Volume 17 — Washington Reports

<p>PROMISSORY NOTE — DEFENSES — PURCHASER WITH NOTICE — TENDER,</p> <p>One who acquires a negotiable note after maturity with notice of defenses thereto stands in no better position than the payee himself.</p> <p>Where a promissory note has been executed for the purpose of covering the indebtedness of the maker to the payee, and with the understanding that when the exact amount of indebtedness should be ascertained a new note would be substituted for the original note, a tender of the new note is a pro tanto defense to an action on the original note by a purchaser after maturity, with notice of the agreement; and it is not necessary, in such case, that the tender should be kept good.</p>

<p>APPEAL — AMOUNT IN CONTROVERSY.</p> <p>Although a complaint for the recovery of the value of certain stock killed by the cars of defendant may have been based upon a statute awarding double damages as a penalty, yet where, prior to trial, in view of the unconstitutionality of such provision, the plaintiff dismisses from his complaint the paragraphs relating to such penalty and confines his recovery and prayer for relief to the actual value of the stock, thereby reducing the amount in controversy below the sum of $200, no appeal will lie from a judgment rendered in the action.</p>

<p>Appeal from Superior Court, Kittitas County. — -Hon. Carroll B. Graves, Judge.</p> <p>Motion by respondents to strike the statement of facts from the records.</p>

<p>SCHOOL DISTRICTS — MAINTENANCE OF SCHOOLS — LIMIT OF INDEBTEDNESS.</p> <p>Where it appears that the indebtedness of a school district, including its bonded and warrant indebtedness, exceed the one and one-half per cent, limitation allowed by the constitution, and that the bonded indebtedness has not been created under a vote of the people authorizing the incurring of indebtedness in excess of such limitation, and that there are no moneys on hand for school purposes, the directors of the district cannot be compelled to open and maintain a public school.</p>

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

<p>ELECTIONS — NOMINATION OF CANDIDATES — ELECTORS’ CERTIFICATE — CORRECTION OF BALI.OT.</p> <p>Under Gen. Stat., § 367, providing that candidates for office may he nominated by certificate “ signed by electors residing within the district or political division in and for which the officer or officers are to be elected,” the fact that the signers were all residents of one county, though the district is composed of several counties, constitutes no objection to the certificate.</p> <p>Under the election laws of this state (Gen. Stat., §§ 363-396), a candidate nominated by electors is not the nominee of a political party, but of the individual electors nominating him, and is entitled to go on the official ballot only as an independent candidate and not as the nominee of a political party.</p> <p>Where a candidate for public office, with knowledge of the proposed use of improper ballots, fails to take steps to correct the errors in the ballots by instituting an action to enforce or protect his rights, he cannot, after defeat at the polls, be heard to complain of errors whose correction he might have procured prior to election; and the fact that the judge of the superior court for that district, had, by writ of mandate, in a proceeding to which the candidate was not a party, directed the incorporation of the errors in the ballots used on election, affords no excuse for a failure to resort to proceedings in court for their correction.</p> <p>The right of a candidate to examine ballots before they are sent out, make objections thereto and apply to the courts for the purpose of compelling the use of proper ballots, is a right existing independent of statute.</p>

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

<p>SALE — RESCISSION FOR FRAUD — QUESTION OF FACT FOR JURY — RATIFICATION OF CONTRACT.</p> <p>One who bas been induced by fraudulent representations to sell goods to another has a right to reclaim them from persons to whom the latter has sold or transferred them for the purpose of satisfying pre-existing debts.</p> <p>The question of whether or not goods have been obtained by fraudulent representations is one of fact to be determined by the jury, when it appears that, at the time plaintiff’s agent was negotiating the sale of the goods to defendants, they stated to him that they were perfectly solvent, that their real estate alone was worth double the amount of their debts, and that they had made a statement, in writing, of their assets and liabilities to a certain mercantile agency, which statement showed their financial condition, to which they directed his attention; that he examined this statement and shipped the goods on the faith of these representations; that in fact defendants were hopelessly insolvent and owed over $100,000 more than the indebtedness shown by their statement to the mercantile agency; and that defendants admit such statement was not true, but claim it was not for the purpose of obtaining credit, but to avoid being blackmailed.</p> <p>Where the vendor of goods upon credit has the right to rescind the sale for fraud on the part of the vendee, the fact that the vendor’s agent, without knowledge of the fraud, but aware of the financial embarrassment of the vendee, attempts to get his claim secured, will not operate as a ratification.</p>

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

<p>ABATEMENT — ANOTHER ACTION PENDING — ATTACHMENT FOR CONTEMPT — MANDAMUS TO COURT.</p> <p>The fact that an appeal is pending from an order of the court in a proceeding to have one attached for contempt for refusing to comply with a decree adjudging that he pay a specified sum monthly as alimony to his divorced wife for thesupportof his children, is not ground for the court’s declining to assume jurisdiction of a similar proceeding to compel payment of another installment of alimony subsequently becoming due and payable.</p> <p>Mandamus is the proper remedy to compel a court to proceed, where its jurisdiction is manifest, and it evades hearing the proceeding by holding that it has no jurisdiction.</p>

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

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

<p>A.ppeal from Superior Court, Spokane County. — Hon. L. H. Prather, Judge.</p>

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

<p>HUSBAND AND WIFE— ACTION FOR MAINTENANCE — ESTOPPEL — COMMUNITY LANDS — SEPARATE CONVEYANCE — ACTION TO SET ASIDE.</p> <p>A wife, who without cause has been abandoned by her husband, may maintain an action for maintenance independent of an action for divorce. (Gordon, J., dissents).</p> <p>The fact that a wife has neglected for a period of thirty years to make demand for support and maintenance upon a husband who has abandoned her does not work an estoppel against her right to maintenance.</p> <p>A conveyance of community lands by a husband to a woman, with whom he was living in adultery as his wife, may be set aside in an action by the lawful wife, when such conveyance had been made for the purpose of defrauding the lawful wife, and the grantee had knowledge of the marriage relation existing between her grantor and such lawful wife, as no question of estoppel can arise in such a ease.</p>

<p>EMBEZZLEMENT BY PUBLIC OFFICER-MAKING PROFIT OUT OF PUBLIC FUNDS — SUFFICIENCY OF EVIDENCE — SECONDARY EVIDENCE.</p> <p>A verdict finding defendant guilty of unlawfully using public money in order to make a profit out of it is warranted by proof showing that, in addition to his account with a certain bank as city treasurer, he also had a personal account with the bank, and that his personal account was from time to time, by direction of the cashier, credited with different sums, in amount equivalent to interest at five per cent, per annum on the average daily balance of his account as treasurer; that the expense account of the bank was debited with the amount so credited to the personal account of defendant; that the amounts so credited to defendant were all checked out hy him; and that these various amounts were all entered in defendant’s individual pass book, which was usually balanced once a month, at which time the checks drawn against his individual account were returned to him.</p> <p>Where the evidence in a case shows that the accused is in possession of a document which is needed in evidence, the state is not obliged to give notice to produce in order to lay the ground for the introduction of secondary evidence.</p> <p>The production of checks drawn on a bank is not necessary in order to render the books of the bank admissible in evidence for the purpose of showing that the charges made upon the books to the account of defendant, because of checks drawn thereon, are proper, when .the proof shows that defendant’s pass book was balanced from time to time with the books of the bank and found to agree therewith and that thereafter the pass book and checks were returned to defendant.</p>

<p>RESCISSION — FRAUD — EVIDENCE — PLEADING — AMENDMENT — HARMLESS ERROR.</p> <p>Affidavits charging fraud, used in an action of attachment, are inadmissible in evidence in another action between other parties, for the purpose of proving fraud.</p> <p>In an action for the rescission of a contract of sale on the ground of fraudulent representations, the refusal of the court to allow plaintiff to amend his complaint so as to conform to the proof, is not error, when the complaint has alleged generally that the purchasers represented themselves to be solvent, and in good financial condition, and the testimony offered by plaintiff tended to show specific misrepresentations on the part of the purchaser, as such amendment would materially change the issues.</p> <p>The refusal of the court to allow an amendment to a complaint, if erroneous, is harmless, where no other result could have been reached under the evidence than the verdict rendered.</p>

<p>APPEAL — STAY BOND — SUFFICIENCY OF.</p> <p>A stay bond, conditioned that appellant “ will abide the order of the court on such appeal, and pay all rents and other damages accruing to the plaintiff during this appeal, not exceeding the amount of four hundred dollars,” etc., substantially accords with the requirements of Laws 1893, p. 123, §7, which provides that “ an appeal bond shall not stay proceedings on the judgment or order appealed from . . . unless the original or a subsequent appeal bond be further conditioned that the appellant will satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court may render or make, . . . and, (where such condition is applicable), shall pay all rents of or damages to property accruing during the pendency of the appeal, out of the possession of which any respondent shall be kept by reason of the appeal.”</p>

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

<p>DISMISSAL OF APPEAL — SUFFICIENCY OF BOND.</p> <p>The action of the lower court in permitting the second appeal bond filed in a case to be amended by the substitution of a new surety in place of one found to be insufficient upon the bond as filed, is contrary to Laws 1893, p. 125, § 11, providing that, in case a second appeal bond be found insufficient, no new bond can be given in lieu thereof.</p>

<p>TAXATION — EXEMPTIONS OF PRIVATE PROPERTY — CONSTITUTIONALITY.</p> <p>Only public property, and that of a quasi public character, can be exempt from taxation under the provisions of § 1, art. 7, of the state constitution, declaring that “ all property in the state not exempt under the laws of the United States or under this constitution, shall be taxed in proportion to its value;” and under § 2, art. 7, declaring that “ the legislature shall provide by law a uniform and equal rate of assessment and taxation on all property in the state, according to its value in money, and shall prescribe such regulations by general law as shall secure a just valuation for taxation of all property, so that every person shall pay a tax in proportion to the value of his, her or its property; . . . provided further, that the property of the United States, and of the state, counties, school districts and other municipal corporations, and such other property as the legislature may by general laws provide, shall be exempt from taxation.”</p> <p>The provisions of the revenue law of 1897 (Laws 1897, p. 139, § 5, subds. 6, 8) exempting each person from taxation on personal property to an amount not exceeding $500, and, also, improvements upon land to a like amount, are in conflict with art. 7, §§ 1, 2 of the constitution forbidding the exemption of private property from taxation, and are therefore void.</p>

<p>Appeal from Superior Court, Thurston County. — lion. W. H. H. Kean, Judge.</p>

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

<p>APPOINTMENT OF ADMINISTRATORS — CONFLICTING JURISDICTIONS — EFFECT OF IRREGULARITIES— WRIT OF PROHIBITION.</p> <p>Where the superior court of one county has assumed jurisdiction of the administration of a decedent’s estate, upon facts shown in an application therefor, prohibition will not lie to restrain its exercise of jurisdiction on the ground that the court of another county, which has subsequently assumed jurisdiction, is properly entitled thereto.</p> <p>The insufficiency of the showing made for the appointment of a special administrator, under Code Proc., § 931, is nothing more than an irregularity, which would not affect the question of the jurisdiction of the court.</p>

<p>STATE CONTRACT — UNAUTHORIZED PROVISION — ASSIGNMENT OP CLAIMS UNDER — RIGHT TO WARRANTS.</p> <p>Under Laws 1895, p. 55, providing for the construction of a state normal school building and making appropriation therefor, the contractor and his assignees are, upon completion of the building, entitled to warrants for the amount due upon the contract price, though the contract may provide that the contractor must first show that all debts due for labor and material have been paid, as, in the absence of such a requirement in the statute, there is no privity between the state and claimants on account of labor and material.</p> <p>The fact that a contractor for the erection of a normal school building has assigned a portion of the sum due him therefor in payment of his personal debts, while claims in connection with the construction of the building remain unpaid, will not justify the state auditor in refusing to issue warrants in payment of the orders issued by the contractor.</p>

<p>SCHOOL DISTRICTS — BONDS — PAYMENT OP INTEREST.</p> <p>Gen. Stat., § 2702, declaring that the county treasurer must pay out of any moneys belonging to the school district the interest upon any bonds issued by the school district under §§ 2697-2701, authorizing districts to borrow money and issue coupon bonds therefor, when the same become due and are presented at the treasurer’s office, is applicable only to moneys belonging to the school district in the special interest fund for payment of interest upon bonds, and is unconstitutional, in so far as it purports to command the treasurer to pay interest coupons from moneys raised by taxation for other school purposes. (Munson v. Mudgett, 15 Wash. 321, distinguished.)</p>

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

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

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

<p>INSURANCE — BREACH OF CONDITIONS — CHANGE OF OWNERSHIP — RIGHTS OF MORTGAGEES.</p> <p>A policy of fire insurance issued to a mortgagee will not be invalidated by failure to notify tbe insurer of a change of ownership, as required by the policy, where such change occurs between the time of application of, and the issuance of, the policy.</p> <p>Where, pending foreclosure proceedings, a deed of the mortgaged premises is delivered to the mortgagee upon the agreement between the parties that title should pass to the mortgagee only on condition that the title be approved by its attorneys and that the foreclosure suit be dismissed and the mortgage debt satisfied, the mortgagee is entitled to treat the mortgage as in full force until the dismissal of the suit and satisfaction of the debt; and, in case of a loss by fire between the delivery of the deed and satisfaction of the debt, under a policy providing for payment to the mortgagee as its interest may appear, the right of the mortgagee to recover as mortgagee remains unimpaired, although the policy may provide that a change in ownership without notice to the insurer would invalidate the policy.</p>

<p>CHATTEL MORTGAGES — PRIORITY OP LIEN — PREPERENCE GIVEN LABOR</p> <p>CLAIMANTS.</p> <p>Where a chattel mortgage is given upon partnership furniture to secure the payment of rent under a lease of hotel property, with an agreement that all furniture subsequently added should be included within the mortgage; and by a dissolution of the partnership one of the partners continues the business alone with the consent of the lessors, but without any new agreement being entered into between them, and places his individual furniture in the hotel, the mortgagee is not entitled to a lien thereon as against claimants having a preference for labor performed within sixty days, accorded them by the terms of Gen. Stat., § 3122, in case of the insolvency of their employer.</p>

<p>STATEMENT OP FACTS — SUFFICIENCY OF — ELECTIONS — MARKING BALLOTS— STATUTES — DIRECTORY PROVISIONS — REPEAL BY IMPLICATION.</p> <p>Whether or not a statement of facts is properly certified is an immaterial matter, when the findings of fact and conclusions of law are sufficiently full to give the. appellate court an understanding of the merits of the case.</p> <p>The laws of this state, directing the manner of voting under the so-called Australian system, must be regarded as directory rather than mandatory in their provisions, since Gen. Stat., § 413, provides that “ no ticket shall be lost for want of form, if the board of judges can determine to their satisfaction the person voted for and the office intended,” and Laws 1895, p. 393, § 10, provides that “ when a ballot is sufficiently plain to gather therefrom a part of the voter’s intention, it shall be the duty of the judges of election to count such part.”</p> <p>Ballots are not invalidated by failure to strictly comply with the statutory directions for marking them, under the liberal rule for arriving at the voter’s intention allowed by our statutes; but, when the markings are evidently intended for the purpose of expressing the voter’s intention, the ballot should be counted.</p> <p>Under this rule, ballots are entitled to be counted although having a X to the left, instead of the right, of the name of the candidate voted for; when having a double XX opposite a name; when having, a X opposite names of candidates of one party and lines drawn through names of opposing candidates; when having a X opposite one candidate and an obliterated X opposite the opposing candidate; when having pencil marks run through lines of amendments submitted, or a X over all of them, or the words “ no,” “ yes,” “ against,” “ for,” written opposite.</p> <p>Under Laws 1895, p. 393, § 11, providing that “ no ballot shall bear any impression, device, color or thing designated to distinguish such ballot from other legal ballots or whereby the same may be known or designated,” ballots cannot be counted when they have written thereon the names of individuals who are not candidates or such expressions as “ rats ” and “ don’t want any king.”</p> <p>Sec. 413, Gen. Stat., providing that “no ticket shall be lost for want of form, or mistake in initials of names, if the board of judges can determine to their satisfaction the person voted for and the office intended,” is not repealed by implication by the act of March 21, 1895 (Laws 1895, p. 386), relating to elections, as such act does not purport to be a complete law upon the subject, but confines itself to amending certain specified sections of the General Statutes upon that subject.</p>

<p>WITNESS — CROSS-EXAMINATION — BROKERS — ACTION FOR COMMISSION — INSTRUCTIONS — SUFFICIENCY OF COMPLAINT — CONTRACTS.</p> <p>Where a defendant in an action has been called as a witness by the adverse party for the purpose of proving a matter, it is prejudicial error for the court to allow the defendant’s attorney,, under the guise of cross-examination, to go into the whole subject of his defense by propounding to the defendant questions which are leading, self-serving and suggestive.</p> <p>In an action by a broker to recover his commission for the sale of a mine which was to be paid him monthly until payment in full of his commission of $10,000, in proportion to a certain percentage of the gross earnings of the mine, which his principal was to receive upon the purchase price for a period of three years, unless sooner paid in full, and which contract between seller and purchaser had been abrogated and a new one entered into, under which payment of commission was refused, it is error for the court to charge in effect that plaintiff cannot recover unless the jury find that in the usual course of business the purchaser would have 'fully paid the purchase price and that plaintiff would have received the full amount of his commission but for the subsequent contract, since plaintiff had a right to have the contract continue in force the full period of three years and to receive his percentage of his principal’s share.</p> <p>In such an action, a charge that the whole question is one of fraud, and that unless defendants made the subsequent contract of sale with the dishonest and corrupt purpose of preventing plaintiff from getting his commission due under the original contract, he could not recover, is erroneous.</p> <p>After judgment, and in the absence of a demurrer, a complaint should be liberally construed.</p> <p>A party to a contract cannot disable himself from complying with any condition, and thereby derive any benefit or escape any liability.</p>

<p>MORTGAGES — FORECLOSURE — PARTIES — ESTOPPEL.</p> <p>Where the execution of a deed and of a purchase money mortgage of the same premises are contemporaneous, the lien of a judgment creditor of the grantee is inferior to that of the mortgagee; and such judgment creditor is a proper party defendant upon foreclosure of the mortgage.</p> <p>The recital in a mortgage that it was given for a loan will not estop the mortgagee, as against a judgment creditor of the mortgagor claiming a lien, from proving that it was in fact a purchase money mortgage, when there is no showing that the judgment creditor knew of such recital and acted upon the faith of it to his detriment.</p>

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

<p>MINING — PROSPECTOR’S AGREEMENT — STATUTE OF FRAUDS — PLEADING— DENIAL OF KNOWLEDGE.</p> <p>An agreement between two parties to prospect together and share alike the benefits of any discovery or location of mining properties is not within the statute of frauds.</p> <p>Where the complaint avers an- agreement between plaintiff and defendant, a denial of information or knowledge sufficient to form a belief as to the facts alleged is not sufficient to raise any issue of fact, as the presumption is that the defendant has positive knowledge whether or not the averment is true.</p>

<p>SLANDER — CHARGES OF WHOREDOM — PRIVILEGED COMMUNICATIONS — MALICE — PLEADING.</p> <p>Under Code Proc., § 798, making every charge of fornication or whoredom falsely made against a female actionable as slanderous, such communications to third parties as, “ She is nothing but an old whore,” “ This woman acknowledges that you sleep with her every night and X have reason to know that you are not the only one,” and “ She is an objectionable character; that man Adams is keeping her,” if false entitle the woman injured thereby to a right of action for defamation of character.</p> <p>Defamatory words spoken of another to an officer of the law are not privileged communications, unless made for the purpose of preventing a crime or for the purpose of detecting and bringing a criminal to punishment.</p> <p>Where one recklessly makes defamatory remarks concerning another, stating as true what he does not know to be true, by reason of anger or spite, malice will be presumed.</p> <p>In an action for defamation of character, the failure to charge in the complaint that the words were maliciously spoken is not objectionable, if other words expressive of malicious intent are used.</p>

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

— Hon. Thomas J. Humes, Judge. In an action for personal injuries, plaintiff, a farmer and laborer, fifty seven years of age, recovered a verdict against the city in the sum of $5,100. From the judgment thereon the city has appealed.

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

<p>APPEAL — TAXATION OP COSTS.</p> <p>Where two appeals are prosecuted in an action and the respondent in answering both flies but one brief, it is not erroneous upon affirmance as to one appeal and reversal as to the other, to tax the cost of the respondent’s brief against the appellant whose judgment was affirmed, when the matters relating to the several appeals are intermingled in the brief and no request for a segre- ' gation of the cost has been made before judgment.</p>

<p>MANDAMUS TO JUDGE — LIABILITY FOB COSTS.</p> <p>Wliere a writ of mandate issues out of the supreme court to a judge of the superior court to compel him to reinstate an appeal from a justice of the peace, which he had improperly dismissed, judgment for costs should he rendered against the real party in interest and not against the superior judge, except in case of wilful misconduct or dereliction of duty on his part warranting it.</p>

<p>DEMURRER — FIRE INSURANCE — CONDITION AS TO OWNERSHIP — WHO MAY RAISE OBJECTIONS — RIGHTS OF MORTGAGEE — ESTOPPEL — ACTION TO RECOVER PROCEEDS — PARTIES — DEMAND.</p> <p>After a defendant has once demurred to a complaint he cannot subsequently demur upon other grounds.</p> <p>A policy of Are insurance payable to a mortgagee as his interest may appear is valid as to him, although procured by a person having no interest in the premises insured, and the policy was conditioned that it should be void in the latter case.</p> <p>Where a policy of insurance, conditioned that it should be void if the interest of the insured be other than unconditional and sole ownership, is procured by one not having title to the premises, the insured cannot set up the invalidity of the policy in an action against him to recover the proceeds of a loss by a mortgagee to whom the policy was made payable as his interest might appear.</p> <p>Where the insured and the mortgagee to whom the policy of insurance was made payable as his interest might appear joined in an action to enforce payment for loss, in which the complaint alleged ownership in the insured, the insured and his attorneys are both estopped from setting up the invalidity of the policy as against the mortgagee on the ground that the insured had no interest in the premises.</p> <p>In an action by a mortgagee to foreclose a mortgage and have the proceeds of insurance policies applied in satisfaction thereof, upon which payments had been made to the attorneys representing the mortgagee and the insured in compromise of a joint suit by them against the companies, such attorneys are proper parties defendant.</p> <p>In such a case, where the mortgagee’s right to the funds was denied by the attorneys and they were purposing to make payment to other parties, no demand was necessary prior to suit against them.</p>

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

<p>DISMISSAL OF APPEAL — EXCEPTIONS TO FINDINGS — WHEN MUST BE TAKEN.</p> <p>Under Laws 1893, p. 112, § 3, providing that exceptions to findings of fact or conclusions of law must be taken within five days after the filing of the decision or within five days after service of a copy of such decision or of written notice of its filing, the party objecting must file exceptions within five days after acquiring knowledge in any way of the existence of the decree, as actual knowledge is equivalent to written notice.</p>

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

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

<p>INTERROGATORIES TO JURY — CONCLUSIVENESS OF ANSWERS — INJURY TO EMPLOYEE — DEFECTIVE APPLIANCES — CONTRIBUTORY NEGLIGENCE.</p> <p>A defendant cannot urge the objection that there was no evidence to support the verdict against him, after he has propounded interrogatories to the jury upon points necessary to be established to sustain a judgment against him, and the findings of the jury thereon are adverse to defendant.</p> <p>The receiver of an electric railway company is liable for injuries to an employee resulting from the breaking of a trolley wire, which he was repairing, and which had been weakened by having kinks in it pounded out, when che condition of the wire was known by the master and not by the servant.</p> <p>An employee is not guilty of contributory negligence as a matter of law, from the fact that, in drawing on a trolley wire for the purpose of getting it into proper position, he had mounted a box upon top - of a construction car, and, owing to the rotten condition of the wire, which was unknown to him, it parted and threw him to the ground, when the methods and appliances used by him were such as were usually employed in that kind of work, and, while his elevated position was not necessary for all the details of the repairs, it was necessary to the proper completion of the work.</p>

<p>Appeal from Superior Court, Bang County. — Hon. Orange Jacobs, Judge.</p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — LIABILITY OP GENERAL FUND— ENPORCEMENT OP ASSESSMENTS — MANDAMUS.</p> <p>When, a municipality has reached the limit of its indebtedness, there can be no general liability contracted or established on account of the expense of street improvements.</p> <p>Where there is no power in a municipality to construct street improvements out of the general fund, it cannot be made liable for a failure to provide a special fund.</p> <p>The holder of a warrant drawn upon a special fund to be raised from assessments made for a street improvement may by mandamus compel the city officers to proceed with the collection of the assessments.</p> <p>In case the remedy by mandamus prove inadequate, a court of equity has power to make and enforce the assessment.</p> <p>Where the cost of a street improvement is to be paid out of a special fund raised by the city from assessments upon the ■property benefited, there can be no recovery against the city for failure to cause such fund to be raised, as long as the assessment plan can be enforced in any way, although the city may have expressly contracted that it would proceed with the collection of the assessments in the shortest time possible. (MoEwan v. Spokane, 16 Wash. 212, overruled).</p> <p>Holders of warrants drawn by a city upon a special street improvement fund may compel the city officer^ to proceed diligently to collect the assessments from which the fund is to be raised, notwithstanding the city council may have provided for payment of the assessments in installments extending over a period of years.</p>

<p>Appeal from Superior Court, Whitman County. — Hon. William McDonald, Judge.</p>

<p>ENFORCEMENT OF ASSESSMENT FOR STREET IMPROVEMENTS — LIMITATION— REVIVAL OF BARRED ACTION.</p> <p>Actions to enforce collection of assessments by foreclosure of the lien upon the property benefited, were, prior to the passage of the act of March 20, 1895, prescribing a ten-year limitation, governed by Code Proc., § 120, which provides that “ an action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.”</p> <p>The act of March 20, 1895 (Laws 1895, p. 270), prescribing a ten-year limitation upon actions to enforce the collection of assessments for street improvements does not revive the right of action in cases where the bar of the former statute fixing a two-year limitation had become complete.</p>

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

<p>MUNICIPAL CORPORATIONS — LIABILITY FOR CONDEMNATION AWARDS — ESTOPPEL — ENFORCEMENT OF AWARD — DEFENSES — RECORD ON APPEAL.</p> <p>Under charter provisions requiring that the entire expense of the improvement, where land is appropriated for the widening of a street, should he assessed upon the property benefited, the city cannot be made liable to pay condemnation awards, if it has not actually collected the money due upon the assessments, at least until after it has been fully moved to prosecute the collection of the assessments and has failed and the further right to enforce, collection has become lost.</p> <p>The fact that judgments for damages by reason of the appropriation of land had been awarded against the city in certain condemnation proceedings would not estop the city from questioning the right of another claimant to judgment under similar circumstances.</p> <p>Where a motion for judgment upon an award in condemnation proceedings for the appropriation of land for widening a street is sought against the city, the latter may, as a defense, set up the abandonment of the improvement scheme.</p> <p>Upon an appeal from a judgment in an action to enforce a condemnation award, the absence from the record of the assessment roll is immaterial, although it may have been in evidence in the court below.</p>

<p>APPEAL BOND — GARNISHEE AS PARTY.</p> <p>A garnishee is not such an adverse party as to require the giving of a bond to him upon an appeal by plaintiff from a judgment in the principal action in favor of defendant, as the garnishment proceeding is merely incidental to the principal action and the garnishee has no interest in the subject matter of the appeal which will be affected by a reversal or modification of the judgment appealed from.</p>

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

<p>APPEAL — MANDATE AND PROCEEDINGS BELOW.</p> <p>Upon a mandate from the supreme court reversing the judgment of the superior court upon an interlocutory order made in the foreclosure of a mortgage, as to the right of priority between secured and certain unsecured creditors, the superior court has power to vacate a decree of sale made by it pending the appeal, and direct other unsecured creditors, who had not been parties to the appeal, to file their claims to priority, if they assert any such claims.</p>

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

<p>ACTION ON PROMISSORY NOTES — DEFENSES — PLEADING — INSTRUCTIONS — WEIGHT OF EVIDENCE — INTERROGATORIES.</p> <p>In an action upon promissory notes, the answer states a defense when it alleges that the notes were procured by fraud, setting up in substance that plaintiff had for a number of years claimed to be a spiritualistic medium and have supernatural power; that hy reason of his acts and representations he had obtained an undue influence over defendants who belonged to the denomination of spiritualists, and that he induced them to believe that there were certain spirits which demanded that they execute the note in question for the purposes of a materialization; that the notes were never understood to be executed for the plaintiff’s, benefit in any way, but simply for the purpose of accomplishing the spiritualistic object represented by plaintiff; and that all of said representations were false and fraudulent; and testimony tending to support such defense is admissible in evidence.</p> <p>Where interrogatories are directed to the discovery of facts material to the defense, a mouon to strike them is properly denied, under the authority of Code Proc., § 1661.</p> <p>Error, if any, in striking interrogatories propounded by plaintiff, is not prejudicial, where all of them are covered by statements in defendant’s answer verified by him personally, and defendant was also a witness at the trial.</p> <p>In an action upon promissory notes to which is pleaded the defenses of want of consideration and fraud in their procurement, an instruction is not prejudicial which charges that “ unless the defendant has established by a preponderance of the evidence that the notes were given without consideration, or that the consideration has failed in whole or in part,” the jury should allow plaintiff the full amount of his notes, when there is evidence tending to show that plaintiff had represented that the execution of the notes was demanded by a certain spirit for its purpose in. the matter of effecting a materialization and that such materialization had never come to pass.</p> <p>Where the evidence is contradictory, the supreme court will not interfere with the verdict of the jury, however the weight of the testimony may- appear to the court.</p>

<p>SATISFACTION OF MORTGAGE — RIGHT TO REINSTATEMENT AGAINST SUBSEQUENT LIEN.</p> <p>Where a first mortgagee lias released bis mortgage of record, surrendered bis note to tbe mortgagor, and taken a deed to tbe property under tbe mistaken belief tbat there were no other incumbranees on the premises, while in fact there was a second mortgage thereon, the first mortgagee is entitled as against the debtor and the second mortgagee, or the assignee of the latter with notice, to be restored to his original rights and lien on the premises by a court of equity.</p>

<p>APPEAL — EFFECT OF PARTIAL REVERSAL — REHEARING — MATTERS OCCURRING SUBSEQUENT TO ORIGINAL APPEAL.</p> <p>Where all the parties holding mortgages upon the property of a certain railway are before the court seeking foreclosure of their liens and a decree is rendered ordering sale of the entire property in solido and awarding priority to one of the mortgagees, a reversal of the decree, to the extent of adjudging that anothei mortgagee is entitled to an exclusive lien upon a portion of the property, would not affect the title of a purchaser under foreclosure sale nor nullify that portion of the decree directing a sale of the property as an entirety, but would merely affect the rights of the parties in the application of the proceeds, which was the real contention between them.</p> <p>The supreme court will not by its order attempt to direct the action of the superior court upon the rights of parties in regard to facts occurring subsequent to an appeal, and which the lower court has not had an opportunity, or been moved, to pass upon.</p>

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

<p>Appeal from Superior Court, Spokane County. — Hon. W. J. G. Waxefieud, Judge pro tem.</p> <p>Opinion on re-hearing, the original opinion reversing ' the cause being found in 15 Wash. 450.</p>

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

<p>FORECLOSURE OF MORTGAGE — PLEADING — DEMURRER — COLLATERAL ATTACK — JUDGMENT AWARDING TAX SALE — ADVERSE TITLE.</p> <p>An allegation in a complaint for foreclosure of a mortgage that one of the defendants “ claims some interest in or title to said property inconsistent with the rights of the plaintiff,” does not amount to an allegation of adverse title, when taken in connection with other allegations of the complaint which show that the intent of the pleader was to charge that such interest, whatever it might be, was subordinate to that of plaintiff.</p> <p>The denial of a motion to strike allegations of a reply constituting a collateral attack upon a judgment is not error, as the objection on that ground should he taken by demurrer, which would raise the question of the sufficiency of the facts stated to show that the judgment was void, since it is only yoid, and not erroneous, judgments that may be collaterally attacked.</p> <p>A judgment in a suit for taxes, where the court had jurisdiction of the subject matter and of the parties, is not subject to collateral attack for mere irregularities.</p> <p>A tax title acquired under sale decreed by a court of competent jurisdiction is a title paramount and hostile to that of a mortgagor and cannot be litigated in a suit for the foreclosure of a mortgage.</p>

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

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

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

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

<p>MORTGAGES — ASSIGNMENT — PLEADING AND PROOF-CORPORATIONS — POWERS — LIEN OF MORTGAGE ON HOMESTEAD — ESTOPPEL.</p> <p>Where a complaint in foreclosure alleges that plaintiff is the owner and holder of the note and mortgage sued on by purchase and assignment for a valuable consideration, the complaint is sufficient, in the absence of a motion to make more definite, to warrant the, admission in evidence of an assignment by the mortgagee corporation to an individual, and an assignment by the latter’s administrator to the plaintiff, the death of plaintiff’s assignor having been established by the introduction of a certified copy of the grant of letters of administration upon his estate.</p> <p>Where a complaint alleges that a certain corporation was one having power to loan money, the introduction in evidence of its articles of incorporation showing that it had general powers, does not constitute a variance, as the right to loan money is included within its general powers.</p> <p>The provisions of Gen. Stat., tit. 18, ch. 1, requiring all the capital stock of a corporation to be subscribed before it is authorized to transact business, does not apply to corporations, either foreign or domestic, engaged exclusively in loaning money upon real estate.</p> <p>The mere fact that a corporation had power under its articles to engage in other business than that of loaning money would not deprive it of the right to do business before the whole amount of its capital stock had been subscribed, if, in fact, its business was confined to the loaning of money upon real estate.</p> <p>A mortgage of homestead premises joined in by husband and wife need not expressly mention the homestead in order to create a mortgage lien thereon, but a mortgage in the ordinary form, purporting to convey the whole right, title and interest of husband and wife, is sufficient.</p> <p>A grantee who assumes the payment of a mortgage debt as part consideration for the conveyance of land, is estopped to dispute' the validity of the mortgage.</p>

<p>EVIDENCE — PROOF OF CORPORATE CHARACTER — ACCEPTANCE OF CHARTER.</p> <p>Inasmuch as the acceptance of a charter of- incorporation granted by a legislature may be shown by user, as well as by formal acceptance, proof of acceptance is sufficiently established by evidence of the purchase and taking of an assignment of a note and mortgage and bringing suit thereon in the corporate name.</p>

<p>STATUTES — SUBJECT AND TITLE — TAXATION—UNIFORMITY—DELINQUENCY CERTIFICATES — INTEREST — RETROACTIVE LAWS — DUE PROCESS OF LAW — REFUNDING PAYMENT OF VOID TAX-LIMITATION OF MUNICIPAL INDEBTEDNESS — CONCLUSIVENESS OF JUDGMENT ON TAX DEED.</p> <p>Where an act of the legislature is entitled “ an act to provide for the assessment and collection of taxes in the state of Washington,” the title is sufficiently comprehensive to embrace provisions in the act providing for the issuance of delinquency tax certificates to any applicant, with a guaranty by the county or municipality that the sum paid for the certificate will be refunded with six per cent, interest in case the tax be void.</p> <p>The provision in a statute regulating the collection of taxes, that, whenever taxes are delinquent the treasurer shall issue to any applicant who shall pay the taxes upon delinquent property a certificate which can be redeemed only by paying the holder the amount paid by him thereon with fifteen per cent, interest, thus virtually exacting compound interest, does not violate the constitutional requirement that taxes shall be uniform, although other delinquent property owners against whom no tax certificate has been issued may be able to clear their property by the payment of the tax with simple interest.</p> <p>Where a property owner has notice and an opportunity to defend before his title is actually divested by the issuance of a tax deed, the issuance of a tax certificate without notice to him, which the statute declares shall have the same force and effect as a judgment, execution and sale, will not constitute a taking of property without due process of law.</p> <p>A statute respecting the collection of delinquent taxes may be retroactive in its operation, if so expressly declared by the legislature.</p> <p>The act of 1897 (Laws 1897, p. 181, §§ 94, 95) in regard to the issuance of delinquency certificates is applicable to delinquent taxes for the year 1896, though not expressly in terms made retrospective in that particular, since such taxes did not become delinquent until after the passage of the act, and therefore fall within its prospective operation.</p> <p>The fact that there is a general law in the state limiting interest charges within twelve per cent, would not preclude the legislature from authorizing a charge of fifteen per cent, interest upon the redemption of delinquent tax certificates.</p> <p>It is within the power of the legislature to require municipalities to guarantee the repayment with interest of money paid for delinquent tax certificates in case the tax be void.</p> <p>The provision of the revenue law of 1897 requiring counties and municipalities to guarantee the payment of interest upon void tax certificates doe's not render that portion invalid on the ground that it might, under some contingencies, cause the constitutional limit of indebtedness to be exceeded.</p> <p>Section 98, of the revenue law of 1897, providing for the issuance of delinquency certificates to counties or municipalities, when no certificate has been sold to individuals, cannot be held to be inoperative and invalid on the ground of impossibility of its performance.</p> <p>A statute making a tax deed prima facie evidence of certain matters therein specified and providing that a judgment for a tax deed shall be conclusive evidence of its regularity and validity in collateral proceedings, excepting in cases where the tax had been paid or the real estate was not liable, is valid as a proper exercise of legislative power and does not amount to a taking of property without due process of law.</p>

<p>SALE — CONTRACT BETWEEN PRIVATE PARTIES AND PUBLIC CORPORATION — MISREPRESENTATION —RELIANCE ON — WHAT CONSTITUTE MATERIAL PACTS— SUFFICIENCY OP EVIDENCE — MEASURE OP DAMAGES.</p> <p>In. the consideration of questions of fraud and misrepresentation arising upon a contract for the sale of property by a private corporation to a municipal corporation, it is a fact properly for the consideration of the jury that the less expert business capacity, skill and experience may be with the municipal corporation.</p> <p>When false representations are made by a vendor concerning the subject of sale, and the purchaser has no knowledge of their falsity and has been reasonably prudent, but such statements are not so openly and palpably false that their untruth is apparent to an ordinarily prudent person, he has a right to rely thereon, and, if injured in consequence of such reliance, is entitled to recover damages.</p> <p>In an action by a city to recover damages for deceit and fraudulent representations, whereby it was induced to purchase a water plant at a price greatly in excess of its value, a verdict in favor of the city is warranted when there is evidence tending to show that the defendant knowingly made false representations as to the amount of land, the miles of pipe laid and the quantity of flow of water included in the plant; also false statements as to the original expense of the plant to the vendor and the net income derived therefrom; that an attorney of the defendant was president of the city council, and as such worked for the purchase of the plant, always voting against any reduction of the price at which it was offered to the city, and receiving pay for his services as attorney proportioned to the amount of purchase price paid by the city; that an engineer of the defendant had stated as a positive fact that the daily flow of water from certain springs, upon which a high valuation was placed in the negotiations, was four times the amount actually flowing therefrom; and that the representations made by the defendant and its agents for the purpose of inducing the sale, had been believed and relied on by the city council and had induced that body to enter into the contract of purchase.</p> <p>Whether a representation as to value is merely an expression of opinion, or an affirmation of a material fact to he relied upon, is a question for the jury.</p> <p>Where the material facts of the ease are supported by competent evidence, although it may be very conflicting and the preponderance may appear to be the other way, a court for the review of errors on appeal cannot disturb the verdict.</p> <p>The measure of damages for false representations inducing the purchase of a water and light plant is the difference between the whole purchase price paid and the actual value of the whole property at the date of sale, when the sale was of the plant and all property pertaining thereto as an entirety, and there was no agreement between the parties upon the value of any specific portion.</p>

<p>POWER OF STATE AUDITOR TO ISSUE CERTIFICATES OF INDEBTEDNESS — REPEAL OF STATUTE — VETOED APPROPRIATION — EFFECT OF SUBSEQUENT GENERAL LAW.</p> <p>Section. 22 of the act of March 27, 1890, empowering the state auditor to issue certificates of indebtedness in cases where there is no appropriation for claims audited and allowed by him, was repealed by Laws 1895, p. 58, providing that “ it shall be unlawful for any of the state officers or trustees, managers, directors, superintendents or boards of commissioners of any of the public institutions of the state of Washington, or for the officers of any of the departments of the state of Washington, to create a deficiency, incur liability, or to expend a greater sum of money than is appropriated by the legislature for the use of said public institution or department.”</p> <p>Laws 1895, p. 58, applies to cases in which no appropriation has been made, and to those in which an appropriation by the legislature has been vetoed by the governor.</p> <p>The subsequent passage at the same legislative session of a general act establishing a general uniform system of public schools, which covers the method of conducting normal schools and the auditing and allowance of claims for expenses incurred, would not work a nullification of the veto of a special item in the general appropriation bill providing for the maintenance of one of the state normal schools.</p>

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

<p>Appeal from Superior Court, King County. — Hon. E. D. Benson, Judge.</p>

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

<p>ASSAULT WITH INTENT TO KILL — INSTRUCTIONS — CONVICTION OF LESSER OFFENSE — INTOXICATION AS A DEFENSE — EVIDENCE.</p> <p>An instruction that malice includes not only anger, hatred and revenge, “ but any other unlawful and unjustifiable motive,” is not prejudicial, when the succeeding portions of the charge immediately qualify and explain such definition by adding that, ' a thing done with a wicked mind and attended with such circumstances as plainly indicate a heart regardless of social duty and fully bent on mischief indicates malice within the meaning of the law.”</p> <p>An instruction is misleading and liable to confuse a jury as to the distinction between murder and manslaughter, when it charges “ that, if without such provocation as is apparently sufficient to excite reasonable apprehension, a person shoots another in such a way as is likely to occasion death, although he had no previous malice against the person, yet he is presumed to have had such malice at the moment of shooting, and if death results from such shooting it will be murder.”</p> <p>In a prosecution for an assault with intent to murder, the intent, as well as the assault, is a necessary element of the crime, and cannot be inferred as a legal presumption from the use of a deadly weapon; consequently an instruction is erroneous in such a case which charges that if the defendant did shoot the prosecuting witness and that the natural and ordinary consequences of such shooting would be the death of the person assaulted, then the presumption of law is that the shooting was done with intent to kill.</p> <p>In a prosecution for assault with intent to commit murder, it is error to refuse a requested instruction to the effect that the jury may, in case the evidence warrants it, find the defendant guilty of assault, or of assault and battery, since Code Proc., § 1320, provides that a defendant may be found guilty of any offense necessarily included within the crime charged.</p> <p>Where a witness has testified as to seeing defendant intoxicated and as to his condition, appearance and action at the time he noted him in such state of intoxication, the witness is competent to testify as to the extent of the intoxication and state whether defendant appeared to be so intoxicated that he did not know what he was doing.</p> <p>While voluntary intoxication is not an excuse for a crime actually committed, yet where a crime consists of an act and of an intent to perform an ulterior act, which was in fact not accomplished, intoxication of the accused may be considered in determining whether he actually entertained the specific intent charged.</p>

<p>WITNESSES — COMPETENCY — TRANSACTIONS WITH DECEDENT — RESULTING TRUST — EVIDENCE — INCONSISTENT DEFENSES.</p> <p>Under Code Proe., § 1646, which provides that, in an action where the adverse party defends as deriving right or title by, through or from any deceased person, it shall be incompetent for a party in interest to testify in his own behalf as to any transaction had by him with such deceased person, testimony of the plaintiff tending to establish a resulting trust held by the deceased in his favor is inadmissible.</p> <p>In order to establish a resulting trust by parol evidence, the proof must be full, clear and convincing.</p> <p>Plaintiff is not entitled to judgment on the pleadings on the ground that the answer sets up contradictory defenses, when one paragraph thereof alleges that the real estate in controversy was the separate property of defendant’s ancestor, while the answer, taken as a whole, plainly intends to plead the community character of the property.</p>

<p>CRIMINAL LAW — COMPELLING ACCUSED TO CRIMINATE HIMSELF — APPEAL — SUFFICIENCY OF EVIDENCE.</p> <p>Although, a defendant in a criminal prosecution offers himself as a witness in his own behalf, he cannot be compelled to testify to matters tending to- criminate him, under the constitutional guaranty that “no person shall he compelled in any criminal case to give evidence against himself.”</p> <p>While it is the plain province of the jury under the law to weigh the testimony, yet, when it becomes evident that the accused has been convicted of a crime without any testimony having been introduced against him, it becomes the duty of the courts to interfere and set aside such verdict.</p>

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

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

<p>JURY — HOW SUMMONED AFTER EXHAUSTION OF PANEL — HOMICIDE — EVIDENCE —THREATS—INSTRUCTIONS — RIGHT OF ACCUSED TO FACE WITNESSES — TESTIMONY OF DECEASED WITNESS ON FORMER TRIAL.</p> <p>Where the regular panel has become exhausted before the completion of the jury, the court is authorized, under Laws 1895. p. 140, § 3, to order a second panel of jurors to be drawn and summoned from the regular jury list, and is not required to have the jury completed from among the bystanders, or by the issuance of an open venire.</p> <p>Proof of an isolated fact, tending to show the great physical strength of deceased, is inadmissible where self-defense is set up in a case of homicide, when such alleged exhibition of strength was never communicated to defendant, or is not a material issue in the case.</p> <p>A remark by deceased made to others than defendant that, if defendant after hiring him should undertake to run him off with a shotgun, one or the other would die, does not constitute a threat; and the manner of deceased in using such language, and the reason the conversation was carried no further on that subject were properly excluded by the court.</p> <p>When self-defense is set up as justifying a homicide, an alleged threat by deceased which was not communicated to defendant is inadmissible, as it could have no influence upon his mind in determining the danger he believed himself to be in at the time of the alleged attack upon him by deceased. (State v. Coella, 3 Wash. 99, distinguished).</p> <p>Evidence of threats or of the dangerous character of deceased are inadmissible until there has been proof made of an overt act of attack on the part of the deceased, and that defendant’s life was in apparent imminent danger therefrom.</p> <p>It is within the discretion of the trial judge to determine when a proper foundation is laid for the introduction of threats, and that necessarily involves the discretion to disregard testimony which he cannot, under the circumstances, reasonably believe.</p> <p>One testifying on a subsequent trial to what a deceased witness testified to on a former trial, may properly identify an exhibit which had been identified by the deceased witness at the former trial and offered in evidence at that time.</p> <p>Where defendant in a homicide case sets up that he was assaulted by deceased with a club, and a witness who was upon the ground immediately succeeding the killing could find nothing of that character beyond a piece of lath sprinkled with blood, the lath is admissible in evidence on the part of the prosecution.</p> <p>Testimony of a witness that certain holes in deceased’s clothing corresponded to the holes in his body as seen and examined by the witness soon after the homicide is admissible as evidence of facts and not merely the expression of an opinion.</p> <p>The fact that the court in explaining to the jury what constitutes manslaughter states that if the killing was done in a sudden excitement, without thinking of what effect his act may have upon his adversary, the act would constitute manslaughter, would not be prejudicial when followed by the language of the statute defining the crime.</p> <p>The lower court, upon a re-trial, is not bound to give a requested instruction, which the supreme court had on appeal declared to have been improperly refused, in the exact language as it was passed upon and approved by the supreme court, but it is within the discretion of the trial court to add language explanatory thereof.</p> <p>It is not error to refuse a request for an instruction, when the one given by the court upon the point covers the ground, although in other language.</p> <p>In charging the'jury in a criminal case it is not the duty of the court to address its instructions to each one of the jury as' individuals, but it is sufficient to state the law as it applies to the duties of the jury as a collective body; the proper recourse when there is doubt as to' whether the verdict was concurred in by each individual juror is to poll the jury.</p> <p>A request to charge that proof of good character is admissible not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt was properly refused, where evidence of good character had been admitted by the court and the jury charged to consider it with the other evidence, since it is not incumbent upon the court to enlighten the jury upon abstract propositions of law.</p> <p>The constitutional provision that the accused in a criminal prosecution shall have the right to meet the witnesses face to face will not exclude evidence of the testimony given by a deceased witness upon a former trial, as the accused has once had the advantage of seeing the witness face to face and of subjecting him to cross-examination.</p>

<p> Original Application for Writ of Review. </p>

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

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

<p>APPEAL — JOINDER — INDEPENDENT APPEALS — LIMITATIONS — HOW RAISED BY PLEADING — REVIVOR OF MORTGAGE.</p> <p>Laws 1893, p. 121, § 5, providing that parties similarly affected may join in an appeal within ten days after service of notice of appeal does not apply in a case where, after an appeal has been taken by one party, the adverse party also desires to prosecute an appeal from the same judgment.</p> <p>The supreme, court will entertain more than one appeal from the same judgment in an equity cause, where the appeals are all perfected and the cause submitted to the court at one time, so the whole matter may be finally disposed of on one hearing. (Sill v. Saicyer, 14 Wash. 275. distinguished).</p> <p>The defense of the statute of limitations is properly raised by answer, instead of by demurrer, when the defect does not clearly appear on the face of the complaint.</p> <p>Where a mortgage has been foreclosed without including certain parties claiming an interest in the premises, and a subsequent suit is brought against the omitted parties to foreclose their interest, the fact that the claim secured by mortgage had been merged in the judgment in the original foreclosure proceeding would not deprive them of the right to plead the statute of limitations against the claim.</p> <p>A mortgagor cannot, by means of a partial payment after the bar of the statute of limitations has become complete, revive the mortgage as against another party who had purchased the lands but was not obligated to pay the debt.</p>

<p>Appeal from Superior Court, Pacific County. — Hon. "W. W. Langhoene, Judge.</p>

<p>Appeal from Superior Court, Columbia County. — Hon. R. F. Stubdevakt, Judge.</p>

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

<p>APPEALABLE OBDEB — VACATING JUDGMENT.</p> <p>An order of the superior court vacating a judgment of dismissal of an action for failure of plaintiff to appear at the trial, on the ground, as authorized by Code Proe., § 221, that the judgment was obtained against plaintiff through mistake, inadvertence, surprise or excusable neglect, does not constitute an order granting a new trial; and hence is not an appealable order on the ground of being one awarding a new trial.</p>

<p>LOGS AND LOGGING — FORECLOSURE OF STUMPAGE LIEN — IMMATERIAL EVIDENCE.</p> <p>In an action to foreclose a lien upon sawlogs, where no rights of third parties are involved, the allegations of the complaint showing that the contract was to pay “ the sum customary and usual for saw logs in that vicinity, to-wit, the sum of one dollar per thousand feet, which said sum was a reasonable price for stumpage in said vicinity at said time,” while the notice of lien sets out that the defendants “ agreed to pay one dollar per thousand feet stumpage ” to plaintiff, constitutes but an immaterial variance.</p> <p>A description of saw logs in a lien notice as marked “ Cs and O,” when they were in fact marked <§ is, as between the original parties, when the logs in controversy were actually cut upon plaintiff's premises and no rights of innocent third parties are involved, an immaterial variance, under the provisions of Laws 1893, p. 433, § 15, which provides that no mistake or error in the statement of the demand, nor in the description of the property, shall invalidate the lien, unless the court finds such mistake made with intent to defraud, or that an innocent third party has become the Iona fide owner of the property liened upon, etc.</p>

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

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

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

<p>TAXATION — ASSESSMENT OP PERSONAL PROPERTY — FINALITY OP EQUALIZATION— SHARES IN INSOLVENT NATIONAL BANKS — LIABILITY OP RECEIVER FOR TAXES.</p> <p>The action of the assessor and of the county board of equalization as to assessments upon personal property is final in the absence of fraud or malice on their part.</p> <p>The receiver of an insolvent national bank cannot be required to pay a state tax levied upon the shares of stockholders, when the shares are valueless and there is no fund from which the receiver can be reimbursed for the amount of the tax without paying it from the assets of the bank to the detriment of the bank’s creditors.</p>

<p>REPEAL OP STATUTES — INTENT OP LEGISLATURE — CONSTITUTIONAL LAW — SUBJECT AND TITLE OP ACT — COMMISSIONER OP ARID LANDS.</p> <p>When it appears from the construction of an act as a whole, especially in view of the history of the passage of the act, that a clause therein repealing a former act was included through inadvertence, such words of repeal, although absolute in themselves, will be held to be qualified by the intention of the legislature as manifested in other parts of the same act.</p> <p>The fact that the legislature, subsequent to the passage of an act purporting to repeal an existing law, at the same session also passed an act amending the law which the prior act purported to repeal, tends to establish that such purported repeal was an oversight, when the matter of getting at the intent of the legislature is necessary in the construction of a statute.</p> <p>That portion of an act which attempts to repeal a prior act is unconstitutional and void, when the two acts are not upon the same subject matter and the subject of the repeal of the prior act is not expressed in the title of the subsequent act.</p> <p>The office of commissioner of arid lands provided for in the act of March 22, 1895 (Laws 1895, p. 452), is not abolished or abrogated by the act of March 16, 1897 (Laws 1897, p. 263, § 70), which contains a clause purporting to repeal said act of 1895, nor by the act of March 19, 1897 (Laws 1897, p. 345), which, in amending said act of 1895, while attempting to impose the duties of arid land commissioner upon an officer to be known as the commissioner of irrigation, does not in fact abrogate the office of arid land commissioner, as the section providing for the appointment, qualification and compensation of the latter is left undisturbed and no provision for the appointment of a commissioner of irrigation is made, thus manifesting the legislative intent to regard the terms as synonymous and made in reference to the same officer.</p>

<p>CLAIMS AGAINST COUNTY — ALLOWANCE BY COMMISSIONERS — DUTY OP AUDITOR TO DRAW WARRANT — MANDAMUS—PLEADING.</p> <p>Under Gen. Stat., § 281, authorizing hoards of county commissioners “ to allow all accounts legally chargeable against such county not otherwise provided for,” and Laws 1893, p. 280, § 1, providing that such claims as it is not the auditor’s duty to audit shall be presented to the board of county commissioners for their examination and allowance, and that for claims allowed by the county commissioners, the auditor shall draw a warrant on the county treasurer, payable to the claimant or his order, when the board has approved bills which they have the legal right to approve, it is the duty of the auditor, without further question, to issue the warrants for the same.</p> <p>In mandamus to compel the auditor to draw a warrant for a claim allowed by the county commissioners, where the complaint sets forth that the claim was duly and legally presented to the board of county commissioners, that they duly and legally passed upon the same and that the amount claimed was duly approved by the board, the auditor cannot demur thereto on the ground that the complaint is not in such form as to enable him to raise an issue of fact as to the merits of the claim and the rightfulness of the items charged for, but if there are any legal objections to the payment of the claim, they should be set up by answer.</p>

<p>¡STATUTES — REPEAL BY IMPLICATION — MORTGAGE FORECLOSURE — NECESSITY FOR LEVY.</p> <p>Code Proc., § 630, providing for the mode of selling mortgaged land under foreclosure is not impliedly repealed by Laws 1897, ch. 50, p. 70, making provisions for levy upon property prior to its sale on execution, since a levy is inapplicable to foreclosure .sales, except for a deficiency.</p>

<p>•COSTS — WITNESS FEES — FORECLOSURE OF LOGGING LIENS — ATTORNEY’S FEES — CONSTITUTIONALITY OF ACT — RIGHT OF PURCHASER OF LOGS TO ASSIGNMENT OF LIEN CLAIMS ON TENDER OF PAYMENT.</p> <p>Where plaintiff, in order to meet issues of fact tendered by defendant, has witnesses in attendance at the trial, he is entitled to an allowance of their fees as costs, although their presence may in fact prove unnecessary by reason of the defendant’s failure to introduce testimony upon such issues.</p> <p>Laws 1893, p. 433, § 17, providing that the court shall allow a reasonable attorney’s fee upon foreclosure for each person claiming a logger’s lien, is not unconstitutional in any sense, but is permissible upon the same theory that costs are allowed.</p> <p>An offer by the purchaser of saw logs to pay a lienor the amount of his claim for labor thereon if he would assign his claim to the purchaser is a conditional tender of the sum due and insufficient to defeat the lienor’s claim for costs and attorney fees upon foreclosure.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. Hehby McBbide, Judge.</p>

<p>TIDE LANDS — APPLICATION TO PURCHASE — APPEAL — EXTENSION OP STREETS — PLAT AND APPRAISEMENT — EVIDENCE.</p> <p>The right of appeal to the superior court from the decision of the board of state land commissioners, given by Laws 1895, p. 527, applies not only to cases in which the board determines the prior right of purchase between two or more applicants for tide lands, but also to cases in which there is but one applicant and the court determines that the tract applied for is not subject to sale.</p> <p>Where the right to purchase a particular tract of tide land has been tried before the board of state land commissioners upon an issue of fact and decided adversely to the claimant, appeal from their decision, and not mandamus, is the proper remedy.</p> <p>Under the authority given municipal corporations by art. 15, § 3, of the constitution, to extend their streets over tide lands intervening between the harbor area and the corporate limits, it is only contemplated that the extension shall be in a direct line and of the same width as the street thus extended, and where a city attempts to run such street extension across the tide lands at an angle instead of a direct course, the attempted exercise of power is void.</p> <p>Where the board of tide land appraisers had no power under the existing statute at the time of appraising tide lands to lay out and plat streets thereon, and there is nothing on their plat as filed to indicate that they attempted to perform such an act, a subsequent statute validating streets theretofore located and platted on tide lands, has no application to the circumstances of the case.</p> <p>Where a particular tract of tide land has been platted and appraised by the board of tide land appraisers as other tracts were platted and appraised and is not marked as a street nor contains any intrinsic evidence of an intent on the part of the board to lay it out as a street, the evidence of members of the board is inadmissible for the purpose of explaining and contradicting the plat.</p>

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

<p>APPEALABLE ORDER— RECORD — COMPENSATION OF ADMINISTRATOR — COMMISSION ON VALUE OF REAL ESTATE — DISTRIBUTION—LIEN ON ESTATE FOR COMMISSION.</p> <p>An order fixing the compensation of an administrator of a decedent’s estate is a final one, within the meaning of the statute authorizing appeals (Laws 1893, p. 119, § 1).</p> <p>Where a hearing is had upon the final account of an administrator and the exceptions thereto, no formal findings of fact are necessary, but the order of the court sustaining certain of the exceptions and disallowing others is sufficient to present the questions raised.</p> <p>Under Code Proc., § 956, authorizing an administrator to take possession of and care for the real and personal estate of a decedent, and Code Proc., §1056, providing for a commission to the administrator on the whole estate accounted for by him, according to a percentage of the money value, an administrator, upon final accounting, is entitled to a commission upon the unsold realty of the estate according to its actual value at the time of accounting, and not according to its appraised value as inventoried.</p> <p>A court has no authority to make a decree of distribution of real estate subject to a lien in favor of the administrator for his commissions.</p>

<p>SALE — CONDITIONAL OR ABSOLUTE.</p> <p>Where a sale of sewer pipe was made to a contractor, who was engaged in putting in a ditch for a county, and payment for the pipe was only to be made by orders drawn on the county periodically, as the work progressed, according tó a certain percentage of the value of the pipe laid in the ditch, the title to the pipe did not remain in the seller till paid for, since the agreement amounted to nothing more than a sale and delivery to the contractor to be by him delivered to the county and not paid for by the latter till such delivery had been completed by placing the pipe in the ditch.</p>

<p>EXECUTORS AND ADMINISTRATORS — COMMISSIONS — ATTORNEYS’ FEES —</p> <p>DISTRIBUTION — ORDER OF SALE TO PAY COSTS.</p> <p>An administratrix is entitled to tbe statutory commission for administering upon tbe realty belonging to a decedent’s estate according to tbe appraised value thereof, in the absence of any showing that that was not its actual value.</p> <p>A decedent’s estate cannot be charged with the expense of attorney fees incurred by the administratrix in securing her appointment as such.</p> <p>A decedent’s estate cannot be charged with an attorney’s fee contracted by the administratrix for litigating her right to inherit, in an attempt by her to establish a claim as sole heir.</p> <p>A decree upon distribution of an estate, that unless the parties interested, within thirty days from the entry of the order, paid' the costs of administration, sufficient of the real estate should be sold to satisfy the same, is not open to the objection of being a decree distributing the estate subject to a lien.</p>

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

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

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

<p>Appeal from Superior Court, Adams County. — Hon. C. H. Neal, Judge.</p>

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

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