Volume 18 — Washington Reports

<p>VENDOR’S LIEN — ACTION TO RECOVER PURCHASE PRICE—TRANSITORY ACTION.</p> <p>Real property conveyed by an absolute deed is not subject to a vendor’s lien for unpaid purchase money, where no such lien has been reserved by the deed or by any agreement between the parties.</p> <p>An action to recover unpaid purchase money due upon a conveyance of real estate is a transitory one, and cannot be made local by the prayer of the complaint that the sum due be declared a first lien on the premises and that they be sold to satisfy the same, since, in the absence of a reservation of a vendor’s lien by agreement between the parties, such lien is not recognized in this state.</p>

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

<p>WILLS—CODICIL—CONSTRUCTION TOGETHER — PRECATORY TRUSTS.</p> <p>A will and codicil must be construed together and the one general intent pervading both must be gathered.</p> <p>A declaration in a will, that the testator “ desires $15,000 to be given to our foster son, Edward Woods Hunt, at any time convenient to my executrix,” constitutes neither a bequest nor a precatory trust, when the will provides that, with the exception of a single specific bequest, all the testator’s property shall go to the wife, with the suggestion that she live upon the income thereof, but, in ease that should not be sufficient for her support, she shall have “full privileges to use such of the principal as she may require, without any contests or objections from any other heir or heirs,” and it appears that if said sum of ?15,000 should he allotted to the foster son, there would he nothing for the bequest in favor of the wife to operate upon, and nothing for certain residuary legatees for which the will provides.</p>

<p>TIDE LAND FUND—INVESTMENT IN GENERAL FUND WARRANTS — INDORSEMENT— MANDAMUS AT SUIT OF WARRANT OWNER.</p> <p>The act of January 22, 1897 (Bal. Code, §2202), “directing the state treasurer to invest certain moneys in the tide land fund in general warrants,” does not authorize the treasurer to pay general fund warrants from moneys in the tide land fund, but merely authorizes him to invest such moneys in the purchase of general fund warrants. (Scott, C. J., dissents.)</p> <p>Under an act authorizing the state treasurer to purchase, instead of pay, warrants drawn on one fund with moneys of another fund, he has no power to compel the warrant holder to surrender a warrant to him, hut the state, in such cases, goes into the market upon an equality with other investors. (Scott, C. J., dissents.)</p> <p>An act authorizing the state treasurer to invest moneys in the tide land fund in general fund warrants does not effect a transfer of the tide land fund to the general fund, so as to make the same available for the payment of warrants drawn upon the general fund. (Scott, C. J., dissents).</p> <p>Where it is the duty of the state treasurer to pay warrants drawn upon a certain fund when there are moneys in such fund, and, in case there are none, his duty requires him to indorse on the warrants, “ Not paid for want of funds,” a private owner of a warrant is entitled to a writ of mandate compelling the officer to perform his duty, when he refuses to make such’ indorsement and attempts to pay the warrant with moneys of another fund. (Reavis, X, dissents).</p>

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

<p>EXTENSION OP NOTE — CONSIDERATION—DISCHARGE OP SURETY.</p> <p>An agreement between the maker and holder of a note to extend the time of payment for a definite period, thus obligating the maker to pay the rate of interest provided for in the note during the period of extension, constitutes such a new contract between the parties as to discharge a surety when not made with bis knowledge or consent.</p>

—Hon. L. H. Prather, Judge. The information upon which defendant was arraigned was as follows: “J. W. Feighan, prosecuting attorney in and for the county of Spokane and state of Washington, comes here into court and, in the name and by the authority of the state of Washington, gives the court to understand and be informed that the said defendant, James Kogan, is hereby charged with the crime of seduction, committed as follows, to-wit: That on the 30th day of April, A. D.…

<p>CRIMINAL LAW — CONSTITUTIONAL GUARANTEES — FAIR TRIAL — COMPELLING ACCUSED AND WITNESSES TO APPEAR IN MANACLES—RIGHT</p> <p>TO CONTINUANCE TO PROCURE WITNESSES—EXCUSABLE DELAY IN FILING BRIEFS.</p> <p>Failure of appellant in a criminal case to file his brief within the required time is excusable, when the counsel who appeared for him had removed from the state, and appellant, who was confined in jail, procured the brief to be filed as soon as he learned of the omission.</p> <p>Under art. 1, §22 of the constitution, guaranteeing to persons prosecuted for crime the right to have compulsory process to compel the attendance of witnesses in their behalf, it is error for the- court to refuse to grant a continuance to procure the presence in person of a material witness for defendant, when proper application has been made therefor.</p> <p>Under art. 1, § 22 of the constitution, declaring that, “ in criminal prosecutions the accused shall have the right to appear and defend in person,” and under the common law of England, adopted into our code so far as applicable, it is error to keep the accused in manacles during the progress of the trial and in the presence of the jury, unless it plainly appears that the prisoner is such a dangerous character as to warrant such precaution.</p> <p>It is error, likewise, to require a witness for accused to appear in court fettered and manacled to another person, although ■he' had been charged with the crime jointly with the accused and had been found guilty upon a prior and separate trial.</p>

<p>Appeal from Superior Court, Spokane County.-—lion. W. E. Richardson, Judge.</p>

<p>PLEADING — FACTS INFERRED FROM THOSE ALLEGED — COUNTY BONDS — NOTICE OF ISSUANCE—DEBT LIMIT — VALIDITY OF WARRANTS FOR NECESSARY EXPENSES.</p> <p>A complaint is sufficient as against a general demurrer, although. it does not contain a direct allegation of a necessary fact, if such matters are specifically alleged as make the existence of the necessary fact clearly appear from the other allegations.</p> <p>Under the provisions of Laws 1895, p. 465 (Bal. Code, §§1890-1895), authorizing the issuance of funding bonds, either in case of sale or of exchange for outstanding warrants, notice thereof calling for bids is necessary as much in the case of an exchange as in the case of a sale of bonds. (Gordon, J., dissents).</p> <p>Where a county has reached the constitutional limit of its indebtedness, it may thereafter issue its obligations for those expenses necessary to maintain its existence; but for the purpose of computing the amount of indebtedness it is not authorized to deduct its obligations for such necessary expenses from the sum total of indebtedness, in order to allow a greater margin for such permissible obligations as it is permitted to incur prior to reaching the constitutional limit (Ranch v. Chapman, 16 Wash. 568, explained).</p>

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

<p>Appeal from Superior Court, Spokane County.—Hon. "W. E. Richardson, Judge.</p>

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

<p>CLAIMS AGAINST STATE—WHAT ACTIONABLE.</p> <p>Tbe act authorizing actions against the state (Laws 1895, p. 188, Bal. Code, §§5608-5612), and providing that “any person or corporation having any claim against the state of Washington shall have the right to begin an action against the state in the superior court of Thurston county,” having been passed for the purpose of giving effect to art. 2, §26 of the constitution, which provides that “ the legislature shall direct by law in what manner and in what courts suits may be brought against the state,” is remedial in its nature and entitled to a liberal construction; and, thus construed, the word “ claim ” used in the statute must be held to mean “ cause of action.”</p> <p>The act authorizing suits against the state by “ any person having any claim against the state ” does not restrict action to claims arising out of money demands due from the state, but is comprehensive enough to include actions in equity, such as one seeking to have a judgment lien of the state declared subject to a prior mortgage.</p>

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

<p>APPEAL—SERVICE OP MOTION POR NEW TRIAL—DISCRETION OF COURT AS TO GRANTING NEW TRIAL.</p> <p>Where it appears from the record that a motion for a new trial was filed and notice of the motion served upon the same day, and there is nothing to show that the service preceded the filing; the service must be deemed sufficient.</p> <p>The action of the lower court in granting a new trial will not be reviewed on appeal, unless there appears to .be an abuse of the discretion vested in the lower court in such matters.</p>

<p>INJUNCTION—RIGHT TO IN ACTIONS INVOLVING TITLE TO REALTY —</p> <p>APPOINTMENT OP RECEIVERS TO TAKE CHARGE OF REALTY IN CONTROVERSY— PROOF OF FRAUD.</p> <p>Where an action involves the title to real estate in the possession of defendant under claim of title, and a lis pendens notice has been filed by plaintiff at the time of commencing the action, plaintiff is not entitled to an injunction against defendant to restrain a transfer of the property pending the suit.</p> <p>In such a case, even if the filing of a lis pendens notice would not operate as a complete protection of the rights of plaintiff, he would not be entitled to an injunction, unless he could show by proof that defendant was threatening to transfer, or in some way interfere with, the title to the property, or inflict some irreparable injury thereto.</p> <p>A receiver pendente lite should not be appointed, upon motion of plaintiff, to take possession of real estate in controversy, which is in the possession of defendant under a claim of title, when it is not made to appear both that plaintiff has a strong ground of title, with a reasonable probability of ultimately prevailing, and that there is imminent danger to the property or to its rents and profits, in case the court does not interfere.</p> <p>A plaintiff is not entitled to have a receiver of real estate appointed pending action against a defendant in possession under claim of title, even if there appears strong probability of the plaintiff ultimately establishing his title thereto, when it appears that defendant is properly caring for the buildings and improvements on the land, that he is solvent and capable of responding in damages for any loss of rents and profits likely to be sustained by the plaintiff, or that he is willing and able to execute a sufficient bond to account for the rents received from the property during the litigation.</p> <p>Fraud cannot be established' by mere proof of negligence or failure to perform a duty, although such failure may be sufficient to establish a liability.</p>

<p>APPEAL—JOINDER OF PARTIES — SURETIES UPON BOND IN ACTION OF CLAIM AND DELIVERY.</p> <p>Where third parties have obtained possession of personal property levied on by the sheriff by giving a forthcoming bond therefor, and, in an action to try the right of title to the property, judgment has gone against such claimants and their sureties upon the bond, on appeal from such judgment the sureties should either be made parties appellant or notice of appeal served upon them, under the provisions of the statute (Laws 1893, p. 120, §4, Bal. Code, §6503), that notice of appeal shall be served upon all parties to an action who do not join in the appeal.</p> <p>The fact that the sureties are named in the body of the notice of appeal as appealing from the judgment is not a sufficient compliance with the requirements of the statute, when the notice is not signed by the sureties nor by their attorney.</p> <p>In such, an action of claim and delivery, while the sureties are necessarily parties to the action, they are not plaintiffs, as their principals are, and a notice given by the attorneys of plaintiffs is not binding on the sureties.</p>

<p>APPEAL—SETTLEMENT OF STATEMENT — SUFFICIENCY OF CERTIFICATE — NOTICE — PLEADING — WAIVER OF OBJECTIONS — RES JUDICATA'— EVIDENCE.</p> <p>Notice of the settlement of a statement of facts is unnecessary, when the statement has been regularly filed and served upon the respondent, and no amendments proposed by the latter within the time limited by law.</p> <p>Where the review of but a single question is sought by an appeal, and all the evidence bearing on that question is brought into the record and certified as all the evidence bearing thereon, it is unnecessary for the appellant to present a statement certified as containing all the material facts, matters and proceedings in the cause.</p> <p>Although the defense of res judicata is not properly admissible in evidence, unless pleaded! in the answer, yet, where proof establishing such defense has been admitted without proper objection, it should be considered by the court in determining the cause.</p> <p>In an action by the lessor for damages for breach of the conditions of a lease, the defendant is entitled to plead and prove as res judicata the judgment in a former action which was founded on the same breach, although the prior action sought a cancellation of the lease, as well as damages, when the evidence necessary to sustain the present action is the same as would have been required to sustain the former one.</p> <p>There being but one form of action in this state, the fact that a prior action of equitable cognizance had been adjudged against plaintiff would not preclude defendant from pleading res judicata to a second action founded on a claim for damages, when the two actions involve the same subject matter and require the same evidence.</p> <p>When the record of a former proceeding which has been decided upon the merits is received in evidence without objection thereto, although not pleaded, and the identity of the causes of action and the parties is established, it is not merely to be received as evidence of a fact hut constitutes in law a complete har to a recovery in the later action.</p>

<p>Appeal from Superior Court, Spokane County.—Hon. "W. E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Pierce County.—Hon. Thomas Carroll, Judge.</p>

<p>INSOLVENT CORPORATION — ILLEGAL PREFERENCE.</p> <p>Although a mortgage Is given by an insolvent corporation to a creditor, who has knowledge of its insolvency, with the intention and expectation that the corporation will, by means of an extension of time of payment thus secured, be enabled to continue business and eventually pay off its indebtedness, the mortgage constitutes a preference voidable at the instance of either existing or subsequent creditors, under the rule that the property of an insolvent corporation is a trust fund for the benefit of all creditors. (Gordon, J., dissents).</p>

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

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

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

<p>EXECUTORS—COMPENSATION — ASCERTAINMENT OF VALUE OF BEAL ESTATE — CONSTRUCTION OF WILL.</p> <p>Where the appraised value of a decedent’s estate is disputed as not being the real value at the time of final settlement, the court is authorized to examine witnesses as to the real value, for the purpose of obtaining a basis upon which to fix the executor’s compensation.</p> <p>Under a will directing that “for the purpose of settling my estate my executors shall be deemed executors and, for the purpose of managing my estate . . . and of investing the income . . . and increasing the capital of my estate, they shall be deemed trustees and shall be entitled to just compensation for their services,” the provision for compensation relates to the settlement as well as to the management of the estate, and, if not renounced by the executors, would govern in making allowance for their compensation rather than the statutory provisions on the subject of commissions to executors.</p>

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

<p>PROMISSORY NOTES — PAYMENT OF INTEREST IN ADVANCE — IMPLIED CONTRACT OF EXTENSION.</p> <p>Where a creditor, without inadvertence or mistake, receives a payment of interest in advance on the note of a debtor; and does not expressly reserve the right to sue before the expiration of the period for which interest is taken, there is á contract created to extend the time of payment during the period for which the interest is paid.</p> <p>The contract of forbearance to sue implied by law from the payment and acceptance of interest in advance is not overcome by the facts that it had been the custom of the debtor to pay interest from month to month, payments being made sometimes in advance and sometimes after the expiration of the month; and that at the time of the advance payment in controversy there had been neither a request for an extension by the debtor nor an express reservation by the creditor of a right to sue.</p>

<p>Appeal from Superior Court, Spokane County.—Hon. L. H. Pratheb, Judge.</p>

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

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

<p>Appeal from Superior Court, Thurston County.—Hon. Charles W. Hodgdon, Judge.</p>

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

<p>SALARY OF JUSTICE OF THE PEACE — PRESENTATION OF CLAIM TO COUNTY COMMISSIONERS—MANDAMUS.</p> <p>Under Laws 1893, p. 280, §1 (Bal. Code, §393), a claim for salary as justice of the peace must be presented to tbe board of county commissioners for their examination and allowance, and upon their refusal to allow same, mandamus will not lie to compel payment, since there is a remedy by appeal from the action of the hoard of commissioners.</p>

<p>INJURY TO CHILD — DANGEROUS APPLIANCES—LIABILITY OP MASTER POR WRONGFUL ACT OF SERVANT.</p> <p>Where it appears that a section foreman upon a railroad exceeded the scope of his employment in -loaning a hand-car to boys of immature age, to be used by them for purposes of their own amusement and not in the service of the railroad company, the company cannot be made liable for injuries received by one of the boys through his own negligence, while the car was being operated by him and his companions.</p>

<p>BIAS OF JUROR—IMPRESSION AS TO GUILT OF ACCUSED — HOMICIDE — INSTRUCTIONS DEFINING DEGREES — PREMEDITATION—EVIDENCE — DYING DECLARATIONS—THREATS — EXCLUSION OF DYING DECLARATION FROM JURY ROOM.</p> <p>A juror is subject to challenge for actual bias, when he has an impression as to the guilt of the accused which it would take evidence to remove, and when he does not feel able to accord accused the presumption of innocence until his guilt is proven.</p> <p>In a prosecution for homicide, an instruction does not sufficiently point out the distinction between murder in the first and second degrees, nor correctly define the element of deliberation and premeditation, when it charges the jury that “as to the length of time necessary for deliberation and premeditation, you are instructed that no appreciable space of time need elapse between the forming of such intent ana the infliction of the fatal wound; all that is necessary is, that the deliberate and premeditated intent be formed before the fatal wound is inflicted. It matters not if the wound be inflicted immediately after the forming of the intent. The forming of the deliberate and premeditated intent, and the inflicting of the mortal wound, may follow each other as rapidly as successive thoughts of the mind.”</p> <p>A statement in a dying declaration that the accused had made prior threats against deceased are inadmissible in evidence, being no part of the res gestae.</p> <p>The refusal of the court to instruct that the portion of a dying declaration showing prior threats by the accused should be disregarded was prejudicial error, and cannot be presumed harmless from the fact that it was cumulative and merely corroborative of the testimony of another witness.</p> <p>Upon a trial for homicide, it is error to permit the dying declaration of deceased to go to the jury room for investigation by the jury, on the same principle that witnesses and depositions are excluded from the jury room.</p>

<p>APPEAL — LAW OP CASE — MUNICIPAL CORPORATIONS — LIABILITY FOR DEFECTIVE STREETS.</p> <p>Upon the retrial of a cause after remand upon appeal, the defendant cannot put in issue as a defense the dismissal of a co-defendant made by the plaintiff pending the appeal, when the same point was raised on the appeal as a ground for its dismissal against the present defendant, also, and rassed upon adversely to defendant, thus becoming the law of the case.</p> <p>Whether a street has been legally laid out by a city or not, the city is liable for injuries received by reason of its defective condition, upon proof of user by the public at the instance or invitation of the city.</p>

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

<p>APPEAL—SUFFICIENCY OF EVIDENCE.</p> <p>Where the evidence appears to he evenly, or nearly evenly, balanced, the finding of the trial court will not be disturbed.</p>

—Hon. Charles ~W. Hodgdok, Judge. Action by tbe relator, as abandoned wife, to obtain a writ of mandate against defendant, as sheriff of Chehalis county, Washington, to compel him to release and set aside to her certain personal property used in farming and logging, and claimed as exempt under the statute.

<p>PROMISSORY NOTES — EXECUTION BY AGENT — UNDISCLOSED PRINCIPAL —LIABILITY OB' PARTIES—PAROL TESTIMONY TO ESTABLISH AGENCY.</p> <p>An agent who executes a promissory note in his own name, with nothing on the face of the instrument disclosing his agency, cannot introduce parol evidence to exonerate himself from liability on the ground that the note was executed in behalf of his principal, and that the payee was aware of the relation of the parties and of the intent with which the instrument was executed.</p> <p>In an action by the holder against the maker of a promissory note, the latter can not, on the ground that he executed the note as an agent, require the alleged principals to be made party defendants, since the holder cannot be forced to sue any other parties than those disclosed by the instrument itself.</p> <p>In an action upon a promissory note, the fact that the holder proposed to third parties after its maturity to take tneir note in place of defendant’s, constitutes no defense, when the agreement was without consideration and unexecuted.</p> <p>In an action upon a promissory note, the maker’s plea of want of consideration for its execution is demurrable, when such defense can be established only by permitting the introduction of parol evidence to the effect that the maker executed the note as agent for another.</p>

<p>NEW TRIAL — DISCRETION OF COURT.</p> <p>A motion for a new trial is addressed to the sound discretion of the court, who is acquainted with all the .circumstances surrounding the case, and, unless it is manifest that the discretion vested in the court is abused, the appellate court will not disturb its judgment.</p>

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

<p>EVIDENCE — BOOKS OF ACCOUNT — CONTRACT FOR LIGHTING PREMISES —LIGHT USED BY LESSEE — LIABILITY OF LESSOR.</p> <p>Books of account made up at the end of each month from data collected from various sources, and not from the personal knowledge of the person making the entries, are not admissible in evidence for the purpose of establishing an account charged up against defendant.</p> <p>Where the owner of' a building enters' into a contract for a term of years with a light company to furnish an electric current for lighting purposes, the fact that he subsequently leases the building to another, who uses the current supplied under said contract, will not affect the liability of the owner, unless there has been a new contract by novation entered into, or a release by the light company from the obligations of the original contract.</p>

<p>PAROL EVIDENCE—RECEIPTS — PURCHASE OF LOGS—RIGHT TO UNSCALED LOGS—CONSTRUCTION OF CONTRACT.</p> <p>A receipt for money does not fall within the rule that written contracts cannot be varied or contradicted by parol, and its terms are always open to explanations, and even contradiction.</p> <p>The purchaser of a raft of logs upon a scale of logs accepted and paid for, is not entitled to retain other logs in the raft, known as culls, which were not scaled nor paid for, in the absence of an agreement that the price paid for the raft was to include culls as well as merchantable logs.</p>

<p>MANDAMUS TO AUDITOR — JUDGMENT ALLOWING CLAIM AGAINST COUNTY — CONCLUSIVENESS — PARTIES—CLAIM OP JUSTICE OP PEACE POR SALARY.</p> <p>Mandamus will lie to compel a county auditor to draw a warrant upon a claim for unpaid salary as justice of the peace, when judgment therefor has been duly rendered in an action between the county and the claimant, involving the legality of such claim.</p> <p>The fact that an action to restrain the issuance of a warrant upon a claim against a county had been instituted by the prosecuting attorney, in his own name instead of that of the county, would not affect the validity of the judgment in the action, when such suit had been directed by the county commissioners to be brought by him; especially when the county was the real party in interest and appeared through its commissioners, and there was no objection raised in the trial court as to the title of the party plaintiff.</p> <p>In an action between a county and a claimant to test the legality of his claim the county auditor is not a necessary party, and he cannot, in a subsequent action of mandamus to compel him to draw a warrant upon the judgment awarded claimant in the prior action, set up the defense that it is not binding upon him for the reason that he was not a party thereto.</p> <p>The fact that a claimant for salary as a justice of the peace has failed to comply with the provisions of Gen. Stat. §3039 (Bal. Code, §1646), which provide that the auditor shall not draw the salary warrant until the justice shall first have filed the treasurer’s duplicate receipt with, the auditor, showing that the justice has made the statement and settlement for the month of the fees collected by him, would not excuse the auditor from drawing his warrant in favor of the claimant when his right thereto has been adjudicated by the superior court.</p>

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

<p>UNLAWFUL DETAINER—LIABILITY ON BOND STAYING RESTITUTION — RELEASE OF SURETIES BY AMENDMENT OF PLEADING — BY GIVING SUPERSEDEAS BOND—BY GIVING ADDITIONAL SECURITY.</p> <p>The bond given by defendants in an action of unlawful detainer, for the purpose of staying the execution of a provisional writ of restitution against them, is not superseded and rendered nugatory by a subsequent supersedeas bond given by defendants on appeal from a- judgment against them.</p> <p>An amendment of the complaint in an action of unlawful detainer, subsequent to the giving of a bond to stay restitution pending the action, will not release the sureties upon the bond, when the amendment in nowise prejudices the sureties, and is made for the purpose of correcting an imperfection in the pleading, without changing the cause of action or introducing a new one.</p> <p>The giving by defendants in an action of unlawful detainer of a second bond to stay restitution will not operate as a release of the sureties upon a prior bond, when such second bond is given for the purpose of additional security, and is ordered under the statutory provision permitting the court to increase the security required of defendants who remain in possession pending the action.</p>

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

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

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

<p>WAREHOUSE RECEIPT—NEGOTIABILITY — RIGHTS OP TRANSFEREE — REPEAI. OF STATUTE.</p> <p>A statute making warehouse receipts negotiable by indorsement cannot be construed as. making an. indorsement of a warehouse receipt effective otherwise than as a transfer of the interest of the holder in and to the property represented by the receipt.</p> <p>Gen. Stat., §2408 (Bal. Code, §3599), passed by the legislature in 1886, and providing that “all the title to the freight which the first holder of a bill of lading or warehouse receipt had, when he received it, passes to every subsequent indorsee thereof in good faith, . . . with like effect and in like manner as in the case</p> <p>of a bill of exchange,” must be construed as modified or repealed by the enactment in 1891 of section 2407, Gen. Stat. (Bal. Code, §3598), which provides that “all checks or receipts given by any person, operating any warehouse . . . for any grain . . . are hereby declared negotiable, and may be transferred by indorsement, . . . and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt.”</p>

<p>TAXATION — DEDUCTION OP DEBTS PROM CREDITS—WHAT CONSTITUTES CREDITS—BANK STOCK — MONEY — CONSTITUTIONAL LAW.</p> <p>Bank stocks are credits within the meaning of section 2, article 7, of the constitution, governing the taxation of property, and providing that debts may be deducted from credits in making up the assessment of each person.</p> <p>That portion of section 1, Laws 1895, p. 508 (Bal. Code, §1657), which excepts bank stock from credits, and that portion of the section which includes money with credits, from which debts may be deducted in making up an assessment for taxation are invalid and unconstitutional.</p> <p>A revenue act discriminating between shares in state banks and in national banks, for purposes of taxation, is not thereby rendered invalid, since national bank stocks are only taxable by permission of congress and under such limitations as congress may establish.</p>

<p>TAXATION — ACT REMITTING PENALTIES — WHAT TAXES INCLUDED-VOLUNTARY PAYMENT.</p> <p>Under Laws 1895, p. 67, §1, providing that “all of the penalty and accrued interest shall be remitted on all delinquent state, county and municipal taxes which became due and payable in the years 1893 and 1894, and which shall be paid on or before the first day of July, 1895,” taxes assessed and levied for the year 1892 are entitled to the remission of penalties and interest.</p> <p>Where a county treasurer refuses to receive a payment of delinquent taxes unless penalty and interest are also paid, although a remission of penalty and interest have been granted by statute, if paid by a certain date, the payment, under protest, by the property owner of the penalty and interest does not constitute a voluntary payment thereof, and the sums paid may be recovered from the county.</p>

<p>SETTLEMENT OF STATEMENT OF FACTS — NOTICE—COMPUTATION OF TIME — FAILURE TO DELIVER TELEPHONE MESSAGE — DAMAGES — EVIDENCE — HEARSAY.</p> <p>Under the statute requiring notice of application for settlement of a statement of facts to be served not less than three days before time of hearing, notice given on the 9th of the month of settlement, to be had on the 12th, satisfies the statutory requirement; and the fact that a Sunday intervenes makes no difference if the last day does not fall on Sunday, as it is only in such case that Sunday is excluded from the computation of time.</p> <p>In an action for damages for failure to deliver a telephone message to a witness to be present at a pending trial, the testimony of an attorney in such former action as to the importance of such witness and that his presence and testimony would have produced a different result in such trial is inadmissible.</p> <p>Testimony by a witness as to the contents of a letter written by one person to another and which he had seen is inadmissible on the ground of being hearsay evidence.</p> <p>The failure of a telephone company to deliver a message for a witness summoned to testify in a pending action, and which was lost by reason as alleged of the absence of such witness, constitutes too remote a cause of damages to be actionable.</p> <p>The toll paid for the delivery of a telephone message is recoverable in an action therefor, in case of the failure to deliver the message for several days after its receipt by the telephone company.</p>

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

<p>TAXATION—NATIONAL BANK STOCK—ABE CREDITS FROM WHICH DEBTS MAY BE DEDUCTED — CONSTITUTIONAL LAW.</p> <p>The owner of shares of national bank stock is entitled to have such shares treated as credits from which indebtedness is to be deducted in making up his assessment of property for taxation, since stockholders in banks organized under the laws of this state are entitled to such deduction, as otherwise there would be the discrimination in taxation between national bank stock and “other moneyed capital,” which is forbidden by Rev. St. U. S., § 5219.</p> <p>The provision of section 2, article 7 of the state constitution authorizing the deduction of debts from credits for purposes of taxation is not repugnant to the fourteenth amendment to the constitution of the United States, which provides that “ no state shall deny to any person within its jurisdiction the equal protection of the laws.”</p>

<p>Appeal from Superior Court, King County.—Hon. Oeange Jacobs, Judge.</p>

<p>PROMISSORY NOTE—EXTENSION OF PAYMENT — VOID CONSIDERATION — DISCHARGE OF SURETY.</p> <p>An agreement by a bank to grant the maker of a promissory note an extension of the time of payment, if he 'would, procure a ■deposit of public funds by the county treasurer in the bank for a period of two months, is contrary to public policy and void, and would not afford a valid consideration for such extension, although the contract had been fully executed.</p> <p>An extension of payment granted the maker upon such an invalid agreement is not sufficient to discharge a surety, even if made without his knowledge or consent.</p>

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

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

<p>MUNICIPAL CORPORATIONS — STREET ASSESSMENTS—COMPROMISE WITH ABUTTING OWNERS—ACTION ON CLAIMS—PRIOR PRESENTMENT TO-COUNCIL.</p> <p>It is within the power of a city to compromise with the owners of property abutting upon a street improvement and accept a less sum from them than the assessments levied against them, but in that case the city becomes liable to a warrant holder for the payment from its general fund for the amount of the assessment remitted by it.</p> <p>The provision of the charter of the city of Seattle requiring a statement of claim to be filed with the city clerlt or presented to the city council before action can be instituted thereon applies, only to claims for damages arising in tort.</p>

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

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

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

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

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

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

<p>PROMISSORY NOTES—WAIVER OF NOTICE BY INDORSERS—WHAT CONSTITUTES —PLEADING — DUPLICITY.</p> <p>The indorsement of a promissory note by the holder and an accommodation indorser, made beneath a printed form of guaranty and waiver of notice of non-payment, amounts to a waiver on the part of the indorsers, although the blanks in the printed form are not filled out nor the signatures of the indorsers attached directly beneath such printed form, when it appears that the note should be regarded as the instrument of the indorsers in securing its discount and should be most strongly construed against them. (Gordon and Anders, JJ., dissent.)</p> <p>The allegations of a complaint in an action on a promissory note that the indorsers thereof waived notice is not inconsistent with allegations showing also that the holder was excused from giving notice by the subsequent action of the indorsers.</p>

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

<p>FORECLOSING OF ASSESSMENT LIEN — PURCHASE BY CITY — COLLATERAL ATTACK — RIGHTS OF MORTGAGEE.</p> <p>In an action by a city to foreclose a street assessment lien, the holder of a mortgage lien upon the premises is not a necessary, though perhaps a proper, party, under a charter provision to the effect that “ it shall be a sufficient statement of the cause of action in the complaint to allege the making and completion of the improvement, describing it, and the amount of assessment on the premises proceeded against, giving an accurate description thereof, and the amount of such assessment remaining unpaid, and the names of the owner of, and each person having an interest in, such premises at the time of commencing the action or suit.”</p> <p>A mortgagee who has not been made a party to the foreclosure of an assessment lien against the mortgaged premises would not be concluded by such foreclosure from redeeming, or perhaps from contesting, the validity of the assessment in a proper action, provided either of such courses was pursued within the time allowed by the statute of limitations.</p> <p>The validity of a sale to a city, in default o'f other bidders, upon its foreclosure of a street assessment lien, which sale was confirmed by court without objection of the owner of the premises, cannot be contested in an action of ejectment by a mortgagee of the premises against one holding the premises by virtue of a sale of the city’s interests therein.</p>

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

<p>APPEAL—INSUFFICIENCY OF' COMPLAINT — "WHEN IMMATERIAL — COMMUNITY DEBTS—JUDGMENTS—NEW TRIAL — SURPRISE.</p> <p>The fact that the complaint in an action to set aside a transfer as fraudulent shows that defendant has sufficient other property to satisfy the demand against him is an immaterial error, when the court finds that the transfer was not fraudulent.</p> <p>A judgment creditor has a right to have it judicially appear that his judgment is a community debt, although it may be true that community property is prima facie liable for a debt contracted by the husband.</p> <p>Where a litigant prepares his evidence in view of an existing decision of the supreme court, which is overruled subsequent to the trial of his action, he is entitled to a new trial on the ground of surprise, where the change announced in the law would have a material bearing upon his remedial rights.</p>

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

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

<p>ACTION FOE PERSONAL INJURIES — NEGLIGENCE IN SELECTION OF PHYSICIAN — WHETHER SEPARATE CAUSES OF ACTION — LIMITATION OF ACTIONS—RIGHT TO AMEND PLEADINGS AFTER REMAND — LAW OF CASE.</p> <p>In an action against defendant to recover damages for the breaking of plaintiff’s leg during his employment through the defendant’s negligence, and for injuries caused by the unskillful treatment by a physician provided by defendant, the amendment of the complaint, after a reversal on appeal, by • setting up the fact that the defendant did not exercise ordinary and reasonable care in the selection of a physician, would not constitute a new and separate cause of action, such as would be barred by the statute of limitations.</p> <p>Where a cause has been reversed on appeal and remanded to the lower court without any special order as to further proceedings, the fact that the appellate court made no reference to allowing amendments to the pleadings would not preclude the lower court’s permitting them in a proper case.</p> <p>In an action to recover damages for the negligence of defendant in failing to exercise reasonable and ordinary care in the selection of a physician which a master had .provided for a servant, the rule of “ law of the case ” preventing a triál of that issue could not be invoked by reason of the facts that the cause had been thrice heard on appeal, and had been remanded the first time because the action was based upon defendant’s negligence in causing the breaking of plaintiff’s leg and upon the further ground of unskillful treatment of the injury by defendant’s physician, which first ground of action was eliminated owing to the plaintiff’s contributory negligence, and had been remanded the second time because of the admission of irrelevant evidence. (Gordon, J., dissents.)</p>

<p>Appeal from Superior Oourt, Yakima County.—Hon. John B. Davidson, Judge.</p>

<p>MORTGAGES—EXTENSION OF PAYMENT — INTEREST NOTES — CONSIDERATION.</p> <p>Where tbe bolder of a mortgage agrees to an extension of tbe time of payment in consideration of tbe execution of additional coupon notes at tbe rate of interest provided' for in tbe mort- ■ gage, wbicb was six per cent., but tbe agent of tbe mortgagee induces the mortgagor to execute an additional note to cover a sum amounting to three per cent, interest, on the representation that the extension would only be granted on an agreement to pay nine per cent, interest, and the note for three per cent, interest is made payable to the agent and accepted by it without knowledge of the mortgagee, and is only executed by the mortgagor because he believes it demanded by the mortgage holder, such note cannot be enforced for want of a consideration.</p>

<p>VACATION OF JUDGMENT — DILIGENCE OF MOVING PABTY.</p> <p>Although the receiver of an insolvent bank may have bad no notice of the pendency of a suit to recover judgment on a claim rejected by bim, be is not entitled to bave tbe judgment vacated on tbe ground of mistake, inadvertence, surprise or excusable neglect, under Code Proc., § 221 (Bal. Code, § 4953), when be bas waited for more than a year witb knowledge of tbe judgment before moving tbe court for relief against it.</p>

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

<p>CRIMINAL LAW — CONFESSIONS — ADMISSIBILITY — UNLAWFUL MEANS OF FORCING CONFESSIONS.</p> <p>Where separate trials have been awarded two defendants jointly charged with the commission of a crime, the confession of one of them is inadmissible in evidence against the other, when the latter was in custody and forced by tne officers in charge to listen, against his will, and there was no acquiescence on his part to the confession of his alleged confederate.</p> <p>A confession extorted from an accused person by keeping him in a dark cell until he is thereby induced to make a confession is not admissible in evidence, under Code Proe., § 1308 (Bal. Code. § 6942), making confessions under inducement admissible, "except when made under the influence of fear produced by threats.”</p>

<p>ASSIGNMENT FOE BENEFIT OF CREDITORS—IN CUSTODIA LEGIS—AS-SIGNEE NOT SUBJECT Tb GARNISHMENT.</p> <p>When an assignment for the benefit of creditors has been made by an insolvent firm, authority and control over the property are conferred by law upon the court, and the assignee is not subject to garnishment on the ground that he is in possession of the debtors’ property under an invalid assignment.</p>

<p>CORPORATIONS — NOTE GIVEN POR STOCK SUBSCRIPTIONS — INTEREST-DIVIDENDS PROM NET PROFITS — COMPUTATION BY COURT.</p> <p>Interest is not chargeable upon a promissory note given in payment of a stock subscription, although payment is not made until after the date named in the note, if there is no contract to pay interest and no call for the payment of stock subscriptions has been made by the corporation.</p> <p>Interest is chargeable upon a loan of cash by a corporation to a stockholder, although there may he in the corporate treasury at the time funds in the nature of undeclared dividends more than enough to offset the sum due upon the loan.</p> <p>Where a by-law of a corporation provides for an eight per cent, dividend payable annually on preferred stock, and that the net profits remaining should be applied as a dividend on the common stock, such by-law has the effect of a contract, and in an action between the corporation and a common stockholder, the court is warranted in falsifying and surcharging the accounts of the corporation in order to properly arrive at what should be treated as among the net profits.</p>

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

<p>ASSUMPTION OF MORTGAGE DEBT — VERBAL AGREEMENT FOR—BURDEN OF PROOF — REVIEW ON APPEAL.</p> <p>A verbal contract by the grantee of mortgaged premises to assume the mortgage thereon is enforcible as a contract independent of the deed of conveyance and additional to it, which is not merged in the executed deed, and therefore does not fall within the rule forbidding the introduction of parol testimony to vary, alter or add to a written contract.</p> <p>The burden of proof is on the party asserting a parol contract for the assumption of a mortgage to establish the contract by clear and conclusive proof.</p> <p>A judgment in favor of plaintiff should be reversed on appeal, where the burden is on him to establish an oral agreement by a clear preponderance of the evidence, and the evidence relating thereto is evenly balanced.</p>

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

<p>TAXATION — DEDUCTION OF DEBTS' FROM CREDITS — BANK STOCK — DISSOLUTION OF BANK—DISTRAINT FROM TAXES.</p> <p>■ A stockholder in a state bank has a right to have his share of the. capital stock included in the sum of his credits from which his debts may be deducted in making up his assessment for taxation.</p> <p>The dissolution of a banking corporation by order of -court would not operate as a discharge from liability for taxes assessed against its capital stock, which had become a fixed and primary lien prior to dissolution.</p> <p>The liability of a dissolved banking corporation for unpaid taxes may be enforced by the county treasurer by distraint and levy upon property in the hands of trustees for the stockholders and creditors of such corporation, and the treasurer is not relegated to suit to enforce same.</p>

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

<p>RECEIVERS—EXECUTION SALES — RIGHT OF PURCHASER TO RENTS — ASSIGNMENT OF RENTS.</p> <p>The appointment of a receiver to take charge of real property would not afEect the right of one claiming the rents to bring an action to establish his claim, since the only result of such action would be to establish a claim for the receiver to pay.</p> <p>A sale of real property on execution does not entitle the purchaser to the possession nor to the profits during the year of redemption, where the judgment debtor has made a tona fide assignment of a lease of the premises prior to the date of the execution sale.</p> <p>A resolution of a milling corporation assigning the rents due under a lease of its mill to a mortgagee of the premises in consideration of an extension of payment constitutes a legal assignment, although for convenience the checks in payment of rent are drawn by the tenant in favor of the assignor conlpany, and immediately assigned by the company to the mortgagee.</p>

<p>EXECUTION SALES—REVERSAL OE JUDGMENT — BONA FIDE PURCHASER.</p> <p>The title acquired by a judgment creditor upon the purchase by him of the debtor’s real property at execution sale is subject to defeasance upon the subsequent reversal of the judgment, and a grantee of the judgment creditor, though not a party to the action and in ignorance of the defect, does not occupy the position of an innocent purchaser in good faith, and consequently acquires no greater right by a conveyance from the judgment creditor than ' the latter had.</p>

<p>MECHANICS’ LIENS — LANDLORD AND TENANT — REPAIRS.</p> <p>The lien for materials furnished a lessee for the repair of a building attaches to the realty and not to the leasehold interest, when the lessee was authorized by the owner of the premises to have the repairs made.</p>

<p>APPEALABLE ORDER — EXCEPTIONS TO BINDINGS — REVIEW ON APPEAL — FOREIGN CORPORATIONS — SERVICE OF PROCESS.</p> <p>An order quashing a summons is, in effect, a determination of the action or proceeding, and therefore constitutes an appealable order, under Laws 1893, p. 119, § 1 (Bal. Code, § 6500).</p> <p>The failure to except to the findings of fact and conclusions of law made by the court in a proceeding tried before it exclusively upon affidavits will exclude consideration of the affidavits by the supreme court on appeal and confine the review by that court to the question of whether the findings of fact warrant the conclusions of law.</p> <p>Service of summons upon an officer of a foreign corporation, who is temporarily present in the state, will not confer jurisdiction over the corporation, when the latter has never done any business in the state, dot maintained an office for that purpose nor appointed an officer or agent in the state for any purpose whatever.</p>

<p>STREET ASSESSMENTS — OBJECTIONS — WAIVER.</p> <p>Where objections to the correctness of the amount of an assessment and objections because the assessment was based on the valuation of the property instead of according to the benefits received by reason of the improvement were not urged before the city council at the time set for hearing objections, they cannot be urged on foreclosure of the assessment liens.</p>

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

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

<p>SERVICE OF PROCESS —WAIVER OF OBJECTIONS—-CONTINUANCE—PROOF OF SICKNESS — MORTGAGED CHATTELS — EIGHT OF MORTGAGEE TO POSSESSION — CONVERSION — VALUE — IRREGULAR VERDICT.</p> <p>Where a defendant has indorsed upon a summons that due and legal service thereof is accepted and admitted by him, he is estopped to afterwards raise the objection that service was made upon him on. a non-judicial day.</p> <p>The refusal of the court to grant a continuance because of the sickness of defendant, who is a material witness in the action, is not an abuse of discretion, when no proof of sickness is submitted with the application for continuance, but merely an affidavit that affiant was told by a relative that defendant was sick and could not be present.</p> <p>A provision in a chattel mortgage, authorizing the mortgagee, in case of default or insecurity of the debt, to take possession of the mortgaged property, “ using all necessary force to do so,” does not warrant the mortgagee or a sheriff in taking possession thereof over the objections of the mortgagor, but, in the absence of the mortgagor’s consent, the contract can be enforced only by due process of law.</p> <p>Objection to the form of a verdict cannot be raised on appeal, when the error has not been called to the attention of the lower court, so as to afford an opportunity to correct it there.</p> <p>The question of the value of goods converted by the sheriff under wrongful levy being one for the jury, their finding thereon will not he disturbed on appeal.</p>

<p> Proceedings for Disbarment of W. D. Lambuth. </p>

<p>Appeal from Superior Court, Spokane County.—Hon. William E. Richardson, Judge.</p>

<p>CRIMINAL LAW — DISCHARGE OF ACCUSED ON MOTION — APPEAL BY STATE — ONCE IN JEOPARDY.</p> <p>An order of the court in a criminal prosecution withdrawing the case from the jury at the close of the state’s case, and discharging the defendant, is a judgment on the merits of the case, and is not appealable by the state, under Laws 1893, p. 120, § 1, subd. 7 (Bal. Code, § 6500), which provides that an appeal shall not be allowed to the state in any criminal action except for some material error in law not affecting the acquittal of a prisoner on the merits.</p> <p>A defendant has been once in jeopardy and cannot be tried again for the same offense, when he has been arraigned upon an information sufficiently charging the crime of which he is accused, a lawful jury has been impaneled and sworn, and a court of competent jurisdiction has ordered the discharge of the accused at the close of the case made by the state.</p>

<p>LIMITATIONS — ACCRUAL OF CAUSE OF ACTION — INJURIES FROM REMOVAL OF LATERAL SUPPORT.</p> <p>A right of action for damages on account of removal of lateral support accrues, not at the date of the act of removal, but at the "time that injury actually results therefrom, and it is only from the latter date that the statute of limitations begins to run.</p>

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

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

<p>PROMISSORY NOTES — ATTORNEY’S PEE — ALLOWABLE AS STIPULATED DAMAGES—PLEADING AND PROOF.</p> <p>Under Code Proe., § 803, providing for the allowance in a judgment on a promissory note or mortgage of the amount of attorney’s fee specially contracted in the instrument to be paid in ease of suit, the amount contracted for must be construed as stipulated damages to which the plaintiff is entitled, although the sum allowed may greatly exceed the value of the services rendered.</p> <p>In an action upon a note and mortgage to which the only defenses pleaded are a general denial and an allegation that the attorney’s fee claimed is excessive and unreasonable, evidence on the part of defendant is not admissible for the purpose of proving that the contract between plaintiff and his attorney for fees in such action is for a sum much smaller than the attorney’s fee provided for in the note and mortgage.</p> <p>The rule that in equity proceedings the pleadings may be considered as amended in accordance with the proof offered, cannot be invoked when it would work an injury to the other party by taking him by surprise and by compelling him to litigate an essential question concerning which he had had no notice.</p>

<p>WRIT OF REVIEW—TO MUNICIPAL COURT — REMEDY BY APPEAL.</p> <p>There being a remedy by appeal to the superior court, from the judgments and orders of a municipal court, provided by statute, the superior court has no jurisdiction to grant a writ of review for the purpose of bringing before it the proceedings of the municipal court.</p>

<p>COMMUNITY PROPERTY — RIGHTS OP SURVIVING SPOUSE — VESTED RIGHTS — CONSTITUTIONAL LAW.</p> <p>Under the established rule of law and of property in this state, upon the death of one spouse, leaving legitimate issue living, one-half of the community property descends to such issue and does not vest in the other spouse by right of survivorship.</p> <p>The purchase by the husband in his own name of real property with community funds, while Laws 1875, p. 53, giving the surviving spouse the whole of the community property, and Laws 1873, p. 450, giving the husband the management and disposition of community property, were in force, would not give the husband such a vested right of survivorship in the realty, in its nature proprietary and contractual, as to be beyond the power of the legislature to impair by subsequent legislation.</p> <p>Section 2 of the act of 1875 (Laws 1875, p. 53), giving the surviving spouse a right of survivorship in community property cannot be held as conferring a vested right, since to that extent it would be unconstitutional as not being embraced in the title of the act, which was one “to regulate the descent of real estate and the distribution of personal property.”</p>

<p>NON-SUIT — SUFFICIENCY OF COMPLAINT—DEFECTS CURED BY PROOF— INSOLVENCY OF INSURANCE COMPANY — DISSOLUTION.</p> <p>A motion for non-suit on the ground that the complaint failed to state a cause of action was properly denied, where there was no demurrer and the defect had been cured by the admission of proof without objection.</p> <p>Where it appears that the available assets of a domestic insurance corporation consisted only of certain demand notes executed by its officers and $1.40 in cash, that there were unadjusted losses aggregating between twelve and thirteen hundred dollars, on which there was an admitted liability of $960, and that the company relied upon the payment of quarterly dues by its policy holders to meet such liabilities- and to pay its current expenses, a finding that the company was insolvent, and a judgment decreeing its dissolution and appointing a receiver to wind up its affairs, is warranted by the evidence.</p>

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

<p>PLEDGE—NEGLIGENCE OF PLEDGEE — LIABILITY.</p> <p>A pledgee is liable for the damage resulting from unreasonable delay in marketing livestock which has been pledged for the security of a debt due from the pledgor, but upon the condition that the stock should be sold, the proceeds applied to the ex-tinguishment of the debt and expenses of sale and any balance remaining paid over to the pledgor.</p>

<p>ACTrON ON FOREIGN JUDGMENT-JURISDICTION OVER DEFENDANT — WHAT JUDGMENT ROLL MUST SHOW—EVIDENCE'OF SERVICE,</p> <p>In an action upon a judgment obtained in another state, proof of jurisdiction over the person of defendant in the former action is inadmissible where the judgment roll itself does not show service of process or an appearance by defendant in the action in which the judgment had been obtained.</p> <p>A sheriff’s return of service of summons reciting merely that he personally served same on a certain individual, “as agent of the defendant corporation,” is insufficient to show jurisdiction over a foreign corporation, when the statute provides for the appointment by such corporation of some person residing in the county in which the principal place of business of such foreign corporation within the state is conducted upon whom process may be served, which appointment must be filed in the office of the secretary of state and of the clerk of the court for such county, since the sheriff’s return must describe an agent within the meaning of the statute, where words of description are employed therein.</p>

<p>MISJOINDER OF CAUSES — ACTION ON BOND AND FOR DAMAGES.</p> <p>An action against the principal and sureties upon an injunction bond for tbe penalty therein named and against the principal in a further sum for maliciously instituting the injunction proceeding for the purpose of harassing and injuring plaintiffs is demurrable on the ground of misjoinder of actions, one being based on contract, the other in tort.</p>

<p>WRIT OF REVIEW TO JUSTICE OF THE PEACE — SCOPE OF SUPERIOR COURT’S JUDGMENT—VACATION OF JUDGMENT-^ GROUNDS.</p> <p>Where the action of a justice of the peace in denying a motion for a change of venue is brought before the superior court by the issuance of a writ of review, it is error for the superior court to give judgment upon any other question than the alleged, error of the justice in not granting the change of venue.</p> <p>A petition for a. writ of review does not state facts sufficient to warrant its issuance, when it does not appear from the facts alleged in the petition that the defendant has a meritorious defense to the action and that injury would result to him, if the case were allowed to proceed; for this purpose a general allegation of resulting injury is not sufficient, but the facts' must be stated so that the court, in the exercise of its discretion, may properly determine whether injury would follow the action complained of.</p> <p>The action of a court in vacating its judgment is erroneous, when the only ground therefor was that it had not come into possession of plaintiff’s brief prior to the time when judgment was rendered.</p>

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

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

<p>Appeal from Superior Court, Spokane County.—-Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, King County.—Hon. Obange Jacobs, Judge.</p>

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

<p>APPEALABLE ORDER-OBJECTIONS TO NOTICE OF APPEAL—MERITS OF ACTION NOT REVIEWABLE ON MOTION TO QUASH SUMMONS.</p> <p>An order of tbe court quashing a summons is appealable, under Laws 1893, p. 119, § 1, subd. 6 (Bal. Code, § 6500), when it appears tbat sucb order was based upon tbe court’s opinion that, upon tbe merits of tbe action, tbe plaintiff could not prevail.</p> <p>Where a supplemental transcript filed by appellant shows tbat a second notice of appeal sufficient in all respects was duly served and filed, an objection that tbe proof of service of notice of appeal as set out in the original transcript is inadequate, is without merit.</p> <p>A court has no power to determine the merits of a cause of action upon a motion to quash the summons, but when the objections raised to the action are other than those relating to th.6 sufficiency of the summons and the regularity of its service, they should be raised by answer or demurrer.</p>

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

<p>Appeal from Superior Court, Pierce County.-—Hon. Thomas Carroll, Judge.</p>

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

<p>SECOND APPEAL BOND—TIME OP PILING — EIGHT OP ATTOBNEY TO SIGN PBINCIPAL’S NAME — STATEMENT OP PACTS — INCLUSION OP EXHIBITS — DUAL LEVY OP ATTACHMENTS — EPFECT OP DISSOLUTION.</p> <p>The giving of a second appeal bond within five days after certification by the judge as to the insufficiency of the first is in sufficient time, although the certificate was not made until the day succeeding the examination of the sureties and without adjournment from said day to the day following.</p> <p>The signing of appellants’ names to an appeal bond by their attorney without special authority therefor, would not affect the validity of the bond.</p> <p>In preparing a proposed statement of facts for settlement, a reference to exhibits introduced in evidence and in the clerk’s possession is sufficient without incorporating copies thereof in the proposed statement, and their attachment to the statement by the clerk under order of the court, together with the judge’s certificate as to their correctness, suffices to propertly incorporate them in the statement settled.</p> <p>Where two writs of attachment have been issued in the same action and levied upon the same property, an order of dissolution made after both levies, has the effect of dissolving both, unless it clearly appears that the order of dissolution was limited to one of the writs.</p>

<p>RAPE — EVIDENCE—DEPOSITIONS — VIEW OF PREMISES—INTENT TO COMMIT RAPE — CONSENT—INSTRUCTIONS—NEW TRIAL — MISCONDUCT OF JURY—SURPRISE — NEWLY-DISCOVERED EVIDENCE.</p> <p>In a prosecution for assault with intent to commit rape upon a female child under the age of twelve years, the mother of the prosecutrix may properly testify to the condition of the child’s clothing, and as to what she found upon it, shortly after the alleged assault.</p> <p>In such a case, the testimony of the mother as to complaints made by the prosecutrix to her immediately or within an hour after the commission of the alleged injury is admissible, though such evidence should be restricted to the mere fact of complaint, without admitting any of the particulars of the complaint in evidence.</p> <p>The admission in evidence of a plan of the scene of an alleged crime, which does not purport to accurately describe the premises, is not error when it is received only for the purpose of enabling a witness to illustrate his testimony, and the court by a special instruction limits the jury’s consideration of it to that purpose alone.</p> <p>The admission in evidence, over objection, of.the testimony of a witness whose name is incorrectly indorsed on the information is not error, when no application is made by the defendant for continuance on the ground that the name of the witness does not appear upon the information.</p> <p>The refusal of the court to direct a view of the premises by the jury is not error, when there is no showing of an abuse of the discretion given the trial judge in such matters by the provisions of Code Proc., § 1312 (Bal. Code, § 6948).</p> <p>The' testimony of witnesses that they had heard a person, .who at the time of trial was absent from the state, say that he had made certain footprints found near the scene of an assault, and which the state were attempting to prove were made by the accused, is inadmissible as hearsay.</p> <p>The consent of the female does not constitute a defense upon a charge of assault with intent to rape a female child under the age of consent.</p> <p>Where there was no evidence, in a prosecution for assault with intent to commit rape, upon the question of the consent of the prosecutrix, a charge to the jury that the alleged assault must have been committed without the consent of the prosecutrix, was properly refused.</p> <p>The denial of a. new trial on the ground that a member of the jury had conversed with a third person contrary to the instructions of the court was not error, though the charge was supported by affidavit, when there were affidavits to the contrary from bailiff and jurors, and when there was no showing as to the subject of the conversation.</p> <p>In a criminal trial, the deposition of a sick and absent witness is inadmissible in evidence.</p> <p>The defendant in a criminal case is not entitled to a new trial on the ground of surprise, owing to the introduction in evidence by the state of a shirt as belonging to him, and whose ownership he denied, when such shirt had been produced by the prosecution .upon his preliminary examination before a magistrate.</p> <p>Where several witnesses had testified that a certain shirt did not belong to the defendant, but to another person, newly discovered testimony that the mother and sister of the latter person would testify that they made the shirt for him is merely cumulative, and insufficient ground for the awarding of a new trial.</p>

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

<p>BUILDING AND LOAN ASSOCIATIONS — SALE OF MORTGAGES — BY-LAWS.</p> <p>Under the provisions of Laws 1889-90, p. 56 (Bal. Code, § 4395 et seq.), relating to building, loan and savings associations and requiring such organizations to deposit with the state auditor, or with a trust company approved by him, all mortgage securities obtained in course of business, such mortgages cannot be sold by any such association to third parties, but are constituted by statute as a trust fund for the benefit of all its stockholders.</p> <p>Where the rights of stockholders are provided for by statute they cannot be contravened by the enactment of corporate bylaws.</p>

<p>Appeal from Superior Court, Spokane County.—Hon. L. H. Peather, Judge.</p>

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

<p>Appeal from Superior Court.—Snohomish County.—Hon. Frank T. Reid, Judge.</p>

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

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

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