Volume 2 — Washington Reports

<p> Appeal from, Superior Court, Jefferson County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>LEASE — EOREEITURE — PLEADING — APPEAL — ADMISSIONS IN BR1EE.</p> <p>In an action for the forfeiture of a lease for breach of a covenant against making alterations without the consent of the lessor, it is error to strike from the answer allegations that the plaintiff had full knowledge of the making of the alterations at the time when made, that she continued to receive rent accruing thereafter, and did not object to the alterations until some time subsequently.</p> <p>Such error is not cured by the fact that some evidence in support of the allegations stricken from the answer was incidentally introduced, and that the court made a finding of facts thereon, when the record does not show that the order to strike was ever vacated, nor that the matter was fully gone into.</p> <p>Where the record shows the motion to strike out certain allegations of an answer, but fails to show the order of the court thereon, or that any exception was taken thereto, appellant’s admission in his brief and upon the argument in this court that the motion was granted, must be taken as true, coupled, however, with the statement that the order was excepted to.</p>

<p>Original Application for Prohibition.</p> <p>The facts are fully stated iu the opinion.</p>

<p>STATUTE OF FRAUDS — REFLEVIK'—FRAUD — EVIDENCE — VERDICT.</p> <p>A promise to pay the note of another at maturity need not be in writing where the promise is made directly to the maker of the note and in consideration of its execution.</p> <p>Goods recently sold to plaintiff were attached by a creditor of her vendor, and in consideration of plaintiff’s giving her note and a mortgage on the goods for the debt, tbe vendor promised to pay the note at its maturity. The note and mortgage were assigned by the payee to the vendor’s brother, who foreclosed the mortgage. In replevin against the sheriff in possession of the goods under the foreclosure proceedings, plaintiff alleged that the vendor in fact paid the note, but instead of discharging the mortgage he fraudulently procured its transfer to his brother. It was shown that the brother had no money with which to buy tbe note, and it was conflicting as to whether the money with which the note was purchased was furnished him by the vendor or another person. Held, That a judgment for plaintiff would not be disturbed.</p> <p>Where, in the cross-examination of a witness, the defendant brings out the fact that the brother had stated he was to get money from an old school-mate, it is not error for the plaintiff to show, on the failure of the brother to testify at the second trial of the cause without any excuse shown therefor, that on a former trial the brother had stated he received money with which to purchase the note and mortgage from a certain person who was understood by the parties at the trial to be the old school-mate referred to, and then introduce the latter’s deposition to contradict him.</p> <p>In an action against a sheriff for conversion of goods, where plaintiff testified that she gave §785 for certain goods, depending largely on the vendor’s word as to their value, and another witness testified that the goods were worth about §800, while the defendant testified that he obtained §378.40, the best price possible for the goods at sheriff’s sale, a verdict for §975, including interest from time of conversion, will not be set aside as excessive.</p> <p>Where it appears that the verdict in an action of replevin was for damages only, it is sufficient without being in the alternative for a return of the property'or for the value thereof in case a delivery cannot be had, when the point was not raised in the court below.</p> <p>(Andebs, C. J., and Hoyt, J., dissent.)</p>

<p>APPEAL — EXCEPTIONS — COUNTY COMMISSIONERS — ILLEGAL CONTRACT —ESTOPPEL.</p> <p>Where judgment is given on the pleadings in an equity case, an appeal may be maintained therefrom, though no exception is taken.</p> <p>Although the contract of county commissioners for the building of a county road may he illegal, and the issue of warrants in payment therefor unauthorized in excess of a certain amount, the payment of such warrants will not be enjoined at the suit of taxpayers who themselves signed a petition for said improvement, had knowledge of the contract at the time it was made, and stood by and permitted the work to be carried on without objection until the road was completed.</p>

<p> Appeal from Superior Court, Spohane County. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Spokane Covmty. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Spokane County. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Skagit County. </p> <p>The facts are fully stated in the opinion.</p>

<p>Error to Superior Court, Pierce County„</p> <p>The facts are fully stated in tbe opinion.</p>

<p> Error to Superior Court, Pierce County. </p>

Action by D. A. McIntosh against Fred Furth, as mayor, J. J. White, as clerk, J. S. Watson, as treasurer, and A. P. Curry, as police magistrate, of the city of Spokane Falls, to enjoin the payment to said police magistrate of the salary of $150 per month as provided by an ordinance of said city. Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

<p> Appeal from Superior Court, King County. </p> <p>The facts are stated in the opinion.</p>

C. Ellis against Alexander McLeod', for the conversion of trees, commenced in the territorial court for the second judicial district of Washington Territory, holding terms at Olympia, in Thurston county. Both Pierce county, where the land was located upon which the trees had been cut and carried away, and Thurston county, where both parties to the suit resided, were portions of the second judicial district of Washington Territory.

<p> Appeal from Superior Court, Pierce Cowaty. </p>

Littlejohn from disturbing plaintiff in his possession of the premises described in the lease.

Action by A. J. Littlejohn against William Schulte to obtain possession of leased premises, after the alleged termination of defendant’s right thereto. Trial by jury, and verdict and judgment for plaintiff. Defendant appeals. The facts are sufficiently stated in the opinion.

<p> Original Proceedings in Habeas Corpus. </p>

<p>Original Proceeding in Habeas Corpus.</p>

<p>ATTACHMENTS — MOTION TO DISCHARGE — PRACTICE — APPEARS.</p> <p>A motion to discharge an attachment is addressed to the consideration of the court or judge, and the statute of this state (Laws, 1885-6, p. 45) does not contemplate the interposition of a jury to determine it, or to aid in its determination.</p> <p>When the motion to discharge an attachment is made hy defendant upon affidavits, the plaintiff may oppose the same by affidavits or oral testimony; but the defendant has no right, in the first instance, to introduce any testimony other than affidavits in support of his motion.</p> <p>A motion to discharge an attachment on the ground of the insufficiency of plaintiff’s affidavit therefor, should point out explicitly the nature of the insufficiency.</p> <p>Affidavits used upon the hearing of a motion to discharge an attachment are not part of the record, and, in order to he available on appeal, must he brought up by a statement or bill of exceptions.</p> <p>An attachment may be dissolved upon the motion and affidavit of hut one of several defendants.</p> <p>An order of the superior court discharging an attachment is not reviewable on appeal under the laws of this state for the removal of causes to the supreme court (Laws, 1889-90, pp. 333, 336).</p>

<p>Appeal from Superior Court, Pierce County.</p> <p>The facts are fully stated in the opinion.</p>

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

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

<p> Appeal from Superior Court, Kitsap County. </p> <p>Action by J. M. Sparkman and others to foreclose liens on certain lumber and shingles, the property of the Builders’ Material Company. Dexter Horton & Co., bankers, are made defendants, because they hold a chattel mortgage on said lumber and shingles, which plaintiffs claim is subject to their rights therein.</p>

<p> Appeal from Superior Court, Kitsap County. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p> Appeal from Superior Court, Pierce County. </p> <p>The facts are fully stated in the opinion of the court.</p>

<p> Appeal from, Superior Court, Kittitas Cou/nty. </p> <p>The facts are fully stated in the opinion.</p>

Action of claim and delivery of personal property by Dexter Horton & Co., Bankers, a corporation, against Reynolds and Battersby Bros., a copartnership.

<p>Appeal from Superior Court, Kittitas County.</p> <p>Action to foreclose a chattel mortgage given by Lloyd & Co. to the Iowa National Bank to secure an alleged bona fide debt of 1)17,500. Turner & Jay, who were judgment creditors of Lloyd & Co., intervened, claiming the mortgage to be void as to them, under the insolvency laws of Washington Territory. Plaintiff’s demurrer to the petition in intervention was sustained, and the intervenors refusing to plead further, judgment was given against them, from which ruling of the court, and the judgment thereon, intervenors appeal.</p>

<p>Appeal from, Superior Court, King County,</p> <p>Action by appellees as widow and children of J. N. Hanson, deceased, to recover damages for his death, under § 2059 of the code. There was no allegation in the complaint that plaintiffs sustained any damages, except to their means of support. The court instructed the jury that under the evidence the plaintiffs would be entitled to any damages that they may have sustained by reason of the intoxication of deceased to their property, person or means of support.</p>

<p> Appeal from, Superior Court, Pieree County. </p> <p>Ejectment by the Tacoma Building & Savings Association against Alexander Reed and Louise D. Reed, his wife. Judgment for plaintiff, and defendants appeal.</p>

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

Action by L. T. Castor against W. H. Peterson upon a promissory note payable to tbe order of Mrs. E. E. Pool, and indorsed by her before due to the plaintiff. L. Pool, the husband of Mrs. E. E. Pool, filed a petition of intervention, setting up facts tending to show that the promissory note was community property, and demanded judgment against the defendant Peterson for the amount of said note. Judgment for intervenor, and plaintiff appeals.

Action by George H. Greer against William Bquire to quiet title to certain lands in Pierce county, Washington. Trial by tbe court, which made certain findings of fact and conclusions of law, on which judgment was rendered for plaintiff. The findings having been lost, both parties agreed upon a copy thereof, wbicb was duly substituted and filed by order of tbe court.

<p> Appeal from Superior Court, King County. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Yakima County. </p> <p>The facts are fully stated in the opinion.</p>

Suit for injunction brought by E. H. Hatfield against After the complaint was filed, and a temporary order issued, plaintiff filed an amended complaint, which alleged, in substance, that he was the owner of certain upland bordering and abutting upon the high water mark of Puget Sound j that by reason of such ownership he was entitled to certain littoral rights in and to the shore opposite his lands, and that the appellants were occupying the shore opposite his land, and…

<p> Appeal from Superior Court, Lincoln County, </p> <p>The facts are fully stated in the opinion,</p>

<p>Appeal'from, Superior Court, Pacific County.</p> <p>The facts are fully stated in the opinion.</p>

Tlie facts will be found fully stated iu this opinion, together with the opinion in the case of Edwards v. State, ante, p. 291.

<p>CONTRACT — EVIDENCE.</p> <p>In an action by plaintiff to recover for services in superintending the construction of defendant’s buildings, where plaintiff makes no definite statement of the manner of his employment by defendant, and the evidence shows that plaintiff was under contract with defendant’s architects at a stipulated price per day to superintend the construction of certain buildings, including those of defendant, and that defendant was to make up to the architects any deficiency that might exist in plaintiff’s wages after the architects had appropriated therefor a certain per cent, they were to receive on the other buildings, a judgment for plaintiff is unwarranted.</p>

<p> Appeal from ¡Superior Court, Pierce County. </p>

Motion to dismiss the appeal. The appellant, in opposition to the motion, filed the affidavit of Fred T. Peet, the attorney of record in the cause below, as follows: “That on or about the 9th day of July, A. D. 1890, this affiant duly argued a motion for a new trial before Judge Allyn in open court on behalf of said Murphy, appellant; that at that time Judge Allyn notified this affiant that he, Judge Allyn, should be absent from the State of Washington for about sixty days…

<p> Appeal from Superior Court, Kittitas Comity. </p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from Superior' Court, Columbia County.</p> <p>The facts are fully stated in the opinion,</p>

<p>•COUNTY TREASURER — ACTION ON BOND — REFEREE’S BINDINGS — COUNTY COMMISSIONERS — POWERS OB — ACCOUNTS.</p> <p>On the appeal of an action tried before a referee, the supreme court will assume, in the absence of the evidence, that the facts found by the referee are true, and that the evidence warranted the findings.</p> <p>In an action on the bond of a county treasurer, the findings by a referee that the principal defendant was the duly elected and qualified treasurer of the county at the time complained of; that he and his sureties executed the bond described in the complaint; that while acting as such county treasurer, he received for the use of said county divers large sums of money, and that he did not account to the proper authorities for all the money so received by him; and that through mistakes and errors on the part of said treasurer, the auditor and the board of county commissioners, said treasurer did not pay over to his successor in office a certain sum out of the moneys received by him as treasurer for the use of said county, are sufficient to justify the conclusion of law by the referee that plaintiff was entitled to judgment against the defendants for said sum of money not accounted for.</p> <p>Under the organic act of the Territory of Washington (Rev. St. U. S., § 1907), boards of county commissioners could not be clothed with judicial powers, even by act of the legislature, and the power exercised by said boards in making settlements with county treasurers is of a ministerial character, and not binding upon the county.</p> <p>Where the accounts sued on are public accounts, equally accessible to defendants as to plaintiff, it is not error for the court to refuse to order plaintiff to furnish a bill of particulars to defendants, as it is a matter resting largely in the discretion of the trial court whether a bill of particulars should or should not be ordered in a particular case.</p>

<p> Error to District Court, King County. </p>

<p>PUBLIC LANDS —TOWN SITES — MUNICIPAL INCORPORATIONS — KNOWLEDGE OP ENTRYMAN.</p> <p>The special act of the territorial legislature oí Washington (Laws 1869, p. 437), incorporating the city of Seattle, does not come within the prohibition of the organic act (Rev. St. U. S., § 1889) against granting private charters or special privileges, as such act of incorporation is the grant of a public charter.</p> <p>Plaintiff’s grantor in 1874 pre-empted vacant, unoccupied public lands which had been included in the coi’porate limits of the city of Seattle in the year 1869 by the act of the territorial legislature incorporating said city, and did not ascertain until after entry that the land was within said corporate limits. The secretary of the interior, in 1879, canceled the entry, on the ground that, as plaintiff’s grantor was at the time marshal of the city of Seattle, he must, by virtue of his office, have known that the land pre-empted was within the corporate limits. Held, That the secretary’s decision was erroneous, as, under § 2 of the act of congress of March 3, 1877 (19 U. 8. St. at Large, 392), confirming entries which, though regular in other l-espects, had theretofore been allowed upon lands afterward ascertained to have been embraced in the corporate limits of any town, no knowledge of the law or the fact of incorporation can be imputed to the entryman. (Hoyt, J., dissents.)</p>

<p>COUNTY BONDS — POWBB TO ISSUE — CONSTBUCTION OE STATUTE.</p> <p>Under the act of March 21,1890 (Laws 1889-90, p. 37), the board of county commissioners of any county can issue bonds of the county for the funding of outstanding warrants without a vote of the people of the county, where the amount of the existing indebtedness of said county is less than one and one-half per centum of the taxable property of said county, as ascertained by the last assessment for state and county purposes.</p>

Trial of Albert Freidrich for murder upon an indictment as follows: “Albert Freidrich is accused by the grand jury of the Territory of Washington for the counties of King and… Held: contrary,” etc. Defendant demurred to the indictment on the following grounds: “First: That the same stated no facts sufficient to constitute the crime of murder. “ Second: That the same did not substantially conform to the Code of Washington.” The demurrer was overruled and exceptions allowed.

<p>CONSTITUTIONAL LAW — COSTS ON APPEAL — DEPENDANT WITHOUT MEANS.</p> <p>A person convicted of murder is entitled, on appeal, to a transcript of tbe record at the expense of the public on showing that he is without means and unable to pay the clerk's fees therefor. (Dunbae, J., dissents.)</p>

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

<p>CONTEMPT — SUSPENDIN& ATTORNEY PROM PRACTICE — MANDAMUS.</p> <p>Where the superior court has lined an attorney for contempt and entered an order suspending the attorney from practice in that court-until he has purged himself of the contempt by apologizing, the supreme court can intervene by mandamus to compel said court to vacate and set aside the order of suspension.</p>

<p>EMINENT DOMAIN — GENERAD AND SPECIAD STATUTES — REREAD BY IMPDICATION.</p> <p>The intention of the legislature in enacting laws should be ascertained ; and, if it sufficiently appears that it was intended that a subsequent general law should supersede all prior legislation upon the same subject, general or special, though not expressly so stated, effect should be given to such purpose.</p> <p>The aot of February 1,1888 (Laws 1887-8, p. 58), providing a general and complete method of ascertaining and obtaining damages in consequence of the appropriation of land by corporations for railway purposes, requiring actions to be brought in the district court, and declaring the remedy exclusive of all others, repeals by implication the provisions of the charter of Spokane Falls (Laws 1885-6, p. 304, \ 11) allowing actions for damages to abutting property from building railroads in streets to be recovered before a justice of the peace.</p>

The eleventh and twelfth counts of the complaint alleged that defendant executed to plaintiff’s assignor certain notes, which were not due, but that nothing but time was wanting to fix an absolute indebtedness thereon, and that defendant had disposed of his property with intent to defraud his creditors. The answer denied that defendant had so disposed of his property.

<p>RAILROADS — ACCIDENTS TO PASSENGERS — NEGLIGENCE — INSTRUCTIONS — PLEADING.</p> <p>In an action by a passenger for injuries received from the falling of an upper berth in a “ free emigrant car ” while she was away from her seat warming herself at the stove, it is not necessary for her to plead and prove the necessity for leaving her seat, as contributory negligence is a matter for the defense to establish.</p> <p>Where plaintiff testified she thought it was a brakeman who raised the berth which afterward fell and crushed her fingers, and letters written by her to the company soon after the accident were put in evidence, in one of which she said she was injured through the negligence of an employé of the company, and in another she stated that it was a newsboy who raised the berth, there was sufficient evidence to sustain a verdict for plaintiff, as the jury might have believed from her testimony that it was a brakeman who negligently raised the berth. (Stiles, J., and Anders, C. J., dissent.)</p> <p>Although an instruction, standing alone, may be erroneous, yet it cannot be complained of, if the instructions, taken as a whole, fairly state the law applicable to the facts.</p> <p>Where the complaint contains an allegation that plaintiff has been compelled to pay a certain sum for medical treatment and nursing, evidence thereof is admissible, without being pleaded as a distinct cause of action.</p>

<p>ESTOPPEL — BECOBDED PLAT — TIDE LAND LOTS.</p> <p>Where one purchases lots according to a recorded map or plat thereof, which are partly upland and partly tide land, with an alley and other lots platted oyer tide water in front of them, the purchaser is estopped from claiming any rights beyond the platted boundaries of his lots, as against the rights of the public in said alley, and of those in possession of the lots beyond such alley. (Stiles, J., dissents.)</p>

<p> Error to District Court, King County. </p>

<p>Error to District Court, King County.</p>

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

Suit by X). A. Mitchell against J. B. Kilroy to foreclose a mechanic’s lien, to which the defendant interposed a counter-claim for damages. Judgment for plaintiff, and defendant appeals.

<p> Appeal from Superior Court, Walla Walla County. </p> <p>The facts are fully stated in the opinion of the court.</p>

Suit for divorce by David H. Webster against Sarab A. Webster. Defendant answered and also filed a cross-complaint upon wbicb a decree oí divorce was rendered. The court made, among others, the following finding of facts: “IN.

Action in ejectment by Virginia N. Taylor, executrix of the last will and testament of Frank E. Taylor, deceased, against Michael J. Smith. In December, 1885, one Frank E. Taylor, a major of the United States army stationed at Vancouver, Washington, held the legal title to the lands described in the complaint in this action.

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

Action by the Sander-Boman Neal Estate Company against the estate of Sarah B. Yesler, and others, for the specific performance of a contract by decedent to convey real estate. There was a decree directing the conveyance. Subsequently the decree was set aside on petition of Lucinda Hoehstettler, one of the heirs of Sarah B. Yesler, and permission granted her to appear and defend. Plaintiff appeals from this order.

Action by E. E. Long, trustee, to foreclose a mortgage executed by Builders’ Material Company, to which Dexter Horton & Co. were made defendants, on the ground that they claimed to have some interest in the property. The Builders’ Material Company never appeared or answered, and judgment was entered against it by default.

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

Action for specific performance of an oral agreement for the sale of land by Andrew Gustave Peterson and Christina L. Peterson against Mary Janson, the contract price being alleged in the complaint as the sum of $350.

<p>APPEALS — FAILURE TO FILE TRANSCRIPT AND BRIEF.</p> <p>Where appellant fails to file a transcript and to serve and file a brief as provided by law and the rules of this court, an$ gives no reason or excuse for such failure, the appeal will be dismissed.</p>

<p>Appeal from Superior Court, King County»</p> <p>Tbe facts are fully stated in tbe opinion.</p>

<p>MECHANICS’ LIENS — FIXTURES.</p> <p>There can be no lien obtained upon personal property not attached to a building so as to become a part of it, under the provisions of chapter 138, Code 1881, “relating to liens of mechanics and others upon real property.”</p>

<p>PIBE INSTJBANCE — ACTION ON POLICY — LIMITATION AS TO TIME.</p> <p>Where a policy of fire insurance provides that no action thereon “shall be sustained unless commenced within six months after the ñre shall have occurred,” the period of limitation begins .to run from the date of the fire, although another clause of the policy may provide that “no loss shall become due and payable” until proof of loss is made, and examined into by the insurance company. (Dtjnbab, J., dissents.)</p>

<p>APPEAL — STATEMENT OP PACTS — DUTY OP TRIAL JUD0E — EXHIBITS IN EQUITY OASES.</p> <p>It is the duty of the judge who tries a case, when required, “to settle between the parties what is the proper statement, and to certify the same; ” and it is not a sufficient excuse for not settling and certifying a statement of facts, to say that the transcript of the evidence is held by a stenographer for the purpose of securing his fees, when such transcript has already been filed in the cause and subsequently withdrawn from the files with the judge’s permission.</p> <p>In causes of equitable cognizance, the original exhibits should be sent up on appeal, and not copies thereof.</p>

Action by George W. Yail against Charles Tillman, in his own right, Charles Tillman, as administrator of the estate of Laura M. Tillman, deceased, Walter Tillman, Burt Tillman, Howard Tillman, and Cora Tillman, minors, for specific performance of a contract to convey lands. A demurrer to the complaint was sustained, and plaintiff appeals.

Certified from Superior Court, Pierce County. Application by W. C. P. McGovern to the superior court of Pierce county for a writ of mandate to compel James C. Fairchild, county treasurer, to pay certain school warrants authorized by the school directors of a certain district which had been included within the city limits of Tacoma by a recent extension thereof. The court granted a peremptory writ, and certified certain questions to the supreme court for its opinion thereon.

<p>NUISANCE — ABATEMENT — EQUITY — PLEADING — APPEAL — MOTION POR NEW TRIAL.</p> <p>Under Code 1881, § 450, the supreme court may review and reverse on appeal any judgment of the superior court, although no motion for a new trial was made in such court.</p> <p>Under Code 1881, § 103, providing that every material allegation of new matter in the answer not controverted by the reply shall, for the purpose of the action, be taken as true, it is error for the trial court to treat affirmative matter in the answer as denied, and permit testimony to he given accordingly.</p> <p>The obstructing of a public road by building a fence therein is a nuisance which may be abated by any person Injuriously affected thereby, provided it be done without committing a breach of the peace, or doing unnecessary injury.</p> <p>Where plaintiff, in violation of law, places and maintains his fence upon a public highway, a court of equity will not grant him relief by injunction against parties destroying or threatening to destroy such fence.</p>

<p>APPEAL — STATEMENT OP FACTS — NOTICE OF SETTLEMENT— Where the record on appeal does not disclose that notice of settlement of the statement of facts included therein was given appellee, nor that there was a waiver thereof, and there is no appearance by appellee in this court, the purported statement will be disregarded. The notice required to be given the opposite party for the settlement of a statement on appeal is jurisdictional, and there can be no presumption in favor of its having been given, or waived. PRESUMPTION.</p>

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

<p> Appeal from, Superior Court, Wkateom County. </p> <p>The facts are fully stated in the opinion.</p>

<p> Appeal from Superior Court, Lewis County. </p> <p>The facts are fully stated in the opinion.</p>

<p>VENDOR AND VENDEE — MISREPRESENTATIONS — MUTUAL MISTAKE — ACTION ON DEBT NOT DUE — STATEMENT OP PACTS.</p> <p>In an action upon a promissory note given in part payment for a tract of land represented by the plaintiff as containing 36M acres when in fact it only contained 26K acres, plaintiff can only recover for the balance of purchase price on 26M acres, whether he knew the representation to be false, or whether there was a mutual mistake by both parties to the contract.</p> <p>In an action upon a note not yet due, where the allegations of the complaint, that defendants have disposed of their property with intent to delay and defraud creditors, and that they are about to depart from the state without making any provision for payment of the note, are denied by the answer, and no proof is offered at the trial in support of such allegations, judgment for plaintiff is unauthorized.</p> <p>A statement of facts not certified by the trial judge will not be considered by the supreme court.</p>

<p>Appeal from Superior Court, King County„</p> <p>The facts are fully stated in the opinion.</p>

Motion by appellees to strike statement of facts from the record, and to affirm the judgment, because said statement is not certified as a statement of facts by any officer authorized to certify the same.

This is an appeal from the judgment of the superior court of King county, in a proceeding by the relator for a writ of prohibition against the respondents, by which judgment the motion of the respondents to quash the alternative writ of prohibition first issued having been treated as a demurrer to the affidavit upon which the application for the alternative writ had been granted, was overruled, and the writ of prohibition was made absolute.

<p>INSOLVENCY — DISCHARGE — FORECLOSURE OF MORTGAGE.</p> <p>Where a decree of foreclosure was rendered, against a debtor a few days subsequent to his discharge in insolvency, but before the order of discharge was entered, and the debtor failed to apply to the court to limit plaintiff’s recovery in the foreclosure proceedings to the proceeds of sale thereunder, the discharge will not prevent a recovery of any deficiency remaining after sale of the mortgaged premises.</p>

<p>APPEAL — NOTICE—FILING TRANSCRIPT.</p> <p>Where the court in a cause of equitable cognizance delivered his findings and decree to the clerk to be filed, and defendant thereupon gave notice in open court of appeal, and ordered and paid for a transcript, which the clerk failed to prepare and file within thirty days thereafter, on the ground that he had not entered the decree because plaintiff had not paid the fees therefor, no laches can be attributed to the defendant.</p>

P. Curry against the city of Spokane Falls to recover for services as police justice. Judgment for plaintiff by default on defendant’s failure to answer. Motion by defendant to set aside the judgment on the ground that he failed to answer because he thought the city had no meritorious defense, but subsequent to default he had learned that the city had what he believed to be a good, sufficient and legal defense. Motion denied.

The petition names as defendants the mayor, clerk, comptroller, assessor, board of delegates and board of aldermen of the city of Seattle. The superior court quashed the writ of review, affirmed the proceedings of the city council, and rendered judgment against plaintiff for costs. Plaintiff appeals.

<p> Original Application for Habeas Corpus. </p>

Information against John G. Lybarger for the crime of seduction. The crime was committed in the year 1889, prior to the admission of Washington Territory to statehood. The information was filed in the year 1890, and defendant was tried and convicted thereunder, whereupon he appealed to this court.

Action by J. C. Rathbun against Thurston county on a contract for publishing a delinquent tax list. Judgment for plaintiff for part of his claim, from which judgment he ■appeals.

Quo warranto on the relation of J. E. Smith, mayor of the city of Vancouver, Washington, in his official capacity, to oust from the office of city councilman of the city of Vancouver the appellant, A. F. Mills. Vancouver is a city of tbe third class, organized under Laws 1889-90, p. 131.

<p>MUNICIPAL CORPORATIONS — ISSUANCE OP BONDS — INDEBTEDNESS — ASSENT BY VOTE — CONSTITUTIONAL LAW — CONSTRUCTION OP STATUTES — ELECTIONS.</p> <p>Where street improvement warrants, under powers conferred by a city charter, are payable from funds derived by creating local assessment districts within which a special levy could be laid upon the property to pay for the entire expense of street improvements, and the agreement with the contractors for work upon such improvements was that they should be paid “out of a special fund,” the indebtedness created is not within the meaning of the constitutional limitation on municipal debt.</p> <p>Where, under a charter power to widen streets and to condemn such real estate as may be necessary therefor, a city has taken possession of condemned lands, without collecting benefits assessed therefor, or making payment of damages awarded thereon, the neglect of the city does not make such condemnation awards a part of the general municipal indebtedness.</p> <p>The act of February 26, 1890 (Laws 1889-90, p. 225), empowering cities and towns organized prior to the adoption of the state constitution to extend their credit and fund their indebtedness, and validating certain indebtedness already created, is not unconstitutional by reason of embracing more than one subject.</p> <p>The application of the act of February 26,1890, to cities and towns existing at the time of the adoption of the constitution is not in violation of article 11, § 10 of that instrument, requiring the incorporation, organization and classification of cities in proportion to population, as at the same session of the legislature in compliance with this requirement, the same authority was conferred upon municipal corporations to be thereafter organized; and the legislation of the session on this subject, though not all contained in one act, was uniform and universal in its operation.</p> <p>Section 5 of the act of February 26,1890, validating the existing indebtedness of any city or town, contracted for strictly municipal purposes, where the same exceeds the amount authorized by the charter of such city or town, and providing further that if the excess reach beyond one and one-half per cent, of the taxable property, three-fifths of the voters of the town must assent thereto, is not a void exercise of legislative power, as it falls within the principle that where a municipal corporation has done an act beyond its statutory powers, but within the powers which it was competent for the legislature to have conferred upon it, the act may be validated by a curative statute.</p> <p>The act of March 7,1891, providing for an election for the validation of warrants issued in excess of the one and one-half per cent, limit by any city or town having a corporate existence in the state is not unconstitutional on the ground of special legislation, but is a curative act, applicable only to what had been done before the date of its passage.</p> <p>As the language of the constitutional provision permitting cities to incur an indebtedness up to five per cent, of their taxable property, when authorized by the legislature, is not certain to the effect that the legislature must provide that the three-fifths vote of the citizens therefor shall be an antecedent one, the act of March 7, 1891, authorizing elections to ratify existing municipal indebtedness in excess of the one and one-half per cent, limit, is not unconstitutional.</p> <p>An election to ratify municipal indebtedness in excess of the one and one-half per cent, limit, and an election to authorize the issuance of bonds to fund the debt thus ratified, together with other debt, under separate ordinances providing for the submission of both propositions to vote on the same day, can lawfully be held at the same time and places, and but one notice of election embracing the two ordinances is required.</p> <p>The city of Seattle having contracted for a sale of its bonds at an agreed price in advance of the authorization of their issue by popular vote, and of the validation of tho indebtedness to be funded by the bonds, it was proper, under the charter of said city, to submit the proposition of sale to vote at such election.</p> <p>A proposition to issue $460,000 worth of bonds, or such lesser sum as may be sufficient, is not objectionable on the ground of indefiniteness, when the only authority to be given the city officers is to issue bonds to an amount sufficient to take up $370,979.44 worth of warrants with legal interest thereon.</p> <p>It is not necessary that the proposed bonds be of the kind prescribed by the act of March 26, 1890 (Laws 1889-90, p. 520), as the provisions of that act apply specially to bonds issued to raise money for water, sewer or light plants.</p>

<p>PRINCIPAL AND AGENT — VIOLATION OF CONTRACT — DAMAGES — EVIDENCE — REFRESHING MEMORY — ADMISSIONS.</p> <p>In an action for breach, of a contract whereby plaintiffs were appointed general agents of the defendant building association with sole authority to solicit members and collect admission fees in certain territory, plaintiffs will be entitled merely to nominal damages, where the only material showing at the trial was that sales had been made by other parties in plaintiffs’ territory without their knowledge or consent, and there was no proof of the number of shares sold nor of the actual damage resulting therefrom to plaintiflb.</p> <p>A party testifying as a witness cannot refresh his memory of the number of shares of stock sold by referring to a written list copied by him from an extract of the record made by an under clerk of the building association; nor is the admission of the president of the association, to whom the original had been shown, that “it was cor-root in the total,” competent evidence, when the paper shows no total.</p>

<p>Appeal from Superior Court, Pierce County.</p> <p>The facts are fully stated in the opinion.</p>

Action in ejectment by Milton L. Baer against the Moran Brothers Company, a corporation, for a tract of tide land included within a larger tract selected and located by plaint» iff with Valentine scrip. A demurrer to the complaint was •sustained, and from the judgment dismissing the action plaintiff appeals.

<p>Appeal from Superior Court, Spokane County.</p> <p>The facts are fully stated in the opinion.</p>

Hill, executrix of William 0» Hill, against Charles and Ellen McSorley, for possession of real estate. In April, 1852, one X). B» Maynard, under the act of September 27, 1850, commonly known as the “Oregon donation law,” made settlement upon a tract of 640 acres of land in King county, as a donation claim.

<p> Appeal from, Superior Cowrtf King County. </p> <p>The facts are sufficiently stated in the opinion.</p>

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

Certified from Superior Court, King Cownty. Action by J. E. Austin and John H. Carr against the city of Seattle to enjoin tbe issuance and sale of street improvement bonds. Judgment for defendant. Plaintiffs appeal.

<p>Appeal from Superior Court, Kittitas County,</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>APPEAL —DISMISSAL —SURETIES ON BOND.</p> <p>On a motion of appellee to affirm judgment on the ground of failure of appellant to file transcript and brief within the time prescribed by law, there can be no judgment against the sureties on the appeal bond, when no copy of the bond has been filed in this court.</p>

<p>APPEAL — DISMISSAL — JUDGMENT.</p> <p>Upon affirming judgment of the court below against appellant for failure to prosecute his appeal after notice thereof duly served, and the filing of a supersedeas bond, this court will render judgment, unless sufficient excuse is shown for such failure against appellant and sureties on said bond for the amount of judgment and costs in the court below, and for costs in this court.</p>

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