Volume 19 — Washington Reports

<p>MUNICIPAL CORPORATIONS — DEFECTIVE STREETS — CONTRIBUTORY NEGLIGENCE— QUESTION FOR JURY.</p> <p>Whether a woman was chargeable with negligence contributing to injuries received by her in falling into a hole while walking along an unimproved street full of holes and stumps, on a dark night, without lantern or companion, when she might have gone around a longer way home by traveling upon improved sidewalks, was a question for the jury.</p> <p>Whether plaintiff in such a ease knew, or should be held to have known, of the existence of the excavation into which she fell, by reason of her residence at no great distance therefrom, is a question for the jury, when she testifies as to her ignorance thereof.</p> <p>Where a street has been platted as part of a city and used by the public as a highway, the city is liable for injuries received by a passenger thereon who without fault falls into an excavation made by the city in thei street, although the city may have never assumed to improve the street, but has allowed it to remain in its natural condition, aside from excavations made therein for gravel to use elsewhere.</p>

<p>PROHIBITION — DISQUALIFICATION OF SCHOOL DIRECTOR TO TRY OFFICER — POWER OF SUPREME COURT TO ISSUE SUPERSEDEAS — APPEAL — SUPERSEDEAS BOND.</p> <p>On appeal from a judgment quashing an alternative writ of prohibition, a bond conditioned as a supersedeas does not operate as a suspension of the judgment.</p> <p>The supreme court has jurisdiction to issue an order of supersedeas to preserve the status quo of parties pending the determination of an appeal on its merits, under art. 4, §4, of the constitution, giving the supreme court power to issue all writs necessary and proper to the complete exercise of its appellate and revisory jurisdiction, when for want of such an order the appeal may be rendered of no avail to appellant, and the court’s control of the appeal rendered ineffective.</p> <p>Where a board of education is by law constituted a tribunal, from which there is no appeal, for the trial of its school officers, a member of the board who has caused charges to be preferred against a school superintendent because of personal hostility toward him, and has announced a determination to vote against him, whatever the evidence, is disqualified to sit as a member of such tribunal during the trial of the superintendent and, if he attempts to participate as a member of the tribunal, may be restrained by the issuance of a writ of prohibition.</p>

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

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

<p>APPEAL — EXTENSION OF TIME FOE FILING BRIEFS — JUDGMENT OF DISMISSAL — FAILURE TO FURNISH SECURITY FOR COSTS — FOREIGN WITNESSES — MILEAGE.</p> <p>An extension of time given appellant by stipulation, in which to file his brief,would not excuse respondent from filing his answering brief within the time prescribed by the rules of court, unless an extension of time had also been accorded the latter by stipulation.</p> <p>A judgment dismissing an action is warranted, when plaintiff has failed to comply with an order of the court requiring him to give security for costs on the ground of non-residence.</p> <p>A witness from outside the state, who attends a trial for the purpose of testifying in the ease, is entitled to mileage within the borders of the state.</p>

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

<p>CONSTITUTIONAL LAW — PROHIBITION OF LOTTERIES — MUNICIPAL CORPORATIONS— PENALTIES FOR MISDEMEANORS— PROSECUTIONS IN NAME OF CITY — SCOPE OF PENAL ORDINANCES.</p> <p>The constitutional provision (art. 2, § 24) that “the legislature shall never authorize any lottery” is mandatory and self-executing and prohibitory of lotteries for any purpose, charitable or otherwise.</p> <p>The provision in Penal Code, § 139 (Bal. Code, § 7259), permitting lotteries for charitable purposes, although enacted prior to the framing of the donstitution, falls within the constitutional prohibition against lotteries, and is therefore invalid.</p> <p>Where a state law merely prescribes the maximum penalty for the punishment of misdemeanors at a fine of $500 or imprisonment for not more than one year and specifies no minimum penalty, a city ordinance fixing a minimum penalty of $20 for the punishment of like offenses does not conflict with the constitutional provision that city charters shall be subject to the control of general laws, nor with the charter provision that punishment for violation of the penal ordinances of the city “shall in no case exceed the punishment provided for oy the laws of the State of Washington for misdemeanors.”</p> <p>Prosecutions for the violation of municipal ordinances may properly be conducted in the name of the municipality, as the constitutional provision requiring all prosecutions to be conducted in the name of the state applies only to those instituted on account of the violation of the general laws of the state, and has no application to the infraction of municipal ordinances.</p> <p>Where a city is by its charter expressly authorized to provide by ordinance for the punishment of all practices dangerous to public safety or health and make all regulations necessary for the preservation of public morality within its limits, it is not restricted in defining offenses of that character to the exact scope of state laws updn like subjects.</p>

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

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

<p>LARCENY — SUFFICIENCY OF INFORMATION — DESCRIPTION OF MONEY-CONTINUANCE — EVIDENCE — COMMENT BY JUDGES ON TESTIMONY-INSTRUCTIONS — SEPARATION OF JURY.</p> <p>In an information charging the larceny of money a description of the property stolen as being two one hundred dollar bills and one fifty dollar bill, lawful money of the United States, is sufficient under Code Proc., >§ 1253 (Bal. Code, § 6859), which provides that in such cases it is sufficient to allege the larceny to be of money or bank notes, without specifying the coin, number, denomination or kind thereof.</p> <p>The fact that an information charging the larceny of money, after naming the number and denomination of the bills,' alleges further “a more exact description being not now known,” while a witness for the state gives an exact description of the bills in his testimony, does not constitute a fatal variance, when there is no-showing of want of diligence on the part of the prosecuting attorney to ascertain and charge the exact description.</p> <p>The refusal of a continuance in a criminal cause does not show an abuse of discretion, when the cause has been finally set for trial -more than five weeks after defendant’s arrest, one continuance having been granted him in the meantime.</p> <p>A remark by the court concerning a criminal action, that “it is mostly a case of positive testimony,” is not objectionable on the ground of being an expression of the court’s opinion on the weight of the testimony.</p> <p>In a prosecution for the larceny of money, it is competent to put in evidence the money taken from defendant’s person when arrested, although not identified as a part of the stolen money, merely as a circumstance showing he had money when arrested, which the jury might properly consider.</p> <p>Error of the court in stating to the jury that it was not permissible to introduce evidence -affecting the character of the defendant, that the court would not permit it, for instance, to be shown that he had committed another offense, is harmless, when the instructions were fair to the defendant otherwise and correctly stated the law, and it does not appear that prejudicial error resulted from the remark.</p> <p>The fact that, after an order against the separation of jurors, one of them who was taken sick while the jury was out for a meal, was brought separately on a street car to the courthouse in charge of one bailiff, while the remainder of the jury walked there in charge of another bailiff, is not error, when there is no showing that any of the jurors were tampered with in any manner.</p>

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

<p>APPEAL — WEIGHT OF EVIDENCE.</p> <p>The findings of the trial court will not be disturbed on appeal, when the evidence is conflicting, unless the weight of evidence is clearly against the findings.</p>

<p>RES JUDICATA — TO BE DETERMINED BY THE ISSUES — PLEADING — INCONSISTENT DEFENSES — ACCOUNT STATED.</p> <p>Where the issue has been raised and determined in an action by a bank upon a note and oyer draft that defendant, who had served the bank as attorney, was entitled to nothing on a counterclaim for services rendered, an assignee of the bank who has taken all its assets in consideration of discharging all its liabilities is entitled to plead such judgment as res judicata in an action against it on account of such services brought by an assignee of the attorney, who acquired his claim pending the former action.</p> <p>In determining whether the subject matter of litigation is res judicata as to parties and their privies, the court is governed only by the issues and judgment in the prior action, and cannot consider grounds for the judgment which are not contained in the record.</p> <p>A defendant may deny liability and at the same time plead a counterclaim or offset, without subjecting himself to the charge of pleading inconsistent defenses, if there is no direct contradiction in the special facts pleaded.</p> <p>The fact that a statement of account had 'been delivered to defendant and the same retained a long time without objection, would not make it an account stated determining the amount due from defendant, when there was no liability existing on the defendant’s part.</p>

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

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

<p>OWNERSHIP OP LANDS BY CORPORATIONS COMPOSED OP ALIENS — CONSTITUTIONAL LAW.</p> <p>Under the constitutional provision prohibiting alien ownership of lands in this state and declaring that every corporation, a majority of whose stock is owned by aliens, shall be deemed an alien for the purposes of suoh prohibition, conveyances to a corporation, a majority of whose stockholders are aliens, may be avoided at the suit of the state, although at the time the conveyance was made a majority of the stockholders may have been citizens of the United States.</p> <p>A lease of lands to an alien for the period of forty-nine years is void under the constitutional prohibition against alien ownership of lands, since such persons cannot be allowed to accomplish indirectly that which they are forbidden to do directly.</p>

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

<p>Appeal from Superior Court, Whatcom County. — Hon. J. P. Houser, Judge.</p>

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

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

<p>TRIAL — DIRECTING VERDICT.</p> <p>Wihere plaintiff’s action is founded upon a written contract, whose construction is a matter of law for the court, the withdrawal of the case from the jury at the close of plaintiff’s case and directing a verdict for defendant, there being no conflict in the testimony at that time, is in no sense a deprivation of the constitutional right of trial by jury.</p>

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

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

<p>APPEAL — COSTS IN LOWER COURT — QUESTION NOT RAISED BELOW.</p> <p>The supreme court will not consider and determine the right of a party to an allowance for costs incurred in the lower court, when the lower court has never been called upon to pass upon the question.</p>

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

<p>WRIT OF PROHIBITION — TO SUPERIOR COURT — WHEN LIES.</p> <p>A writ of prohibition will not lie to restrain the superior court from canceling and vacating a notice of Us pendens, which had been filed by an appellant after taking an appeal from the judgment of said court, since the action of the court in such matter is reviewable upon appeal.</p>

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

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

<p>ANCILLARY ADMINISTRATION — NECESSITY FOR — ASSIGNMENT OF PROMISSORY NOTE — RIGHTS OF ASSIGNEE.</p> <p>An assignee of an administrator appointed in one state may bring an action in another without administration being first had in the latter state.</p> <p>Under the rule that the assignment of a chose in action passes the whole interest of the assignor therein, including every remedy and security available by the assignor as incident thereto, although not specially named in the instrument of assignment, the assignment of a promissory note by an administrator would pass to the assignee a right of action for damages, which had accrued during the lifetime of the decedent by reason of the negligence of a bank, to which the note had been delivered for collection, in failing to notify the indorsers of its non-payment at maturity.</p>

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

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

<p>DEATH BY WRONGFUL ACT — PARTIES—CONSTRUCTION OF TERM “ HEIRS.”</p> <p>Under Code Proc., J 138 (Bal. Code, § 4828), giving a right of action to heirs of any person whose death is caused by the wrongful act or neglect of another, the term “heirs” must be restricted to the widow and children of deceased, and does not include parents or collateral relatives, in view of the facts that another provision of the same section confines the right of recovery to “the widow or widow and her children, or child or children, if no widow;” that Code Proc., § 139 (Bal. Code, § 4829), gives a right of action to parents or guardian for death of a minor child or ward; and that Code Proc., § 148 Bal. Code, § 4838), provides that no action for personal injury occasioning death shall abate, but the right of action shall survive in favor of the wife and children. (Dunbar, J., dissents.)</p>

<p>LANDLORD AND TENANT — TIDE LANDS — RIGHT TO PURCHASE.</p> <p>A tenant of tide lands holding under lease from the upland owner could not, in the absence of fraud, acquire a prior right of purchase, under Gen. Stat., § 2172, as against his landlord, by making improvements thereon prior to March 26, 1890, even though the lessor had never been in actual possession of the tide land, if the lessee had no other claim of title than ihis possession under the lease.</p>

<p>VENDOR AND PURCHASER — FORFEITURE—RECOVERT OF AMOUNT PAID.</p> <p>A receiver who, for want of an order of court, has never been in a position to make a conveyance of real estate to one to whom he has contracted to sell it, cannot claim a forfeiture of an installment of purchase money paid under an agreement for its forfeiture in ease a second payment was not made within a given time, although no tender of the second installment has been made within the stipulated time.</p>

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

<p>ANCILLARY ADMINISTRATION — NECESSITY FOR — ACTION ON NOTE BY ASSIGNEE —EVIDENCE —PLEADING.</p> <p>The assignee of a foreign administrator may maintain an action in the courts of this state, although, no administration has been had in this state upon that portion of the decedent’s estate situated here.</p> <p>In an action in the courts of this state by an assignee of a promissory note and mortgage, which had been assigned to him by a foreign administrator, the record of the foreign court showing the appointment of plaintiff’s assignor as administrator is admissible in evidence.</p> <p>The objection that the complaint In an action by the assignee of a foreign administrator does not sufficiently plead tihe proceedings had in the probate court of another state should be urged in form of a motion to make the complaint more definite, and not by demurrer.</p>

<p>LIMITATIONS — PARTIAL PAYMENT — BURDEN OF PROOF.</p> <p>Where the bar of the statute of limitations has been pleaded against an action on account, the burden of relieving the account of the bar by proof of partial payment within the period of limitation, is upon the plaintiff, and, in case of denial of part payment by defendant, can be established only by clear and convincing testimony.</p>

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

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

<p>EVIDENCE— ADMISSIONS OF AGENT — BURDEN OF PROOF — PAROL EVIDENCE.</p> <p>The admissions of one who was acting as agent for defendant throughout certain transactions as to the indebtedness of defendant to plaintiff’s assignor growing out of such transactions, are admissible in evidence.</p> <p>The burden of proof rests upon that party, either plaintiff or defendant, who holds the affirmative of any proposition necessary to be established.</p> <p>Parol testimony is admissible for the purpose of proving the real consideration of a contract which recites that it is given for one dollar and “other considerations,” if such testimony is not for the purpose of contradicting the written instrument or of defeating the operative effect of it, but merely in explanation of how the contract came to be made, and the consideration for it.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. J. P. Houser, Judge.</p>

<p>MORTGAGES — ATTORNEYS1 FEES — ASSIGNMENT OF NOTE AND MORTGAGE AFTER MATURITY — EQUITIES.</p> <p>Where an attorney’s fee is provided for in terms in a note or mortgage the same .must be allowed by the court regardless of its reasonableness, if the instrument was executed prior to the taking effect of the law permitting the court to fix such amount as it may deem reasonable. (Laws 1895, p. 81, Bal. Code, §. 5166.)</p> <p>Where a note is bought after maturity, the purchaser takes it subject to all the equities that existed between the original parties to its execution, and the fact that the maker has seen fit to place a demand arising out of the transaction in the shape of a judgment, will not estop ¡him from pleading his equities against a purchaser of the note after maturity.</p>

<p>APPE AL — NOTICE — PARTIES — APPEALABLE ORDER.</p> <p>The failure to serve intervenors who have appeared in a cause with notice of appeal is ground for dismissal of the appeal, even though the intervenors have been permitted to dismiss their complaint in intervention after the appeal was taken.</p> <p>■An order sustaining demurrers to several affirmative defenses while other affirmative defenses and a general denial are left unaffected by the ruling, is not an appealaible order, since such ruling does not in effect determine the action, and such questions can be reviewed on appeal from final judgment in the cause.</p>

<p>TIDE LANDS — APPEAL FROM DECISION OF COMMISSIONERS.</p> <p>Where an. application for the purchase of tide lands is contested by two other claimants for separate parcels thereof, and all the applications are tried before the board as one proceeding and findings made against the original applicant, such applicant is entitled to bring the matter up for review before the superior court by one appeal as against both contestants, under Laws 1897, p. 254, § 52 (Bal. Code, § 2182.)</p>

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

<p>CONSTITUTIONAL LAW — OBLIGATION OF CONTRACTS — ACTION ON JUDGMENTS.</p> <p>The act entitled “an act relating to the duration of judgments,” etc., (Laws 1897, p. 52; Bal. Code, §§ 5148-5150), providing that liens on judgments shall expire six years after their rendition, and that no action shall be had on any judgment rendered in the state by which its lien shall be extended for a greater period than six years from the date of entry of the original judgment, is unconstitutional as to existing judgments on the ground that it is an impairment of the obligation of contracts. (Reavis and Gordon, JJ., dissent.)</p>

<p>MUNICIPAL CORPORATIONS —STREET IMPROVEMENTS — RE-ASSESSMENTS -INTEREST — MANDAMUS.</p> <p>In making a re-assessment to cover the cost of a street improvement, the original assessment for which had been declared void, the city should, under Laws 1893, p. 229, § 6 (Bal. Code, § 1144), include in such new assessment the accrued interest upon the sums due for making such improvement.</p> <p>The failure of a city in making a re-assessment to provide a special fund to pay for a street improvement, to include accrued Interest therein, will render the city liable for the amount of such interest, although the creditor against such fund may have taken no action to have the city include such interest in the reassessment proceedings.</p> <p>Where a city has provided a special fund by re-assessment proceedings to pay for the cost of a street improvement, owing to the invalidity of the original assessment, and make such reassessment cover only the actual cost of the improvement without the accrued interest, mandamus will lie to compel the city to apply moneys in such special fund to the payment of the oldest outstanding warrant together with the accrued interest thereon, even though the fund will be exhausted thereby to the exclusion of some of the outstanding warrants.</p>

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

<p>CONTEMPT OF COURT — WHAT CONSTITUTES — PENDENCY OF ACTIONS.</p> <p>The constitutional guaranty that “every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right,” does not grant immunity from the jurisdiction and process of courts in proceedings for contempt against those publishing articles reflecting on the court or judges thereof pending the trial of a case.</p> <p>Under the inherent power vested in courts by the common law respecting the punishment of contempts and under the authority of Bal. Code, § 5798, providing that “disorderly, contemptuous, or insolent behavior toward the judge while holding court, tending to impair its authority, or to interrupt the due course of a trial or other judicial proceedings,” shall be deemed a contempt of court, the publication in a newspaper, while a cause is pending on appeal before t.he supreme court, of an article reflecting on the integrity of the court, or of one of the judges thereof, and which tends to embarrass and disturb the conclusion of the court in the determination of the cause pending before it, is such conduct as to warrant the court’s proceeding against the offender by attachment for contempt.</p> <p>A cause on appeal to the supreme court of this state remains pending, and within the jurisdiction of the court to make any modification of its decision, until the final judgment has been rendered and the remittitur issued thereon.</p>

<p>CONTRACTS — ILLEGALITY OF CONSIDERATION — BURDEN OF PROOF.</p> <p>In an action upon a written contract based upon a valid consideration, to wbieb there was interposed an affirmative defense that the contract was based upon an illegal consideration, the burden of proof is on defendants, and judgment in their favor is unwarranted when there is no other proof of the illegality of the consideration than such as is contained in plaintiff’s original answers to interrogatories, and these answers at the time of trial had been explained and amended by the substitution of new answers showing the consideration to be the same as recited in the contract.</p>

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

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

<p>Appeal from Superior Court, Skagit County. — Hon. J. P. Houser, Judge.</p>

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

<p>NEW TRIAL — IMPOSITION OP TERMS — WAIVER OP COSTS.</p> <p>Where a new trial is granted plaintiff, because of error of the court in ruling that his complaint does not state a cause of action, the plaintiff is entitled to the new trial unconditionally, and it is error to impose terms that his motion will he granted on condition of his filing a waiver of costs to date.</p>

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

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

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

<p>SALES — ASSIGNMENT OP CONTRACT — LIABILITY FOR PRICE. .</p> <p>The fact that persons obligated for the payment of the purchase price of standing timber under a contract with the owner of the land, subsequently incorporate and assign all their interest in the contract to the corporation, would not render the corporation liable for the purchase price, in the absence of a specific promise on its part to pay the land owner for the timber.</p>

<p>TIDE LANDS — PREFERENCE RIGHT TO PURCHASE — RES JUDICATAPLEADING.</p> <p>A judgment against plaintiff in an action seeking to. enjoin defendants from wharfing a strip of tide land abutting on land purchased hy them' of plaintiff, which disputed strip had been occupied by them over twenty years, is conclusive on the parties and those claiming through them, as to the title to the disputed strip.</p> <p>Under Laws 1895, pp. 554, 562, §§ 61, 82, providing that in contests before the board of land commissioners respecting the right to purchase tide lands, no formal pleadings are necessary, and that on appeal to the superior court the contest may he tried upon the same pleadings unless ordered amended by the court, a judgment In another action, constituting res judicata, may he proven without being pleaded.</p> <p>Where one holding a government patent covering upland and tide land conveys a portion of the upland, it passes to the grantee littoral rights in the abutting tide land, and a possession of such abutting tide land hy the grantee for more than twenty years, in connection with the state’s disclaimer to patented lands, would constitute a perfect title in the grantee.</p> <p>Under the provisions of the statute giving the upland owner the preference right of purchasing adjoining tide lands, no right is given tie owner of a piece of tide land to come in as a preferred purchaser of abutting tide land.</p> <p>Where the boundaries of a disputed strip of tide land have been recognized for twenty-five years both by contract and the conduct of coterminous proprietors as appurtenant to a certain portion of the upland, and the authorities have platted the tide land in conformity with such lines, which have been adopted by the contestants in presenting their respective applications to purchase, the objection cannot be raised by the appellant that the disputed tideland, owing to the conformation of the shore, really abuts upon other lands than those of respondents.</p>

<p>TENANCY IN COMMON — REPLEVIN.</p> <p>A surrender of mortgaged community realty to the mortgagee by the father alone would not affect the title of the children in the share inherited by them from their mother, and could give the mortgagee no better title than that of a tenant in common with the children.</p> <p>A tenant in common cannot maintain an independent action of replevin for the recovery of grain raised by the tenants and in the possession of third persons.</p>

<p>COMMITTMENT TO BEFOBM SCHOOL — JUBISDICTION OF MUNICIPAL COUBT.</p> <p>A municipal court being, under the constitution, an inferior court, and, under the statute, having concurrent jurisdiction with justice courts only, such municipal court has no jurisdiction to commit a child between the ages of eight and sixteen years to the reform school, but is merely authorized to send such child, when found guilty of any -crime, mendicancy, vagrancy or incorrigibility to the superior court for further trial, under Laws 1891, p. 195 (Bal. Code, §§ 2721-2727),providing that when such a child is found guilty, in any court of record in this state, of any crime except murder or manslaughter, or is growing up in mendicancy or vagrancy -or is incorrigible, the court may in its judgment send such child to the state reform school; and, further, if such child shall be convicted before a justice of the peace or other inferior court of any crime, mendicancy, vagrancy or incorrigibility, it shall be the duty of said magistrate to send such child, with all papers filed in his office forthwith to a judge of a court of record for further proceedings.</p>

<p>TAXATION — BOARD OF EQUALIZATION — ILLEGAL ACTION — REMEDIES — WRIT OF REVIEW — SERVICE OF NOTICE BY MAIL — ESTOPPEL.</p> <p>A board of county commissioners, when sitting as a board of equalization, exercises judicial 'functions in passing upon the valuations of property returned by the assessor; and from its decisions in such matters there is no appeal.</p> <p>The action of a board of equalization in fixing the valuation of property for taxation is subject to review by the courts, under Laws 1895, p. 115, §4 (Bal. Code, §5741), providing for the issuance of the writ of review in cases where an inferior tribunal or board exercising judicial functions has exceeded its jurisdiction or has acted erroneously, and there is no appeal nor any speedy and adequate remedy at law.</p> <p>The fact that the taxpayer has a remedy by injunction against the treasurer to prevent the sale of his property for taxes illegally assessed, in an action to foreclose the tax lien, to be instituted three years after delinquency, does not afford him such a speedy and adequate remedy as to deprive him of the right to a writ of review.</p> <p>After the assessor has returned his assessment and filed the lists and books with the clerk of the board of equalization, verified by his affidavit, as required by Laws 1897, p. 160, § 54 (Bal. Code, § 1710), he has no further power to make any corrections therein or addition thereto.</p> <p>Where a board of equalization, by formal order, has proceeded to raise an assessment from $3,600 to $18,000, they are estopped from claiming that the assessment as returned by the assessor was in fact $18,000.</p> <p>Under Laws 1897, p. 162, § 58 (Bal. Code, § 1714), a board of •equalization has no power to increase the valuation of real property, unless at least five days’ notice shall have been given in writing to the owner or agent.</p> <p>When the notice required by § 58, supra, is given by mail, the owner of real property affected by the proposed increase in valuation is entitled to ten days’ notice, under Laws 1893, p. 414, § 21 (Bal. Code, § 4891), which provides that in case of service by mail the time of service shall be double that required in a case of personal service.</p> <p>Where the statute requires notice to a property owner of a proposed increase in the valuation of his property for taxation, an increase without notice is void, even though the conclusion of the board may be fair and in accordance with substantial justice.</p>

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

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

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

<p>REMOVAL OF STATE OFFICERS — RIGHT TO HEARING.</p> <p>Under the constitutional provision that “all officers not liable to impeachment shall be subject to removal for misconduct or malfeasance in office, in such manner as may be provided by law,” and under Laws 1893, p. 247 (Bal. Code, §§ 107-109), giving the governor power to remove any state officer appointed by him, whenever he shall he satisfied that such officer has been guilty of misconduct or malfeasance in office or is incompetent, the summary power of removal is vested in the governor without right in the officer removed to notice and a hearing, whether his term of office be for a fixed or for an indefinite period.</p>

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

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

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

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

<p>DUB PROCESS OF LAW — IMPRISONMENT FOR DEBT — COSTS AGAINST COMPLAINING WITNESS.</p> <p>•A statute authorizing a justice of the peace to adjudge costs against a complaining witness in a prosecution for misdemeanor and order his imprisonment until paid, in case the trial results in the acquittal of defendant and the court finds the complaint was frivolous and without probable cause, is not unconstitutional on the ground that it deprives a person of his liberty and property without due process of law.</p> <p>A statute authorizing the imprisonment of the complaining witness in a malicious prosecution until payment of the costs of the action imposed upon him by the justice as a penalty, is not in violation of the constitutional inhibition against imprisonment ■for debt, as such constitutional provision relates only to liabilities arising on contract.</p>

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

<p>Appeal from Superior Court, Spokane County. — Hon. ¥it. E. Richabdsob, Judge.</p>

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

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

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

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

<p>ARBITRATION AND AWARD — AGREEMENT FOR — RIGHT OF ACTION FOR FAILURE — DEMAND NECESSARY.</p> <p>Where, a water works plant in an outlying addition has been transferred to a city in consideration of the city’s connecting same with, and maintaining it as a part of, its general system, of water works, a provision in the contract that the city shall pay on or before a given date, whatever sum certain named officers as an arbitration board may agree upon as further compensation, makes it incumbent on the se Her to demand that the arbitrators proceed to arbitrate before the expiration of that date, in order to give him any right of action against the city by reason of their failure.</p> <p>An agreement for arbitration is not void by reason of a stipulation that the finding of the arbitrators should be approved by the city council in order to be binding upon the city, since such provision merely constitutes the council a member of the board of arbitrators. .</p>

<p>ASSAULT AND BATTERY — SUFFICIENCY OF INFORMATION — INSTRUCTIONS— REBUTTAL EVIDENCE.</p> <p>Although an information may charge defendant with the crime of assault with a deadly weapon, which is a statutory offense, the defendant may be convicted, under the information, of the common law offense of assault and battery, when the facts set forth in the pleading are sufficient to describe the latter offense.</p> <p>No error can be predicated upon the court’s refusal to give a requested instruction, when the instruction given by the court covers all the points asked by defendant.</p> <p>The admission of rebuttal evidence is a matter largely in the discretion of the trial court, and its action in that regard will not be disturbed when it does not appear to be prejudicial to defendant.</p>

<p>APPEAL — SETTLEMENT OF STATEMENT OF FACTS — NOTICE.</p> <p>Where a notice to respondent that appellant will apply to the judge to settle and certify a statement of facts fails to designate the place where the settlement and certification are to he h'ad, the notice is insufficient, under Laws 1893, p. 114, § 9 (Bal. Code, § 5058), which requires the time and place to he specified in such notices.</p>

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

<p>FORECLOSURE — SALE BY PARCELS — REDEMPTION.</p> <p>Where mortgaged premises have been sold by the sheriff, on foreclosure in parcels, and the sale has been confirmed 'by the court, the mortgagee is entitled to redeem any parcel so sold separately by tendering the amount for which it was sold, together with interest on same and taxes and costs chargeable against said tract, under the provisions of Code Proc., § 504 (Bal. Code, § 5288), authorizing the sheriff to sell lots and parcels separately or together, as he shall deem most advantageous, and of § 512, allowing redemption of property sold subject to redemption, “or any part thereof separately sold.”</p>

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

<p>APPEAL — ASSIGNMENT OF ERRORS — BRIEFS.</p> <p>When findings of fact questioned hy appellant are not printed! in his brief, the sufficiency of the findings with reference to the testimony will not be considered 'by the court.</p>

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

<p>CORPORATIONS — CONTRACT FOR BOND — AUTHORITY OF OFFICERS — APPEAL — OBJECTIONS NOT RAISED BELOW.</p> <p>In an action on a bond to recover liquidated damages, an answer denying the execution of the bond, and also admitting its execution as a bond fixing a penalty instead of liquidated damages, cannot be attacked on appeal, when no objection has been raised on that ground in the lower court.</p> <p>An order of the board of directors of a corporation authorizing its president and secretary to sign its name as surety upon a bond for a given sum, would raise the presumption that the authority given was merely to execute a bond providing for a penalty instead of one providing for liquidated damages.</p>

<p>CONSTITUTIONAL LAW — SUBJECT AND TITLE OF STATUTE — POWER TO ABOLISH OFFICE.</p> <p>An act which repeals an 'act authorizing municipal courts, hut makes provision for their continuance until a certain date, is not objectionable as embracing more than one subject, since the subject of the act is the abolishment of the office with a designation of the time when the act shall become effective; and the title, which declares that it is an act repealing the act establishing municipal courts and abolishing the courts and offices thereby-created, is broad enough to cover the subject matter.</p> <p>An act shortening a term of office, or abolishing an office, which had been created by the legislature, is not a violation of the constitutional provision that “the salary of any county, city, town or municipal officer shall not be increased or diminished after his election or during his term of office; nor shall the terms of any such officer be extended beyond the period for which he is elected or appointed.”</p>

<p>MORTGAGE FORECLOSURE — DEFICIENCY JUDGMENT — PLEADING.</p> <p>A deficiency judgment is warranted, upon foreclosure of a mortgage, when the prayer of the complaint asks for judgment against defendant for the sum secured, that the mortgage he foreclosed, the premises sold and the proceeds applied upon the mortgage, 'an'd for general relief.</p>

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

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

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

<p>BOBBERY — SUFFICIENCY OF INFORMATION — DESCRIPTION OF PROPERTY TAKEN —INSTRUCTIONS.</p> <p>In an information charging robbery of money it is sufficient to describe the property taken as lawful money, without any further designation thereof, under Code Proc., § 1253 (Bal. Code, § 6859) which provides that in an indictment or information fox-larceny or embezzlement of money, it is sufficient to allege the larceny or embezzlement to be of money, without specifying the. coin, number, denomination or kind thereof.</p> <p>An instruction charging the jury to bring in a verdict for defendants unless they find that defendants forcibly took from the person of the prosecuting witness lawful money of the United States belonging to him, with the intent to convert the same to their own use against the will of said prosecuting witness, is sufficient, as the words use'd are equivalent to describing the act as feloniously done..</p> <p>No error can be predicated upon the court’s omission to define the phrase “ reasonable doubt,” when there is no request therefor.</p>

<p>JUDGMENT AGAINST INSANE PERSON — GUARDIAN AD LITEM — PLEADING.</p> <p>Where plaintiff knows, either at the time of service of summons or at the time of rendition of judgment that defendant is non compos mentis it is Incumbent on him to suggest it to the court, in order that a guardian ad Utem may he appointed.</p> <p>In an action upon a judgment of a court of record of ia sister state, an answer alleging that the judgment had been Obtained fraudulently by default, through personal service upon defendant while insane, and that there was .a valid defense to the original action, states sufficient facts to constitute a defense, as against a motion for judgment on the pleadings, as pleadings are liberally construed upon such a motion.</p>

<p>Appeal from Superior Co-uxt, Spokane County. — Hon. Leander H. Prather, Judge.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. J. P. Houser, Judge.</p>

<p>TIDE LANDS — EXTENSION OR STREETS OVER — LIMITATION OP RIGHT — CONSTITUTIONAL LAW.</p> <p>The right given municipal corporations, hy art. 15, § 3, of the state constitution, to extend their streets over tide lands to and across the harhor areas reserved for purposes of commerce and navigation is not a continuing one; and where a city, at the time of platting the tide lands by the state, exercises its right under said constitutional provision by filing a plat extending every alternate street across the tide land, it is precluded from thereafter exercising the right of extending the remaining streets across the intervening tide lands, except by condemnation and payment. (Reavts, J., dissents.)</p>

<p>TIDE LANDS — CONTRACT FOR PURCHASE — EXTENSION OF TIME — CONSTRUCTION OF STATUTE.</p> <p>Laws 1897, p. 229, §§ 27, 28 (Bal. Code, §§ 2157, 2158) authorizing the extension of all contracts issued by the state “to purchasers of school or other lands,” upon payment of delinquent and accruing interest, applies to contracts for tide lands as well as to those for granted lands, since § 5 (Bal. Code, § 2134) of the same act declares that “ public lands ” and “ state lands ” shall be deemed synonymous, whenever used in the act, and that all sorts of granted lands, school lands, university lands, tide lands, shore lands and harbor areas are included in the term “ public lands.” (Gordon, J., dissents.)</p>

<p>Appeal from Superior Court, Island County. — Hon. J. G. Mo Clinton, Judge.</p>

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

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

<p>APPEAL — HOW AFFIDAVITS INCLUDED IN RECORD — MORTGAGE FORECLOSURE— APPOINTMENT OF RECEIVER.</p> <p>Affidavits introduced in the lower court will not be considered on appeal unless included in the statement of facts by certificate of the trial judge.</p> <p>Under Laws 1869, p. 130, § 498, modifying the common law mortgage to a mere security, and giving the mortgagee the right of possession till foreclosure sale, the statute of 1854 (Laws 1854, p. 162) authorizing the appointment of receivers in actions for the foreclosure of mortgages must be construed as repealed by implication.</p>

<p>LIMITATIONS OB' ACTIONS — PERSONAL PLEA — DEMURRER — RESTRAINT ON ALIENATION — PUBLIC POLICY — MORTGAGES — PAYABLE ON CONTINGENCY— WHAT CONSTITUTES ALIENATION.</p> <p>The defense of the statute of limitations is a personal privilege, and can be pleaded only by the person directly entitled to the benefit of it; it cannot be set up by other defendants in the action.</p> <p>A demurrer to a complaint on the ground that it does not state facts sufficient to constitute a cause of action will not permit the objection to be urged that the action is barred, as that question should be raised by demurrer on the ground that the action was not’ commenced within the time limited by law.</p> <p>A covenant in a mortgage that in case the mortgaged premises should ever be .alienated or abandoned for church purposes the mortgage debt should become due and payable is not void as being in restraint of alienation.</p> <p>A covenant in a mortgage given by a Presbyterian church for money loaned from the erection fund of the General Assembly of that denomination, that the debt should become due if the church should cease to be connected with the General Assembly, is not a covenant contrary to public policy nor in restraint of religious belief.</p> <p>A mortgage is not void because the debt is made payable upon the happening of a contingency and no time for payment is mentioned in the mortgage.</p> <p>A covenant in a mortgage providing that in case the mortgaged premises be alienated or abandoned as a house of worship, except for the building or purchase of a better one, the mortgage should become due and subject to foreclosure, is broken by the mortgagor’s allowing the property to be sold on execution and the -church to be dispossessed of the premises by the issuance of a writ of assistance to the purchaser.</p>

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

<p>ACTION ON PROMISSORY NOTE — FAILURE OF CONSIDERATION — INSTRUCTIONS— HARMLESS ERROR — ARGUMENT OF COUNSEL.</p> <p>A partial failure of consideration is a defense pro tanto to an action upon a promissory note, when such failure can he definitely ascertained by computation.</p> <p>In an action upon a promissory note to which the defense of total failure of consideration has been interposed, a charge to the jury that their verdict should be for defendants, if they find that the consideration agreed on was, in contemplation of the parties, greater than the amount of the note, but unless they so find their verdict should be for plaintiff, is not prejudicial to plaintiff, when it is clear from the verdict that the jury found there was a total failure of consideration.</p> <p>Although the argument of counsel may be objectionable, it will not be presumed that the jury was misled thereby,, when they were admonished by the court to disregard the irrelevant and immaterial statements of counsel.</p>

<p>NEGLIGENCE OF MASTER — EMPLOYMENT OF INCOMPETENT SERVANT.</p> <p>The negligence of a coal company in employing an incompetent door tender, by reason of which injuries were sustained by a fellow servant, is established by evidence showing that the door tender was a boy fourteen and a half years old; that his duty consisted, for thirteen hours a day, in opening a door in a dark mine gangway for approaching trains; that there was a heavy pressure of air against the door, which was increased whenever a train approached, rendering it difficult to open; that the boy had been employed but a short time, had once before failed to get the door open, had been complained against and his removal promised several days before the injuries occurred; that at the time of the accident he did not notice the approach o'f the train, though signalled by whistle, quickly enough to open the door; and that the engine crashed through the door, causing the injuries complained of to the plaintiff.</p>

<p>COUNTY COMMISSIONERS —ALLOWANCE OP CLAIMS-CONCLUSIVENESS — RES JUDICATA — AUTHORITY OP COUNTY ATTORNEY TO REPRESENT COUNTY — EVIDENCE.</p> <p>Bills of justices of tbe peace for salary should be presented to tbe county commissioners for allowance, and tbe action of tbe board in passing thereon is conclusive, in tbe absence of fraud or mistake.</p> <p>An order of tbe county commissioners rescinding tbe former action of tbe board, when done at a special meeting and without any notice of tbe transaction of such business, is illegal and void.</p> <p>In a mandamus .proceeding to compel a county auditor to draw a warrant for the salary of a justice of tbe peace, tbe defendant cannot raise tbe defense that tbe city in which tbe justice bad jurisdiction bad a population less than 5,000 and that tbe justice bad waived bis right to salary through failure to pay into tbe county treasury tbe fees collected by him, when such questions have already been decided adversely to tbe county in an injunctional suit brought by tbe county attorney in bis own name, but in tbe interest of tbe county, which authorized tbe proceedings and paid tbe costs of tbe action, for tbe purpose of determining tbe liability of tbe county on account of tbe claim at bar and others of similar nature.</p> <p>In such an action, in order to establish that the county attorney represented tbe county in tbe injunction suit, evidence is admissible showing that when tbe queston of allowing plaintiff’s claim was before tbe county commissioners one of tbe board said to tbe county attorney that tbe matter was entirely in bis hands and that as a member of tbe board be would do whatever tbe attorney advised in tbe matter, which was tacitly assented to by tbe other members.</p> <p>Evidence is likewise admissible, in such a case, showing that during tbe entire trial of tbe injunction suit two members of the board of county commissioners were present and that tbe county attorney conferrred with them several times during tbe progress of tbe trial.</p>

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

<p>AMENDMENT OF PLEADINGS — DISCRETION OF COURT.</p> <p>An application by defendants to amend their answer so as to. question the individual liability of one of them, made at the-commencement of a second trial after the cause had been once, tried and appealed on tbe same pleadings, is a matter peculiarly within the discretion of the superior court, and its action will not he disturbed in t'he absence of a showing of abuse of such, discretion.</p>

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

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

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

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

<p>iRAILROADS — INJURIES TO STOCK — FENCES IN INCORPORATED TOWNS— FINDINGS OF TRIAL COURT.</p> <p>That part of a railroad track within the limits of an incorporated town is not subject to the provisions of Laws 1893, p. 418, 11 (Bal. Code, § 4332), making the failure of a railroad company to fence its track so as to turn stock prima facie evidence of negligence on its part in case of injury to stock by a moving train.</p> <p>The findings of fact by a trial court, made in an action at law before it without a jury, will not be disturbed on appeal.</p>

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

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

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

<p>ATTACHMENT — WHEN LIES — EQUITABLE ACTIONS — CONVERSION OF PARTNERSHIP PROPERTY — REPEAL OF STATUTE.</p> <p>An attachment may issue in an equitable action, when the object is to recover a specified amount of money, under Bal. Code, § 5350, providing that the plaintiff at the time of commencing an action, or at any time afterward before judgment, may have the property of the defendant attached. (Reavis, J., dissents.)</p> <p>The act of 1854 as amended by Laws 1867, p. 97, making the conversion of partnership funds grand larceny, having been repealed by implication by Laws 1873, p. 251, which omitted such ofíense and declared that only crimes prescribed therein should be punished, an attachment will not issue on account of the conversion of partnership property, as the statutory provision awarding the writ on the ground of injuries arrising from the commission of some felony is inapplicable.</p> <p>The action of a partner in collecting debts due the firm and refusing or neglecting to charge himself therewith does not fall within the provisions of Bal. Code, § 5351, subd. 8, authorizing attachment, where “the defendant has been guilty of a fraud in contracting the debt or incurring the obligation for which the action is brought.’’</p>

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

<p>Appeal from Superior Court, Clallam County. — Hon. J. Or. McClintom, Judge.</p>

<p>HIGHWAYS — ALTERATION AND ESTABLISHMENT — ORDER OP COUNTY COMMISSIONERS — APPEAL —PARTIES.</p> <p>A final order of the hoard of county commissioners vacating a road and establishing another, in lieu thereof, is appealable.</p> <p>Under Laws 1895, p. 82, § 2, giving a landowner residing in the vicinity the right to petition for the establishment of a county road, although he does not own lands abutting thereon, the qualification to petition for the road carries with it the right to resist, if so desired, and consequently the right of appeal from an adverse decision.</p>

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

<p>MUNICIPAL CORPORATIONS — POWERS — CONTRACTS FOR IMPROVEMENTS -TRUSTS.</p> <p>A contract between a city and a contractor for the construction of a public improvement, providing that the contractor should not be paid until all claims for labor performed and materials furnished had been adjusted, is valid, where a city is authorized to make contracts for such improvements, with no restriction on its power to surround its contracts with reasonable regulations, and constitutes the city a trustee for the benefit of such unpaid laborers and materialmen.</p>

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

<p>PRINCIPAL AND AGENT — IMPLIED AGENCY — EVIDENCE — HEARSAY.</p> <p>The building of a logging road is not within the scope of authority delegated to an agent, who has been authorized to operate a shingle mill, contract for shingle bolts and conduct preliminary negotiations for rights of way and for the purchase of timber.</p> <p>Declarations of one assuming to be an agent as to what his principal said or concluded to do respecting a matter in controversy are inadmissible on the ground of being hearsay evidence.</p> <p>The acts and declarations of an agent are not competent evidence in proof of agency.</p>

<p>EXECUTORS — ADMINISTRATION OUT OF COURT — PRESENTATION OF CLAIMS.</p> <p>Where a testator has disposed of his estate by vesting his executors with full authority to administer same without the intervention of the probate court, notice to creditors is not necessary; and hence failure to present a claim within one year after publication of notice to creditors will not operate to bar action thereon.</p>

<p>APPEAL — OBJECTIONS TO EVIDENCE — INDEFINITENESS.</p> <p>¡When the objections to the introduction of evidence are not definite enough to call the court’s attention to the real ground of its inadmissibility, the error cannot be urged on appeal.</p>

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

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

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

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

<p>BOND TO COUNTY FOR BENEFIT OF MATERIALMEN — RECITALS — RIGHT OF ACTION.</p> <p>Where a bond executed by a contractor for the construction of public improvements, under Gen. Stat., § 2415 (Bal. Code, §5925), in order to protect laborers and material men, contains all the conditions required by the statute, the recital that it was taken as a common law, and not as a statutory, bond, would not vitiate it.</p> <p>Where a county takes a bond from a contractor for the •construction of a county road, under Gen. Stat., § 2415, for the benefit of laborers and material men, the right of action of a material man on account of supplies furnished is not against the •county, but must be enforced against the bondsman and his sureties.</p>

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

<p>CONTRACTS BY GOVERNOR — LIABILITY OF STATE — RATIFICATION.</p> <p>There being no constitutional or statutory provision, which,, either expressly or by necessary implication, authorizes the governor to employ expert assistance for the purpose of investigating, the books and accounts of the state penitentiary, the state is not. bound by his contract employing -an expert accountant for such purpose.</p> <p>The fact that the legislature, subsequent to the making of an. unauthorized contract by the governor, appropriates a smaller-sum than the amount claimed, in payment of the services rendered under the contract, cannot be deemed a ratification, but amounts to no more than an adjustment and settlement of the claim by the legislature, thus withdrawing from the courts any jurisdiction to adjudicate upon the right to recover or the amount of recovery.'</p>

<p>•CORPORATIONS — AUTHORITY TODO BUSINESS — INSOLVENCY — PREFERENCES — RECEIVERS — COLLATERAL ATTACK.</p> <p>Although a corporation may not have been legally formed, the •objection cannot be raised by the corporation or one dealing with .it, to the injury or loss of other parties.</p> <p>The fact that an insolvent corporation makes payment of a $1,250 note due a bank by transferring to the bank $1,200 worth of whisky would justify an inference that the bank had knowledge of the insolvent condition of the corporation.</p> <p>Where a court, having jurisdiction of the parties and the subject matter, appoints a receiver, the validity of the appointment •cannot be challenged in a collateral action.</p>

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

<p>CITY EMPLOYEES — CIVIL SERVICE — CLASSIFICATION.</p> <p>A flume tender, whose duty is the custody and care of the flume of a city water works system, and whose employment is of a permanent character is properly classified under civil service regulations in the official service instead of the labor service, when, under such regulations, official service comprises positions, of a permanent character and labor service those of a temporary character.</p>

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

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

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

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — NOTICE TO PROPERTY OWNERS — ASSESSMENTS — BONDS — CONTRACTS — LOWEST BIDDER.</p> <p>Notice to a property owner of a proposed improvement of a street abutting on his land is not necessary, when the statutes and city charter authorize the city council to undertake such improvements upon the filing of a petition therefor by a majority of the abutting property owners.</p> <p>A city is authorized to include the cost of that portion of a street improvement which is included in the limits of street intersections in the assessment against the property in the assessment district, as provided by Laws 1897, p. 316, authorizing cities to do so, if provision therefor is made by ordinance, when the city has so far complied with the statute as to pass an ordinance declaring that all street improvements shall be governed thereby in that respect, since such general ordinance must be construed together with the special ordinance authorizing the making of the improvement in question.</p> <p>Under a law requiring the city council to let all contracts for street improvements to the lowest bidder, it is within the discretion of that body to call for bids for different portions of the work, if it appears to the council that the whole improvement can thereby be made at a less cost than by one letting.</p> <p>Notice to property owners of a proposed improvement, made by publication for fifteen days in the official newspaper of the city, is sufficient to bind them, when the city charter provides for such notice in such cases.</p> <p>Notice by mail to an abutting property owner, as provided in Laws 1893, p. 231, § 1, sent by the city clerk thirty days before the issuance of bonds for the cost of a street improvement, in order to give him an opportunity to redeem from the assessment against his property, is sufficient.</p> <p>A charter requirement that an ordinance for the issuance of bonds to cover the cost of a street improvement shall prescribe their form and may provide that the entire issue shall be issued to the contractor, is sufficiently complied with, where a contract providing for delivering to the contractor the entire issue of bonds was made prior to the passage of the ordinance approving the assessment roll, and the bonds conformed to a general ordinance prescribing the form of all local improvement bonds, which was in force at the time the contract was entered into.</p>

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

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

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

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

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

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

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

<p>Appeal from Superior Court, Spokane County. — Hon. W. G. Lan&fobd, Judge.</p>

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

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