Volume 15 — Washington Reports

<p>CRIMINAL. LIBEL — INSTRUCTIONS — SUFFICIENCY OF INDICTMENT.</p> <p>In a prosecution for criminal libel it is not error for the court to charge the jury that “the publisher of a libel is presumed, to intend what the publication is likely to produce,” although §17 of the Penal Code, defining libel, may omit any reference to the matter of malice or intention constituting an element of the crime.</p> <p>The fact that oral instructions were given to the jury in the absence of defendant cannot be urged on appeal when it does not appear from the record what the instructions were, nor from any source that they were prejudicial, nor that the matter was called to the attention of the court upon a motion for a new trial.</p> <p>An indictment for criminal libel, which sets forth the libelous article and charges defendant with “ thereby intending to provoke [the person libeled] to wrath, and expose him to public hatred, contempt and ridicule and deprive him of the benefits of public confidence and social intercourse,” is sufficient, although the statute defines libel as “ the defamation of a person . . . tending to pro-yoke him to wrath, or expose him to public hatred,” etc.</p>

<p>CONSTITUTONAL LAW — TITLE OF ACT — PUBLIC IMPROVEMENTS — COUNTY AID — EMINENT DOMAIN — EXERCISE FOR BENEFIT OF UNITED STATES.</p> <p>An act of the legislature will not be declared void on the ground of violating the constitutional provision that “ no bill shall embrace more than one subject, and that shall be expressed in the title,” unless the violation is most clear — sound policy and legislative convenience requiring that this provision should be liberally construed.</p> <p>The act of February 12, 1895, entitled “ an act to grant and prescribe powers of counties relative to public works undertaken or proposed by the State of Washington, or the United States,” contains but one subject matter, which is fairly embraced within the scope of its title.</p> <p>An act authorizing counties to condemn land for a right-of-way for a ship canal projected by the general government, is not a violation of art. 8, §7, of the constitution, which forbids counties giving any money or property, etc., to or in aid of any individual, association, company or corporation, etc., as neither the state nor the United States can be brought within the meaning of the section.</p> <p>Such undertaking is not open to the objection that it is in violation of art. 8, §6, of the constitution, which prohibits a county from incurring debt for any other than strictly county purposes, as it is entirely within the limits of the county, and for the purpose of connecting two large local waterways with the Pacific ocean.</p> <p>The fact that an act authorizes the exercise of the state’s eminent domain for the purpose of constructing a ship canal which shall be under the control of the general government, but for the use and benefit of the public generally, will not render the act unconstitutional, when there is no express constitutional provision prohibiting it.</p>

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

<p>APPEAL — JUDGMENT BELOW UPON REMAND.</p> <p>Where the appellate court has held that the appellant holds certain real estate in his own name in trust for a partnership of which he was a member, and that, upon payment to him of moneys advanced.for its purchase, for which he was entitled to a lien thereon, the remaining property or its proceeds should be divided among the partners according to their proportionate interests, the trial court on a remand of the case has no authority to enter an order that the respondent would be entitled to a deed conveying to him a certain .proportion of the trust property on his payment to appellant of respondent’s proportion of the indebtedness.</p>

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

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

<p>APPEAL — SEBVICE OF STATEMENT OF FACTS — TIME OF APPEAL — ESTOPPEL — WHEN FINDINGS UNNECESSARY.</p> <p>Service upon respondent of a copy of a statement of facts prior to the filing of the original in the clerk’s office, is ineffectual for purposes of appeal.</p> <p>Where an appeal has been taken from a judgment, the appellant is estopped to afterwards take advantage of the fact that no copy of the judgment had been served upon him.</p> <p>Neither findings of fact nor conclusions of law are required on the part of a trial court when it grants a motion for a non suit in a jury case.</p>

<p>TRIAL — EVIDENCE RESPONSIVE TO ISSUES — INSTRUCTIONS.</p> <p>Where no attack has been made upon an answer to a complaint in the lower court, the defendant is entitled to have the jury charged upon any phase of the case as made by the evidence, which' is responsive to the issues.</p> <p>Errors growing out of a charge are always to he disregarded when the verdict is so plainly in accordance with the evidence that it follows as a conclusion of law thereon. '</p>

<p>FOBECLOSUBE OF MOBTGAGE TO BUILDING ASSOCIATION — CHANGE OF ' COBPOBATE NAME — EVIDENCE — WHEN DEFAULT ACCHUES.</p> <p>In the foreclosure of a mortgage to a corporation, the admission of other than record proof as to the change of- name of the corporation from that stated in the mortgage to the one under which, the action was prosecuted is not prejudicial error, when the record also shows a finding, without an exception to it, that “the plaintiff company was and now is the owner and holder of said mortgage.”</p> <p>In the foreclosure of a mortgage by a loan and building company the certificate of stock issued by it to defendant, with his assignment of the same to the company, is admissible in evidence¡ when reference thereto is made in the note and mortgage.</p> <p>Where a note and mortgage given to a loan and building company provide that in case the maker fails to pay any installment of interest or make any monthly payment on certain stock in the company, which had been issued to him and assigned to the company as further security, for the period of three months after the same shall become .due, then the whole sum with interest shall upon the election of the company become due and payable, the default does not become fixed for the purposes of the adjustment of the account between the parties, until the company elects to declare the entire amount due and payable, but until such time the contract continues in force entitling the company to accruing interest and payments upon the certificates of stock assigned to it.</p>

<p>NEGOTIABLE INSTRUMENTS — MAKER OR SURETY — PAROL EVIDENCE.</p> <p>The makers of a promissory note cannot show by parol that they all signed it as sureties, especially when there is an affirmative statement in the note that the parties signed as principals.</p>

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

<p>IMPLIED TRUST — ENFORCEMENT — PLEADING — LACHES — RESCISSION OF CONTRACT.</p> <p>In an action by stepchildren against the executor of their stepfather’s estate to have same declared a trust in their favor on the ground that some fifty years before in the year 1842, while they were small children, he had married their mother and had taken the proceeds of their father’s estate amounting to $5000, and had during half a century so invested it as to realize an estate worth several millions, the complaint is subject to demurrer when it appears that plaintiffs had never pressed their claims for a period of over thirty years after attaining their majority, and contains the bare allegation as a reason for such laches, that they had no knowledge of their rights until the year 1891, their stepfather having concealed the facts from them and claimed the ownership of the property, but nothing appearing to show fraudulent concealment on his part.</p> <p>In such a case, in order to avoid the charge of laches, the complaint should make a clear and explicit statement of all matters connected with their failure to assert their rights at an earlier date, including the source of their final knowledge as to their rights, when and how obtained, etc.</p> <p>A complaint by heirs, which asks the rescission of a contract for the division of property of a decedent’s estate, on the ground of false representations and coercion, is demurrable when it appears from the facts pleaded that the parties were dealing at arms’ length and that the parties seeking rescission had ample opportunity to know the amount and value of the property to which they were entitled at the time of the contract; and when it further appears that the alleged coercion was a threat of the other party to resign as administrator and delay the settlement of the estate unless they accepted his proposed compromise of their claims, when the effect of such resignation would have entitled such heirs to appointment in his stead to conduct the settlement of the estate, and there is nothing in the complaint showing that such heirs, who were women of mature years, were deficient in ordinary intelligence or incapacitated from transacting business.</p> <p>In order to rescind a contract on the ground of fraud, an action therefor should be promptly commenced upon the discovery of the fraud.</p> <p>The fact that a third party who is interested in a contract for the division of certain property is not a party to its abrogation is not a ground for the rescission of the subsequent contract, when it appears that such third party has never questioned or interfered with the agreement entered into between the other parties.</p>

<p>PAYMENT — EVIDENCE — APPEAL — WAIVER OF OBJECTIONS.</p> <p>In an action upon a judgment, defendant’s plea of payment is established by evidence that plaintiff had received from defendant’s father the plaintiff’s own bond for a sum which he stated in a letter to defendant was bigger than the judgment and he thought they were square, as the only logical inference therefrom could be that the bond had been accepted in payment of the judgment. (Hoyt, C. J., dissents.)</p> <p>Error in giving an instruction will not be considered on appeal, when it appears that a number of special exceptions to the instructions were taken, stating the reasons and grounds thereof with particularity, but that the error urged in the appellate court had not been made a ground of exception in the court below.</p>

<p>EVIDENCE.</p> <p>Where by the terms of a subsidy bond the obligee was given until September I, 1890, to complete a certain amount of railroad line, in an action upon the bond after that date, evidence showing the condition of the road July 1, 1890, is inadmissible.</p>

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

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

<p>COUNTY INDEBTEDNESS — VALIDATING ELECTION — NOTICE — BONDS — PAYMENT IN GOLD.</p> <p>A notice of election for the purpose of validating county warrants, given under the provisions of Laws 1893, p. 181, need not specify the polling places in the county where the election is to be held, but is sufficient when it gives a general notice as to when the election would be held throughout the county, since the general election law requiring notices to be posted in the several precincts affords the voters opportunity to ascertain where in each precinct the election would be held.</p> <p>When legislative authority is given to a county to issue funding bonds, without any restriction as to the kind of money in which they shall be payable, the county has discretion to issue such bonds as will best accomplish the general object to secure which their issue was authorized.</p> <p>When authority is conferred upon a county to issue bonds, the county is authorized to make them payable in gold, when there is no legislative restriction thereon, especially in view of the circumstance that it had been customary in this state and territory, prior to the grant of legislative authority, to make such bonds payable in gold, as it must be presumed it was the intention of the legislature that the former custom should be followed.</p>

<p>OFFICERS —REMOVAL FOR MISCONDUCT — APPEAL.</p> <p>The supreme court will not review the evidence in a special proceeding instituted under the provisions of Laws 1895, ch. 65, p. 114, unless settled in a statement of facts or bill of exceptions, and certified by the judge of the trial court, in accordance with Laws 1893, p. 115, § 11, as containing all the material facts.</p>

<p>TRUSTS — CREATION AND EXTINGUISHMENT.</p> <p>Where a voluntary association has been formed, known as the Fishermen’s Union, for the purpose of maintaining the price of fish, which were to be sold through a committee, moneys advanced for the fish by a purchaser do not become the joint property of the members of the union to be held in trust for distribution among them.</p> <p>Where money of an association, held in trust by one member thereof, has been paid out to another party, its trust character is, in the absence of fraud, thereby lost, and cannot be enforced as against such third party.</p>

<p>CRIMINAL LAW — EVIDENCE — BELIEF OF WITNESS — WEIGHT OF TESTIMONY.</p> <p>In a prosecution for cattle stealing it is competent for a witness, in testifying as to the identity of the animal alleged to have been stolen, to state that it was such animal “ to the best of his judgment and belief,” as the question of the force to be given to his testimony is for the jury.</p> <p>Although the evidence in a criminal case may not have been of the most satisfactory and convincing kind, yet the verdict of the jury should not be disturbed on appeal, if there was evidence tending to establish every material fact necessary to show the guilt of the defendant. (State v. Kroenert, 13 Wash. 644, followed.)</p>

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

<p>PLEADING — REPLY—INCONSISTENT DEFENSES — JUDGMENT ON PLEADINGS— ESTOPPEL — UNAUTHORIZED SALE BY ADMINISTRATRIX — FAILURE OF COURT TO MAKE FINDINGS — DISSOLUTION OF INJUNCTION — CONTINUANCE OF CONTRACT RIGHTS.</p> <p>When one portion of a reply to an affirmative defense set up in the answer which alleges a contract between the parties authorizing the acts complained of, admits such contract, another portion of the reply denying the contract, on the ground that plaintiff had no power to make it, should be stricken out on motion of the defendant therefor.</p> <p>Error of the court in refusing to strike a reply upon defendants’ motion, is cured by the action of the court in trying the case upon the theory that such reply was entirely irrelevant and immaterial.</p> <p>Judgment on the pleadings is not authorized where a reply, though insufficient in law, has actually been filed to the affirmative matter in the answer.</p> <p>Failure of the court to make special findings cannot be urged on appeal, where no requests therefor appear in the record.</p> <p>Where an administratrix has sold timber upon lands of her intestate for a fair price to parties purchasing in good faith, and, after having received from them almost the whole purchase price and refused to receive the balance, the amount received having been appropriated to the use and benefit of herself and the estate, and accounted for in her report to the court, she cannot come into a court of equity and rescind her sale and deprive the purchasers of the benefits thereof simply on the ground that she was not authorized by the court to make the sale as required by statute.</p> <p>Even if an unauthorized sale of timber by an administratrix was merely a license to cut and remove the timber, she is estopped from taking advantage of its invalidity, when the licensee has acted in good faith and paid her a valuable consideration therefor.</p> <p>Where defendants have been improperly restrained from performing certain acts under a contract, which was to be terminated at a certain time, the court may properly, in refusing to continue the injunction, grant defendants such further time after the period for which their contract rights had been given as would be equivalent to what they had lost by the interference of the plaintiff in securing a restraining order.</p>

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

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

<p>TRUSTS — POWERS OP TRUSTEE HOLDING LEGAL TITLE — ESTOPPEL — EQUITY — ENFORCEMENT OP LIENS.</p> <p>The authority of a trustee to deal with real property, the legal title of which has been vested in him by the cestui que trust, cannot be questioned by third parties dealing with him, so long as such authority is not denied by the cestui que trust.</p> <p>Where timber has been cut from land under authority of a license granted by an agent, the licensee and his assigns are estopped to deny the authority of the agent to execute the license.</p> <p>Contracts made by the trustee of a corporation may be enforced by it in its own name.</p> <p>A lien by contract is enforcible in equity, although the contract does not amount to a legal mortgage.</p> <p>Where the object of an action is to have the interest of the defendant established and the priorities adjusted as between plaintiff and defendant, plaintiff cannot complain that defendant, although holding nothing more than a lien interest in the property, is awarded the priority of lien, when the evidence sustains such a finding.</p>

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

<p>TRIAL OF RIGHT TO PROPERTY — FRAUDULENT CONVEYANCE — QUESTION FOR JURY.</p> <p>•Plaintiff is not entitled to a directed verdict in his favor, upon a trial of the right of ownership to property, attached as the property of another, but which was claimed by plaintiff under a bill of sale, when there is any testimony tending to show that the transfer to plaintiff was made with intent to hinder, delay or defraud creditors.</p>

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

<p>APPROPRIATION OF TIDE LANDS BY BOOM COMPANY — PARTIES —CONSTITUTIONAL LAW — SPECIAL PRIVILEGES — APPEAL — ERRORS NOT URGED — MISCONDUCT OF CLERK.</p> <p>The state is not a necessary party to an action for the appropriation by a boom company of tide lands, which the state has contracted to sell, as the state’s interest in land is not subject to condemnation.</p> <p>The alleged unconstitutionalit.y of the act conferring upon boom companies the right of eminent domain, owing to defect in the title of the act, will not be considered on apeal, when not raised in the court below nor in the briefs in the supreme court.</p> <p>A law conferring the right of eminent domain upon boom companies is not open to the objection that it contravenes the constitutional prohibition (art. 2, § 28) against the enactment of special laws granting corporate powers or privileges.</p> <p>The fact that one instruction given by the court had been inadvertently withheld by the clerk, upon a request from the jury during their deliberations to have the instructions sent them, cannot be urged as error, in the absence of any showing that the appellant was prejudiced by such omission.</p>

<p>REFORMATION OF MORTGAGE — MUTUAL MISTAKE — PLEADING — PARTIES — CONTRACT OF MARRIED WOMAN — EVIDENCE OF OWNERSHIP OF MORTGAGED PROPERTY — FAILURE TO DO EQUITY.</p> <p>The fact that the complaint, in an action for the reformation of a mortgage, does not in express terms aver that the mortgage was erroneously executed through “ mutual mistake ” will not render it insufficient, if it sets up facts from which such a conclusion is inevitable.</p> <p>The deed or contract of a married woman may be reformed in this state, in cases of mutual mistake, since § 1410, Gen. Stat., does away with the wife’s legal disability to contract.</p> <p>In an action to reform and foreclose a mortgage upon premises erroneously described, the mortgagors’ ownership of the premises intended to be mortgaged is sufficiently proved prima facie by evidence showing that the defendants were in possession of the property, exercising acts of ownership, renting and receiving rent therefor, insuring same in their own right as owners, and that they offered to convey the property to the mortgagee in consideration of a release of the mortgage and the payment of a small sum of money,</p> <p>One whose title is adverse to and paramount to the mortgagor is not a necessary nor proper party to a foreclosure of the mortgage.</p> <p>In an action to reform and foreclose a mortgage upon premises misdescribed therein, the plaintiff is not entitled to a decree, when he has, in consideration of a release of the mortgage, received a deed conveying the premises as erroneously described in the mortgage, and has failed to surrender the deed or to tender a reconveyance of the premises, as misdescribed therein.</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>INSURANCE OF PROPERTY BY MORTGAGEE — FIXTURES — INTENTION OF ONE ATTACHING MACHINERY TO REALTY.</p> <p>Where insurance has been effected upon mortgaged premises by the mortgagee, it must be presumed, in the absence of any communication of a contrary intent to the mortgagors, that it was so done in pursuance of a right reserved in the mortgage providing that the mortgagee might keep the property insured at the expense of the mortgagors, and that moneys paid for premiums should be a lien upon the mortgaged property and collected under the terms of the mortgage.</p> <p>Where policies of insurance upon mortgaged property are taken out by a mortgagee in the name of the mortgagors, with a provision that the loss, if any, should be payable to the mortgagee as her interest might appear, the mortgagee cannot show by oral testimony that the contracts were not made by her as mortgagee but that the policies were taken out for her sole benefit and that the premiums paid were not intended to be charged against the mortgagors under the conditions of the mortgage authorizing her to insure, if the mortgagors failed to do so.</p> <p>The intention to make machinery a permanent part of the building to which it is attached cannot be proved by testimony as to the actual state of mind of the person attaching it to the real estate at the time of its annexation, but must be gathered from circumstances surrounding the transaction, and from what was said and done at the time.</p>

<p>WHARVES — PRIVATE OWNERSHIP — RIGHT OP PUBLIC TO USE.</p> <p>A wharf belonging to an individual may from its use become in its-nature a public wharf.</p> <p>While Gen. Stat., §2136, recognizes the right of private ownership in wharves, the section, as a whole cannot be construed to mean that such private property may not be devoted to such use as will, in contemplation of law, make it partake of the nature of a public wharf.</p> <p>Every vessel has a license to use, for her safety or convenience, any public wharf, on navigable waters, or any private wharf, which by the nature of its use, becomes affected with a public interest, upon the payment of reasonable wharfage charges.</p>

<p>ERRONEOUS INSTRUCTIONS — BINDING ON JURY — JUDGMENT — SPECIAL FINDINGS BY JURY.</p> <p>Although an instruction to the jury may have been wrongfully given, it is binding and conclusive upon the jury. (Dunbar and Scott, JJ., dissent.)</p> <p>An erroneous instruction, when not complained of and excepted to, constitutes on appeal the law of the case, and the record will not he examined at the instance of the respondent for the purpose of determining wherein it is erroneous.</p> <p>Where the special findings of the jury are inconsistent with the general verdict, the former controls the latter.</p>

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

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

<p>JURY —PEREMPTORY CHALLENGES — WAIVER — ACTION ON DECEDENT’S NOTE — EVIDENCE — PROOF OF HANDWRITING — PRESUMPTIONS — JUDGMENT FOR ATTORNEY FEES — STATUTES — VOID AMENDMENT.</p> <p>Under the provisions of Code Proc., §348, governing peremptory challenges, the defendant cannot proffer a peremptory challenge to a juror on the panel, when the jury has been passed for cause and the defendant has failed to peremptorily challenge such juror until after several talesmen have been called and examined in place of jurors excused at the peremptory challenge of the plaintiff, as the right of challenge must be exercised alternately by the adverse parties.</p> <p>The testimony of a witness as to the signature of a decedent is sufficient to go to the jury, when it appears that the witness had been intimately acquainted with the deceased for a period of forty years, a part of the time in partnership, that their business relations were extensive and frequent, and that he had often seen the deceased sign his name, and was as familiar with the handwriting of deceased as with his own, and had no doubt that the signature in evidence was that of deceased.</p> <p>A witness is competent to testify to his opinion as to the genuineness of handwriting, after showing knowledge of the handwriting, founded on adequate means of knowledge, there being no precise standard fixing the degree of knowledge necessary.</p> <p>The rule that a valuable consideration for a note is presumed from the proof of due execution and the production of the note by a plaintiff, applies alike in actions against the maker while alive, and in actions against his administrators upon the rejected claim founded upon such note.</p> <p>The attempted amendment of §1468, Code 1881, by reference to its section number, in the act of 1883, being ineffectual, such section continues in force as now incorporated in Code of Procedure as §980.</p> <p>In an action on a promissory note, plaintiff is entitled, under Code Proc., §803, to judgment for an attorney’s fee in any amount specially contracted for.</p>

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

<p>EMINENT DOMAIN — OBSTRUCTION OF STREET BY RAILWAY TRACK — DAMAGE TO ABUTTING PROPERTY.</p> <p>Where, under an agreement between a millowner and a railroad company, a railroad switch has been constructed by the millowner, from the railroad to a mill for the purpose of running cars over same for the benefit of the mill, the millowner cannot escape liability for damages occasioned by the necessary operation of the switch in the customary manner, although the trains may be run and operated by the railroad company.</p> <p>If the owner of a lot has been damaged in a manner different from that of the public generally by the appropriation of a street for railroad purposes, he is entitled to compensation.</p> <p>There is proof of damages peculiar to plaintiff in the construction and operation of a railroad track in the street in front of his dwelling house, when it appears that the track runs so close to the sidewalk that a team cannot stand between them clear of the track, and that the dwelling house is damaged and rendered of less value by the running of trains over the track.</p>

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

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

<p>NEGOTIABLE INSTRUMENTS — SURETYSHIP — EVIDENCE OP — RELEASE OF SURETY BY EXTENSION — ACCEPTANCE OF INTEREST IN ADVANCE — BANKS — APPLICATION OF BANK DEPOSIT ON INDEBTEDNESS DUE.</p> <p>A surety is not entitled to release by an agreement between the principal and payee to extend the time of payment of an obligation, when the agreement is too indefinite to be enforcible.</p> <p>It may be shown by parol that one of two or more makers of a joint and several note was in fact a surety, and was known by the payee to be such when the note was taken.</p> <p>Where a creditor, without inadvertence or mistake, receives a payment of interest in advance on the note of a debtor, and does not expressly reserve the right to sue before the expiration of the period for which interest is taken, there is a contract created to extend the time of payment during the period for which the interest is paid.</p> <p>The extension of the time of payment of a note for a day only, in consideration of the payment of interest in advance, is sufficient to release a surety, when made without his knowledge or consent.</p> <p>The fact that the maker of a promissory note to a bank has on deposit therein a sum of money at the time his note is past due, and when action thereon is begun against a surety, does not impose a duty upon the bank to apply said sum in part payment of the note and thereby release the surety pro tanto.</p>

<p>DIVORCE — CUSTODY OF CHILDREN.</p> <p>The care and' custody of children of tender years should be awarded to the mother upon the granting of a divorce, when it is not made to appear that the mother is not a proper person to have the care and control of her children.</p>

<p>WILLS — CONSTRUCTION — TRUSTEES — PROBATE JURISDICTION.</p> <p>Where trustees of the property of an estate, instead of executors, have been appointed by a will, the probate court has no jurisdiction of questions involving their management of the estate, but the same are triable in equity.</p> <p>A will devising and bequeathing to certain persons all the testator’s property, “ in trust, nevertheless, to and for the following uses and purposes,” etc., constitutes such persons trustees, though they may be denominated in the will as executors, especially when it appears from the will construed as an entirety, that such was the intent of the testator, inasmuch as a non-resident is named as one of the executors and certain trust property of the testator is included in the devise.</p>

<p>PLEADING — AMENDMENT DURING TRIAL — EXCESSIVE DAMAGES — REMISSION OF EXCESS — DUTY OF MASTER TO SERVANT — FELLOW SERVANTS — EXCEPTIONS TO INSTRUCTIONS.</p> <p>It is within the discretion of the court to permit the amendment of a complaint by plaintiff after the close of his testimony, and it is not an abuse of such discretion when the amendment is not of such a character as to materially change the cause of action, nor such as to occasion surprise or place opposing counsel at a disadvantage.</p> <p>Where the trial court finds that a portion of the damages assessed by the jury is excessive, it is not required to grant a new trial, but may properly direct a remission of the excessive portion of the verdict.</p> <p>A foreman in charge of railway construction work, with authority to employ and discharge workmen and direct them in the performance of their work, and who is the sole representative of the company at the place or within miles thereof, stands in the position of a vice principal, although it may be the duty of such foreman to receive orders from, and report to, the roadmaster, whose headquarters were at a considerable distance from the place of work.</p> <p>The master owes a positive duty to an employee, not only to provide him with a reasonably safe place in which to work, so far as the nature of the work undertaken and the exigencies of the case will permit the same to be made reasonably safe, but also to observe such care as will not expose the employee to perils and dangers which may be guarded against by reasonable care and diligence; and where the performance of this positive duty is by the master entrusted to another, his failure to perform is the failure of the master.</p> <p>Under Laws 1893, p. 112, §4, providing that “Exceptions to a charge to a jury . . . may be taken by any party by stating to the court . . . that such party excepts to the same, specifying . . . the parts of the charge excepted to,” a general exception to a charge of the court setting forth four distinct elements of damage upon which plaintiff might recover, if he made out his case, is insufficient for the purpose of securing a review on appeal, when three of the elements of damage discussed by the court are manifestly correct, and the attention of the court was not directed to the particular portion of the charge complained of.</p>

<p>MUNICIPAL CORPORATION — POWER TO DISCOUNT ITS WARRANTS.</p> <p>A municipal corporation cannot enter into a contract to discount its own warrants, and, in pursuance thereof, deliver in payment of the purchase price of land, warrants whose face value is in a larger sum than the purchase price agreed upon.</p>

<p>ORDER GRANTING INJUNCTION — EFFECT OF APPEAL.</p> <p>An order granting a temporary injunction cannot he suspended by an appeal therefrom, as the statutory provisions authorizing the filing of a supersedeas bond (Laws 1893, p. 119, §§ 6, 7> have no application to orders granting injunctive relief.</p>

<p>JUDGMENTS — ACTION TO DETERMINE PRIORITY OF LIENS — PLEADING.</p> <p>In an action to have a deficiency judgment adjudged as a prior lien on other realty of the mortgagee defendants, upon which an unsecured creditor had obtained a judgment lien, the complaint is demurrable when it fails to state that the mortgagee defendants were insolvent, or that any execution had been issued against them for the deficiency upon the mortgage foreclosure judgment and returned unsatisfied.</p>

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

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

<p>FRAUDULENT REPRESENTATIONS — WHAT CONSTITUTES — PLEADING.</p> <p>One who, in order to induce another to purchase certain land, represents that the purchase price is'a given sum, and that he will take one half of the land if the latter will join with him in the purchase, is bound to so account to the latter that each will derive the same benefit from the contract of purchase, when the former had an agreement with the seller for the purchase of the property at a less sum than he represented to his co-purchaser that the land could be secured for.</p> <p>A complaint charging that the owner of land, in order to effect a sale thereof to plaintiff, had conspired with another for the purpose of defrauding plaintiff by agreeing that the co-conspirator should represent and pretend to plaintiff that the purchase price of such land was more than the price actually placed thereon between the conspirators, does not state a cause of action against such land owner, when it does not show that he derived any benefit from such misrepresentation, nor that he said or did anything to lead plaintiff to enter into the contract. (Dunbar, J.; dissents.)</p>

<p>JUDGMENT IN GARNISHMENT — RES JUDICATA — PROVINCE OP JURY.</p> <p>Id a suit upon a promissory note by the endorsee, in which the maker sets up the defense that the same had been paid in garnishment proceedings as a debt due the original payee, the action of the court in discharging the jury and finding for defendant is unwarranted, when there is conflicting evidence as to whether or not the endorsee had appeared in the garnishment proceedings.</p>

<p>BREACH OP CONTRACT TO CONVEY LAND— MEASURE OP DAMAGES.</p> <p>The measure of damages for the breach of a contract to convey an undetermined piece of land is the amount of money paid upon such contract with interest thereon from the date of such payment.</p>

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

<p>QUO WARRANTO — WHEN LIES — REMOVAL PROM CITY OFFICE — SUFFICIENCY OF CHARGES — REVIEW OF PROCEEDINGS.</p> <p>Where a public officer of a city has been removed from office upon certain charges and findings made against him by the mayor, who has appointed a successor, the proper remedy for the officer removed is by an information in the nature of a quo warranto.</p> <p>The removal by the mayor of a city of a police commissioner is warranted, when it is charged and proved that as such officer he attempted to interfere with the administration of the police department in the enforcement of the law against prostitution, by seeking to influence the chief of police to permit the occupation of certain premises for immoral purposes, which the mayor had ordered abated as a nuisance, and had attempted to remove the chief of police upon failing to influence him, the commissioner being interested as owner in certain of the buildings so occupied for immoral purposes, from which the mayor had directed the objectionable occupants to be removed.</p> <p>Although charges preferred against a public officer by the mayor of a city may be somewhat indefinite, objection thereto on that ground cannot be raised in the superior court, when the person removed from office had gone to trial on them before the mayor without objection and without any motion to make more specific and certain.</p>

<p>MORTGAGES — RECORD — INDEX — SUFFICIENCY.</p> <p>An index to a record of mortgages which contains the name of mortgagor and mortgagee and a description of the land to the extent that it gives, under three columns, headed respectively “ Sec. Lot,” “ Twp. Block” and'“ R,” the figures “85,” “7,” and “36” respectively, is sufficient to constitute constructive notice of an incumbrance upon sec. 35, twp. 7, range 36 in the county of the place of record, under the provisions of the law requiring records of deeds and mortgages to be properly indexed in order to constitute constructive notice.</p>

<p>RECEIVERS — LEAVE OF COURT TO SUE — ESTOPPEL — INSOLVENT CORPORATION— FRAUDULENT PREFERENCE ATTACHMENT BY CREDITOR — COSTS.</p> <p>Leave of the court appointing a receiver to sue is not necessary before instituting suits in matters connected with his trust.</p> <p>A judgment by confession, made by an insolvent corporation in favor of one of its creditors, who has knowledge of its insolvent condition, and.which confession is given and accepted for the purpose of making a preference in favor of such creditor over others, is void as against the other creditors.</p> <p>A receiver for an insolvent corporation is not estopped from assailing a confession of judgment by the corporation as fraudulent by reason of the fact that in a former receivership the receiver had treated the judgment as valid, and had been discharged by the court upon a false representation that all the debts of the corporation, except abalance on such judgment, had been paid.</p> <p>The fact that an order of court is made refusing to dissolve an attachment under sec. 318, Code Proc., does not establish the validity of such attachment as against creditors, but it may be attacked by the receiver.</p> <p>An attachment levied upon the property of an insolvent corporation by a creditor having knowledge of its condition may be set aside, although insolvency proceedings had not been instituted, under the rule in this state constituting the assets of an insolvent corporation a trust fund for the benefit of all its creditors.</p> <p>An attachment creditor who withholds possession from a receiver of the property of an insolvent corporation, which had been obtained by attachment levy, is not entitled to recover costs paid to the sheriff for the care and custody of the property levied on, including rent of the premises where the property had been kept, in an action instituted by the receiver to dissolve the attachment.</p>

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

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

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

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

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

<p>SUFFICIENCY OF COMPLAINT — WAIVER OF OBJECTIONS — INTERPLEADER.</p> <p>Where the objection that the complaint does not state a cause of action has been raised in the lower court by demurrer, and the demurrer has been subsequently waived, the defendant cannot raise the objection of. insufficiency of the complaint on appeal, as Code Proc., § 193, permitting the defendant to raise the objection at any stage of the proceedings that the complaint does not state a cause of action has no application to cases where the point has been once raised in the lower court by demurrer and then abandoned.</p> <p>When a complaint is attacked after judgment for want of facts to state a cause of action, it must be most liberally construed and the judgment sustained, if by any reasonable intendment it can be.</p> <p>A complaint in an action of interpleader is sufficient, especially when first objected to after judgment, when it alleges that plaintiff was indebted to a certain firm, that it had been garnished by two creditors of said firm, one of whom had obtained a judgment against plaintiff, but that the other garnishing claimant is assailing such judgment as void, that plaintiff is willing to pay the money due the principal debtor to the party entitled thereto and offers to pay said money into court to be applied as the court shall determine.</p>

<p>SALE — WHEN TITLE PASSES — INTENTION — REPLEVIN.</p> <p>In determining whether title has or has not passed by a contract of sale, the primary test is one of intention, and, if that is manifested clearly and unequivocally, it controls.</p> <p>Where goods have been sold to a purchaser in consideration of an antecedent debt due him from the seller, although nothing in furtherance of the sale beyond the manifest intention of the parties to pass title has been done, replevin will lie at the instance of the purchaser against a third party, who holds the goods under a lease from the seller, which has been violated.</p>

<p>CRIMINAL LAW — WRITS CORAM NOBIS — SUFFICIENCY OF SHOWING MADE.</p> <p>Admitting, but not deciding, that the writ comm nobis might issue from a superior court of this state to inquire into certain alleged misstatements by the prosecuting witness upon the trial of a criminal cause, the petition therefor would not be sufficient when based upon the claim that the testimony of such witness “ was not in accordance with the facts but was fraudulent and untrue.”</p>

<p>QUO WARRANTO — JUDGMENT OF OUSTER — EFFECT OF APPEAL — CONTEMPT.</p> <p>The filing of a supersedeas bond under Laws 1893, p. 123, § 7, has the effect only of staying proceedings on the judgment, but does not operate to suspend or destroy the force and effect of the judgment itself. (Hoyt, C. J., dissents.)</p> <p>A judgment of ouster in a proceeding in the nature of quo warranto divests the person ousted of all official authority whatever, and fully and completely excludes him from the office as long as the judgment remains in force.</p> <p>A judgment in favor of a relator in a proceeding by information to try the title to a public office is, from its very nature,, self-executing, and, without the aid of process or further action of the court, it accomplishes the object sought to be attained, so that there is nothing upon which a stay bond can operate, except an execution for costs. (Hoyt, C. J., dissents.)</p> <p>Where one excluded from office by judgment of ouster refuses to yield possession on the ground that he has appealed from the judgment and filed a stay bond, and proceedings for contempt are instituted against him, he is not entitled to a writ of prohibition to restrain the court from further proceeding to punish him for contempt, inasmuch as he has a remedy by appeal from any judgment of conviction that may be rendered against him, and such proceeding for contempt is not for the purpose of enforcing the judgment, of ouster, but is an independent proceeding to compel obedience to a lawful order of the superior court. (Hoyt, C. J., dissents.) .</p>

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

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

<p>PARTNERSHIP — EVIDENCE — SPECIAL VERDICT.</p> <p>In an action against several persons on the theory that they are co-partners in the quarrying business, which relation they deny, the general verdict of the jury against them should be set aside, when the special verdict of the jury finds such partnership's having been •entered into at a certain time and place, based upon a memorandum in evidence, which has none of the elements of a contract of partnership but is a unilateral agreement whereby certain lands are leased to defendants for quarrying purposes, there being no evidence showing the presence of all the alleged partners at the time and place such agreement was found by the jury to have been entered into.</p>

<p>VENUE — APPLICATION FOB CHANGE — WAIVER.</p> <p>A party entitled to a change of venue under Code Proc., § 162, because sued in a county other than that of his residence, does not, after having made proper demand for change, waive his right thereto by failing to appear at the time a ruling is had upon his application.</p>

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

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

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

<p>COMMUNITY PROPERTY — LIABILITY FOR HUSBAND’S DEBTS — INTERVENTION BY WIFE TO PROTECT.</p> <p>In an action against the husband on his promissory note, the wife has a right to intervene, for the purpose of having any judgment that may be rendered against the husband adjudge that the debt was not a community debt and that it should not be satisfied out of the community real property.</p> <p>A promissory note made to evidence a debt which is not for the benefit of the community cannot be collected out of community real estate, although the note may have passed into the hands of a bona fide purchaser for value before maturity.</p> <p>A judgment against a husband on account of his separate indebtedness is enforceable against the community personal property.</p>

<p>APPEAL BOND — SUFFICIENCY OF — COMMUNITY PROPERTY — LIABILITY . FOR SURETYSHIP DEBTS — LEVY ON HUSBAND’S INTEREST FOR COMMUNITY DEBT.</p> <p>An appeal will not he dismissed for the reason that the affidavit of the surety in the appeal bond fails to state that such surety is worth the required amount over and above all debts and liabilities as required by the statute.</p> <p>The property of the community is liable for an obligation of suretyship incurred by the husband in behalf of a corporation in which he is an officer and stock holder, in order to protect the property and business of the corporation, when, under all the circumstances of his relations with the corporation, it is to be presumed that he was acting for the community, and that any benefits which might have grown out of his connection with such corporation would have belonged to the community. '</p> <p>Where community property stands in the name of the husband, a levy upon all of his interest in the property, upon a judgment which could be enforced against the community, would authorize a sale of the property standing in his name for the benefit of the community. (Scott, J., dissents).</p>

<p>Appeal from Superior Court, Klickitat County.— Hon. Solomon Smith, Judge.</p>

<p>MUNICIPAL CORPORATIONS — ASSUMPTION OP ILLEGAL INDEBTEDNESS — POWER OP LEGISLATURE TO AUTHORIZE — DELEGATION OP POWERS.</p> <p>Indebtedness incurred by a void municipal organization may be assumed as a valid indebtedness by a duly organized municipal corporation subsequently incorporated within the same territory under a statute providing for the re-incorporation of such towns and legalizing contracts and obligations theretofore made or entered into by such void corporations.</p> <p>It is competent for the legislature to direct the payment by a municipal corporation of a claim that the law does not recognize as a legal obligation, and to ratify any act which it could have authorized to be done.</p> <p>An ordinance providing for the surrender to, and filing with, the mayor and clerk of a town of certain warrants issued by the town under a void incorporation thereof and directing the issuance of new warrants by such officers is not a delegation to them of power belonging to the council, when the ordinance itself shows that the council had audited and allowed such warrants by expressly recognizing the validity of the claims upon which they were issued.</p>

<p>EMBEZZLEMENT BY PUBLIC OFFICER — INFORMATION — INSTRUCTIONS.</p> <p>An information charging one as having received by virtue of his office as county clerk a sum'of money belonging to the county, which he unlawfully, knowingly, fraudulently and feloniously took and converted to his own use and embezzled, is sufficient to charge a crime under the provisions of § 57, Penal Code.</p> <p>Where a prosecution of a public officer for the embezzlement of public funds is had under Penal Code, §57, making the offense a felony, an instruction to the jury based on that theory is not erroneous, although another statute may provide for the punishment of such acts as misdemeanors.</p>

<p>DISBARMENT PROCEEDINGS — APPEAL BY PETITIONER — INTEREST OP APPELLANT.</p> <p>Where judgment of dismissal of a petition for the disbarment of an attorney has been rendered, the petitioner has no such interest in the subject matter of the proceeding as will entitle him to prosecute an appeal therefrom.</p>

<p>JURORS — QUALIFICATIONS — CONSTITUTIONAL LAW — UNIFORM LAWS — NEGLIGENCE — PROXIMATE CAUSE — CONTRIBUTORY NEGLIGENCE — STENOGRAPHER’S NOTES AS EVIDENCE.</p> <p>The act of March 19,1895 (Laws 1895, p. 139), requiring persons impaneled as jurors to be householders, but making no such requirement of those summoned upon an open venire to complete the panel, is not unconstitutional as a violation óf art. 1, § 12, of the constitution, -which provides that “no law shall he passed granting to any citizen, class of citizens . . . privileges or immunities which, upon the same terms, shall not equally belong to all citizens.”</p> <p>Where a law is uniform in its operations, in so far as it operates at all, its constitutionality is not affected by the number of persons within the scope of its operation.</p> <p>The fact that a person in a vehicle, after having driven across a street railway track, stops his vehicle so close to the track, for the purpose of conversing with a friend, that a car cannot pass without colliding, does not necessarily constitute contributory negligence of such a character as to prevent recovery for the negligence of the railway company in causing a collision.</p> <p>When the defendant’s negligence is the proximate cause of the injury, while that of the plaintiff is only a remote cause or a mere condition of it, the action will lie.</p> <p>A transcript of the stenographer’s notes showing the testimony of a witness on a former trial, is not competent evidence for impeaching the witness’s testimony in a subsequent trial of the same cause.</p>

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

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

<p>MANDAMUS — ALTERNATIVE WRIT — RECITAL OF FACTS.</p> <p>Tn an application for a writ of mandate, it is necessary, under Laws 1895, p. 117, §16 et seq., that the facts relied upon as ground of relief should be set out either in the alternative writ or in a petition served therewith and referred to therein.</p>

<p>APPEARANCE — WHAT CONSTITUTES — WAIVER OF DEFAULT — APPEAL — SERVICE OF NOTICE — SUFFICIENCY OF — PARTIES.</p> <p>The acceptance of service of a summons and complaint by an attorney for defendant and the endorsement thereon of appearance in the cause constitutes an appearance within the meaning of Code 1881, § 72, which provides that “ a defendant appears in an action when he answers, demurs, or gives the plaintiff written notice of his appearance, or when an attorney gives notice of an appearance for him.”</p> <p>The entry of a default against a defendant is waived by allowing him to participate in the subsequent proceedings in the cause, to serve and be served with motions, and by otherwise treating him as a party thereto.</p> <p>Notice of appeal must be served on all parties who have appeared in the action, even though such appearance may not have been made until after the entry of a default against them.</p> <p>Under Laws 1893, p. 121, §5, where actual service of notice of appeal cannot be had upon a party or his attorney, the return of the sheriff to that effect is the only competent evidence of the fact sufficient to justify service upon the clerk in behalf of the party not found.</p> <p>The fact that notice of appeal is served upon an attorney for a certain defendant will not charge him with notice on behalf of another defendant for whom he also appears as attorney.</p> <p>The fact that an appeal involves two separate cases which had been consolidated pursuant to §1674, Gen. Stat., will not warrant the supreme court in entertaining jurisdiction of the appeal from a single decree entered therein, when some of the defendants have not been served with notice of appeal, although there may be a proper service upon all the defendants in one of the cases as originally instituted.</p>

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

<p>OBSCENE LITERATURE — INDICTMENT — SCIENTER — JUROR — QUALIFICATIONS — BIAS — MISCONDUCT OF JUDGE — INDORSEMENT OF WITNESSES* NAMES.</p> <p>An indictment, charging defendant with knowingly, unlawfully, maliciously, scandalously and feloniously composing, editing, printing, selling, distributing and offering for sale, etc.., a certain lewd, scandalous, obscene and indecent newspaper, sufficiently charges the commission of the offense defined by §205, Penal Code, although there is no allegation of knowledge on the part of defendant as to the character of the publication, since such knowledge must necessarily be presumed from the fact of his editing and composing the publication.</p> <p>An indictment for publishing, editing and selling obscene and indecent literature, which charges defendant with editing, printing, selling, distributing and offering for sale and distribution a certain lewd, scandalous, obscene and indecent newspaper, is not objectionable on the ground that it charges the commission of more than one crime, since all are but one offence, laid as committed in different ways.</p> <p>Laws 1895, p. 139, providing that county commissioners shall select as jurors such only as are householders is not in violation of art. 1, §21, of the constitution, which provides that the right of trial by jury shall remain inviolate.</p> <p>In the examination of a juror upon his voir dire it is improper to ask him whether he would attach more importance or credibility to the testimony of a minister than to that of any one else.</p> <p>The fact that the court asked counsel for defendant, in the presence of the jury, whether they had any objection to the separation of the jury before verdict, is not ground of reversal, in the absence of any proof that defendant was prejudiced thereby.</p> <p>The indorsement of the name of an additional witness upon the information after the beginning of the trial, only entitles the defense to a continuance, and is not ground of error when a continuance for that reason is not applied for.</p>

<p>RECEIVERS — LIABILITIES FOR BREACH OF CONTRACTS PRIOR TO APPOINTMENT.</p> <p>The receivers of a railroad company are not liable for breach of a contract to carry a passenger entered into by the company prior to their appointment.</p>

<p>INFORMATION — DUPLICITY — SPECIAL COUNSEL IN CRIMINAL PROSECUTION— DISCRETION OF COURT — LEADING QUESTIONS — SUFFICIENCY OF EVIDENCE.</p> <p>An information against defendant for the crime of rape committed upon a female child under the age of twelve years, sufficiently charges one crime, and not two, when it alleges that defendant “feloniously did make an assault, and her the said [child] then and there feloniously did ravish, carnally know and abuse,” etc., since the words charging assault must be construed as charging same only as included in the crime of rape.</p> <p>It is within the discretion of the court to allow special counsel to aid the prosecuting attorney in the prosecution of a case, and such discretion will only be interfered with upon a showing of an abuse thereof.</p> <p>When there is evidence tending to show every fact necessary to establish the guilt of defendant, the court is not warranted in taking the case from the jury.</p> <p>The action of the court in allowing leading questions is a matter so largely within its discretion as to call for the interference of the appellate court only in extreme cases.</p> <p>The supreme court will not set aside a verdict in a criminal case, when there is testimony tending to show every necessary fact, and when the court which tried the cause has refused to interfere with the verdict.</p>

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

<p>WARRANTS OF SCHOOL DISTRICTS — INDORSEMENT BY COUNTY TREASURER — LIABILITIES.</p> <p>The provisions of Laws 1893, p. 268, § 7, making it the duty of the county treasurer not to register and indorse warrants issued by the officers of school districts unless the signatures thereon correspond with the signatures of the officers of the district on file in his office, are intended for the protection; nQt of the public at large, but of the county and the school districts therein, and no action will lie against a treasurer and his sureties, by the holder of a forged school district warrant, who claims to have purchased same on the strength of such treasurer’s indorsement.</p>

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

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

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

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

<p>REMOVAL OF CAUSES — TIME FOR APPLICATION.</p> <p>A nonresident defendant is not entitled to have an action for the foreclosure of a mortgage transferred to the federal court, when the complaint states but a single cause of action against all the defendants, and some of them, aside from the nonresident defendant, are necessary parties to a complete determination of the plaintiff’s rights.</p> <p>An application by a defendant for a transfer of the cause to the federal court must be made before the expiration of the time fixed by statute within which the defendant is called upon to answer, and such right cannot be enlarged by an extention of time in which to answer.</p>

<p>ACTION ON PROMISSORY NOTE —PLEADING —ALLEGATION OF OWNERSHIP.</p> <p>In an action on promissory notes by an indorsee thereof, the complaint is sufficient as against general demurrer attacking an averment of ownership in plaintiff, which is alleged as follows: “That for value and before maturity, Alexander A. Munson in dorsed said notes by writing across the back of each before delivery the name ‘Alexander A. Munson.’ That plaintiff is now the owner and holder of said notes and mortgage.”</p>

<p>STATUTES — CONSTITUTIONALITY — SCOPE OP TITLE.</p> <p>The title of an act showing that its object is to provide for the organization and government of irrigation districts and the sale of bonds arising therefrom is not broad enough to embrace a provision in the act for validating the indebtedness of a district previously-organized and the levying of a tax to pay the same.</p>

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

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

<p>DIVORCE — INABILITY TO LIVE PEACEABLY TOGETHER — ALLOWANCE OF ATTORNEY PEES.</p> <p>Code Proc., §764, subd. 7, providing that “a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together,” lodges a discretionary power in the court which must be exercised in a\SOund and legal manner so as to conduce to domestic harmony and the peace and morality of society.</p> <p>A court is warranted in refusing a divorce, although finding that the parties cannot live peaceably together, when such failure is due to their own obstinacy and stubbornness, and both parties are equally in fault. (Dunbar and Scott, JJ., dissent.)</p> <p>The allowance by the court of $300 as counsel fees to the wife, in refusing the husband’s petition for divorce, is not an abuse of the discretion reposed in the court in such matters, even though it may appear that a division of property had been made between the parties and that the wife was amply able to bear the expenses attending the action.</p>

<p>STATUTE OF FRAUDS — SALE OF LANDS — ACTION FOR DAMAGES — JUDGMENT WITHOUT VERDICT.</p> <p>An agreement made by husband and wife with a vendor, through the medium of letters and telegrams, whereby they agree to take certain land, directing that the deed be made to the wife, and the deed was made accordingly and possession of the premises taken by the wife, is sufficient to show a valid contract of purchase as against the statute of frauds.</p> <p>Where there is no conflict in the proofs, the court is authorized in taking the case from the jury and rendering judgment for the amount claimed.</p>

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

<p>GARNISHMENT — BRINGING IN NEW PARTIES — PROCESS — WRIT OP PROHIBITION— COSTS.</p> <p>The superior court has no authority in a garnishment proceeding to make an order directing that a person not regularly served shall be made a party defendant, although it may appear from the answer or , examination of the garnishee that such person is a necessary party.</p> <p>Upon the issuance of a writ of prohibition restraining action on the part of the superior court, the costs should be taxed against the party in the original action at whose instance the court was proceeding unlawfully.</p>

<p>VACATION OF JUDGMENT — LIMITATION ON ACTION BY MINOR — SUFFICIENCY OF COMPLAINT — JUDGMENT AGAINST EXECUTOR — EFFECT ON DEVISEES.</p> <p>An action for the vacation of a judgment against a minor is barred if not brought within a year after the arrival of such minor at the age of majority.</p> <p>A complaint in an action to vacate a judgment of foreclosure is insufficient, when there is no showing that it was not an equitable one, or that the judgment would be different if the cause were retried.</p> <p>A decree of foreclosure against the executor of an estate is binding on devisees, although not parties to the action.</p>

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

<p>MUNICIPAL COURTS — JURISDICTION — ASSAULT AND BATTERY.</p> <p>The constitutional provision requiring all offences theretofore prosecuted by indictment to be thereafter prosecuted by information or indictment does not require an information or indictment against one charged with assault and battery in a municipal court or that of a justice of the peace, since the offence was within the jurisdiction of a justice of the peace before the adoption of the constitution.</p>

<p>APPEAL — NOTICE — BANKS — ENFORCEMENT OF STOCKHOLDERS LIABILITY — RECEIVERS.</p> <p>The fact that notice of appeal has been given but not served on all who had appeared in the action, will not preclude the parties not served from themselves giving notice of appeal and serving same upon all necessary parties; and, in such case, there is nothing objectionable in the abandonment of the first appeal, by those attempting it, and a joinder by them in the second one.</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. (Wilson v. Book, 13 Wash. 676, followed.)</p> <p>The fact that an action by creditors against the stockholders of an insolvent bank includes the receiver of the bank as a party, will not entitle the creditors to enforce the contingent liability of the stockholders by a direct proceeding against them.</p>

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

<p>FRAUD — SUFFICIENCY OF EVIDENCE.</p> <p>When fraud is alleged it must have more conclusive proof to warrant the entry of a judgment.than mere inferences springing from one or two suspicious circumstances, especially when these had transpired so long before the trial as to make the incidents connected with them difficult of proof.</p>

<p>Appeal from Superior Court, Spokane County.— Hon. John McBride, Judge pro tem.</p>

<p>APPEAL — GENERAL OBJECTIONS — NEGLIGENCE OF PASSENGER CARRIERS— DEGREE OF CARE — INSTRUCTIONS.</p> <p>The objections that a statement of facts had not been settled in conformity with the law and that the appeal had not been legally taken, will not be considered, when no specific error has been called to the court’s attention either in the brief or by reference to the transcript.</p> <p>An instruction is erroneous which charges the jury in an action for injuries received by a passenger through defendant’s negligence in running a street car at a high rate of speed, that “ordinary care is such care as persons usually engaged in the particular line of business in question ordinarily exercise in and about such business. If defendant in this case exercised such care at the time of the accident, it had discharged its full duty and plaintiff cannot recover,” since the highest degree of skill and care is required by law of a common carrier of passengers.</p> <p>The failure of appellant to bring up more of the instructions than the paragraph complained of will not raise a presumption that the error was subsequently obviated by the court in its further instructions to the jury.</p>

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

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

<p>TRIAL — REQUEST FOR WRITTEN INSTRUCTIONS — FAILURE OF COURT TO COMPLY — IMPEACHMENT OF WITNESS.</p> <p>The giving of a partly written and partly oral charge to the jury is error, where written instructions have been requested; and the fact that a stenographer present in court took down the charge as given by the judge is not a sufficient compliance with the requirements of the statute in that respect.</p> <p>A witness cannot he impeached as to his truth and veracity by the testimony of other witnesses that, from their knowledge of his reputation, they would not believe him under oath.</p>

<p>APPEAL — FAILURE TO EXCEPT TO FINDINGS OF FACT — CONTRACTS — WHEN SURETY PRIMARILY LI ABLE — LIABILITY OF COMMUNITY FOR SURETYSHIP DEBT.</p> <p>When findings of fact made by the lower court are not excepted to, they must be considered on appeal as setting forth the facts in the case.</p> <p>Where a surety, in order to avoid suit at the maturity of a note upon which he is liable, makes a new note to the payee with himself and wife as principals, under an agreement that such note should be the principal debt and that the original note should be held by the payee as collateral to the new note, he cannot insist that it is the duty of the payee to first collect such original note.</p> <p>Where a husband and wife are liable upon a promissory note executed by them evidencing a community indebtedness, the wife cannot escape liability from the fact that an extension of the time of payment of the note was secured by the husband for a valuable consideration, without her knowledge or consent.</p>

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

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

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

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

<p>Appeal from Superior Court, Spokane County.— Hon. Norman Buck, 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>CERTIORARI — WHEN LIES — PLEADING ORDINANCE — REGULATION OF LIQUOR BUSINESS — VALIDITY' OF ORDINANCE.</p> <p>Certiorari will lie for the purpose of reviewing the action of a municipal court in a proceeding brought therein for the purpose of securing the conviction and punishment of one guilty of violating a city ordinance.</p> <p>It is not necessary to plead an ordinance by title, number and date of passage in a cpmplaint filed in a court of the municipality, as it is the duty of such court to take judicial notice of the ordinance.</p> <p>The subject matter of an ordinance providing for the licensing of saloons is not in conflict with the subject matter of an ordinance regulating the hours during which saloons should be closed.</p> <p>Where an ordinance consists of several and distinct parts, the fact that one of them is void will not render the whole ordinance void, if such void part can be eliminated without in any way- destroying the efficacy or utility of the rest of the ordinance.</p> <p>An ordinance fixing a minimum fine as the penalty for the commission of a misdemeanor, while the general misdemeanor law of the state fixes no minimum, is not void on that ground, as being in conflict with the general law.</p>

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

<p>DISTRIBUTION OF decedent’s ESTATE — POWER OP COURT to charge WITH LIENS — CO-TENANCY — RECOVERY OP EXPENDITURES MADE BY CO-TENANT.</p> <p>A court exercising probate jurisdiction has no power to direct a distribution of a decedent’s estate to the heirs, charged with a lien in favor of the administrator on account of money expended by him for the benefit of the estate.</p> <p>. A claim of one co-tenant against the others on account of expenditures made by him upon the common property of all, cannot be collected otherwise than by the retention of the property until it is paid, i . .</p>

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

<p>Appeal from Superior Court, Clallam County.— Hon. R. A. Ballinger, Judge.</p>

<p>ASSIGNMENT FOE BENEFIT OF CREDITORS — TITLE OF ASSIGNEE — CHATTEL MORTGAGE — FORECLOSURE SUBSEQUENT TO ASSIGNMENT.</p> <p>While an assignment transfers all of the property of an insolvent debtor to > the jurisdiction of the court, it passes such property subject to all valid liens existing against it.</p> <p>Where leave to foreclose a chattel mortgage has been granted by the court, upon the petition of the mortgagee subsequent to an assignment for the benefit of creditors, made by the mortgagor, it is error for the court to dismiss same on the motion of the assignee on the ground of the pendency of said assignment.</p>

<p>SALE OF ADULTERATED BUTTER.— SUFFICIENCY OF COMPLAINT.</p> <p>A complaint, under Laws 1895, p. 70, §5, making it unlawful for any person to sell any fat, oil or oleaginous substance or compound thereof, not produced at the time of manufacture from unadulterated milk or cream from the same, with or without harmless coloring matter, which shall be in imitation of yellow butter produced from pure unadulterated milk or the cream from the same, is not sufficient, when it fails to charge as a fact that the oleaginous substance and compound was not produced from unadulterated milk or the cream from the same.</p>

<p>TAXATION — FORECLOSURE OF LIEN — INSUFFICIENCY OF ASSESSMENT ROLL — ILLEGAL VALUATION — EVIDENCE.</p> <p>Semble, that a defendant cannot raise an objection to the sufficiency of an assessment roll in a suit for foreclosure of a tax lien, although he has entered a plea°of general denial, when he has also in an affirmative defense set up facts inconsistent therewith.</p> <p>An assessment roll, which is sufficient to authorize the proper officer of the city to collect the taxes is, prima facie sufficient to authorize the court to decree, foreclosure for non-payment of such taxes.</p> <p>A finding that a board of equalization had raised the valuation of city property to a higher sum than they considered it worth, is not warranted by evidence tending to show that the valuation placed on the property by the assessor was nearer its cash value, and that several members of the board had made statements to tha effect that it was necessary to place a high valuation upon the property of the city to enable it to meet necessary obligations, when the positive evidence of the members of the board is that they had no intention of raising the value of property beyond what was believed to be its cash value.</p> <p>No question of fact as to the valuation placed on property can be raised in an action to foreclose a tax lien thereon, unless it is first shown that the action of the board of equalization in valuing it was illegal or fraudulent.</p>

<p>ASSIGNMENT FOB BENEFIT OF CREDITORS — LEAVE TO MORTGAGEE* TO SUE — DISCRETION OF COURT — COLLATERAL ATTACK.</p> <p>Although an assignment for the benefit of creditors has been made by a mortgagor, it is a matter within the discretion of the court, to grant leave to the mortgagee to institute a separate suit for foreclosure.</p> <p>The action of the court in assignment proceedings in granting leave to a mortgagee of the assignor to bring a separate suit for foreclosure cannot be collaterally attacked in the foreclosure proceeding.</p>

<p>APPEAL — MOTION TO DISMISS — DIVORCE — RESIDENCE OF PLAINTIFF — ABUSIVE TREATMENT.</p> <p>A motion to dismiss an appeal, which is not set out in respondent’s brief, will not be considered, when it raises no jurisdictional question.</p> <p>In an action for divorce plaintiff must affirmatively plead, and satisfactorily prove, prior residence in the state for the period of a year or more.</p> <p>The fact that plaintiff left his home in the East and came to the state of Washington in search of a location, afterwards going to the state of California in pursuit of the same object, and then returning to the state of Washington, where he settled and went into business, is not sufficient to establish his residence here before his return from California, in the absence of proof of any intention to make a definite location in this state prior to his actual settlement.</p> <p>Plaintiff is not entitled to a divorce upon the ground of abuse, when the only evidence to support the action is proof, in the most general terms, of abusive language od the part of defendant, and plaintiff’s own testimony shows that he was alike culpable.</p>

<p>EXECUTORS — LIABILITY FOR MONEY DEPOSITED IN BANK.</p> <p>An executor, -who in good faith deposits funds of the estate in a bank at the timesolveut and of good repute, is not liable for depreciation of the trust funds resulting from the subsequent failure of the bank, if ‘the deposit, is made ,to the credit of the estate, and not in the executor’sjndi vidual name.</p>

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

<p>MISCONDUCT OF JUDGE — HOW SHOWN — RECORD ON. APPEAD.</p> <p>The minutes of the clerk of the superior court and affidavits will not be received or considered by the supreme court for the purpose of showing the alleged misconduct of the trial judge, but the facts must be accepted as certified by the judge in the statement of facts settled by him.</p> <p>The action of the trial court in leaving the bench and entering the jury room, at the request of that body while in consultation, is such misconduct as to warrant a reversal.</p>

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

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

— Hon. James G. McClinton, Judge. Action of trespass by plaintiff to recover damages sustained by reason of the tearing down of a building by defendants, of which the plaintiff was the lessee, and the removal of plaintiff’s property therefrom. Judgment for plaintiff and defendants appeal.

<p>NOTICE OP APPEAL — WHO ENTITLED TO SERVICE — APPEALABLE ORDER — COUNTY AUDITOR’S BOND — BREACH — LIABILITY OP SURETIES.</p> <p>The fact that some of the defendants to an action come in, after the rendition of judgment and notice of appeal, and file an answer in the cause, although the same had been previously served on plaintiff’s attorney, does not put them in a position requiring notice of appeal to be served on them.</p> <p>An order granting a motion to strike certain allegations from the complaint is appealable, when it affects a substantial right and determines the action as to the particular matter in issue.</p> <p>The sureties upon the bond of a county auditor are liable for his failure to account for moneys received as purchasing agent of the board of county commissioners, under statutes providing that the auditor should be ex officio clerk of the board and making it his duty as such clerk to perform all the duties required by law or any rule or order of the board, when he has been required by order of the board to act as purchasing agent for them.</p>

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

<p>MECHANIC'S LIEN — EXEMPTION OP MATERIAL FURNISHED PROM JUDGMENT LIENS AGAINST OWNER.</p> <p>The fact that a material man, who has furnished building material to a contractor, has filed notice of lien against the owner of the building in which it is to be used, will not, when the lien claim has not been paid, vest the title to such material in the owner of the building so as to render it liable to execution on judgments against him.</p> <p>Under Gen. Stat., §1675, exempting from execution material designed in good faith to be used in the construction of a building, such material will be exempt, although the completion of the building has been delayed for a number of years pending litigation, and whether the material is to be used by the one engaged in the construction of the building at the time of its purchase or by one succeeding to his rights.</p>

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

<p>FRAUDULENT CONVEYANCE — ACTION TO SET ASIDE — SUFFICIENCY OF COMPLAINT — ACTION BY RECEIVER — PROOF OF AUTHORITY.</p> <p>Technical objections to the form rather than to the substance of a pleading alleging fraud will be disregarded after judgment, when the case has been fully tried upon the issue.</p> <p>In an action by a receiver, failure to introduce in evidence the order appointing him will not entitle defendant to a non-suit, when the plaintiff testifies without objection that he is such receiver, and the action is instituted in the court which had appointed him receiver, and there is no showing of want of authority to bring suit.</p>

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

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

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

<p>BAILEE — LIABILITY FOE CONVERSION — WHAT CONSTITUTES CONVERSION OF STOCK — EVIDENCE.</p> <p>. Where the bailor of a certificate of shares of stock agrees with a purchaser that a portion of the shares shall be transferred to him in consideration of a certain price, a portion of which is paid down, and the bailee in whose hand the certificate is held, consents thereto and agrees to hold the stock for the purchaser and to deliver the same to him, first procuring the cancellation of the original certificate and the issuance of another one to the purchaser upon his paying the balance of the purchase price, such transaction amounts to a sale, and passes such a title to the purchaser as to authorize an action on his part to recover for the conversion of the stock.</p> <p>The surrender of a certificate of stock to one not entitled to it, who procures its cancellation and the issuance of a new certificate to himself, amounts to a conversion of the stock.</p> <p>In an action to recover for the conversion of shares of stock by a bailee instituted by one who had purchased a portion of the shares, on account of the bailee’s having surrendered all the shares to a third party assuming to be a purchaser of the whole of them, evidence tending to show that such third party paid the bailee in full for all the stock is immaterial.</p>

<p>GIFT BY HUSBAND TO WIFE OF COMMUNITY LAND — LIABILITY FOR COMMUNITY' DEBTS.</p> <p>Where Is-nd has been conveyed by a husband to his wife by a deed reciting that the land is “ to beheld to her separate use,” such land, when the transfer has not been made in fraud of creditors, becomes the separate property of the wife, and is not liable for community debts, which have not been contracted for expenses of the family or for the education of the children.</p> <p>The fact that the wife was not present at the time of the execution of a deed of lands to her by her husband and was not consulted in regard thereto, would not affect its character as vesting a separate title in her, where she has accepted the deed, and it has not been made in fraud of existing creditors.</p> <p>The recital in a deed by a husband to his wife that the lands conveyed were “ to be held to her separate use,” thus in effect constituting a gift to her, cannot be affected by the parol testimony of the husband that his purpose was to make provision for her aDd the family against possible reverses.</p>

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

<p>WITNESS — RE-EXAMINATION — MAY COVER GROUND OP CROSS-EXAMINATION — NON-SUIT — SUFFICIENCY OP EVIDENCE.</p> <p>Where counsel examine a witness as to facts not admissible in evidence the other party is entitled to re-examine as to the testimony elicited.</p> <p>A non-suit is improper, when there is sufficient testimony to sustain a verdict, although the facts testified to may be inadmissible in evidence and are only properly in the case as a result of the unchallenged examination of witnesses.</p>

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

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

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

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

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

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

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

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