Volume 13 — Washington Reports

<p>Appeal from Superior Court, King County.—Hon. J. W. Langley, Judge.</p>

<p>PROSECUTION FOR EMBEZZLEMENT — ADMISSIBILITY OP EVIDENCE AND PLEADINGS IN CIVIL ACTION—SECONDARY EVIDENCE.</p> <p>Admissions made by a defendant in a civil action, when not given under compulsion, may be put in evidence in a criminal prosecution against him.</p> <p>In a prosecution upon a charge of embezzlement it is erroneous to admit in evidence the complaint and answer on which a former civil action, involving the same property in question, had been tried.</p> <p>The admission in evidence of the correspondence of third parties is erroneous, when no ground has been shown therefor.</p>

<p>Appeal from Superior Court, Spokane County.— Hon. James Z. Moore, Judge.</p>

<p>SALE BY HUSBAND—IMPROVEMENTS ON LAND—RIGHTS OF WIFE — PURCHASE OF LAND BY AGENT IN HIS OWN NAME — RIGHT OF PRINCIPAL TO ENFORCE ASSIGNMENT.</p> <p>The holding possession of, and making improvements upon, the land of a railroad company, does not constitute an interest in real estate, and the sale of the improvements may be made by a contract of the husband alone.</p> <p>Even if the possession of the land of another and the making of improvements thereon would constitute an interest in such land, the abandonment thereof by the husband, coupled with the placing of a purchaser in possession of the improvements, and the failure on the part of the wife to make any objection thereto, would pass a good title to the improvements, though the wife might possess a community interest therein.</p> <p>Where one takes a contract for the sale of land in his own name under an agreement to at once assign the contract to another, who has advanced the money for that purpose, the relation between the parties is that of principal and agent, and no . interest in the property will pass to the agent which a court of equity would allow him to assert against his principal.</p>

<p>CONSTITUTIONAL LAW—DELEGATION OF LEGISLATIVE POWER — CONSTRUCTION OF STATUTES—AMENDMENT OF CHARTERS OF CITIES OF FIRST CLASS.</p> <p>Before the judiciary will declare an act of the legislature invalid on the ground that it is in conflict with the constitution, such conflict must be shown to be clear and unquestionable, and every intendment must be given force in favor of the constitutionality of the law.</p> <p>Under the provisions of our state constitution the power is delegated to cities of the first class to frame charters for their own government, subject to the general laws of the state.</p> <p>The right of a city of the first class to make a new charter is included within the constitutional grant of power to frame a charter, and the mode pointed out in art. 11, § 10 of the constitution for submitting proposed amendments to a vote of the people should not be construed as exclusive of every other method.</p> <p>The power conferred by the constitution upon the city council in cities of the first class in the matter of submitting propositions for amendment or revision of the city charter is purely ministerial, and the council is not vested with discretionary power in the matter to such an extent as to make it illegal for the legislature to prescribe the manner of proposing such amendments.</p> <p>The power of cities of the first class to frame a charter for themselves is a continuing right vested in the voters of the city, and it does not become exhausted because once exercised.</p> <p>The constitutional provision authorizing cities of the first class to frame charters for themselves is not self executing to such an extent as to render invalid an act of the legislature, whose object is to further the exercise of the right and make it available.</p>

<p> Original Application for' Certiorari. </p>

<p>TRESPASS — EVIDENCE OF TITLE — COMMUNITY PROPERTY — OBJECTIONS TO EVIDENCE.</p> <p>In an action of trespass to real property, parol proof of plaintiff’s undisputed possession is sufficient to show title in himself, when no better title is alleged to be in defendant or some other person.</p> <p>When part of a witness’s answer to a question is competent, and part incompetent, a general objection to the answer as a whole should be overruled.</p> <p>When it appears in an action for damages to real property that the plaintiff had owned the land and been in possession thereof from a date long prior to the passage of the first statute of this state as to community property, it cannot be presumed that his wife has such an interest therein as to make her a necessary party to the action.</p>

<p>Appeal from Superior Court, Kittitas County.— Hon. Carroll B. Graves, Judge.</p>

<p>APPEAL — SERVICE OP NOTICE — PARTIES.</p> <p>Under Laws 1893, p. 121, §5, notice of appeal must be served upon all parties appearing in. the action and who do not join in the appeal, although they may in fact have been represented by the attorneys who represent appellant, unless after such appearance the action has been dismissed against them with the consent of the other parties thereto.</p>

<p>APPEAL —.SERVICE OF STATEMENT — OBJECTIONS TO — WHERE RAISED — MANDAMUS — WAIVER OF OBJECTIONS TO ALTERNATIVE WRIT — LAW OF THE CASE — JUDGMENT — RES JUDICATA.</p> <p>A statement’ of facts will not be stricken out by the appellate court upon the ground that the statement was served before it had been filed, when the only showing thereof is an affidavit presented to the appellate court alleging such fact. (Dunbar, J., dissents).</p> <p>Objection to a statement of facts because a copy of the same was served before'the original was filed should be made to the trial, and not to the appellate, court.. (Dunbar, J., dissents).</p> <p>An objection that an alternative writ of mandate does not show upon its face that the petitioner therefor is entitled to any relief is waived, when the respondents, without demurring thereto, answer and take issue upon the matters alleged in the petition.</p> <p>Where the decision of the appellate court, in dismissing an action to recover against a town, was based on the ground that plaintiff held valid, and binding claims against the town, and that his remedy should have been by application for mandamus, the legality of such claims becomes thereby settled and cannot be questioned in subsequent proceedings in mandamus between the same parties. .</p> <p>The objection that the merits of the controversy in the. prior action had never been judicially passed on for the reason that the action had been decided upon a demurrer in favor of respondents cannot be- raised after the appellate court has based its decision upon the validity of the claim against the town and such decision has been allowed to stand as the law of the case, without application on the part of the respondents for a modification of the decision in that particular.</p> <p>The failure of parties to an appeal to urge alleged errors in their brief, will preclude their being raised in a petition for a rehearing.</p>

<p>Appeal from Superior Court, Whatcom County.— Hon. John. R. Winn, Judge.</p>

<p>Appeal from Superior Court, Chehalis County — Hon. Mason Irwin, Judge.</p>

<p>Appeal from Superior Court, Pierce County — Hon. W. H. Pritchard, Judge.</p>

<p>Appeal from Superior Court, King County —Hon. J. W. Langley, Judge.</p>

<p>APPEAL—ABSENCE OF FINDINGS — OBJECTIONS NOT RAISED BELOW.</p> <p>An objection that no findings of fact were made by the court cannot be urged on appeal unless there has been a request for a general finding, or an objection for the want of one raised in the court below, a request for particular findings being insufficient.</p>

<p>Appeal from Superior Court, Spokane- County — Hon. Wallace Mount, Judge.</p>

<p>QUIETING TITLE—ADVERSE POSSESSION — PLEADING AND PROOF — SUFFICIENCY OF DESCRIPTION IN MORTGAGE—DECREE OF FORECLOSURE — COLLATERAL ATTACK—PRESUMPTION AS TO SUMMONS—REOPENING CASE.- ‘ ' ■</p> <p>Proof of title acquired by adverse possession under color of title is admissible under an allegation-of ownership, in fee, in an action to quiet title.</p> <p>A mortgage by a land claimant under the donation act of congress of all his land claim, upon which he had settled prior to survey, is sufficient to pass title to his claim as afterward located by subsequent survey, although the descriptions thereof in the mortgage and the government patent do not correspond.</p> <p>As against collateral attack upon the ground that a summons was insufficient to give a court jurisdiction, it will be presumed in aid of a decree, which recites that service of the complaint and notice had been duly made according to law, that another and sufficient summons was issued, where there was ample time for the service of another summons after completion of the publication of the first.</p> <p>It is not an abuse of the discretionary powers of a trial court to reopen a case after its submission and receive further testimony, when due notice is given to the complaining party.</p>

<p>APPEAL — ERRORS NOT OF RECORD — ASSIGNMENT OF ERRORS — APPEAL-ABLE ORDER — RECEIVERS — ACCOUNTING AND COMPENSATION — LIABILITY FOR LOSSES —SALES BY RECEIVER TO HIMSELF—RATIFICATION BY CREDITORS.</p> <p>Where it does not appear from the record that no copy of the statement of facts proposed by appellant was served upon respondent after filing in the superior court, that ground of objection to the statement cannot be urged.</p> <p>Where the only matter before the court for consideration is that of the accounting of a receiver in the cause in which he had been appointed, an order confirming his final report and directing a distribution of the funds in his hands, is appealable.</p> <p>An appeal will not be dismissed for want of a specific assignment of errors in appellant’s brief, when the brief, in the course of the argument on the “points ” made therein, refers to the objections in the record which were passed upon by the court in making the order appealed from.</p> <p>The fact that a receiver is not designated as such by appellant in the proceedings upon appeal from an order confirming his account and directing distribution, is no ground for dismissal, when the record plainly shows that he is proceeded against as receiver.</p> <p>A receiver of a shingle company cannot be required to account for profits made by another corporation in a foreign market upon shingles sold by him to such corporation, although himself a stockholder therein, when, as receiver, he had not sufficient funds to enable him to ship his shingles to another market, but sold them for cash to his own corporation at the highest market price in the locality.</p> <p>Where the court by which a receiver was appointed has fixed his compensation, after the hearing of testimony, and the allowance made-is warranted by the testimony adduced, and appears to be reasonable, the exercise of the court’s discretion will not be interfered with by the appellate court.</p> <p>A receiver appointed to operate a mill pending an action is not chargeable with the loss resulting from such operation, unless it was due to some act which he was not authorized to perform.</p> <p>A sale by the receiver to himself of the trust property is not per se void, but voidable merely at -the election of the cestui que trust, and where the beneficiary claims the proceeds he must be held as ratifying the sale.</p>

<p>MISCONDUCT OF COUNSEL — REFERENCE IN ARGUMENT TO MATTERS NOT IN EVIDENCE.</p> <p>Where counsel in argument to a jury exhibits paid checks of his client, which had not been introduced in evidence, and refers thereto for the purpose 'of refreshing his recollection as to dates and amounts, it is error for the court to refuse a request for an instruction to the jury to disregard counsel’s argument in regard to them.</p>

<p>RECEIVERS—PERFORMANCE OP EXECUTORY CONTRACTS OP CORPORATION.</p> <p>A receiver appointed to conduct the business of a corporation pending an action, is not liable as such receiver in an action for damages for his refusal to perform an executory contract of the corporation.</p> <p>The provisions of 24 U. S. St. at Large 554, §§ 2, 3, providing that a receiver appointed to conduct the business of a corporation pending an action in a United States court, shall manage the property according to the requirements of the valid laws of the state in which the property is situated, in the same manner as the owner would he bound to do, applies only to things occurring while the receiver is in possession and does not make him responsible for liabilities growing out of contracts entered into before his appointment.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. W. H. Pritchard, Judge.</p>

<p>Appeal from Superior Court,, Pierce County—Hon. John C. Stallcup, Judge.</p>

<p>Appeal from Superior Court, Spokane County—Hon. Norman Buck, Judge.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. John C. Stallcue, Judge.</p>

<p>Appeal from Superior Court, King County.—Hon. Kiciiard Osborn, Judge.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. Emmett N. Parker, Judge.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. Emmett N. Parker, Judge.</p>

<p>LOGS AND LOGGING — LIENS — CONSTITUTIONALITY OF STATUTE—JUEY TEIAL.</p> <p>Laws 1893, p. 433, § 16, providing that a purchaser of sawlogs or shingle bolts shall be presumed not to be an innocent purchaser .■during the period in which liens may be filed thereon, unless hehas seen that the purchase money has been applied to the, payment of bona fide claims entitled to liens on the property,, is not a violation of the constitutional inhibitions against taking' property without ■due process of law, or for a private use, without compensation.</p> <p>In an action to foreclose loggers’ liens and for damages against an eloigner of the property, the joinder of .the law and equity actions will not deprive the one charged with eloignment of the right to trial by jury.</p>

<p>Appeal from Superior Court, Whatcom County.— Hon. John R. Winn, Judge.</p>

<p>Appeal from Superior Court, King County.—Hon. T. J. Humes, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. William H. Upton, Judge.</p>

<p>ADMINISTRATION OP DECEDENT’S ESTATE — RIGHT OP WIDOW AND CHILDREN TO ALLOWANCE — RESIDENCE OP WIDOW.</p> <p>Under Code Proc., §973, providing that in case the property of a decedent exempt from execution, which has been set apart for the use of the widow and minor children, prove insufficient for their support, “ the court shall make such further reasonable allowance out of the estate as may be necessary for the maintenance of the family according to their circumstances, during the progress of the settlement of the estate,” the widow and children are entitled to such allowance, although the husband may have made provision for them otherwise by means of life insurance policies payable to the widow.</p> <p>Semble, that the fact that the widow and children are non-residents of this state at the time of the administration upon the husband’s estate, will not deprive them . of the right to the allowance provided by Code Proc., §973.</p>

<p>Appeal from Superior Court, Skagit County.—Hon. Henry McBride, Judge.</p>

<p>EVIDENCE — PRESUMPTIONS ARISING PROM DEED OF. LAND—COMMUNITY PROPERTY — ACKNOWLEDGMENT BEFORE HUSBAND OF GRANTEE.</p> <p>The presumption of the regular execution and delivery of a deed arising from its being found in the possession of the grantee and being in due form is not overcome by the positive testimony of one of the grantors that she never executed it, when such presumption is sustained by numerous other circumstances consistent with it.</p> <p>Where land is deeded to a wife as her separate property, the acknowledgment of the grantors may be taken before the grantee’s husband, if he is authorized to take acknowledgments.</p> <p>The action of the husband in consummating a trade for certain residence property and taking the deed therefor in his wife’s name on the anniversary of their wedding, and in at once delivering the deed to the wife as a gift, is sufficient, as between grantor and grantee, to establish his intention to have the wife take the property as her separate estate.</p>

<p>ACTIONS — WHETHER LOCAL OR TRANSITORY — SPECIFIC PERFORMANCE AND PARTITION.</p> <p>An action in which the plaintiff seeks to compel the performance of a contract to convey an undivided interest in certain lands, to have several conveyances made by some of the defendants to others set aside, and for a partition of the lands, and, if specific performance cannot be decreed, asking that the moneys advanced thereon be declared a lien upon the lands, renders the action a local one under the statutes of this state. (Dunbar, J., dissents).</p>

<p>MORTGAGES — FORECLOSURE SALE—RIGHT OF PURCHASER TO RENTS PENDING REDEMPTION.</p> <p>Under Code Proc., §519, providing that the purchaser upon foreclosure sale shall be entitled to possession of the property from the day of sale until redemption, unless the same be in the possession of a tenant holding under an unexpired lease, in which case he shall be entitled to receive the rents or the value of the use and occupation thereof during the same period, the purchaser is entitled to the rents and profits without being required to account therefor to a subsequent redemptioner. (Hoyt, O. J., and Scott, J., dissent.) -</p>

<p>Appeal from Superior Court, King County.—Hon. Richard Osborn, Judge.</p>

<p>CRIMINAL LAW — JURORS — CHALLENGE FOR CAUSE—BIAS — EXAMINATION OE WITNESS— INSTRUCTIONS — MURDER IN FIRST DEGREE.</p> <p>A refusal to sustain challenges for proper cause, necessitating peremptory challenges on the part of the accused, will be considered on appeal as prejudicial, where the accused has been compelled subsequently to exhaust all his peremptory challenges before the final selection of the jury.</p> <p>Where a juror admits that he has an opinion as to the guilt of the accused, which it would take evidence to remove, that he believes there was something wrong and he could not go into the jury box and accord the accused the presumption that he was innocent, until he was proven guilty, he should, be excused upon a challenge for cause, although he may.state in answer to leading questions by the court and the prosecuting attorney that if he was charged as the defendant was he would be willing under the same circumstances to have twelve men try his case who were of the same mind as he was.</p> <p>The discretion of the trial court to determine the question of partiality or impartiality of a juror is subject to review by the appellate court, under the constitutional guaranty to the accused of trial by an impartial jury.</p> <p>Refusal of the court upon its own motion to permit defendant’s counsel in a murder case to ask a witness on cross-examination whether he is testifying by guess or by his own knowledge is prejudicial error, when the case is close to the border line between murder and manslaughter, and the witness was careless in his manner of testifying, often using the words “I guess,” when rehearsing statements of fact.</p> <p>' The court may properly refuse to instruct in any particular form of words, if the substance of the requested instruction has already been given.</p> <p>Semble, That an instruction in a prosecution for murder which informs the jury that it is not necessary to constitute murder in the first degree that any appreciable space of time should elapse between the formation of the intention to kill and the killing, but they may be as instantaneous as successive thoughts, is erroneous under our statutes, as it eliminates the element of deliberation which distinguishes murder in the first degree from murder in the second degree.</p>

<p>PARTITION — PLEADING — RECOVERY BY CO-TENANT FOR IMPROVEMENTS AND TAXES—LIABILITY OF CO-TENANT FOR USE AND OCCUPATION — APPEAL — OFFER TO MODIFY JUDGMENT.</p> <p>The refusal of the court to permit defendant in partition to withdraw an answer setting up the entire title in herself and file an amended answer setting up a tenancy in common with others is not erroneous, since partition must of necessity be made under the statute according to the interest of the respective owners of the land sought .to be divided.</p> <p>A tenant in common in possession of property under a claim of ownership is entitled on partition to recover such portion of the taxes paid by her as inured to the benefit of the other owners.</p> <p>The offer of respondent after an appeal has been taken to consent to a modification of a judgment for the purpose of correcting error therein, will not affect the right of appellant to a reversal.</p> <p>A co-tenant who has in good faith, under the belief that she was the owner of the entire title, placed improvements on the land, is entitled on partition to be allotted the land upon which such improvements were placed, if capable of such partition without any diminution of the proportionate shares of the other co-tenants, and in case of sale, the value of the improvements in such case should be awarded out of the proceeds to the co-tenant making them.</p> <p>A tenant in common who enters upon the common estate which yields no profits, and so improves it as to make it productive, is entitled to all the profits produced by means of such improvements, and no allowance should be made against him for the increase in value of the land occasioned by such improvements.</p> <p>A tenant in common in exclusive possession cannot be rendered liable for use and occupation, or rents and profits, until after demand therefor by his co-tenant.</p> <p>The rule in ejectment, under Code Proc., §534, limiting the recovery for improvements made by one in possession of the land of another to the value of the rents and profits accruing during such occupancy, does not apply to actions for partition.</p> <p>Improvements placed by a husband upon property of which his wife was a co-tenant, under such circumstances that, if made by her she would be entitled upon partition to an allowance therefor, inure to her benefit.</p>

<p>Appeal from Superior Court, Spokane County.— Hon. James Z. Moore, Judge.</p>

<p>PROHIBITION, WRIT OF—WHEN LIES—TO COURTS—TO PRIVATE PERSONS.</p> <p>Prohibition issues only in cases o£ extreme necessity and when there is a clear case o£ want of jurisdiction in the court whose action it is sought to prohibit, and should never be granted until the aggrieved party has applied in vain to the inferior tribunal for relief.</p> <p>Prohibition will not lie to prevent a private person from acting under a judgment or invoking legal proceedings.</p>

<p>Appeal from Superior Court, King County.— Hon. T. J. Humes, Judge.</p>

<p>MUNICIPAL CORPORATIONS—PUBLIC IMPROVEMENTS—APPORTIONMENT OP EXPENSE—CHARTER LIMITATIONS.</p> <p>A grant of authority in a municipal charter to grade streets at the expense of abutting owners is, in the absence of other provisions relating to the subject, a limitation upon the power of the city authorities and exclusive of other methods.</p> <p>In such case, the fact that such charter provision is inoperative because of a failure to provide by ordinance for the mode in which the charge on the respective owners shall be determined, will not render the city liable for payment of the cost out of its general fund.</p>

<p>DEED—SUFFICIENCY OF DESCRIPTION.</p> <p>A description of property in a deed as “ all that certain quarter of the east half of the southeast quarter of the southeast quarter of section 20, marked pink in the sketch hereunto attached, in township 25 north, range 4 east, in King county, containing ten acres, more or less,” is sufficient to describe the premises, although the sketch indicated may be without pink coloring.</p>

<p>Appeal from Superior Court, Kittitas County.— Hon. Carroll B. Graves, Judge.</p>

<p>Appeal from Superior Court, King County—Hon. Richard Osborn, Judge.</p>

<p>TAXATION — POLL TAXES — RESIDENCE OF TAXPAYERS — LIABILITY OF EMPLOYER FOR PAYMENT—REMEDY FOR NON-PAYMENT.</p> <p>An employer cannot be rendered liable for the poll tax of his employees under the provisions of Laws of 1893, p. 151, §§6 and 7, unless it is made to appear, that they reside in the road district where assessed, as the mere fact of working therein does not subject them to the tax.</p> <p>The method pointed out in Laws 1893, p. 151, § 7, for the collection of road poll taxes by seizure and sale of the personal property of the employer who refuses to pay the tax assessed against his employees is exclusive of other remedies, and the employer cannot be rendered liable upon an agreement with the supervisor for the payment of the sum demanded.</p>

<p>FORECLOSURE OF CHATTEL MORTGAGE — TRANSFER TO COURT — PLEADING — FRAUD — MORTGAGE OF FIRM CHATTELS BY ONE PARTNER.</p> <p>A complaint in an action by a creditor of a chattel mortgagor, under Gen. Stat., § 1656, to transfer proceedings for the foreclosure of the mortgage to the superior court, in order to contest the mortgage on the ground that it was fraudulent as to creditors, is demurrable, when it does not appear from the complaint that plaintiff was a creditor at the time of the execution of the mortgage.</p> <p>The fact that a creditor, although secured, takes additional security from his debtor, does not constitute a fraud as against other creditors.</p> <p>One partner possesses the right to execute a chattel mortgage in the firm name for the purpose of securing partnership debts; and this is true, though the notes to be secured were signed by the individual members and not in the firm name.</p> <p>A chattel mortgage which is fair on its face cannot be impeached for fraud, unless the facts relied on to constitute fraud are pleaded, a mere general averment of fraud being insufficient.</p> <p>In order to entitle a creditor to the transfer of proceedings for the foreclosure of a chattel mortgage to the superior court, he must show that a defense exists, either in whole of in part, and that he has such an interest in the subject matter as entitles him to resist the foreclosure or assail the mortgage.</p>

<p>Appeal from Superior Court, King County.—Hon. J. W. Langley, Judge.</p>

<p>CONTRACTS — MANUFACTURE OF SPECIAL ARTICLES — STATUTE OF FRAUDS.</p> <p>A contract for the manufacture and delivery of an article is not within the statute of frauds forbidding the sale of articles of personal property of the value of more than fifty dollars without a memorandum in writing, if the completed article is one of special value to the person for whom it was manufactured and is not a marketable commodity.</p> <p>The fact that one employed to manufacture and deliver an article, which, when completed, will not be a marketable commodity, purchases as merchandise most of the different parts of which the article is made instead of manufacturing them himself, and puts them together by connections manufactured in accordance with the plans and specifications of the contract, does not bring the' contract within the statute of frauds relating to the sale of personal property.</p>

<p>TIDE LANDS — SALE—CONSTRUCTION OF STATUTES — MANDAMUS TO COMMISSIONER OF PUBLIC LANDS—PLEADING.</p> <p>The statement, in an affidavit for mandamus to compel the commissioner of public lands to accept an application for the purchase of tide lands, that the relator had presented to the commissioner a duly certified plat of a survey of the land, and the field notes of such survey, is sufficient, so far as the pleading is concerned, and for the purpose of putting respondent upon his denial, to show a substantial compliance with the provisions of the tide land act of 1895, requiring the relator to show that he had made a survey of the lands applied for and that his surveys connected with the United States surveys.</p> <p>The determination by the commissioner of public lands that the plat of survey presented with an application for the purchase of tide lands is incorrect and indefinite is a matter which cannot be reviewed by the courts.</p> <p>Under Laws 1895, p. 570, § 106, repealing prior laws upon the subject of tide lands, but preserving all rights which have been acquired thereunder, the rights of applicants for the purchase of tide lands under the act of 1890, whose applications were pending at the time of the passage of the act of 1895, are saved, as such provision cannot be construed as having reference to vested rights.</p> <p>Laws 1889-90, p. 431, authorize the sale of tide lands of every description, whether there are improvements thereon, or whether there are abutting upland owners.</p>

<p>OPENING CASE FOE ADDITIONAL TESTIMONY—DISCRETION OF COURT—INSTRUCTIONS— ACTION ON INSURANCE POLICY — PROOF OF DEATH OF INSURED.</p> <p>The refusal of the trial court to open a case after a motion for non-suit so that .plaintiff may the next morning have the testimony of a witness made a part of her affirmative evidence, does not show such an abuse of the discretion lodged in it in such matters as to warrant the interference of the appellate court, when it appears that plaintiff had full knowledge as to the nature of the testimony and rested her case without any suggestion of the absence of such witness and of efforts on her part to procure his attendance.</p> <p>The giving of an instruction based upon an hypothesis which is not parallel to the facts in the case is reversible error, where it may have tended to mislead the jury, unless from the undisputed testimony it is evident that no other verdict than the one returned could rightfully have been rendered.</p> <p>The death of the insured is not sufficiently shown in an action upon the policy by proof that, while living happily with his family, and standing well in the community, he had left home stating he was going in a boat on a hunting trip; that he had not been heard from for two years; and that an empty boat with certain articles of personal property had been found a few days after his disappearance in the neighborhood of the place to which he stated he was going, there being no evidence that the articles so found belonged to him, or .that he hired a boat and went in the direction of the place where the boat was found.</p>

<p>Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.</p>

<p>PLEADING — PENDENCY OP ANOTHER ACTION — MISJOINDER OP PARTIES — WHEN HARMLESS — COVENANT OP WARRANTY — BREACH.</p> <p>A demurrer to a complaint on the ground that another action is pending between the same parties as to the same subject matter cannot be sustained where there is nothing upon the face of the complaint indicating the pendency of such other action.</p> <p>A misjoinder of parties defendant furnishes no ground for reversal of a judgment where the cause was dismissed as to a defendant claimed to have been improperly joined.</p> <p>A covenant of warranty in a deed is broken by ouster by a purchaser at a foreclosure sale under a mortgage outstanding when the deed was executed.</p>

<p>Appeal from Superior Court, Snohomish County.— Hon. John C. Denney, Judge.</p>

<p>CORPORATIONS—ACTIONS AGAINST PENDING RECEIVERSHIP — CONTRACTS — RATIFICATION — PLEADING—INCONSISTENT DEFENSES.</p> <p>The appointment of a receiver of a corporation does not prevent an action against it upon a promissory note executed before the receivership.</p> <p>A corporation cannot escape obligation under its contracts on the ground of the want of authority of its officers to execute them, when the corporation has received the benefits of such contracts.</p> <p>A plea of want of consideration in an answer is inconsistent with an admission in an affirmative defense that there was a consideration for the contract sued on, and in such case plaintiff cannot be put upon proof of the matter denied.</p>

<p>Appeal from Superior Court, Thurston County.—. Hon. T. M. Reed, Jr., Judge.</p>

<p>Appeal from Superior Court, King County.—Hon. J. W. Langley, Judge.</p>

<p>Appeal from Superior Court, Thurston County— Hon. T. M Reéd, Jr., Judge.</p>

<p>INFORMATION—ESSENTIALS—INDIANS—CRIMINAL PROSECUTIONS—JURISDICTION OF STATE COURTS—INSTRUCTIONS — EXCEPTIONS.</p> <p>A preliminary examination before a committing magistrate prior to the filing of an information for a felony is not essential under the laws of this state.</p> <p>Under the provisions of our code (Code Proc., §§1239, 1244), governing prosecutions by information, an allegation in the charging part of an information for murder, that the act was committed “ on or about” a certain date, is not open to the objection of being indefinite and insufficient.</p> <p>An Indian who has severed his tribal relations may be prosecuted in the courts of this state, whether the offense was committed within or without the limits of a reservation.</p> <p>An Indian who retains his tribal relations may be prosecuted in the courts of this state for offenses committed at a place not within the limits of an Indian reservation.</p> <p>An information filed in the superior court of a county containing within its limits a part or the whole of an Indian reservation, against a person described as an Indian, need not, in order to confer jurisdiction, aver either that such person does not sustain tribal relations, or that the offense was not committed within the limits of such reservation.</p> <p>Error in giving instructions will not be considered on appeal, though assigned as error in appellant’s brief, when the record discloses that no exception was taken to the instructions.</p> <p>It is not error to refuse a requested instruction that if any one of the jury, after having considered all of the evidence and after having consulted with his fellow jurymen, entertains a reasonable doubt of the guilt of defendant, the jury cannot find the defendant guilty, as the charge of the court must be addressed to the jury as a whole and not as individuals.</p>

<p>Appeal from Superior Court, Kittitas County.— Hon. Carroll B. Graves, Judge.</p>

<p>Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.</p>

<p>Appeal from Superior Court, Skagit County.—Hon. Henry McBride, Judge.</p>

<p>ARBITRATION AND AWARD — REVIEW BY COURTS.</p> <p>The only power of the superior court, under Code Proc., §429, upon the hearing of exceptions to an award is to refer the' cause back to the arbitrators for amendment in case of error in fact or law, or to confirm the award, as made; with the merits of the controversy the court has nothing to do.</p> <p>Under Code Proc., §430, providing that arbitrators shall have power to decide both the law and the fact involved in the cause submitted to them, and there being no provision made for the-preservation of the evidence received by them, the courts cannot sustain an exception to an award on the ground that the arbitrators committed error in fact or in law, unless such error appears upon the face of the award, or in some paper delivered with it.</p> <p>An award by arbitrators, when fairly and honestly made upon due consideration of all the evidence before them, is conclusive and binding upon the parties.</p> <p>As to matters of law,.arbitra tors are not bound in all cases to follow the strict rules of law governing courts, unless restricted by the agreement to submit, but may decide in accordance with their views of the equitable rights of the parties.</p> <p>An award will not be set aside on account of error in law, even where arbitrators are required to decide according to the strict rules of law, if the error complained of is not plain, or if the point of law is a doubtful one.</p>

<p>Appeal from Superior Court, Clallam County— Hon. James G. McClinton, Judge.</p>

<p>Appeal from Superior[Court, Pierce County.—Hon. Frank Allyn, Judge.</p>

<p>Appeal from Superior Court, King County.—Hon. Alfred Battle, Judge pro tem.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. ~W. H. Pritchard, Judge.</p>

<p>Appeal from Superior Court, Spokane County.—Hon. Jesse Arthur, Judge.</p>

<p>CONSTRUCTION OF PUBLIC BRIDGES—BOND FOR PROTECTION OF MATERIAL-MEN— RIGHT OF ACTION -UNDER—ASSIGNMENT.</p> <p>Persons who furnish material for public bridges, whether to the original contractor or to a sub-contractor, are within the protection of Gen. Stat., §2415, providing that whenever the board of county commissioners shall contract with any person to do work of a character, which, if performed for an individual, a lien would exist, it shall take a bond conditioned for the payment of all the laborers and material-men.</p> <p>A material-man’s right of action on a bond given under Gen. Stat.,-§2415, is assignable.</p> <p>The acceptance, without payment, of an order drawn upon the contractor for a public work by a sub-contractor in favor of a material-man, does not extinguish the latter’s right of action upon the contractor’s bond given under Gen. Stat., §2415.</p>

<p>Appeal from Superior Court, King County.—Hon. J. W. Langley, Judge.</p>

<p>Appeal from Superior Court, Thurston County.— Hon. T. M. Reed, Jr., Judge.</p>

<p>Appeal from Superior Court, King County.— Hon. Thomas J. Humes, Judge.</p>

<p>Appeal from Superior Court, Yakima County.— Hon. Carroll B. Graves, Judge.</p>

<p>MUNICIPAL CORPORATIONS — AUTHORIZATION OF INDEBTEDNESS — SUBMISSION TO VOTERS.</p> <p>The submission by a city for ratification by its electors in one proposition of the question of borrowing money for the improvement of its electric light plant, and also for general municipal purposes, will not preclude it from deducting the amount applied for lighting purposes, and again submitting to its electors a proposition for the funding of its general municipal indebtedness, when it is authorized to incur indebtedness by popular vote for general municipal purposes to the extent of five per cent, of the assessed valuation of its property, and a further indebtedness to the extent of an additional five per cent, of valuation for the purpose of light and water plants.</p>

<p>■ Appeal from Superior Court, King County.—Hon. Roger S. Greene, Judge pro tem.</p>

<p>Appeal from Superior Court, Snohomish County.— Hon; John C. Denney, Judge.</p>

<p>Appeal from Superior Court, King County.— Hon. Rog-er.-S.„¡G.reene, Judge pro tem.</p>

<p>Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.</p>

<p>Appeal from Superior Court, Whatcom County.— Hon. John R. Winn, Judge.</p>

<p>MECHANICS’ LIENS — SUFFICIENCY OF NOTICE — INCLUDING ITEMS NOT FURNISHED — OMISSION OF WIFE’S NAME—PROOF OF RECORD.</p> <p>Objections to the introduction of evidence will not be considered on appeal, unless the proper grounds of objection were called to the attention of the trial court.</p> <p>Proof of the filing within the time required by law for record in the office of the county auditor of a notice of lien is sufficient, without proof that it was actually recorded within such period.</p> <p>A claim of lien setting forth, in its statement of the terms of the contract, that the claimant was to “ furnish the hardware and other like material ” for a certain building, is sufficiently definite in that particular.</p> <p>Failure to include the name of the wife as one of the reputed owners of premises upon which a lien is claimed is not a ground of objection thereto, when it does not appear upon the face of the notice that the claimant had knowledge at that time of her interest therein.</p> <p>A statement in a claim of lien of the terms of the contract as to materials furnished is too indefinite, when it alleges merely that claimants “furnished certain goods, wares and merchandise, being iron, iron work, galvanized iron, nails, paints, glass and other building material.”'</p> <p>A claim of lien for furnishing the “ lumber, sash, doors, etc., used in the construction of [building described] at the agreed and contract price of $2,449.85,” is sufficiently definite as to the terms of the contract.</p> <p>A claim of lien is not vitiated by the inclusion therein by mistake of lienahle items, which had not been furnished, there being no attempt to perpetrate a fraud and the true amount of the claim not being increased thereby.</p>

<p>Appeal from Superior Court, Pacific County.—Hon. Richard K. Boney, Judge pro tern.</p>

<p>JOINT AND SEVERAL NOTE — PRESENTMENT FOR PAYMENT — NOTICE OF PROTEST BY MAIL.</p> <p>In order to bind an indorser of a note joint and several in form, presentment must be made to all the makers.</p> <p>Notice of protest of a promissory note to an indorser residing in the same city as the makers, by mailing same to him without giving his street and number is not equivalent to personal service.</p>

<p>WITNESSES IN CRIMINAL ACTIONS — SUBPIENA—ALLOWANCE OF FEES — MANDAMUS TO COURT.</p> <p>A defendant in a criminal action is not entitled to the issuance of a subpoena to compel the attendance of witnesses without an order of the court therefor having been first obtained.</p> <p>Under Gen. Stat., §3049, providing that at the close of each term of court the clerk shall certify the amount which may be due witnesses attending from another county in a criminal case for their fees, which, when approved by the court, shall be a charge upon the county to which the case belongs, the court acts judicially and not ministerially in passing upon such cost bills; and, where it has approved a bill with the fees for certain witnesses stricken out, mandamus will not lie at the suit of such witnesses to compel the court to allow their fees.</p> <p>It is improper for a prosecuting attorney to strike the names of witnesses from a cost bill filed in the cause, but the proper procedure is to submit a report specifying the items which, in his opinion, should be allowed or disallowed.</p>

<p>Appeal from Superior Court, Whatcom County— Hon. John R. Winn, Judge.</p>

<p>Appeal from Superior Court, Clarke County.—Hon. A. L. Millek, Judge.</p>

<p>COUNTIES — VALIDATION OF INDEBTEDNESS — LEGALITY OF ELECTION NOTICE—ISSUANCE OF FUNDING BONDS — WARRANTS FOR REBATE OF TAXES.</p> <p>Under the act of 1895 (Laws, p. 465), providing for the funding of the outstanding indebtedness of counties by the issuance of bonds, counties are authorized to fund indebtedness legally incurred by them prior to the adoption of the state constitution.</p> <p>The failure of the county commissioners to provide, in a resolution calling an election for the validation of illegal indebtedness, for notice of the election and that it should be published in a newspaper of general circulation in the county, will not render such validation election void, when it appears that notice was actually and properly given in the newspaper of largest circulation in the county.</p> <p>The fact that the several classes of indebtedness as set forth in the resolution and notice calling an election for validation thereof did not agree with the amounts actually outstanding in the different classes, would not render the validation inoperative when the submission was in separate classes and the voter was notified of exactly the warrants which he was called upon to validate.</p> <p>Warrants issued in rebate of taxes illegally levied, in lieu of the money wrongfully collected, need not be validated, although issued after a county had passed its limit of indebtedness.</p> <p>Mistake in stating the total amount of the bonds required in. a notice for bids will not invalidate the issuance of bonds, when the notice correctly stated the series, the amount of each series, and the time that each series was to run, the law requiring that bids should be made by the series separately.</p>

<p> Original Application for Mandamus. </p>

<p>APPEAL—SUFFICIENCY OF EVIDENCE — CUSTOM.</p> <p>The verdict of a jury will not be set aside upon appeal, where there is a substantial conflict in the testimony, especially when the trial judge, who heard and saw the witnesses testify, has declined to interfere with the verdict.</p> <p>In an action by an employee against a partnership engaged in engineering and surveying business to recover for services as a surveyor, evidence on the part of defendants is inadmissible for the purpose of showing a. custom of one of the defendants, prior to the partnership, of not paying his men until pay had been received from persons ordering surveying work done.</p>

<p>PROHIBITION, WRIT OP — WHEN LIES.</p> <p>A writ of prohibition will not issue to restrain the superior court and .county officers from summoning and empaneling a jury for the trial of criminal causes, although the county is beyond its constitutional limit of indebtedness, and the expenses of such jury would still further increase its illegal indebtedness</p>

<p>Appeal from Superior Court, Cowlitz County.—Hon. A. L. Miller, Judge.</p>

<p>CRIMINAL LAW — PROSECUTION BY INFORMATION—RECEPTION OF EVIDENCE IN REBUTTAL—CORROBORATION.</p> <p>Prosecution by information is authorized when it appears that the defendant is in custody on a charge of felony and that the court is in session and the grand jury is not in session.</p> <p>Evidence tending to establish a different state of facts from that testified to by a witness is not such impeaching testimony as will permit the introduction of testimony in rebuttal to sustain the witness who has been contradicted.</p>

<p>Appeal from Superior Court, Spokane County.— Hon. James Z. Moore, Judge.</p>

<p>MANDAMUS — WHEN LIES — ISSUANCE OF TEACHER’S CERTIFICATE.</p> <p>Mandamus will not lie to compel the board of school examiners of a county to issue a teacher’s certificate to an applicant entitled thereto, a remedy in such cases being próvided by Gen. Stat., §§776, 781, authorizing appeal to the superintendent of public instruction.</p>

<p>Appeal from Superior Court, King County.—Hon. Richard Osborn, Judge.</p>

<p>MUNICIPAL CORPORATIONS—CONTRACT WITH WATER COMPANY — CONSTRUCTION.</p> <p>The provisions of an ordinance granting a franchise to furnish a city and its inhabitants with water, and providing that the city should pay a stipulated rental for a certain number of hydrants, will not render the city liable for the rent when no hydrants have actually been attached to the mains, and it does not appear that the city had ever been called upon to furnish the hydrants and direct where they should be placed.</p>

<p>Appeal from Superior Court, Kittitas County.— Hon. Carroll B. Graves, Judge.</p>

<p>STREET RAILROAD — INJURY TO CHILD AT CROSSING — CONTRIBUTORY NEGLIGENCE — EXPERT OPINION AS TO PROBABLE RESULTS — EVIDEN CE AS TO SURROUNDINGS — EXCESSIVE DAMAGES — WEIGHT OF EVIDENCE -INSTRUCTIONS.</p> <p>Where there is any substantial conflict in the evidence, the verdict of the jury will not be disturbed on appeal, although, in the opinion of the court, it may be against the weight of evidence.</p> <p>The giving of an instruction which unduly emphasizes the duty of the defendant to the plaintiff as a child of tender years is not prejudicial error, when followed by another instruction clearly and correctly setting forth the corresponding duties resting upon plaintiff and defendant.</p> <p>Where the theory of the plaintiff, in an action for in juries received by being run over by a cable car, is that the gripman was not attending fully to his duty and for that reason the brake was not applied as soon as it should have been, and plaintiff was dragged beneath the car some distance, it is not error to refuse a request for a charge to the jury that they “ cannot find any negligence against this defendant for any act occurring after the girl was first struck. After she was struck by the car the undisputed evidence shows that the car was stopped as soon as it could be done by the gripman.”</p> <p>It is not error to refuse to charge the jury that if plaintiff (who was a child of tender years), “ attempted to cross the street over the track of the defendant without looking to see whether there was a car approaching, she was guilty of contributory negligence and cannot recover.”</p> <p>In actions for damages for personal injuries the testimony of a physician as to the probable results of such injuries, when founded upon the present condition of the plaintiff, is admissible, though such expert opinion must necessarily be uncertain as to the future.</p> <p>Evidence as.to the amount of noise made by a cable is admissible in an action for damages for injuries received by reason of the negligence of defendant in running its cable cars.</p> <p>A verdict of $30,000 for injuries inflicted upon a child of tender years through defendant’s negligence in the operation of its cable car is excessive, and should be reduced to $12,000, though the injuries were severe and the results to the plaintiff very serious.</p>

<p>CHANGE OF VENUE — FROM POLICE JUSTICE TO JUSTICE OF THE PEACE.</p> <p>A change of venue will lie under the statutes of this state, from a police justice of a city of the third class to the next nearest justice of the peace in the same county.</p>

<p>PRINCIPAL AND SURETY—LIABILITY OF SURETY—ESTOPPEL BY RECITALS IN BOND—AMENDMENT OF ANSWER—ADMISSION OF EVIDENCE.</p> <p>The sureties upon a bond given by a contractor for the erection of a school building, under the statute requiring such bond, for the protection of those furnishing labor and materials to a contractor employed in making public improvements, are estopped to deny the authority of the school district to make the contract, when the bond executed by such sureties recites as a fact that the principal in the bond had duly entered into a contract with the school district for the erection of said school building.</p> <p>Refusal of the court to allow defendant to amend his answer upon an application therefor made after the plaintiff’s testimony has been introduced, is not an abuse of the court’s discretion in such matters.</p> <p>The improper admission of evidence is not error, unless objection thereto on the proper grounds is raised at the time.</p>

<p>Appeal from Superior Court, Spokane County.— Hon. Norman Buck, Judge.</p>

<p>LARCENY OF CATTLE — SUFFICIENCY OF INFORMATION—ALLEGATION OF VALUE — MISCONDUCT OF PROSECUTING ATTORNEY — HARMLESS ERROR.</p> <p>In an information charging the larceny of cattle under § 52, Penal Code, providing that if any person shall steal certain animals (naming them), “of any value,” he shall be deemed guilty, etc., it is not necessary that the value of the stolen cattle should be alleged. (Anders and Gordon, JJ., dissent.)</p> <p>Remarks of the prosecuting attorney, apparently of a character amounting to misconduct on his part, will not warrant a reversal, when the record is fragmentary and indefinite on the subject and does not disclose under what circumstances the remarks were tendered.</p>

<p>CHATTEL MORTGAGES — VALIDITY — DESCRIPTION OF PROPERTY—APPLICATION OF PROCEEDS—MORTGAGE BY HUSBAND TO WIFE OF COMMUNITY PERSONALTY.</p> <p>A chattel mortgage is not void for uncertainty in the description, when it describes the property as “ The entire stock of merchandse, wares and goods now in and thereafter to be kept in the store and store room [location described], owned and kept by [the mortgagor], consisting of clothing, gents’ furnishing goods, boots and shoes, hats, caps, oil clothing, rubber boots and shoes, cigars and tobacco, together with all the store fixtures and articles therein kept of every description.”</p> <p>The fact that no provision is made in a chattel mortgage upon a stock of goods for the application of the proceeds of sales thereof to the reduction of the debt secured will not render the mortgage void, when it appears that the proceeds of all the goods sold were applied in payment of the ordinary expenses of the business and in the reduction of the debt, and that the identity of the mortgaged property had not been rendered difficult by the addition of other goods to the stock.</p> <p>A chattel mortgage of the community personalty may be executed by a husband to his wife to. secure her for loans from her separate estate.</p>

<p>NEGLIGENCE OF MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALK — INSTRUCTIONS —REQUEST.</p> <p>In an action to recover for injuries sustained from a fall through a defective sidewalk it is not error for the court to charge “that when the sidewalk of a city is out of repair and remains so for such a length of time that the public authorities of a city, in the exercise of reasonable care and prudence ought to have discovered the fact, then actual notice to such authorities of the condition of the walk will not be necessary to hold the city liable for injuries sustained by a person in consequence of the dangerous condition of the street or walk, if he is himself using reasonable care to avoid such injury.” The giving of incomplete and ambiguous instructions is not error unless the court has been requested to make its instructions more full and complete and has refused.</p> <p>When a charge to the jury, taken as a whole, fairly states the law, it is sufficient.</p>

<p>Appeal from Superior Court, Pierce County — Hon; John C. Stallcup, Judge.</p>

<p>VENUE — TRANSITORY ACTION — FORECLOSURE OF COLLATERALS.</p> <p>An action praying judgment upon a promissory note and seeking to foreclose a pledge of promissory notes and certificates of corporate stock, delivered as collateral security, is a transitory one, and must be brought in the county in which the defendant' resides, or' in which he may be served with process.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. Emmett N. Parker, Judge.</p>

<p>INSOLVENCY—PETITION FOE APPOINTMENT OF ASSIGNEE—INTEEEST OF PETITIONEE—TBIAL OF ISSUE^</p> <p>Where an assignment for the benefit of creditors has been made and the assignee has failed to comply with the law, a petition to the court by one alleging himself to be a creditor, asking the appointment of an assignee to administer the insolvent’s estate, cannot he dismissed upon the mere affidavit of the insolvent that such petitioner is not a creditor.</p>

<p>Appeal from Superior Court, Chehalis County.— Hon. Mason Irwin, Judge.</p>

<p>Appeal from Superior Court, Pierce County—Hon. John C. Stallcup, Judge.</p>

<p>APPEALABLE ORDER—SETTING ASIDE DEFAULT — DISCRETION OF COURT.</p> <p>Semble, that in an original action instituted for the purpose of having a judgment vacated, an order setting aside a default and giving defendants leave to answer, is not appealable.</p> <p>Mistake of an attorney in noting the day in which answer must be filed, when a summons is handed him by a client, owing to which mistake judgment by default is taken against his client for want of answer, will warrant the court in setting aside the default.</p>

<p>INSANITY—LIABILITY OF INSANE SUEETY — JUDGMENT •— COLLATERAL ATTACK.</p> <p>A judgment against an insane surety upon a forthcoming bond in attachment proceedings is not void, if the surety was not insane at the time the bond was given.</p> <p>Questions as to irregularities in the proceedings in which a judgment is rendered against an insane person cannot be raised in a collateral attack.</p> <p>The fact that the insanity of a judgment debtor had been established prior to the rendition of judgment against him, would not exempt his property from the operation of an execution flowing from a legal judgment, which had not been fraudulently or wrongfully obtained.</p>

<p> Original Application for Prohibition. </p>

<p> Original Application for Mandamus. </p>

<p> Original Application for Mandamus. </p>

<p> Original Application for Prohibition. </p>

<p>CRIMINAL LAW — CASTING SAWDUST INTO FISH STREAMS.</p> <p>Shingle mills, as well as sawmills, are contemplated by Penal Code, § 282, which provides that if the owner or manager of a sawmill permits sawdust to be cast into a stream where fish resort to spawn, he shall be deemed guilty of a misdemeanor. (Hoyt, C. J., dissents.)</p>

<p>PLEDGE OP COLLATERAL SECURITY—WHAT CONSTITUTES — DELIVERY.</p> <p>An offer of insurance policies as collateral security for an indebtedness, without actual delivery thereof, the debtor retaining them among his private papers, with the understanding that the creditor should.take possession in case anything happened to him, does not constitute a pledge of the policies.</p>

<p>CONTRACT FOR ATTORNEY FEES — CONSTRUCTION — ASSIGNMENT OF CLAIM IN LITIGATION — ATTORNEY’S LIEN — ESTOPPEL.</p> <p>Where a written contract between attorney and client in respect to litigation with insurance companies over a certain loss by fire provided that tiie client should pay $500 as full payment of services, whether the case was lost or won, upon its final determination, and should pay an additional $500, making in all $1,000, in case judgment was obtained against the companies, ‘ ‘ these respective sums in either event, to he full compensation for all services growing out of or rendered in the insurance matter,” the attorney is not entitled to further compensation for litigating the matter in the supreme court, the contract, by its terms, covering all the work in all the courts.</p> <p>The fact that an attorney has knowledge of an assignment by his client of a claim which he is prosecuting to judgment, will not estop the attorney from claiming a lien upon the judgment recovered, when there has been no express waiver of the right of lien.</p> <p>(Gordon, J., dissents).</p>

<p>Appeal from Superior Court, Skagit County.—Hon. Henry McBride, Judge.</p>

<p>APPEAL — DETERMINATION OP PACTS BY APPELLATE COURT—WHEN BINDING ON TRIAL COURT.</p> <p>Where a cause has been reversed upon the ground of the insufficiency of the evidence to sustain the verdict, such decision stands as the law of the case upon a retrial in which the evidence presented is substantially the same as that upon which the cause had been first tried and determined.</p> <p>The refusal of the court to submit to the jury the question of the bona fides of a sale of personal property, when the issue is that it was in fraud of creditors, is not error when it has already been determined upon an appeal of the case upon a former trial, that the evidence, which was substantially the same in both trials, was insufficient to establish fraud. (Dunbar, J., dissents.)</p>

<p>Appeal from Superior Court, King County.—Hon. T. J. Humes, Judge.</p>

<p>■APPEAL — OBJECTIONS NOT RAISED BELOW — ADMISSION OP EVIDENCE — INSTRUCTIONS — HARMLESS ERROR—FORECLOSURE SALE OF CHATTELS— NOTICE.</p> <p>Objections' to the form of a verdict in replevin cannot be ráised for the first time in the appellate court.</p> <p>Appellant cannot object to the admission of immaterial evidence when it was admitted in rebuttal of the same character of evidence introduced by himself.</p> <p>A charge to the jury that the statute requires that three copies of the notice of a foreclosure sale of chattels be posted in the most public places in the county — the statute simply requiring notice to be posted in three public places —is harmless error when there is no contention at the trial over that matter and the uncontradicted testimony shows they were regularly posted.</p> <p>A sale of chattels upon foreclosure of mortgage thereon is invalid unless notice has been served upon one in possession of the chattels claiming as owner thereof.</p>

<p>APPEAL — EXCEPTIONS TO FINDINGS — LACHES.</p> <p>Exceptions to findings of fact taken nearly a year after their filing, and nearly three months subsequent to notice of appeal, will not be considered by the appellate court.</p>

<p>Appeal from Superior Court, King County.— Hon. Richard Osborn, Judge.</p>

<p>Appeal from Superior Court, Clallam County.—Hon. James G. McClinton, Judge.</p>

<p>BANKS—DOUBLE LIABILITY OF STOCKHOLDERS—ENFORCEMENT — RECEIVERS.</p> <p>The additional liability imposed by art. 12, § 11 of the constitution upon stockholders of banking corporations to the extent of the amount of their stock is a secondary, and not a primary, liability, as the stockholders occupy the position of sureties, and creditors must first attempt to enforce their claims against the corporation as the principal debtor.</p> <p>The fact that a banking corporation is insolvent and in the hands of a receiver will not entitle creditors to proceed against its stockholders upon their secondary liability, but such liability constitutes a part of the receiver’s trust fund, .which the court is authorized to direct him to enforce for the benefit of all the creditors.</p>

<p>Appeal from Superior .Court, Spokane County.— Hon. James Z. Moore, Judge.</p>

<p>EXECUTION SALE — ACTION BY WIFE TO REDEEM-SUFFICIENCY OF COMPLAINT— PRESUMPTION AS TO COMMUNITY DEBTS.</p> <p>In aD action by a redemptioner to set aside a sheriff’s deed as-having been made before the right of redemption had expired, the complaint does hot state a cause of action when it nowhere alleges-how long it was after the execution sale when the deed was made nor when there is any sufficient allegation as to any offer to redeem within the time provided by statute after the confirmation of sale.</p> <p>The debt upon which a judgment is rendered is prima facie that of the community when the community has been in-existence some years prior to the rendition of judgment.</p> <p>The complaint in an action bv a wife to set aside a sheriff’s deed of community property, does not state a cause of action, when it contains no allegation showing that the indebtedness upon which judgment had been rendered was that of the husband alone and en~ forcible only against his separate estate.</p>

<p>CONSTITUTIONAL LAW — SELF-EXECUTING ENACTMENTS — ELECTIONS TO AUTHORIZE INCREASE OF SCHOOL INDEBTEDNESS — RIGHT OF WOMEN TO VOTE — SPECIAL LEGISLATION.</p> <p>The provision of art. 8, §6, of the constitution, providing that no school district shall become indebted to an amount exceeding one and one-half per centum of the taxable property in such school district, without the assent of three-fifths of the voters therein voting at an election to be held for that purpose, is self-executing and sufficient, without further legislative sanction, to authorize the voters to give or withhold assent to the incurring of indebtedness, in view of the fact that the legislature has made provision for the organization of school districts and the holding of general and special elections therein.</p> <p>Elections for the purpose of authorizing an increase of the debt limit of school districts may properly be held under the general provisions of law concerning the holding of annual and special school election's.</p> <p>The act of March 27,1890, entitled “an act to establish a general uniform system of common schools in the State of Washington,” is applicable to school districts organized under an act relating to schools in cities of ten thousand or more inhabitants, excepting in so far as the two acts may be inconsistent.</p> <p>Women have the right to vote in school elections in cities of ten thousand or more inhabitants held for the purpose of authorizing an increased debt limit, under art. 6, § 2 of the constitution providing that there shall be no denial of the elective franchise at any school election on account of sex, and under Laws 1889-90, p. 377, § 58, providing that every person, male or female, possessing certain qualifications, shall be legal voters at any school election.</p> <p>The act of the legislature providing for school districts in cities of ten thousand or more inhabitants is not unconstitutional on the ground that it affords a different and better system of education to such cities which amounts to special legislation.</p>

<p>Appeal from Superior Court, Douglas County.—Hon. Wallace Mount, Judge.</p>

<p>Appeal from Superior Court, King County—Hon. J. W. Langley, Judge.</p>

<p>Appeal from Superior Court, King County.— Hon. Bichard Osborn, Judge.</p>