1895)
 Appeal from Superior Court, Whatcom County.
12 Wash. 653State ex rel. Bancroft-Whitney Co. v. Price (1895)
 Original Application for Mandamus.
12 Wash. 657Gower v. City of Tacoma (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 657Kline v. City of Tacoma (1895)
 Appeal from, Superior Court, Pierce County.
12 Wash. 658Hill v. Sawyer (1895)
 Appeal from Superior Court, Pierce County.
12 Wash. 658Stoddard v. Seattle National Bank (1895)
 Appeal from Superior Court, Columbia County.
12 Wash. 659Brown v. Coey (1895)
 Appeal from Superior Court, Spokane County.
12 Wash. 659Neeley v. Democratic Publishing Co. (1895)
 Appeal from Superior Court, Skagit County.
12 Wash. 661Jensen v. Hughes (1895)
 Appeal from Superior Court, Lincoln County.
12 Wash. 662Halter v. Spokane Soap Works Co. (1895)
VACATING JUDGMENT — CONDITIONS IMPOSED. An order of the court granting a motion to vacate a default judgment for $500 upon condition that the defendant would give hond in the sum of $2,000, to secure the payment of any judgment that might be rendered against it, is not an abuse of the discretion vested in the court in such cases by Code Proc., § 221, when it appears that the object of the defendant was to postpone action for the purpose of defeating the judgment on execution, and there is no showing of inability on the part of defendant to furnish the bond. (Anders, J., dissents.)
12 Wash. 665Sanders v. Main & Winchester (1895)
Action by Edwin I). Sanders, as assignee of A. M. Orchard, an insolvent debtor, against Main & Winchester for the purpose of setting aside a chattel mortgage given them by said Orchard upon his stock of goods, the mortgagor being allowed to retain possession and apply the proceeds of sale to the satisfaction of the mortgage debt by the payment of certain stipulated installments of money. From a judgment for defendants, the plaintiff appeals.
12 Wash. 667City of Spokane v. Stevens (1895)
 Appeal from Superior Court, Spokane County.
12 Wash. 670English v. Grinstead (1895)
 Appeal from Superior Court, Spokane ' County.
12 Wash. 673State v. Coss (1895)
LARCENY—PROPERTY IN HANDS OP RECEIVERS OP UNITED STATES COURT — JURISDICTION OP STATE COURT — EVIDENCE. A state court has jurisdiction to punish the crime of larceny committed by stealing the property of a railroad company which is in the hands of receivers appointed by the United States courts. In an indictment for larceny it is not necessary to allege in whose possession the property was at the time of the larceny, but it is sufficient to allege and prove that the property stolen was the property of another. Where a confession has not been procured under the influence of fear produced by threats, it may be used in evidence against the defendant making it and against an accomplice.
12 Wash. 677State ex rel. German-American Safe Deposit & Savings Bank v. Superior Court (1895)
 Original Application for Prohibition.
12 Wash. 685State ex rel. Smith v. Parker (1895)
 Original Application for Mandate.
12 Wash. 690Colby v. City of Spokane (1895)
INJUNCTION—PLEADING AND PROOF—WHEN ORDER DENTING INJUNCTION APPEALABLE. An order denying an injunction is appealable under tbe statutes of this state only when there is an affirmative finding that the defendants are insolvent. An allegation in an answer that defendant “ has no knowledge or information sufficient to form a belief ” is a sufficient denial to put in issue the allegations of the paragraph of complaint to which it is addressed. An application for a temporary injunction against trespassing upon plaintiff’s land should be denied when his allegation of ownership in the land has been traversed by defendant, and no proof has been submitted on the issue raised. The refusal to grant a temporary injunction restraining a trespass on land is not erroneous, when it appears that the trespass was made by a city for the purpose of excavating for a pipe line, that proceedings were under way for the condemnation of the land, with a view to the full compensation of the owner therefor, and there is no showing that the injury would be irreparable, that the defendant is insolvent or that the injunction is necessary to prevent a multiplicity of suits.
12 Wash. 695Hannegan v. Roth (1896)
ACTION TO QUIET TITLE — PARTIES PLAINTIFF—WAIVER OF DEFECT OF NON-JOINDER. Where a defect of parties plaintiff has not been raised in the court below by demurrer or answer, objection thereto is waived, and cannot be urged on appeal. While a court will not proceed to final judgment in the absence of a necessary party, it will not dismiss the action on account of the non-rejoinder of such party, but will retain it until all necessary parties are brought in, after which it will proceed to judgment on the merits. Under Code Poc., §529, authorizing any person having a valid subsisting interest in real property to maintain an action to quiet title thereto, the action may be maintined by any or all of the tenants in common.