Volume 16 — Washington Reports

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

—Hon. Richard Osborn, Judge. Action by Frank Stossel and Fraser & Ross, a co-partnership, against A. T. Van De Vanter, sheriff of King county, charging him with the conversion of a certain lot of logs. Knapp, Burrell & Company intervened in the action and set up as an affirmative defense, among other things, that the logs had been seized and sold as the property of one James Duvall, under an execution upon a judgment obtained by them against him.

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

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

<p>APPEAL — AMOUNT IN CONTROVERSY — FRAUDULENT CONVEYANCE — ACTION TO SET ASIDE —DECREE.</p> <p>The fact that, subsequent to an appeal in an action seeking to set aside a conveyance as in fraud of creditors and subject certain land to the lien of a judgment, the appellants have had the property in controversy sold under execution in their original action and have had the judgment therein satisfied to such an extent as to leave a balance due them of less than $200, does not constitute ground for dismissal of the appeal.</p> <p>Where the court finds, in an action by a judgment creditor to set aside a deed as made in fraud of creditors, that the deed was in fact a mortgage given in good faith to secure bona fide indebtedness of the grantor, the plaintiff is entitled to a decree delaring his judgment a valid lien upon the property, subject to the mortgage lien, and authorizing the equity of redemption to be sold to satisfy the lien of plaintiff’s judgment.</p>

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

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

<p>EXECUTION LEVY—CLAIM OF THIRD PERSONS—TRIAL OF TITLE—PROOF OF OWNERSHIP.</p> <p>In a summary proceeding instituted under Code Proc. § 491, by a claimant of property levied upon by the sheriff as the property of another, under an affidavit alleging ownership and right to immediate possession in claimant, the claimant is entitled to prove that he was in possession of the property and was holding it as security for an indebtedness due him from the execution defendant, and is not confined to proof of absolute ownership. (Silsby v. Aldridge, 1 Wash. 117, distinguished.)</p>

<p>NEGLIGENCE—OPERATION OP ELECTRIC CARS — INJURY TO PASSENGER — CONTRIBUTORY NEGLIGENCE — SPECIAL INTERROGATORIES.</p> <p>It is negligence on the part of a street railway company to so schedule the trips of its electric cars as to require a car from a branch line to come upon the main line and pass through a certain switch within two minutes after another car should have passed there going in the opposite direction, when no provision has been made by signal, flag, register or otherwise to show whether or not the car first due has passed through the switch.</p> <p>A passenger upon an electric street car, who has been injured through the collision of two cars, is not chargeable with contributory negligence per se by reason of his occupying a stool upon the front platform of the car, when his being there is not in disobedience of any order or rule of the company, but in reality with its sanction, since it had become a custom of this passenger and of others to ride upon the platform, and the conductor had been in the habit of collecting fares from passengers riding there.</p> <p>The question of the submission to the jury of special interrogatories is addressed to the discretion of the trial court, and is not reviewable on appeal.</p>

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

<p>HUSBAND AND WIFE—COMMUNITY PROPERTY.</p> <p>A finding by the court that certain real estate is community property, and not the separate property of the wife, will not be disturbed, when the evidence shows that title was taken in the name of the wife, subsequent to marriage, and that the larger portion of the purchase price was undisputedly paid from community funds, and that the dwelling erected thereon had been paid for with community funds, since the presumption as to the community character of the property raised by such facts, is not overcome by evidence that at the time of purchase the land was intended as a gift to the wife.</p>

<p>DISMISSAL OP ACTION — LIMITATION OP ACTIONS — OBJECTION NOT RAISED BELOW — TAX DEEDS — CONCLUSIVENESS — NECESSITY OP NOTICE TO LAND OWNER — RETROSPECTIVE STATUTE — CONSTITUTIONAL LAW.</p> <p>A motion by plaintiff to dismiss his complaint at his own costs comes too late, when not made until the court has filed a written Opinion announcing his findings and conclusions and directing the entry of a decree in accordance therewith.</p> <p>The defense that the statute of limitations has run against plaintiff’s cause of action cannot be raised on appeal, when not raised in the court below by demurrer or answer.</p> <p>Laws 188 .-86, p. 92, providing that no holder or owner of a tax certificate shall be entitled to a deed of the lands purchased at tax sale, unless he shall have given notice of his application for deed at least sixty days prior to the expiration of the three years allowed the owner for redemption, applies to tax certificates of sale issued prior to the taking effect of the act.</p> <p>The fact that a statute is so far retrospective as to be applicable to certificates already issued for tax sales does not put it in conflict with the federal constitution which provides that no state shall pass any law impairing the obligations of contracts.</p> <p>Code 1881, § 2937, making a tax deed conclusive evidence of the regularity of all other proceedings from the assessment by the assessor to the execution of the deed, does not make such deed conclusive evidence that the holder had complied with the provisions of a later statute requiring notice to the owner or occupant of the land by the holder of the tax certificate thereon that application for a tax deed would be made at the expiration of the period allowed for redemption.</p>

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

<p>DEED — CONSTRUCTION — CONDITION SUBSEQUENT — BREACH — FORFEITURE—ACTION TO QUIET TITLE.</p> <p>A provision in a deed of land to a railroad company that “this deed is made subject to the condition that in case said land shall cease to be used for railroad purposes the same shall revert to the first parties, their heirs and assigns,” grants an estate upon condition subsequent and not one upon conditional limitation. (Dunbar, J., dissents).</p> <p>A grantor cannot obtain a decree of forfeiture of an estate for breach of a condition subsequent by an action in equity seeking to quiet his title thereto.</p> <p>The failure of a railroad company for four years to use its tracks upon land, which had been deeded to it upon condition that the land should revert, in case it should cease to be used for railroad purposes, does not constitute a breach of the condition, nor show permanent abandonment, when there are no acts showing such intent other than the temporary non-user of the tracks.</p>

<p>APPEAL—DISMISSAL AS TO ONE RESPONDENT—EFFECT—UNAUTHORIZED STREET—LIABILITY OF CITY FOR DEFECTS IN.</p> <p>The fact that a joint judgment has been rendered for defendants in an action against a city and a railway company to recover for injuries received through their negligence in maintaining a defective street, and that on appeal therefrom by the plaintiff but one appeal bond to both defendants as joint obligees has been given, will not preclude appellant from subsequently dismissing as to one respondent and maintaining his appeal as to the other.</p> <p>Although a city may have no right to lay out a street over tide lands belonging to the state, yet where a street has been laid out over such land, used by the city as a highway and the public invited to use it as such, it becomes the duty of the city to maintain it in proper repair, and to protect the life and limb of those so invited to travel upon it.</p>

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

<p>RIGHT OF LESSEE TO REMOVE BUILDINGS.</p> <p>The failure of a tenant to remove buildings, placed upon leased premises within the period of his tenancy, will not work a forfeiture of the right to remove them, when the delay has been caused by the pendency of negotiations between landlord and tenant respecting a renewal of the lease or a purchase of the buildings.</p>

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

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

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

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

<p>STREET IMPROVEMENTS — ASSESSMENT OF RAILROAD TRACKS.</p> <p>A railroad track and right of way are liable to assessment for benefits resulting from the construction of street improvements, under Laws 1893, p. 227, secs. 1, 2, which provide that all property benefited by the improvement shall be assessed to the extent to its proportionate part of the expense.</p>

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

<p>MECHANICS’ LIENS — BUILDING ERECTED BY LESSEE — LIABILITY OF LESSOR.</p> <p>The owner of land may be charged with mechanics’ liens, through the construction of a building thereon by a lessee, when the contract between landlord and tenant, while in effect a lease, at the same time is equivalent to a building contract, authorizing the lessee to proceed with the construction as the agent of the owner.</p>

<p>APPEAL — ERROR NOT OP RECORD—EMBEZZLEMENT BY CITY TREASURER -ELEMENTS OP CRIME — INFORMATION — SUFFICIENCY OF EVIDENCE.</p> <p>Alleged error of the trial court in refusing to quash an information, on the ground that the offense therein charged was a different one from that for which the defendant had been extradited from another state, will not he considered on appeal when there is nothing in the record, beyond such motion, showing a difference in the two informations.</p> <p>An information charging a city treasurer with making a profit out of public funds intrusted to him for safe keeping by receiving and accepting interest thereon from a certain bank, sufficiently charges a crime under § 57, Penal Code, which forbids public officers from using, in any manner not authorized by law, any portion of the money intrusted to them for safe keeping, in order to make a profit out of the same.</p> <p>In a prosecution against an officer for making a profit out of public funds intrusted to his safe keeping, a verdict of guilty is warranted when it appears that he was treasurer of a certain city; that the money of the city was in his control; that he deposited the same with a certain bank, which gave defendant credit for interest on the city’s money; that defendant had an individual account at the bank, to which credit for interest on the city’s money was transferred by direction of the bank president; and that defendant checked against said individual account to the amount of his deposit and of such interest credited to him, although he may have testified to his having no knowledge of the fact that such interest was being credited on his account, there being, however, circumstances tending to show knowledge on his part, such as a rapid increase of deposits soon after interest began to be credited and a corresponding increase in defendant’s overdrafts on the bank in proportion as the interest deposits increased.</p> <p>The fact that public moneys are deposited by a city treasurer in bank with no intent of making a profit out of them, will not excuse such officer from penal liability, if he thereafter knowingly receives and appropriates to his own use the interest allowed on such deposits of public moneys.</p>

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

<p>DISMISSAL OF APPEAL — QUO WARRANTO.</p> <p>Where, pending an appeal by plaintiff in an action of quo warranto to oust a defendant from office, the defendant is legally appointed and confirmed in the office, the appeal should be dismissed.</p>

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

<p>ALIEN OWNERSHIP OF LANDS—HOW SET ASIDE—EFFECT OF PRIOR CONVEYANCE BY ALIEN.</p> <p>The constitutional provision declaring void “all conveyances o£ lands hereafter made to any alien, directly or in trust for such alien,” does not apply to cases in which a citizen deeds to an alien mortgaged lands in satisfaction of a bona fide mortgage debt, since another section of the same constitutional provision excepts from the prohibition upon alien ownership lands acquired “ under mortgage or in good faith in the ordinary course of justice in the collection of debts.” (Dunbar, J., dissents.)</p> <p>Where an alien has power to hold real estate at all, a deed to him in violation of the law will pass a title good against all the world except the state, and one which can only be attacked by a direct proceeding upon the part of the state.</p> <p>An alien holding lands in this state under a defeasible title, which is subject to attack on the part of the state as in contravention of the constitution, may by deed transfer a good title thereto to any person entitled to hold it, if no proceeding has been taken by the state for the purpose of setting aside the deed to the alien.</p>

—Hon. Richard Osborn, Judge. Opinion on rehearing overruling same case reported in 14 Wash. 89, to which case reference is made for a statement of the facts.

<p>STREET IMPROVEMENTS—NOTICE—COLLECTION OF ASSESSMENTS—NAM!E OF OWNER—TAX DEEDS.</p> <p>Where due notice of intention to improve a certain extent of street is given, the property owner cannot complain of want of notice by reason of the fact that subsequently another notice is published covering an improvement for which the former notice was given and a continuation of such improvement, although the subsequent publication may not afford notice for such length of time as the law requires.</p> <p>Under a city charter, which required a survey, diagram and estimate of proposed street improvements to be filed in the office of the city clerk, a notice to property owners referring to such information on file is sufficient without setting out the materials to be used or the character of the work proposed.</p> <p>Where a city charter does not require the completion of a street improvement before the collection of assessments therefor, the property owners may be compelled to pay such assessments, although the work may have never been completed, owing to the exhaustion of the estimate made by the engineer.</p> <p>The fact that a lot assessed for a street improvement was listed in the name of “ S. D. Henning” instead of S. W. Herring, will not defeat the title of a purchaser of the lot at a sale ordered for the collection of the assessment, when the property assessed was properly described.</p> <p>Under the law in force in 1884, tax deeds for the sale of land for street improvement assessments properly ran in the name of the territory, and not of the city, as grantor.</p>

<p>APPEAL—ACCEPTANCE OP RESULTS OP DECREE — ESTOPPEL — IMPROPER JOINDER OP CAUSES OP ACTION.</p> <p>The failure of appellants to object to the action of their co-defendants, in receiving money tendered by plaintiffs pursuant to the decree of the court, will not estop them from prosecuting theirappeal, when the payment and acceptance of said money does not put an end to the controversy between the parties to the appeal.</p> <p>An action to remove a cloud upon the titles of plaintiffs to their respective pieces of land, caused by a mortgage upon the whole of said land held by certain of the defendants, and also to restrain defendants from fencing up certain alleged public streets and alleys, cannot be maintained jointly by parties claiming under separate and distinct contracts and deeds embracing separate and distinct parcels of land purchased at different dates and in different additions, some of which had been laid out subsequent to the sales of lots in the prior platted additions.</p>

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

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

<p>EJECTMENT — WHEN LIES —EVIDENCE — BOUNDARIES — ESTOPPEL.</p> <p>Possession of land by another, under mistake as to the actual boundary, is not sufficient to defeat an action of ejectment by one holding the legal title, but who owing to such mistake, has never had possession.</p> <p>The fact that a division fence had been built between two adjoining owners through a mistake as to the true boundary line will not estop the legal owner from claiming beyond such fence, although he may have admitted to an intending purchaser from the adjoining owner that the fence was the boundary, if, prior to the purchase, he had informed the purchaser that the line according to a recent survey was quite a distance south of the fence.</p> <p>Where adjoining owners have not established a division fence between them as the real boundary, without regard to the legal calls of their deeds, but have allowed the fence to stand as the boundary until a proper survey should establish the true line, a purchaser from one adjoining owner acquires no greater rights than his grantor, in the absence of estoppel, even if the purchase were made under the supposition that the fence was the true boundary.</p> <p>In an action of ejectment it is not error to admit in evidence a conversation between plaintiff and the defendants’ grantor, when such conversation is in disparagement of the grantor’s title.</p>

<p>STREET IMPROVEMENTS — FAILURE TO LEVY ASSESSMENTS — LIABILITY OF CITY.</p> <p>Where the law governing the making of street improvements by cities, and a contract thereunder, provide that the special tax or assessment for meeting the expense of such improvement shall be levied and collected without delay and in the shortest time possible, the failure of the city to proceed with the collection of assessments until barred by the statute of limitations, in the matter of enforcing such assessments, will render the city primarily liable for expense of the improvements, even if the delay was due to a mistake as to the law, in which both the city and the contractors shared. (Hoyt, C. J., dissents.)</p>

— Hon. John C. Denney, Judge. Action by plaintiff to foreclose a mortgage. The findings of fact upon which question is raised upon this appeal are as follows, the other findings being merely formal: “ 2. That Ewen K. Crosby, since deceased, of whose estate the defendant David K,.

<p>ERROR OP COURT — WHEN CURED BY INSTRUCTIONS — CONSIDERATION — VARIATION BY PAROL.</p> <p>An erroneous and prejudicial remark of the trial judge in ruling upon the relevancy of certain evidence, which remark would be calculated to mislead the jury, is cured by the giving of subsequent correct instructions expressly directed to the matter.</p> <p>When one consideration is expressed in a deed, any other consideration consistent with it may he averred and proved.</p>

<p>MUNICIPAL CORPORATIONS — LIABILITY FOR NEGLIGENCE — PERFORMANCE OF CORPORATE POWERS IN IRREGULAR MANNER.</p> <p>Where a municipal corporation undertakes the construction of a public work which falls legitimately within its corporate powers, it is liable for any injuries resulting from the negligence of an employee, although in attempting to exercise such power the corporate authorities act in excess of the powers conferred by the charter, and enter into a contract that is clearly ultra vires.</p>

<p>INSURANCE — CONDITIONS OR POLICY—WAIVER—APPRAISEMENT OP LOSS —ACTION ON POLICY—PLEADING—ATTACKING VALIDITY OP AWARD.</p> <p>Although a policy of fire insurance may contain provisions requiring the company in case of loss to pay only such sum as the parties may agree upon, and, in case of disagreement, that the loss be fixed by appraisement, it is not essential that the complaint in an action on the policy should affirmatively show that no demand has been made by the company for arbitration and appraisement, but the insured’s refusal to arbitrate is a matter of defense.</p> <p>The validity of an award adjusting the loss under the terms of a policy of insurance may be assailed in an action on the policy, and it is not necessary that the award should be first set aside in a competent court.</p> <p>Where an attempted arbitration and award entered into between the insurer and insured as required by the terms of an insurance policy, in case of loss, is defective, and through the fault of the insurer there is a failure to enter upon a new arbitration, the insured has a right to maintain an action for the recovery of whatever damage he has sustained by loss or injury to the property covered by the policy.</p> <p>Where an insurance company, for the purpose of adjusting a loss, enters into an agreement for submission to arbitration and appraisement, which is in terms materially different from that provided for by the policy, the company waives the right to demand a new appraisement pursuant to the terms of the policy.</p>

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

<p>CONSTRUCTION OP CONTRACTS — AMBIGUITY — ADMISSIBILITY OP PAROL.</p> <p>In the construction of contracts, such a construction should be given as will give the contract force, rather than one which will make it of no effect.</p> <p>Where the making of notes and mortgage, the assignment of a lease upon the premises to the mortgagee and the making of a memorandum respecting payment of rents and purchase money, under an option to purchase given to the lessee in the lease, are executed at the same time and constitute parts of a single transaction, they should all be construed together, and, if the language of the instruments taken together is ambiguous, the introduction of oral proof is warranted for the purpose of explaining the true intent of the parties.</p>

<p>CRIMINAL LAW — HARMLESS ERROR — WITNESS — CREDIBILITY — CONSPIRACY — SUFFICIENCY OF EVIDENCE — JUSTIFIABLE HOMICIDE — SELF-DEFENSE —INSTRUCTIONS —REMARKS OF COUNSEL—NIGHT SESSIONS.</p> <p>Error of the court in refusing to sustain a challenge to a juror for cause is not prejudicial, when the juror is discharged upon peremptory challenge without the defendants’ rights in that respect being exhausted.</p> <p>The refusal of the court to grant a separate trial to defendants jointly indicted is not prejudicial error, when the request therefor is made by only one of the defendants, without joinder therein by the others, and the one demanding a separate trial is subsequently acquitted.</p> <p>Where a witness has already testified that he was a friend of the deceased, in a prosecution for the murder of the latter, it is not error for the court to sustain objections to questions upon cross-examination relating to business matters between witness and deceased, especially when counsel have failed to exercise their right of questioning him directly as to his feeling toward defendant.</p> <p>Error of the court in refusing to strike certain testimony cannot be urged on appeal, when no exception was taken to such refusal.</p> <p>The refusal of the court to discharge one of several defendants jointly indicted for murder is not error as to the other defendants, though the jury may subsequently acquit him, when there is evidence tending to show a conspiracy on the part of all the defendants to commit the murder.</p> <p>In a prosecution for murder, the court may properly instruct the jury that they have a right to take into consideration the appearance and conduct of the defendant while on the witness stand, and the great interest he has in the result of the verdict.</p> <p>Where an affray is brought on by defendants, in which severe injuries are inflicted on deceased for the purpose of killing him, and, without attempting to withdraw from the combat, the defendants follow up the deceased, while he retires to arm himself, and, in the continuance of the affray subsequent to such arming by the deceased, they kill the deceased, they cannot avail themselves of the doctrine of justifiable homicide on the ground of necessary self-defense.</p> <p>Where a conspiracy having violence and murder as its object is proved, although largely by circumstantial evidence, the acts and declarations of each in furtherance of the conspiracy are the acts and declarations of all; but, although a common design is the essence of the conspiracy, it is not necessary to prove the terms in which defendants came together and agreed upon their common design.</p> <p>A charge to the jury that, “ to justify the taking of life in self-defense it must appear from the evidence that the defendants not only really and in good faith endeavored to decline any further struggle and to escape from their assailant before the fatal shot was fired, but it must also appear that the circumstances were such as to excite the fears of a reasonable person,” etc., is erroneous on the ground of implying that defendants were called upon to retreat or flee before they could be justified in taking deceased’s life in self-defense.</p> <p>The refusal to give an instruction as requested is not error, where its substance is given, although in different language; but where instructions requested are pertinent and clear, they should be given rather than others of a more general nature substituted by the court.</p> <p>Improper remarks of the prosecuting attorney to the jury are not ground of reversal, when it does not appear that the court has been called upon to direct the jury to disregard them.</p> <p>The holding of night sessions of court during the pendency of a criminal trial is a matter within the discretion of the court.</p>

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

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

<p>APPEAL — ABSTRACT OP EVIDENCE — ASSIGNMENT OF ERROR BY RESPONDENT — CONTRACT OF CITY — FRAUD — MISREPRESENTATIONS — EVIDENCE — NEW TRIAL.</p> <p>An abstract of evidence, exhibits, record and proceedings, prepared and printed by an appellant for the use of the court on appeal, is no part of the record, and is not authorized by statute or rules of court and should be stricken from the files on motion therefor.</p> <p>In the absence of a cross-appeal, only the errors complained of by the appellant can be considered, and the court will not examine the record for the purpose of determining alleged errors or rulings of which the respondent complains.</p> <p>The contract of a municipal corporation is governed by the same rules as that of a private individual, where the contract is within the scope of the power and authority conferred by law on the corporation, subject only to the limitation that a person dealing with municipal officers is conclusively presumed to know the extent of the power and authority which the law has conferred upon the officer with whom he deals, and is also presumed to know that the law exacts and requires of such officer the utmost good faith and loyalty to such municipality.</p> <p>Persons who deal with public corporations through the proper officers, and who observe good faith and make use of no unlawful means or corrupt practices, are not accountable for a failure or neglect of such officers to discharge their duties to the corporations whom they serve, but, in such cases, the corporation must look to its own officers and not to the parties dealing with them.</p> <p>A false representation, to be actionable, must be made with the intention that it should be acted upon by the party to whom it is made, and it must be made under such circumstances as would justify a reasonably prudent man in relying upon it; and, generally, where the means of knowledge is at hand and accessible, if the purchaser does not avail himself of these means, he cannot be heard to complain in a court of law, that he was deceived by the seller’s misrepresentations.</p> <p>While the issue of fraud may be sustained by circumstantial evidence, as well as by direct and positive proof, it cannot be established by strained inferences from circumstances that may reasonably consist with an honest intent as well as with an intent to defraud.</p> <p>Fraud cannot be predicated upon a representation which does not relate to a past transaction nor contain a statement of an existing fact, but is a mere estimate or representation of what the one charged with fraud proposed to do in the future.</p> <p>Where the trial judge is not satisfied with the verdict, and is of the opinion that it is not supported by the evidence or is against the weight of evidence, it is his duty to set it aside, '“even though there may be some conflict in the testimony.</p>

<p>ASSIGNMENT OP ERRORS — PLEADING—AMENDMENT-DUTY OP MASTER TO SERVANT — PROPER APPLIANCES — VICE-PRINCIPAL—EXCESSIVE DAMAGES.</p> <p>Errors of the lower court will not be considered on appeal unless the appellant’s brief clearly points them out as ground for reversal.</p> <p>The action of the trial court in allowing plaintiff to amend his complaint and in denying defendant’s motion for a continuance, are not grounds of reversal, when there is no showing of an abuse of the discretion lodged in the court in such matters.</p> <p>It is the positive duty of a master toward his servant to provide reasonably safe machinery, tools and appliances with which to prosecute the work undertaken, and to keep them reasonably safe.</p> <p>Where the performance of the master’s duty to provide proper appliances is entrusted to another, the latter becomes a vice-principal, whose failure in that respect is the failure of the master.</p> <p>A verdict for $6,600 for personal injuries is not excessive, where it appears that plaintiff was about thirty-five years of age and in full health and vigor at the time of the injury; that his thigh was broken and he was otherwise severely injured, permanently crippling him; and that his earning ability was measurably decreased.</p>

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

<p>Appeal from Superior Court, Whitman County.— Hon. E. H. Sullivan, Judge.</p>

<p>DISMISSAL OF APPEAL — LIMITATION ON JOINDEB AND INDEPENDENT APPEAL— CONSOLIDATION OF CAUSES.</p> <p>Under Laws 1893, p. 121, § 5, where an appeal has already been taken from a decree and is pending undismissed, another party desiring to join in the appeal, or take an independent appeal from the same decree, must do so within ten days after service of notice upon him of the prior appeal.</p> <p>Error in ordering the consolidation of cases for trial is reviewable upon exceptions to the order of the court.</p>

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

<p>COST BOND — SURETIES — JUDGMENT—NOTICE OF SIGNING — ACTION ON PROMISSORY NOTE BY ASSIGNEE — PROOF OP OWNERSHIP.</p> <p>Residence in the county in which an action is brought is not a requisite for a surety upon a cost bond.</p> <p>Sureties upon a cost bond are not required to justify as to their separate property, until after objection is raised as to their qualifications.</p> <p>Under Laws 1893, p. 112, § 3, the prevailing party has a right to present his decree to the court for signature without giving the other party notice of the time and place of signing the same.</p> <p>The holder of a note, which had been assigned to such holder by indorsement of a corporation through one of its officers, can introduce the note in evidence in an action thereon, as possession of the note, coupled with such indorsement, is sufficient to establish prima facie that plaintiff is the owner and holder thereof and that it is unpaid.</p>

<p>DISMISSAL OF APPEAL—ABSENCE OP APPEALABLE OEDEE.</p> <p>An appeal will be dismissed on the ground that no final judgment had been entered in the cause, when the record on appeal does not contain either the verdict or the judgment.</p>

<p>TAXATION — SITUS OF DECEDENT’S PERSONAL PROPERTY.</p> <p>Personal property of a decedent, which, by the terms of his will has passed into the hands of trustees for the purpose of administration, is taxable in the domicile of the trustees audnot in the locality of the death of the decedent.</p>

<p>PUBLIC NUISANCE — ACTION BY PRIVATE INDIVIDUAL TO RESTRAIN — RIGHT OE FISHERY — LICENSE.</p> <p>A private individual may properly maintain an action in behalf of himself and others similarly situated to enjoin the construction and maintenance of a fish trap in a river, when such trap, although constituting a public nuisance, at the same time causes special damages to plaintiff and others in the same class in the pursuit of their business as drift or gill net fishermen.</p> <p>The right of fishery is common to all citizens of the state, and parties cannot be permitted to obtain the sole benefit in any locality by the construction and operation of a trap or pound net, which would practically exclude others from fishing in the same waters.</p> <p>A license to fish granted by the state fish commissioner under Laws 1893, p. 15, constitutes a roving license, and cannot be construed as authority for the maintenance of a trap at any designated point.</p>

<p>PROHIBITION, WRIT OP — OPERATION OP WRIT — CHANGED CONDITIONS.</p> <p>Where, pending a hearing upon an application for a writ of prohibition to restrain the superior court from bringing an action to trial before an illegal jury, who are disqualified in consequence of having served as jurors within the preceding year, the court dismisses such jury subsequent to the issuance of the alternative writ and brings the action to trial before another jury, to which the same objection cannot be urged, there is nothing for a writ of prohibition to operate upon, and the applicant is not entitled to a peremptory writ.</p>

<p>PROHIBITION, WRIT OF—OPERATION — JURISDICTION OF SUPERIOR COURT.</p> <p>The fact that the superior court has been restrained by a writ of prohibition issuing from the supreme court from interfering with the rights of parties in the subject matter of a certain action, as decreed by the supreme court on appeal, will not prevent, the superior court from assuming jurisdiction of an action involving the same subject matter, when the action involves the rights of a person who was not a party or'privy to the prior action.</p>

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

<p>RECEIVERS—APPOINTMENT IN EJECTMENT SUIT — AMENDED PLEADING — HOW PAR PART OF RECORD.</p> <p>The appointment of a receiver is unwarranted in an action involving the title, and right to rents and profits, of certain real estate, when the legal title thereto is claimed by both plaintiffs and defendants.</p> <p>While an original complaint does not cease to he a part of the record by reason of the filing of an amended complaint, nevertheless the plaintiff cannot avail himself of any allegations contained in the original complaint, although his adversary may.</p>

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

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

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

<p>TAXATION OF MIGRATORY STOCK — CONSTITUTIONALITY OF ACT—AUTHORITY OF SHERIFF TO COLLECT ASSESSMENT.</p> <p>The “Migratory Stock Act” (Laws 1895, p. 105), providing for the assessment and collection of taxes on stock brought into the state after the first day of April in any year, is not unconstitutional on the ground of making a distinction between different kinds of personal property for purposes of taxation.</p> <p>It is competent for the state to direct the method by which taxes are collected, and no constitutional right is invaded by an act which authorizes the sheriff to collect taxes levied upon migratory stock without a written authority from the assessor.</p>

<p>PLEADING — GARNISHMENT AS A DEFENSE — COUNTERCLAIM.</p> <p>The action of the court in striking out an answer setting up that defendanthad been garnished for the indebtedness sued on in favor of a creditor of the plaintiff is not erroneous, when the answer itself shows that no answer had been made by the defendant in the proceeding in which he had been garnished.</p> <p>Under Code Proc., § 195, subd. 2, a cause of action cannot be pleaded as a counterclaim if it did not exist at the commencement •of the action in which it is pleaded, unless it is one arising out of the contract or transaction set forth in the complaint.</p>

<p>ACTION OF FORECLOSURE—PROOF OP NON-PAYMENT — PAROL EVIDENCE — MORTGAGE AS DEED—ALIEN OWNERSHIP — HOW ATTACKED.</p> <p>In an action to foreclose a mortgage upon real estate, to which no plea of payment has been set up in the answer, non-payment is prima facie established by the introduction in evidence of a certified copy of the mortgage as recorded, and by the further testimony of witness that the mortgage had not been paid.</p> <p>Parol evidence is incompetent to establish that an instrument, which is in form a mortgage, is in fact a deed of conveyance in fee.</p> <p>The incapacity of a mortgagee, by reason of alienage, to take title to real estate, can only be shown in a suit by the state. (Dunbar and Reavis, JJ., dissent).</p>

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

<p>TAXATION — LIEN UPON PERSONAL PROPERTY — TRANSFER OF TITLE — RIGHT TO ENFORCE PAYMENT BY DISTRAINT — CONSTRUCTION OF STATUTES.</p> <p>Under Laws 1895, p. 520, § 21, providing for a tax lien upon personal property, the lien continues and follows the property if it remains in the county, although title thereto may have been transferred to another owner.</p> <p>The purchaser of a stock of goods upon which there is a tax lien, who mixes therewith other goods subsequently purchased in such a manner that the portion subject to lien cannot be segregated, thereby subjects the whole stock to the satisfaction of the tax lien.</p> <p>Revenue laws should receive a fair and liberal construction so as to effect the end for which they were intended; and one part should not be given a construction that nullifies another, if it is possible to construe the different provisions together.</p> <p>Laws 1895, p. 514, § 15 providing for the distraint of goods and chattels belonging to the person charged with delinquent personal property taxes, if found within the county, authorizes, when construed with other provisions of the revenue law, the right of distraint against another to whom the possession and title of such goods have passed subject to the tax lien.</p>

<p>QUO WARRANTO—JURY TRIAL—AMENDMENT OF CITY CHARTER—NOTICE OF ELECTION—RECORD OF ADOPTION—APPOINTMENT OF OFFICERS.</p> <p>The constitutional provision declaring that “theright of trial by jury shall remain inviolate” has reference to the right to jury trial as it existed in the territory at the time when the constitution was adopted.</p> <p>As the right to trial by jury in quo warranto proceedings did not exist at common law at the date of the early settlement of this country, nor was authorized by statute at the date of the adoption of the state constitution, the constitutional provision, that “the right of trial by jury shall remain inviolate,” is inapplicable in proceedings to try the right to a public office.</p> <p>The failure of a city clerk to post in each election precinct of the city notice of a proposed election for the adoption of charter amendments, as required by statute and ordinance, which were passed pursuant to a constitutional provision in regard to giving such notice but without specifying the manner thereof, will not invalidate the election, when it appears that notice had been published in all the daily papers of the city the requisite length of time, that the election was a matter of public notoriety and had been discussed by the people generally in their homes, and the result of the votes cast showed that the great body of the electors had expressed their will upon the adoption or rejection of the amendments. (Dunbar, J., dissents).</p> <p>The appointment by the mayor of a commissioner of public works is not subject to confirmation or rejection by the city council, when the charter expressly provides that the person appointed by the mayor “shall hold office at the pleasure of the appointing power.”</p> <p>The omission of the city clerk to record the amendments to the city charter, adopted by vote of the electors of the city, would not invalidate the amendments themselves, but merely affect the manner of their proof.</p> <p>Notice of a proposed election for the submission of charter amendments sufficiently specifies the object for which the election was called, even if it does not set out the proposed amendments, when it refers to the ordinance containing the proposed amendments as the basis for the giving of the election notice.</p>

<p>APPEAL—ASSIGNMENT OP ERRORS—JUDGMENT — PRESUMPTION AS TO COMMUNITY DEBT — MORTGAGE — PRIORITY OP LIEN — EVIDENCE.</p> <p>The assignment of the decree of the court as error is sufficient, when there are no special findings of fact separately from the decree, and the validity of the decree is the single question raised in the brief.</p> <p>The presumption as to a judgment, in the absence of proof, is that it is based upon a community debt.</p> <p>Parol proof is admissible for the purpose of determining the priority of lien between a judgment entered and a mortgage recorded on the same day.</p> <p>Where a mortgage executed to secure an antecedent debt is recorded on the same day that a judgment is entered against the mortgagor, the equities between the two are equal and they should be pro rated in the proceeds from the real estate covered by both liens, when it appears that the mortgagee had knowledge of the pendency of the action in which the judgment was rendered and had filed his mortgage for record but a short time prior to the entry of judgment.</p>

<p>EBAUDULENT CONVEYANCES — EVIDENCE — PLEADING.</p> <p>In an action involving the title to land, which it is alleged has been transferred in fraud of creditors, the court may properly inquire into the title of lands in another county, when that matter arises incidentally as a part of the question raised upon the title to the land in litigation, and when such lands are alleged to be the consideration for the transfer which is attacked as fraudulent.</p> <p>In an action involving the title to real estate, in which the plaintiff has failed to fully plead title, the defendant may, under general denial, introduce any legal evidence that tends to defeat plaintiff’s title.</p> <p>A voluntary conveyance by a husband to his wife of community lands is voidable as against existing creditors, when the community is not possessed of sufficient other property to satisfy the community indebtedness.</p> <p>Where a husband has attempted to convey community lands to the wife by a transfer which is fraudulent as to creditors, a subsequent transfer to his wife of separate property in consideration of a reconveyance of such lands formerly conveyed to her is voluntary without consideration, and fraudulent as to creditors.</p>

<p>ICY SIDEWALKS—NEGLIGENCE OF CITY—LIABILITY FOB INJURIES — CONTRIBUTORY NEGLIGENCE —PHYSICAL EXAMINATION OF FEMALE PLAINTIFF— EXCESSIVE DAMAGES.</p> <p>Where an accumulation of snow and ice upon a sidewalk becomes rough, uneven and rounded up to such an extent that it is dangerous for persons passing over it, it constitutes an obstruction to travel which it is the duty of the city to remove, and anyone injured thereby, while in the exercise of ordinary care and prudence, is entitled to recover damages from the city.</p> <p>The question of the contributory negligence of plaintiff, in an action for damages received through the negligence of a city in allowing an accumulation of ice and snow to remain heaped up in a dangerous condition on one of its sidewalks, is for the jury, when it appears that plaintiff was proceeding along the walk in the evening, not very rapidly, and as carefully as persons ordinarily walk along the street; that she slipped and fell on this accumulation of ice, receiving painful injuries; that the place was lighted by an electric light and she noticed its condition after she fell, but it does not clearly appear that she noticed its condition before stepping upon it ; that during the preceding three weeks she had safely passed over the walk in the day time five or six times, the last time about a week before the accident; and that the ice and snow at the place of the accident appeared to be in about the same condition as it was the last time she passed over it, about a week before.</p> <p>The fact that the plaintiff may have had prior knowledge of the dangerous condition of a sidewalk is not itself conclusive proof of contributory negligence on her part in subsequently walking thereon.</p> <p>The refusal of the court to grant a request for the physical examination of a female plaintiff by doctors named by the defendant, in an action for damages for personal injuries, is not error, when there is no showing of an abuse of the discretion vested in the court in such matters.</p> <p>. Where there is nothing indicating prejudice or passion on the part of a jury, a verdict for $10,500 will not be set aside as excessive, when given as damages for injuries to a woman thirty-eight years of age, of previous good health, who had formerly earned $75 per month, but was wholly incapacitated from following her previous vocation by reason of her injuries, consisting of a permanent and painful displacement of the womb, and the breaking of an ankle bone, which would probably require amputation of the injured leg, and who had scarcely been free from pain from the time of the accident up to the time of the trial.</p>

<p>DUB PROCESS OF LAW—LABORERS’ LIENS AGAINST EXECUTION DEBTOR— FILING OF CLAIMS—JOINDER.</p> <p>The statute (Gen. Stat., § 3124), giving servants, clerks, laborers, etc., the right to claim from the proceeds of execution or attachment sale of the property of their employers any amount, not exceeding one hundred dollars, due them for services rendered within sixty days next preceding the levy of the writ, and providing for the litigation of such claims, if disputed, is not open to the objection that it deprives one of his property without due process of law.</p> <p>Notice to a judgment debtor of claims of other parties to the proceeds arising from the execution sale on the judgment against him is unnecessary, as, jurisdiction having been once acquired over the judgment debtor in the original action, that action remains pending until the judgment is satisfied.</p> <p>Parties having claims for services, which, under Gen. Stat., §3124, they are authorized to maintain against a judgment creditor who has levied upon the property of their employer, may properly join in the same action to enforce their claims.</p> <p>Where a party entitled to urge the objection of misjoinder of parties plaintiff waives the objection, it cannot be raised for him by another defendant.</p>

<p>DISMISSAL OF APPEAL — JUDGMENT FOB COSTS.</p> <p>Upon the dismissal of an appeal for want of jurisdiction, judgment for costs will be rendered against the appellant, but not against the sureties upon the appeal bond.</p>

<p>MUNICIPAL CORPORATIONS—ILLEGAL INCORPORATION — VALIDATION OF CONTRACTS — REASSESSMENT FOR LOCAL IMPROVEMENTS — STATUTE OF LIMITATIONS.</p> <p>Laws 1893, p. 226, § 1, providing for a reassessment for local improvements in cities and towns, when the original assessment has been declared invalid for any cause, does not contemplate a direct proceeding for the purpose of adjudicating its invalidity, but it is sufficient if its illegality has been declared either directly or by virtue of any decision of a court.</p> <p>Contracts for local improvements in towns illegally incorporated under the acts of 1888 and 1890 are expressly validated by Laws 1893, p. 183, providing for the legalization of towns which had attempted to incorporate or reincorporate under Gen. Stat., §§ 496-500; and a reassessment for such improvements is authorized by Laws 1893, p. 226, since the invalidity of assessments during the period of void incorporation had been adjudicated by the courts in the case of other towns similarly situated.</p> <p>The statute of limitations will not begin to run against rights of action arising out of the contracts of a town illegally incorporated, until the subsequent validation of the incorporation and of its contracts theretofore made.</p> <p>The act of March 20, 1895 (Laws 1895, p. 270), providing that actions to enforce liens for special assessments by cities and towns may be commenced within ten years after their delinquency, has the effect of giving a ten years’ extension to rights of action which had not been barred by the two years’ limitation act at the time of the taking effect of th,e later act.</p>

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

<p>TAX SALES — FORFEITURE TO COUNTY — REDEMPTION—WHEN TIME BEGINS TO RUN.</p> <p>Under the revenue law of 1893 (Laws 1893, p. 370, § 105 et seq.,) where land has been forfeited to the county for want of a bidder at the sale for delinquent taxes, and a certificate of sale of such land is subsequently issued to an applicant, the period allowed for redemption begins to run from the date of issuance of the certificate and not from the date of forfeiture.</p>

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

<p>PROHIBITON, WRIT OF — WHEN LIES—REMEDY BY APPEAL.</p> <p>Prohibition will not lie to restrain the superior court from ordering a sale by a receiver appointed by the court of property in his trust, as parties aggrieved by such an order have an adequate remedy by appeal.</p>

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

<p>ACTION UPON STREET GRADE WARRANTS — PLEADING — ALLEGATION OE DAMAGE.</p> <p>In an action against a city to recover the amount due upon street grade warrants, an allegation in the complaint that the city duly made and entered into the contract for the street improvement, set forth therein, is sufficient to admit proof of the ordinance and of all other facts necessary to show jurisdiction to make the improvement and contract.</p> <p>Where a city has issued a warrant payable out of a special fund, which it has agreed to provide for the payment of such warrant, its failure to provide such fund, until the bar of the statute of limitations intervenes, will entitle the holder of the warrant to bring an action thereon for the purpose of procuring payment out of the general fund, or the issuance of a warrant to him upon the general fund.</p> <p>A complaint for recovery of damages, which omits to formally aver that plaintiff was damaged, is not demurrable upon that account, if it contains a prayer for judgment in a specified amount.</p>

<p>PAROL EVIDENCE — ADMISSIBLE TO PROVE CONSIDERATION — STATUTE OF FRAUDS — PROMISE TO PAY DEBT OF ANOTHER.</p> <p>Parol evidence is admissible for the purpose of showing that the actual consideration for a sale of logs is different from that expressed in a bill of sale.</p> <p>A promise by the purchaser of certain logs, as part consideration therefor, to assume and pay the indebtedness of the seller to a third party, is an original promise, and not within the statute of frauds.-</p>

<p>STREET IMPROVEMENTS—LIABILITY OF CITY FOR NEGLIGENCE—INDEPENDENT CONTRACTOR.</p> <p>Where under its charter a city is given the management, control and superintendence of public streets and of the making of improvements therein, and the management, building and repairing of all sewers, whether such improvements are made by contractors or by the city directly; and, under a contract for the improvement of a street, the city retains the right to direct or control the work and to discharge all persons employed thereon who should neglect or refuse to obey the city engineer, the contractor is not an independent one, within the meaning of the rule which exempts a city from liability for an injury caused by negligence in theprosecution of the work, but the city stands in the position of respondeat superior.</p>

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

<p>PLEADING — STATUTES OF ANOTHER STATE — WRITTEN INTERROGATORIES '—STRIKING EVASIVE ANSWERS.</p> <p>Where a party relies upon the statute of a sister state, he must, in the absence of statutory provisions to the contrary, plead it as he would any other fact, not by stating what in the opinion of the pleader is its effect, but the statute itself should be set forth.</p> <p>The action of the court in striking answers to written interrogatories is not erroneous, when the interrogatories were directed to facts within the knowledge of the party and the answers returned by him are plainly evasive and made with intent to conceal instead of disclosing the facts within his knowledge.</p>

<p>Appeal from Superior Court, Jefferson County.— Hon. R. A. Ballinger, 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>MODIFICATION OF CONTRACT—EVIDENCE.</p> <p>In an action upon a contract -which provided that plaintiff was to receive forty cents per ton for hauling water pipe from, the cars to a certain storage ground, and eighty-five cents per ton if required to distribute the pipe from the cars to other points in the city, as directed by the superintendent of water works, in which an issue has been raised as to a modification of the contract, in regard to hauling to new storage grounds, evidence tending to show that plaintiff could afford to make the modification is not competent to show he did make it, nor is the fact of his hauling to said storage points under the direction of the superintendent competent to show acquiescence in the modification of the contract, since under the contract plaintiff was required to haul where directed.</p>

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

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

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

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

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

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

<p>AWARD 1ST CONDEMNATION PROCEEDINGS—RIGHT OF MORTGAGEE TO SHARE — MORTGAGES—REFORMATION — FORECLOSURE UPON LAND IN TWO COUNTIES—JURISDICTION—ATTORNEY FEES.</p> <p>A mortgagee, who has failed to assert his rights to moneys awarded for condemation of a portion of the mortgaged premises until after the expiration of the period allowed for redemption from a sale under foreclosure of his mortgage, is estopped from asserting any claim thereto.</p> <p>A mortgagee who has foreclosed and received a sheriff’s deed to the premises is entitled, as against the mortgagor and junior claimants, to moneys subsequently paid for the appropriation of a portion of the mortgaged land, pursuant to condemnation proceedings instituted pending his acquisition of the full title.</p> <p>A mortgage may be properly reformed in respect to correctly describing the date of maturity of the note secured.</p> <p>An execution creditor is not entitled to share in an award paid as damages for the appropriation of real estate as against a mortgagee in possession of the property before suit by the execution creditor.</p> <p>Two mortgages securing the same debt, but covering land in different counties, may properly be foreclosed in either county, as they should be regarded as one instrument.</p> <p>An allowance of $800 attorney fees for the foreclosure of a mortgage for $11,000 will not he set aside, when the mortgage provides for a reasonable attorney’s fee, although the notes themselves specify $300 as the attorney’s fee.</p>

<p>NEGOTIABLE INSTRUMENTS—EXTENSION OF PAYMENT — RELEASE OF SURETIES.</p> <p>The extension of time of payment of a promissory note in consideration of its indorsement by an additional surety constitutes such a new contract, based upon a valid consideration, as to release sureties not consenting thereto.</p> <p>A contract for extension of the time of payment of a promissory note, entered into between the holder and part of the sureties thereon, is binding and valid, although the principal makers of the note may not be parties to the agreement.</p>

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

<p>ACTION BY RECEIVER—COUNTERCLAIM — UNLIQUIDATED DEMANDS.</p> <p>In a suit by a receiver to recover upon a demand due an insolvent corporation, the defendant may, under Code Proc., § 195. subd. 2, set up as a set-off or counterclaim, any unliquidated demand arising on a contract of the corporation and existing at the commencement of the action.</p>

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

<p>ASSIGNMENT OE PROMISSORY NOTE—ACTION BY ASSIGNEE — EVIDENCE.</p> <p>In an action upon a promissory note by an assignee, it is not necessary to prove a transfer by indorsement or written assignment in order to show title in plaintiff.</p> <p>Where the notes and securities of one bank have been assigned to another bank in trust to secure the latter for advances made, the trustee bank may, under Code Proc., § 134, which requires that every action shall be prosecuted in the name of the real party in interest, maintain an action upon a renewal note made payable to the assignor bank some months subsequent to the assignment, when such renewal note was taken by the trustee bank in payment of other notes duly transferred to it by the prior assignment, and had been made payable in the name of the assignor merely for convenience in keeping the accounts of the two banks separate.</p>

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

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

<p>DISMISSAL OF APPEAL — TERMINATION OF CONTROVERSY.</p> <p>Where the only question involved upon an appeal in a proceeding in quo warranto is as to which of two hoards of trustees and sets of officers were the rightful officers of a corporation, the term of office having expired prior to the appeal, the appeal will he dismissed on the ground that there are no material interests to be determined by the court.</p>

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

<p>INSOLVENT CORPORATIONS — OVERVALUATION OF STOCK — LIABILITY OF STOCKHOLDERS TO CREDITORS—ESTOPPEL.</p> <p>In a suit by a judgment creditor of an insolvent corporation against stockholders to obtain payment of corporate indebtedness on the ground that the stock subscribed by them had not been fully paid up, it is not necessary to allege in the complaint that all the shares of corporate stock had been subscribed.</p> <p>Action against the stockholders of an insolvent corporation, on the ground that their stock subscriptions were unpaid, may be maintained by a judgment creditor, regardless of the fact that no prior call has been made upon them for payment of the sums sub" scribed by them.</p> <p>Debts due a corporation, including unpaid subscriptions to capital stock are equitable assets constituting a trust fund for the benefit of creditors, and may he reached by creditors through the aid of a court of equity, if the legal assets which can be reached by execution prove insufficient.</p> <p>So far as creditors are concerned, subscriptions to the capital stock of a corporation must be fully paid for in cash, or in property of an equivalent value, irrespective of any understanding the shareholders may have among themselves as to their payments for stock, or as to its value.</p> <p>Creditors who deal with a corporation with knowledge of the fact that stock subscriptions had been paid for in property of less value than the face value of the shares, are estopped from claiming that the stock subscriptions are impressed with a trust in their favor.</p>

<p>REMEDIES — EFFECT OF REPEAL OF STATUTE — COMMENCEMENT OF ACTION—SERVICE OF SUMMONS—ENFORCEMENT OF STREET ASSESSMENTS— LIMITATION OF ACTIONS.</p> <p>The repeal of the law governing the commencement of civil actions and the service of summons therein and substituting therefor a new method of procedure will not affect the jurisdiction of the court over an action commenced under the prior law, but in which service of summons had not at that time been made, when the defendant voluntarily appears and answers in the action subsequent to the taking effect of the new law, which directly provides that a voluntary appearance is equivalent to personal service of summons.</p> <p>The bar of the statute upon the commencement of an action to enforce the collection of an assessment for a street improvement begins to run, not from the day the assessment is made due and payable and operative as a lien upon the property, but from the date of delinquency as provided in the ordinance providing for the levy and collection of the assessment.</p>

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

<p>IMPLIED TRUSTS—MORTGAGE OF PROMISSORY NOTES — RIGHTS OF MORTGAGOR IN SURPLUS PROCEEDS — FORECLOSURE—COLLATERAL ATTACK.</p> <p>Where a chattel mortgage is given upon promissory notes by the holder thereof to secure the payment of his own note, and, upon a foreclosure for default in payment of the mortgagor’s notes, the notes are purchased by the mortgagee for the amount of the indebtedness due, no trust arises by operation of law in the mortgagor’s favor, requiring the mortgagee to account for the excess subsequently realized from the proceeds of such notes upon the enforcement of their collection from the original makers.</p> <p>The judgment of a court having jurisdiction of the persons and subject matter in an action for the foreclosure of a chattel mortgage cannot be collaterally attacked on the ground that the property embraced in the chattel mortgage was not a proper subject of chattel mortgage and of foreclosure sale.</p>

<p>Appeal from Superior Court, King County.—Hon. Richard Osborn, Judge.</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>AMENDMENT OF PLEADINGS-ABUSE OF DISCRETION.</p> <p>The refusal of the court to allow defendant to file an amended answer setting up a substantial defense to the action is an abuse of the court’s discretion, when it appears that, after the pleadings had reached an issue, the plaintiff was allowed to file an amended or supplemental complaint to which the defendant had interposed a general denial by oversight, instead of pleading an affirmative defense, which had already been interposed to the original complaint; and that the allowance of the amendment could not be objected to by plaintiffs on the ground of surprise.</p>

—Hon. John C. Stallcup, Judge. Motion by respondent to modify judgment on appeal heretofore rendered (15 Wash. 652), for the purpose of having it entered against appellant and sureties for the full amount of the judgment affirmed.

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

<p>LABORER'S LIEN — WHEN EXISTS UPON SHINGLES — REVIEW ON APPEAL-HARMLESS ERROR.</p> <p>Laborers getting out shingle blocks for one company were entitled to liens on the shingles manufactured therefrom by another company which still retained possession thereof, under Laws 1893, p. 428, § 2, where such shingles had been manufactured under the existing contract between the two companies whereby one was to furnish a specified number of shingle blocks per month and the other was to cut said blocks into shingles at a specified rate per month, and payment was to be made monthly to the company furnishing the blocks in accordance with the number of shingles sold the previous month.</p> <p>Appellant cannot complain of a judgment awarding certain claimants a portion of a fund, even if the award be erroneous, when there are sufficient other claimants to exhaust the fund, who have rightfully been awarded priority therein over appellant.</p>

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

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

<p>Appeal from Superior Court, Whitman County.—Hon. E. H. Sullivan, Judge.</p>

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

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

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

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

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

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

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