Volume 14 — Washington Reports

<p>TIDE LANDS — PATENT BY UNITED STATES — DISCLAIMER OP TITLE BY STATE.</p> <p>Under §2, art. 17, of the constitution, providing that “The State of Washington disclaims all title in and claim to all tide, swamp, and overflowed lands patented by the United States,” unless impeached for fraud, the state can assert no title, to patented tide lands although lying below the line of ordinary high tide.</p>

<p>APPEAL — REYIEW OE EVIDENCE — EXCEPTIONS TO FINDINGS.</p> <p>The evidence in an action tried by the court without a jury will not be reviewed when no exceptions were taken to the findings of the court, nor other and different findings requested.</p>

<p>COUNTIES — ILLEGALITY OP "WARRANTS — ADMISSIONS BY COUNTY COMMISSIONERS IN RECITALS IN RESOLUTION.</p> <p>In an action by the holder of a county warrant to enforce payment from the county treasurer, the plaintiff may properly introduce in evidences resolution of the county commissioners declaring certain warrants invalid and providing for their validation, which it was proposed to do under Laws 1896, p. 44, but whose validation had failed to carry, for the purpose of showing that such warrants, although prior in point of time to the one in suit, were not entitled to payment out of the funds in the county treasury.</p>

<p>DESCENT OF COMMUNITY PROPERTY — DEATH OF CHILD AFTER PARENT — WHO INHERIT CHILD’S PORTION. .</p> <p>Under the statutes of this state providing for the descent of community propertj’-, one half of which shall go to the survivor and the other half to the children, the portion received by any child, whether real or personal, will, on its decease, descend to its brothers and sisters and not to-the surviving parent.</p>

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

<p>APPEAL — WAIVER OP NOTICE — JUDGMENT LIEN — FRAUDULENT CONVEYANCES. . ■</p> <p>The notice of appeal prescribed by the statute is essential to confer jurisdiction on the appellate court, and it is not competent for the parties to waive it.</p> <p>The judgment lien provided by Code Proc., §460, as attaching to all the real estate of the judgment debtor in any county after the filing of a transcript thereof in the office of the county auditor, will not attach to lands conveyed by the judgment debtor to his wife, prior to the rendition of judgment, although the judgment was for a community debt'; and the subsequent conveyance of such lands, for value prior to any proceedings taken by the judgment creditor attacking the transfer from husband to wife, is sufficient to pass the land free from all claims of the judgment creditor.</p>

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

<p>HUSBAND AND WIFE — COMMUNITY PROPERTY — PRESUMPTION — SEPARATE PROPERTY OF WIFE — EFFECT OF FAILURE TO FILE INVENTORY.</p> <p>The presumption that land, acquired by purchase during the existence of the marital relation, is community property, is a disputable one which may be rebutted by proof. •</p> <p>The failure of a married woman to file an inventory of her separate estate as required by-the statute- in force when she acquired property in 1871, will not operate as a waiver of her right to claim her separate estate in property which she acquired from the proceeds of that held in 1871, long after the repeal of the statute requiring the filing of such inventory, especially when it does not appear that credit had been extended to the community in consequence of the absence of such inventory.</p>

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

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

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

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

<p>FRAUDULENT CONVEYANCES — PRIORITY OF CHATTEL MORTGAGES.</p> <p>The fact that one of two chattel mortgages which had been drawn at the same time, covering the same property to secure bona fide indebtedness to different parties, who were represented by one agent in the transactions, was placed of record prior to the other will not render such prior recorded mortgage fraudulent as against the other mortgage.</p>

<p>VACATION OF STREET — PAROL TESTIMONY TO SUPPLEMENT RECORD — SUFFICIENCY OF EVIDENCE.</p> <p>It is competent to establish the giving of notice of an application for the vacation of a street by parol proof, when the records are silent on the matter of notice, but show the filing of the petition, that it was contested, and, after due consideration, granted.</p> <p>Proof of the posting of notices, made by the person who posted them, is not overcome by the testimony of an interested party that he had not seen such notices and that he would have been likely to have seen them if they had been posted.</p>

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

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

<p>MANDAMUS— WHES LIES — PARTIES IN INTEREST.</p> <p>TJnder the rule that mandamus will lie only at the instance of parties in interest, the writ will not issue at the suit of two directors of a school district against the third director to compel him to sign warrants for the payment of the salaries of certain teachers.</p>

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

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

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

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

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

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

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

<p>INJUNCTION — NECESSITY OF NOTICE — APPOINTMENT OF RECEIVER.</p> <p>An order granting an injunction, without notice to the defendant and without containing any provision limiting it to a day certain upon which a hearing should be had and an opportunity afforded the defendant to show cause why it should not thereafter be continued in force, is void.</p> <p>An order appointing a receiver, made without notice to the adverse party, is void.</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' Richard Osborn, Judge.</p>

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

<p>CONDEMNATION PROCEEDINGS — RIGHT TO ABANDON — JUDGMENT — DAMAGES — INTEREST — ISSUE OE TITLE — ESTOPPEL.</p> <p>Where possession of land has been taken upon the institution of proceedings for its condemnation under the right of eminent domain, the proceedings cannot be afterwards dismissed, at any stage of the proceedings, by the one seeking the appropriation, unless at the same time an abandonment of possession is also tendered.</p> <p>Where land has been appropriated prior to the rendition of judgment the proper judgment in condemnation proceedings is one for the damages found and an award of execution for its collection.</p> <p>In condemnation proceedings, when no issue as to title has been raised, and the only question before the jury is as to the amount of the damages, the petitioner in the condemnation proceedings is estopped from raising the question of title in the appellate court, although the question may have been raised upon the cross-examination of a witness.</p> <p>Where possession has been taken of land under condemnation proceedings, the owner is entitled to interest upon the amount of damages awarded him from the date of the taking.</p> <p>The appropriation of land under condemnation proceedings will not entitle the owner, in the award of damages subsequently made, to a judgment including the value of houses erected on the land by the appropriator prior to the rendition of judgment in the condemnation proceedings.</p>

<p>INTEREST — ENFORCEABLE CONTRACT — COMMUNITY ESTATE — MORTGAGE BY SURVIVOR.</p> <p>■ An agreement to pay interest upon a promissory note at the rate of nine per cent, per annum until maturity, and one per cent, per month thereafter, and also to pay interest upon coupon interest notes attached to the principal note, at the rate of two per cent.' per month after maturity of such interest notes, is enforceable, when the contract was entered into while §2796, Gen. Stat., was in force, which allowed any rate of interest, agreed upon by the parties and specified in writing, to be valid and legal.</p> <p>Where community realty has descended to a husband and surviving children after the death of the wife, a mortgage by him purporting to embrace the whole of such realty is binding and valid, as to his undivided half interest, when there are no community debts nor any necessity for administration.</p> <p>The interest of a surviving husband in community realty claimed as a homestead during the life of the community, is not exempt from, the lien of a mortgage executed by him purporting to cover the whole of the realty.</p>

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

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

<p>WITNESS — CKOSS-EXAMINATION.</p> <p>A question propounded to a witness on cross-examination is properly excluded where the witness has already been fully examined concerning the matter to which the question relates.</p>

<p>MUNICIPAL CORPORATIONS — APPOINTMENT OF OFFICERS.</p> <p>The appointment of a chief of police is not vested in a hoard of police by a provision in the charter authorizing such hoard to appoint the “ officers and men ” of the police department upon their own motion, when such office is created by charter, and a general power is conferred upon the mayor to appoint all charter officers whose election or appointment is not otherwise provided for.</p>

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

<p>TIDE LANDS — EIGHT TO PDEOHASE PENDING REDEMPTION PERIOD.</p> <p>The legal title to uplands sold on execution does not pass to the purchaser to such an extent as to entitle him, during the period allowed for redemption, to make application for the purchase of tide lands under the statute giving the owner of uplands abutting upon tide lands a preference right of purchase.</p>

<p>PLEADING — INCONSISTENT DEFENSES — SUFFICIENCY OF EVIDENCE — NEW TRIAL.</p> <p>A denial of sufficient knowledge or information to form a belief as to the allegations of a complaint that the plaintiff, at the request of a firm composed of one defendant and the intestate of the other defendant, executed a written guaranty in their behalf, and an affirmative defense that, if the guaranty was executed, its execution was for the purpose of defrauding the firm or one of the members thereof, may be included in the same answer, as they are not necessarily inconsistent defenses.</p> <p>Setting aside a verdict and granting a new trial is more or less a discretionary matter; and the action of the court in so doing will not be reversed, unless it clearly appears that the discretion has been abused.</p> <p>An order setting aside a verdict for defendants and granting a new trial on the ground that their evidence did not sustain their affirmative defense will not be disturbed on appeal, although the only evidence of a fact essential to plaintiff’s recovery was a purported signature on an instrument erroneously admitted, where no specific objection was made that the signature had not been proved.</p>

<p>WRIT OP PROHIBITION — PRACTICE—'PRESUMPTIONS/</p> <p>Affidavits submitted by respondent upon the return of an alternative writ of prohibition cannot be considered where the respondent lias not answered in the manner required by statute, as, under Laws 1896, p. 118, § 26, the case must be heard on the papers of the applicant if' no answer be made. - • ■</p> <p>Upon an application for a writ of prohibition to restrain proceedings by a court of general jurisdiction, it will be presumed, where the subject matter of the litigation was within the jurisdiction of the court, that the particular facts which authorized it to assert its jurisdiction existed, unless a contrary showing is made.</p>

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

<p>HABEAS CORPUS — CUSTODY OF CHILD — DAMAGES—RECOVERY OF EXPENSE OF ACTION.</p> <p>The assumption of custody of a minor child, under order of the superior court in a habeas corpus proceeding, will not constitute false imprisonment, although the appellate court on a review of the habeas corpus proceedings may reverse the judgment of the superior court as erroneous.</p> <p>. A party who successfully brings an action for the custody of a child in habeas corpus proceedings, cannot subsequently bring another action to recover the expenses incident to the first case.</p>

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

<p>APPEAL — RECORD—INCORPORATION OP EVIDENCE.</p> <p>A statement of facts is insufficient on appeal when it .refers to certain- exhibits offered and received in evidence as included in the .record, but such exhibits are neither attached to the statement nor found among any of the papers transmitted to the appellate court.</p> <p>The failure to include in a statement of facts evidence used in another action, which it was stipulated should be treated as introduced in evidence and considered by the court in the action in which the appeal had been taken, will render the statement insufficient.</p>

<p>ATTACHMENT — WHEN MAY ISSUE.</p> <p>An attachment may issue after the filing of' a complaint and before service of summons, under the statutes of this state.</p>

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

<p>TAXES — INVOLUNTARY PAYMENT — RECOVERY — CLOUD ON TITLE — ES-TOPPEL.</p> <p>Under Code 1881, § 2937, providing that tax deeds should be conclusive of the regularity of the proceedings from the assessment to the execution of the deed, a sale of land for the non-payment of a tax which is illegal because the cost of surveying the land had never been paid as required by the act of congress granting lands to the Northern Pacific Railroad Company would cast a cloud upon the title, and payment of such tax under protest, to avoid a threatened sale, would be an involuntary one.</p> <p>A land owner is not estopped to recover the amount of an invalid tax paid to the county involuntarily by the fact that, after such payment and prior to the commencement of the action, the county paid out the money to the various road and school districts of the county. ,</p> <p>The payment of an illegal tax upon land before the owner is delinquent, and before the institution of proceedings looking to its collection or enforcement against the land, and before he has been called upon to pay by any officer, is not an involuntary payment within the rule relating to the recovery of such payments, although nominally paid under protest.</p>

<p>OFFICERS DE FACTO — MUNICIPAL ORDINANCES — PROSECUTIONS UNDER— ENACTMENT — INSTRUCTIONS.</p> <p>Where an individual is appointed by the proper authority to an office and enters upon the discharge of its duties, he is a de facto officer and his acts are valid and binding, although he may not possess some of the requisite qualifications to hold the office.</p> <p>A prosecution for the violation of a town ordinance may be brought in the name of the state, under art. 4, § 27, of the constitution, which provides that “the style of all process shall be ‘The State of Washington,’ and all prosecutions shall be conducted in its name and by its authority,” notwithstanding that Gen. Stat., §676, provides that such prosecutions shall be in the name of the “People of the State of Washington.”</p> <p>The omission of the name of the town in the enacting clause of an ordinance which otherwise conforms to the statute establishing the form of such enacting clauses does not invalidate the ordinance, where it appears from the title that it was designed to be an ordinance of a certain town, and the proof shows that it was regularly passed by the council of such town.</p> <p>An instruction in a prosecution for setting up a billiard table and allowing it to be used without having first obtained a license as provided by a town ordinance, that if defendant allowed any person to play oii the table it would constitute a public use, whether he received any pay therefor or not is not objectionable as tending to convey an impression that the ordinance would be violated by permitting persons to play on a table in a man’s private house, where the evidence before the jury is that the table was set up for hire.</p>

<p>MARRIAGE WITH INDIAN — VALIDITY — STATUTES — OPERATION.</p> <p>The marriage of a white man and an Indian woman in the year 1868, according to the customs in vogue among the Swinomish tribe of Indians, followed by cohabitation as man and wife, was not a legal marriage, even if there were no miscegenation acts in force at the time thereof.</p> <p>The passage of the act of 1875 regulating the descent of property did not operate to prevent the act passed on the same day relating to adoption from becoming a law, but the two must be construed together as one act.</p>

<p>GARNISHMENT OF BANK ACCOUNT — PRIORITIES.</p> <p>The drawing of checks upon a general deposit in a bank, prior to garnishm.ent of the drawer’s account, does not exempt an amount equal to such checks, when the latter are not presented until after the service of the writ in garnishment.</p>

<p>ASSIGNMENT FOE BENEFIT OF CBEDITOBS — AVOIDANCE FOB FEAUD —SUFFICIENCY OF ANSWER-ESTOPPEL — ACCEPTANCE OF DIVIDENDS-</p> <p>ASSIGNMENT BY INSOLVENT COEPOEATION.</p> <p>Appellant cannot complain that the answer of respondent was insufficient to raise any question of election or estoppel, although the allegation in that respect was somewhat vague, where no motion was addressed to it, and appellant’s reply showed that he was fully advised as to the position of the respondent, and could not have been misled by the pleading.</p> <p>Where a creditor accepts a dividend under an assignment for the benefit of creditors, he will not afterwards be allowed to impeach the assignment in order to render the assets covered thereby liable to execution for his debt.</p> <p>An insolvent corporation in this state may make a common-law assignment, although it cannot make a statutory assignment.</p>

<p>BIGHTS AND REMEDIES — SUFFICIENCY OF COMPLAINT — FORECLOSURE OF MORTGAGE.</p> <p>A demurrer to a complaint on the ground that it does not state a cause of action should not be sustained, where the complaint states facts sufficient to entitle the plaintiffs to the foreclosure of a mortgage against the defendants, who were subsequent execution purchasers of the property but had not been made parties to the original foreclosure proceedings, although the prayer in the present action is to quiet the title based upon the decree of foreclosure in the former action. «</p>

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

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

<p>HUSBAND AND WIFE — COMMUNITY OBLIGATIONS — INDEMNITY BOND.</p> <p>An indemnity bond executed by a husband to maintain his claim against property attached in an action prosecuted by him individually upon a claim belonging to the community is a community obligation, and the community real estate is liable for its satisfaction.</p>

<p>APPEAL — OBJECTIONS NOT AFFECTING MERITS.</p> <p>Technical questions of practice are deemed unimportant upon appeal, where, notwithstanding them, the cause has been fully and fairly tried upon the evidence.</p>

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

<p>TAXATION — EXEMPTIONS — HOSPITALS.</p> <p>Statutes exempting persons or property from taxation are to be strictly construed; and exemptions are not to be extended by judicial construction to property other than that expressly designated by law.</p> <p>The word “ hospitals” in Gen. Stat., §1022, exempting hospitals from taxation, means only the buildings used and occupied as such and not the ground.attached thereto and necessary for the proper occupancy thereof, especially in view of the fact that, as to state and county institutions exempted therein, both buildings and the grounds attached are specially mentioned as subjects of exemption.</p>

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

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

<p>MORTGAGE FORECLOSURE — DEFICIENCY JUDGMENT — PLEADING — FAILURE TO MAKE FINDINGS.</p> <p>Where the holder of notes secured by mortgage forecloses the mortgage without asking and obtaining a deficiency judgment, but upon obtaining a decree of foreclosure surrenders and cancels the notes, he has no further right of action upon collateral security placed in his hands to secure the payment of such notes.</p> <p>The relief to which plaintiff is entitled, in an action in which there is no answer, cannot exceed what is demanded in the complaint.</p> <p>Failure of the trial court to make a finding is not matter for review on appeal, unless there was a request for the finding, and objection for want of one urged at or before the time of the entry of a decree.</p>

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

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

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

<p>MUNICIPAL CORPORATIONS — ASSESSMENTS FOR PUBLIC IMPROVEMENTS — LIABILITY ON SPECIAL FUND WARRANTS.</p> <p>Before a city can be required to pay out of its general fund, warrants drawn upon a special fund to be raised from the1 assessment of property benefited by a street improvement, it must appear not only that the first assessment has, by reason of fault on the part of the officers .of the city, not been collected, but also that no steps have been, or can be, taken- for the purpose of providing for the payment of the warrants by the making and collection of a new assessment upon the property benefited by the improvement.</p> <p>Where a city proceeds under its charter to make public improvements and assess the cost thereof upon the property benefited, it binds itself only to the exercise of diligence in the collection of such assessment, and it is beyond its power to bind itself to the creation of the fund within a certain time.</p>

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

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

<p>CONSTRUCTION OF CONTRACT OF SALE — PERFORMANCE — BURDEN OF PROOF — PARTIAL ACCEPTANCE — EVIDENCE — TECHNICAL WORDS — ADMISSIBILITY OF SAMPLES IN EVIDENCE.</p> <p>A contract between an elevator company and a wheat dealer whereby the company “ agrees and hereby sells ” a certain quantity of wheat at their warehouse, “all of which is to be delivered and paid for in thirty days from date of sale, and in case such delivery is not made [the purchaser] agrees to pay 15c per ton per month and 10 per cent, interest per annum on such amounts as remain undelivered,” constitutes an agreement to sell and not a present sale.</p> <p>In an action to recover the difference between the contract and the market price of wheat, which the purchaser has refused to accept on the ground that it was not merchantable as stipulated for by the contract, the burden of proof is upon the plaintiff to show that it had offered to deliver the kind of wheat called for by tbe contract.</p> <p>Where a contract has been made for the purchase of a quantity of wheat from an elevator company, a partial acceptance, before the quality of the wheat was discovered, would not show an acceptance of the whole quantity contracted for, nor an acknowledgment that the balance was of the required quality.</p> <p>Evidence by farmers who had sold grain to an elevator company, that their grain was of a good quality, and that so far as they knew there was very little shriveled wheat in the vicinity, is insufficient to show the quality of wheat in the warehouse, when large quantities of wheat had been received into the warehouse of which they knew nothing, and a large quantity had also been shipped therefrom.</p> <p>An agreement in a contract for the purchase of wheat to accept local “ weights and grades,” does not bind the purchaser to the grades established by the seller, when there are other wheat warehouses in the locality.</p> <p>In an action to recover upon a contract for the sale of wheat, which provided that the wheat should be merchantable and was to be purchased according to local weights and grades, plaintiff cannot introduce samples of the wheat in evidence when the term “merchantable,” as applied to wheat in the locality of the contract, had a technical meaning, and meant wheat of a quality fit for export and milling without being mixed with any better grain.</p> <p>The purchaser of wheat who has agreed to pay 15 cents per ton per month and 10 per cent, per annum interest, on a certain quantity of wheat contracted for which he shall not have taken away by a certain date, cannot he rendered liable therefor when the seller has not offered to deliver the character of wheat contracted for.</p>

<p>APPEAL — FAILURE TO FILE BOND.</p> <p>Failure to file an appeal bond within five days after notice of appeal, as required by laws 1893, p. 122, § 6, renders the appeal ineffectual for any purpose. (Hoyt, 0. J., and Dunbar, J., dissent.</p>

<p>RELATIVE RIGHTS OB' RECEIVER AND ASSIGNEE FOR BENEFIT OF CREDITORS.</p> <p>The superior court has jurisdiction, under Code Proc., §302, to appoint a receiver in an attachment case, who shall have power to-manage, control and sell the property, when it is of such a character that its value would be diminished by mere lapse of time, although there is an assignment for the benefit of creditors pending in the court. (Hoyt, C. J., dissents).</p> <p>The assignee of an insolvent debtor is not entitled to the possession of his assignor’s property, which was in the possession of the sheriff by virtue of a valid attachment levied prior to the assignment.</p>

<p>PLEADING — INCONSISTENT DEFENSES — NEGLIGENCE — FIRE IN MINE — CONTRIBUTORY NEGLIGENCE.</p> <p>In an action to recover damages for death resulting from the alleged negligence of defendant, an answer denying negligence, and setting up further, that, if there was any, the plaintiff’s intestate was guilty of contributory negligence, is not objectionable as setting up inconsistent defenses.</p> <p>Although the stopping of a ventilating fan, upon the discovery of a fire in a coal mine, may have been an act of negligence on the part of the mining company, yet there can be no recovery for the death of a miner resulting therefrom, when it appears that he had ample warning of the fire, in time to have escaped from the mine; but that he remained to watch it, and that escape was finally prevented by the act of a fellow miner in opening a tunnel door, thereby allowing the smoke to pour into a passageway, which was apparently safe, and suffocate the deceased.</p>

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

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

<p>CERTIORARI — SUPERSEDEAS BOND — POWER OP COURT TO FIX AMOUNT.</p> <p>The sufficiency of a supersedeas bond, under statutory requirements, cannot be raised in the supreme court in certiorari proceedings, which seek a reversal of an order of the superior court fixing the amount of such bond.</p> <p>In an action upon promissory notes and to foreclose a mortgage securing same, the court has no jurisdiction to fix the amount of a supersedeas bond on appeal, but the statute providing that the bond shall be in double the amount of the judgment when the action is for the recovery of money governs.</p> <p>The statute requiring a supersedeas bond to be in double the amount of the judgment applies to any appellant, whether he is one liable to pay the judgment or not.</p>

<p>LIBEL — CONDITIONALLY PRIVILEGED COMMUNICATION — MALICE — TAXATION OF COSTS.</p> <p>A letter written by a son to his mother for the purpose of informing her as to her rights in certain property and the danger of their being lost through the efforts of a certain member of the family, unless she took action to protect them, is a conditionally privileged communication, and, though containing libelous matter, would not render the writer liable in damages, unless it appeared that his acts in so doing were inspired by malice and a desire to injure the person of whom the libelous matter was written.</p> <p>That a son in writing to his mother urging her to take steps to protect her rights to property states that he does so to get even with a third person, does not show that he was actuated by malice, when» he expressly disclaims any desire to profit by the result of the action.</p> <p>The failure of witnesses to make proof of their attendance and mileage before the clerk is not a ground of objection to the taxation of such costs in civil cases, as Laws 1895, p. 15, requiring such proof applies to criminal cases.</p> <p>The right to the statutory attorney fee of fifteen dollars in cases tried before a jury is not lost by reason of the fact that after a trial is begun, the cause is disposed of by the court upon motion for a non-suit or by directing a verdict.</p>

<p>FISHERIES — LICENSE.</p> <p>A license to fish granted by the fish commissioner under Laws 1893, p. 15, cannot be confined to any designated locality but authorizes the licensee to fish anywhere in the waters of the Columbia River and Puget Sound, over which the state has jurisdiction.</p> <p>An applicant for a fishing license under Laws 1893, p. 15, is entitled to a license for one year, dating from the time of his application.</p>

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

<p>APPEAL — FRAUDULENT CONVEYANCE — ASSIGNMENT OF JUDGMENT BY CLIENT TO ATTORNEY.</p> <p>Without an appeal a party will not he heard in an appellate court to question the correctness of the judgment of the trial court.</p> <p>The fact that an attorney, in order to secure a debt of his client to himself, takes an assignment of a judgment with knowledge that his client is insolvent and had agreed to pay another creditor out of the proceeds thereof, does not constitute a fraudulent conveyance, although the amount of the judgment is greater than the debt for which it has been assigned.</p>

<p>CONSTITUTIONAL LAW — IMPAIRMENT OF CONTRACTS — MORTGAGE FORECLOSURE — JURISDICTION TO APPOINT RECEIVER — FORCIBLE ENTRY AND DETAINER — JUDGMENT.</p> <p>The act of March 7, 1891, imposing certain penalties upon any tenant who wrongfully continues in possession of premises after a violation on his part of the terms of a lease, is applicable to contracts entered into before its passage, although the penalties are increased by.the later law, as it comes under the rule that a change in the remedy incident to existing contracts may be made without affecting rights thereunder.</p> <p>The fact that a receiver had been appointed in a suit brought to foreclose a mortgage against the lessee would not deprive the lessor of the right to obtain possession of the premises by a proceeding under the forcible entry and detainer act, even if the lessor had been made a party to the foreclosure suit.</p> <p>Notice to a receiver for the lessee of premises to surrender possession is unnecessary when notice was served upon the lessee prior to the appointment of the receiver.</p> <p>The appointment of a receiver in a foreclosure suit for the purpose of looking after the rights of the lessee of premises and his creditors does not authorize such receiver to represent the rights of the lessor.</p> <p>The fact that judgment in an action brought under the forcible entry and detainer act declares a forfeiture of the lease is harmless error, since the lessee could, under that act, by performance of the conditions of the judgment, be restored to his rights under the lease, whether or not a forfeiture had been adjudged.</p>

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

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

<p>FRAUD — SUFFICIENCY OF COMPLAINT.</p> <p>A complaint in an action for damages for false representations states a cause of action when it alleges that defendants made representations as to the solvency of the makers of two promissory notes, knowing them to be false and that the notes were valueless, and that plaintiff relied upon such representations, although the complaint may further allege that defendants falsely represented that they Would indorse the notes and become responsible for their payment, hut that, instead of doing so, they indorsed them without recourse, as the representations as to solvency and indorsement were concerning distinct matters to such an extent that the negotiations as to the solvency of the makers could not he considered as having been merged in the contract of indorsement.</p>

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

<p>STATUTE OF FRAUDS — PAROL AGREEMENT TO DEVISE LANDS.</p> <p>A parol agreement to convey real estate by will, made in settlement of a law suit, is not enforceable under the statute of frauds, when there had been no act of part performance on the part of the decedent, although valuable rights may have been relinquished by the intended devisee in consideration of the contract. ( Dunbar, J., dissents.]</p> <p>A parol contract to devise a certain portion of one’s estate, including both realty and personalty, is void under the statute of frauds, for the reason that being void in part it is void as a whole.</p>

<p>MUNICIPAL CORPORATIONS — CONSTRUCTION OP ORDINANCE — LICENSES — ESTOPPEL TO QUESTION — REVOCATION — RECOVERY OF UNEARNED PORTION — VERIFICATION OF CLAIM.</p> <p>A city, after receiving a license fee for public amusements and permitting a public dance to be conducted under the license thereby obtained, cannot claim, after stopping the dance, that the license did not authorize the dance and that therefore the fee was voluntarily paid and the unearned portion could not be recovered.</p> <p>A public dance is á public amusement within the meaning of an ordinance imposing a license fee on “ every theater, opera, concert . . . or other public amusement that is given in or connected with any saloon.”</p> <p>That a claim presented to a city council was not verified as required by the city charter is no defense to an action against the city for the amount, if it was not rejected on that ground and the charter does not forbid an action on an unverified claim.</p> <p>Upon revoking a license to conduct a public amusement for which a fee entitling to a license for a year had been received, a city is bound to return the unearned portion of the license fee.</p>

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

<p>LABORERS* LIENS — CHATTEL MORTGAGE — PRIORITIES.</p> <p>Laborers’ liens may he enforced for the full amount against the output of a shingie mill, notwithstanding it was run successively by two different concerns, without segregating the claims against each, when it appears that the labor contract was a continuing one and the business a joint undertaking. (Hoyt, C. J., dissents).</p>

<p>UNRECORDED CHATTEL MORTGAGE — SUBSEQUENT PURCHASERS — DESCRIPTION OF GOODS — PUBLICATION OF DEPOSITIONS.</p> <p>A chattel mortgage, although not verified and recorded as required by Gen Stat., §1648, is not void as to subsequent purchasers, who take with notice of its existence.</p> <p>The location of chattels mortgaged need not be stated in the mortgage, if they are otherwise sufficiently described.</p> <p>Notice of motion to publish depositions is not necessary, as Code Proc., § 822, requiring notice of motions to the adverse party is not applicable to motions which cannot be contested.</p> <p>That the complaint is amended after a deposition is taken will not be sufficient to exclude it, if it is upon and pertinent to the issues raised by the amended complaint.</p> <p>Depositions opened by the clerk by mistake but at once sealed up and kept in his custody until regularly ordered to be published by the court, may, within the discretion of the court, be used upon the trial.</p>

<p>APPEAL — REVIEW OF EVIDENCE DE NOVO — EVIDENCE.</p> <p>The appellate court must examine de novo the evidence upon which the decision is based, under Laws 1893, p. 130, in cases tried by the lower court without a jury, and may set aside the findings and conclusions of the court, although there may be some conflict in the testimony.</p> <p>In an action by the alleged assignee of a note and mortgage to foreclose same, statements of the mortgagee that the mortgagor is indebted to him on a note and mortgage, made in the absence of such assignee, are not admissible in evidence.</p>

<p>VERBAL LICENSE TO USE LANDS — REVOCATION.</p> <p>A verbal license to enjoy a permanent privilege on the land of another is revocable at the will of the licensor, although money may have been expended thereunder by the licensee. (Dunbar, J., dissents). -</p>

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

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

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

<p>MORTGAGES — EXECUTION BY HUSBAND AS UNMARRIED MAN — ESTOPPEL.</p> <p>One who executes a mortgage representing himself to be a single man is estopped from denying its validity on the ground of his marriage and the failure of his wife to join therein.</p> <p>The presumption of a continuance of the marriage relation, shown to have once existed, is overcome by proof that for more than thirty years the parties have lived in different states, and have had no communication with or knowledge of one another for more than ten years, while the alleged wife has for many years been living with another man as his wife and going by his name.</p> <p>An innocent mortgagee of land is not subject to the claim of a wife of the mortgagor, who for more than thirty years had lived apart from him in another state, while he represented himself, and was understood in the locality where he resided, to be a single man.</p>

<p>GARNISHMENT — LIABILITY ON COUNTY TO PROCESS — COLLATERAL ATTACK.</p> <p>A judgment against a county as garnishee defendant is void on collateral attach, when the statutes do not make a county subject to garnishee process.</p> <p>A county is not liable to garnishment unless made so by express statutory provision.</p> <p>The fact that corporations are named by statute as among those upon whom process in garnishment may be' served does not apply to municipal corporations, unless they are expressly included.</p>

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

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

<p>. Appeal from Superior Court, Spokane County.— Hon. Cyrus Happy, Judge pro tern.</p>

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

<p>ACTION ON INJUNCTION BOND — RECEIVER SUBSEQUENTLY APPOINTED — ATTORNEYS’ PEES — QUESTION FOR JURY — WAIVER.</p> <p>In an action on an injunction bond, the court is warranted in -directing the jury that there can be no recovery for loss on sales while the injunction was in force, where it was habitually violated •and no sales were in fact prevented thereby.</p> <p>An injunction restraining a corporation from doing business operates as against a receiver subsequently appointed.</p> <p>That the order appointing a receiver of a corporation did not authorize him to make sales does not prevent recovery in an action by him on an injunction bond given prior to his appointment, for loss •of profits occurring after his appointment by reason of the injunction against sales, as only the corporation, its stockholders and •creditors, can question his authority to make sales.</p> <p>The mere acceptance of the statutory attorney’s fee upon the dissolution of an injunction is not a waiver of the right to recover attorney’s fees in an action upon the injunction bond.</p> <p>The amount of the attorney’s fee to be allowed plaintiff in an action on an injunction bond, on account of professional services in the matter of the injunction, is to be fixed by the jury and not by the court.</p>

<p>HOMICIDE — SELF-DEFENSE — EVIDENCE — THREATS BY DECEASED — CHARACTER OP DECEASED — WITNESS — PROOF OF REPUTATION — CONSULTATION OF JURY.</p> <p>It is not incumbent upon one assailed while on his own premises outside of his dwelling-house to retreat, or consider whether a retreat can be safely made, before availing himself of the right of self defense, where he has reasonable grounds to believe, and does in good faith believe, that his assailant intends to take his life or do him great bodily harm.</p> <p>Threats made by deceased against defendant in a prosecution for murder, whether uncommunicated or made directly to defendant, are admissible upon the question whether or not deceased was the first assailant and whether or not he so acted at the time of the shooting as to induce in the mind of defendant an honest belief that deceased intended to kill him or do him great bodily harm.</p> <p>Evidence of the reputation of defendant for peace and quietude is admissible, in a prosecution for murder, on the question as to who was the aggressor in the affray in which the homicide was committed ; and defendant is entitled to have the jury charged as to the weight to be given to such evidence.</p> <p>In a prosecution for murder, the clothing worn by deceased at the time he was shot, and the gun with which the shooting was done, are admissible in evidence, and may properly be taken by the jury to their room, when they retire to consider their verdict.</p> <p>Evidence of the reputation of a witness for truth and veracity in a city five or six miles from his residence may be shown in rebuttal of evidence attacking his character in that respect, where he does business in such city and has acquired a reputation for truth and veracity therein.</p>

<p>CONSTITUTIONAL LAW —IMPAIRMENT OF OBLIGATION OF CONTRACTS — STATUTE EXEMPTING PROCEEDS OF INSURANCE POLICIES.</p> <p>A policy of life insurance and the money to become due under it, belong from the moment the policy is issued to the beneficiary therein named, and it is beyond the power of the insured to transfer to any other person the interest of such beneficiary.</p> <p>A legislative enactment which so far affects the remedy subsisting when and where a contract is made, as substantially to impair and lessen the value of such contract, conflicts with § 10, art. 1, of the Federal constitution, providing that ‘ ‘ no state shall pass any law . . . impairing the obligation of contracts.”</p> <p>A statute should not be given a retroactive construction, when to so construe it impairs existing rights, unless it clearly appears that such was the legislative intention.</p> <p>Act of March 20, 1895, providing that ‘1 the proceeds or avails of all life insurance shall be exempt from all liability for any debt” construed and held to be prospective merely.</p>

<p>RECORD ON APPEAL — INCLUSION OP AFFIDAVITS — TRUST DEED — INSOLVENCY AND FRAUD OF TRUSTEE — ACTION BY BONDHOLDERS — RECEIVER,</p> <p>In order to entitle affidavits purporting to have been used on the hearing of a motion for the appointment of a receiver, to be considered on appeal, the fact that they were so presented must be certified by the court in some manner.</p> <p>The written notice contemplated by a provision of a trust deed, that upon default in payment of interest the bonds secured shall, at the election of the trustee, become immediately due upon the giving of such written notice, may be dispensed with and the election made by the bondholders, where the corporation deceived them as to the amount due on a mortgage to the trustee and conspired with the trustee to dispose of the property contrary to the provisions of the deed.</p> <p>The appointment of a receiver on the application of bondholders, upon the foreclosure of a trust deed, is warranted when it is shown that the trustee is insolvent, occupies an adverse position to the bondholders, and has been guilty of fraud.</p> <p>A part of the bondholders may maintain an action to foreclose a trust deed securing the bonds, where there are numerous bondholders residing at a distance who are unknown to plaintiffs, under Code Proc., § 144, which provides that when the question is one of common or general interest to many persons, or the parties are numerous, and it-is impracticable to bring them all before the court, one or more may sue for the benefit of the whole.</p>

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

<p>NEGOTIABLE NOTE — INDORSEMENT BY MANAGE» OF CORPORATION.</p> <p>Possession by a third person of a negotiable promissory note pay-, able to a corporation, bearing the indorsement of such corporation regular in form and signed by its general manager, is sufficient to raise the presumption that the indorsement was made with authority and that the holder is the owner of the note.</p>

<p>EVIDENCE — ADMISSIBILITY OP PAROL — IMMATERIALITY.</p> <p>A question asking a party as to what arrangement he had in relation to getting his pay for certain property is properly excluded where a written contract has already been put in evidence covering the subject.</p> <p>The exclusion of evidence tending to establish a fact essential to the plaintiffs’ recovery is not prejudicial error, where the fact is not disputed.</p>

<p>APPEAL — ASSIGNMENT OP ERROR — OBJECTIONS NOT RAISED BELOW — ACTION AT LAW — DEPENSE OP ESTOPPEL.</p> <p>An instruction is not entitled to consideration on appeal, where it was especially excepted to on a ground different from that urged in the appellate court.</p> <p>The making of a motion below for a new trial upon the statutory grounds does not save an objection goiDg to the form of the action, in that the testimony shows a variance or a failure of proof, where no objection was made to the admission of the evidence, nor any motion for non-suit on account of failure of proof, nor any request for an instruction to find for the appellant for such reason.</p> <p>Matter by way of estoppel is available as a defense in an action at law as well as one in equity.</p>

<p>NEGOTIABLE INSTRUMENTS — LIABILITY OF SURETY — CONDITIONAL SIGNING.</p> <p>One to whom a note is sent by a person who signed it as surety, with the understanding that the person to whom it was sent might use it when signed hy himself also, cannot, on using it without himself signing and again receiving the note by rescission of the transfer, maintain an action thereon against him who signed it on the unfulfilled condition.</p>

<p>Appeal from Superior Court, Lewis County. — Hon. W. W. Langhorne, Judge.</p>

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

<p>CRIMINAL LAW — EXAMINATION OF JURY — WITNESSES ON INFORMATION — MISSPELLING NAMES — CONTINUANCE.</p> <p>Questions put toa juror in a criminal prosecution, which attempt to ascertain in advance what he would think of the credibility of defendant as a witness, considering his interest in the result, are properly excluded.</p> <p>The misspelling of the names of witnesses for the state as indorsed upon the indictment, does not require the exclusion of their testimony, where they testified at the preliminary examination and were called and sworn in open court before the commencement of the trial, as the only object of the statute requiring the indorsement of the names of the state’s witnesses upon the indictment is to guard against surprise.</p> <p>The overruling of a motion by defendant in a criminal prosecution for a continuance because of the misspelling of the names of witnesses for the state as indorsed upon the indictment is not sufficient to base error upon, in the absence of a showing that defendant was surprised and misled.</p>

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

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

<p>SHERIFF — LIABILITY OF SURETIES ON BOND FOR UNLAWFUL LEVY-MEASURE OF DAMAGES.</p> <p>Sureties ou a sheriff’s bond are liable for bis mistake in taking the goods of a stranger under process, when attempting, in discharge of his duty, to take those of the person named in the process.</p> <p>The value of the property, without any allowance for personal humiliation or sense of wrong is the measure of damages for an unlawful taking of property by an officer without any malice or desire to oppress.</p>

<p>TAXATION — PERSONAL PROPERTY — IMPROVEMENTS ON PUBLIC LANDS.</p> <p>Taxes on personal property are not within the contemplation of Laws 1895, p. 67, remitting penalty and interest on taxes due in 1893 and 1894.</p> <p>The improvements contemplated by Laws 1893, p. 323, § 3, providing that personal property for the purposes of taxation shall he construed to include all improvements on land, the fee of which is still vested in the United States or the State of Washington, include improvements upon lands, the title to which can never he acquired by the parties making the improvements.</p>

<p>ACTION FOR CRIMINAL CONVERSATION — WIFE AS WITNESS — DAMAGES.</p> <p>In an action by a husband for the seduction of his wife, she cannot testify except with the consent of the husband.</p> <p>The fact that the damages awarded by the jury in actions for the recovery of damages are in a larger amount than the appellate court would have deemed justified is not a sufficient fact to warrant the court in setting aside the verdict for excessive damages, but it must appear that the damages were awarded through passion or prejudice on the part of the jury.</p> <p>A verdict for $15,000 in an action by a husband for the seduction of his wife and the alienation of her affections will not be deemed so excessive on appeal as to warrant the granting of a new trial, where the evidence shows that the plaintiff and his wife were respectable people, that she was a school teacher and received good wages as such, that plaintiff was a lawyer and had been elected prosecuting attorney and that the relations existing between them prior to the advent of defendant, were cordial, friendly and affectionate.</p>

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

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

<p>PAROL CONTRACT TO CONVEY COMMUNITY REALTY — STATUTE OF FRAUDS — ACTION AGAINST ADMINISTRATOR — INTERVENTION BY CREDITORS — APPORTIONMENT OF COST.</p> <p>A parol agreement of a husband to eonvey community real estate to his wife is within the statute of frauds.</p> <p>A mere general or contract creditor has not such a direct and immediate interest as entitles him to intervene in an action against an administrator for the recovery of real estate.</p> <p>The court may apportion the costs when some of the causes of action are of an equitable nature.</p>

<p>ASSAULT WITH DEADLY WEAPON — SUFFICIENCY- OF INDICTMENT.</p> <p>In an indictment charging defendant with an assault with, a deadly weapon with the intent to inflict a bodily injury, the employment of the term “personal injury,” although the statute uses the term “ bodily injury,” will not render the indictment insufficient.</p>

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

<p>CORPORATIONS — CONTRACT OP SURETYSHIP — CONSENT OP DIRECTORS — PRINCIPAL AND SURETY — ESTOPPEL — CONTRACTOR’S BOND.</p> <p>A lumber company which is empowered by its charter to carry on the manufacture and sale of lumber in its various forms, including everything connected with the manufacture and sale of lumber, and to do anything and all kinds' of business allowed to corporations by the laws of the state, is authorized to become surety upon the bond of a contractor to whom it furnishes building material, when such is the custom of manufacturers of lumber in the same locality.</p> <p>The fact that a bond has been executed by a corporation without the direct authority of a resolution of its board of trustees will not invalidate the bond, when it appears that a majority of the trustees were in consultation about it prior to its execution and consented thereto.</p> <p>A surety upon a building contractor’s bond is not released from liability by reason of alterations in the specifications after the execution of the bond, when the bond referred to the specifications which in terms permitted the making of alterations, and when the surety, with knowledge of the proposed changes, agreed to furnish the necessary mill work therefor.</p> <p>The provision in a building bond requiring the contractor to furnish the materials for the building must be construed as meaning that payment therefor is to be made by himself and not by the obligee, and, upon his failure to fulfill the terms of the bond in that respect, there is such a breach as warrants action against his surety.</p>

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

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

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

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

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

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

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

<p>APPEAL — CERTIFYING QUESTIONS TO SUPREME COURT — APPEALABLE ORDER.</p> <p>Under the appeal act of 1893, the superior courts are not authorized to certify questions to the supreme court for decision.</p> <p>An order of the superior court directing that certain proceedings he sent to the supreme court for determination of the points in controversy in the case is not an appealable order.</p>

<p>CRIMINAL LAW — FORMER ACQUITTAL — FALSE PRETENSES — WHAT CONSTITUTES— WHAT SUBJECT TO LARCENY BY FALSE PRETENSE.</p> <p>The fact that a defendant has been discharged before verdict upon a prosecution for larceny of certain property by fraudulently and falsely personating another is not a bar to a subsequent prosecution for obtaining the property under false pretenses, when the first discharge resulted from a variance between the information and the proof.</p> <p>The constitutional prohibition against placing a person twice in jeopardy for the same offense is not violated by a second prosecution of one for a separate and distinct offense based upon a different statute, the penalty prescribed for the violation of which is different from that imposed by the statute under which the first information was laid, although the acts upon which the two prosecutions are based may have been the same.</p> <p>A lady’s beaver shoulder cape is the subject of larceny by false pretense, under Penal Code, §234, classifying as such subjects “ any money, transfer, note, bond, or receipt, or thing of value.”</p> <p>The statute punishing the obtaining of property “ by color of any false token or writing, or any false pretense” does not restrict the false pretense to one in the nature of a “token or writing.”</p>

<p>INSURANCE — SUSPENSION BY NON-PAYMENT OP PREMIUM — WAIVER-JUDGMENT FOR PREMIUM.</p> <p>An agreement by an insurance company to cancel a judgment for the amount of premium notes and throw off the court costs if the assured would pay same by a given date does not amount to an extension of the time of payment of the premium, when there is no agreement on the part of the insurance company that it should have that effect.</p> <p>A confession of judgment for the amount of premium notes due an insurance company is not equivalent to a payment of the. premium.</p>

<p>CONTRACT — TIME OF PERFORMANCE — ENFORCEMENT.</p> <p>An agreement to purchase a certain amount of stock in a company on or within three years from date, the stock meanwhile to be placed in escrow, cannot be enforced against the purchaser when the stock was not placed in escrow pursuant to the contract for a period of nearly sixteen months after the date of the contract.</p>

<p>PRINCIPAL AND SURETY — EXTENSION OF TIME OF PAYMENT — CONSIDERATION— TRIAL — JUDICIAL COMMENT ON FACTS.</p> <p>An extention of the time of payment of a promissory note in consideration of the payment of interest in advance, will discharge a surety, when made without his knowledge or assent.</p> <p>The fact that the court in charging the jury, rehearses the plaintiff’s or defendant’s theory of the case is not a comment on the facts in violation of the constitutional inhibition.</p>

<p>COUNTY TREASURER — POWERS — TRANSFER OF GENERAL TO SALARY-FUND — STATUTES — CONSTRUCTION.</p> <p>Laws 1889-90, p. 314, §36, authorizing the county treasurer in ■case the salary fund should prove insufficient for payment of salaries of county officers, to transfer from said fund to the general ■county fund such sums as may be necessary to pay said salaries as they become due, cannot be confined to moneys in the general fund not otherwise appropriated, but applies to any moneys which may be in that fund, although warrants may have been drawn thereon prior to such transfer.</p> <p>If the language of the statute is capable of two constructions, one ■of which will make it entirely consistent with the provisions of the constitution, and the other inconsistent with such provisions, that which will make it consistent must be adopted by the courts; but, if the language used is capable of but one construction, the courts have no discretion in the premises, but must give the intention manifested from the language used such force as is warranted under the provisions of the constitution.</p>

<p>CONTEMPT — APPEAL — SUFFICIENCY OF AFFIDAVIT CHARGING- CONTEMPT.</p> <p>An order adjudging a person guilty of contempt of court is ap-pealable, under Code Proc., §791.</p> <p>The violation of an order of the court to produce certain books belonging to a bank for which a receiver had been appointed, is not subject to punishment for contempt, although committed by the president of the bank, where the affidavit used as a basis for the contempt proceedings fails to show that it was within the power of the party prosecuted to comply with the order.</p> <p>The fact that proof subsequently introduced upon the trial tends to show that one charged with contempt of court had books in his possession which he was ordered to produce, but that he violated the order, is immaterial when such fact is not sufficiently shown by the affidavit used as a basis for the proceeding.</p>

<p>ABATEMENT OF ACTION — PENDENCY OF OTHER ACTION — MANDAMUS TO COMPEL COURT TO PROCEED WITH ACTION — CREDITOR’S BILL IN FOREIGN FORUM — EFFECT ON PARTIES NOT WITHIN JURISDICTION.</p> <p>The fact that a stay of proceedings of a cause in a court of this state has been granted on motion instead of answer setting up the pendency of an action in another state involving the same subject matter is not ground for reversal.</p> <p>The pendency of a creditor’s bill in another state which seeks to subject to the claims of creditors the proceeds of an insurance policy, upon which an assignee of the assured had instituted an action in this state, will not constitute a ground for stay of proceedings here, when the assignee has not been made a party to the action in the foreign court, even though it is averred in the pleadings therein that the assignment was invalid because of fraud.</p> <p>Notice by the defendant in an action in this state to the plaintiff that the debt claimed by plaintiff is the subject of another action in a foreign state against the same defendant imposes no obligation on plaintiff to appear in the foreign court and defend the action there.</p> <p>A mandamus in the nature of a procedendo will be awarded against a superior court to compel it to proceed with a cause in which it had ordered an indefinite stay of proceedings on the ground that an action involving the same subject matter was pending in a foreign court against the same defendant.</p>

<p>PABTNEESHIP — EVIDENCE — STATEMENT IN CITY DIBECTOBY.</p> <p>The admission in evidence of a page in a city directory for the purpose of showing that a defendant was a member of a certain firm, there being no proof that he had authorized the insertion of his name therein, or even that he knew the directory contained such a statement, is erroneous.</p>

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

<p>Appeal from Superior Court, Snohomish County.— Hon. John 0. Denney, Judge.</p>

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

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

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

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

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