Volume 2 — Washington Territory Reports

<p>Appeal from the Third Judicial District, holding terms at Seattle.</p>

<p>C sued B to recover one hundred and eighty dollars. B denied the right of recovery, and pleaded counter claim and set-off. C recovered judgment of less than one hundred dollars. Held, that B’s costs should he adjudged against O. Ebey v. Engle, 1 W. T. Kepts. ’ÍS. Over-ruled.</p> <p>A witness, on cross-examination, acknowledged he entertained feelings of hostility to the party against whom he testified. Upon re-direet examination, the Judge permitted him to state the grounds of his hostility, against the objections of the opposite party, but refused to allow such party to prove the falsity of the matters testified to by the witness. Held, that while such practice was not to be commended, it did not constitute an abuse of discretion in the trial Court.</p>

<p>Appeal from the Second Judicial District, holding terms at Kalama.</p>

<p>Error to the Third Judicial District, holding- terms at Seattle.</p>

The complaint, the sufficiency of which is passed upon, in the opinion of the Court, is as follows: ***** The Defendant is indebted to the Plaintiff,.............. in the sum of .... ....

<p>The degree of fulness and certainty required in the Clerk’s certificate of the record authenticated from the lower Court.</p> <p>In Washington Territory, an appeal from the District to the Supreme Court is taken in suits in Admiralty in the manner prescribed by the civil Icm.</p> <p>The method of appeal under the civil law stated.</p> <p>The allowance of such appeal by the subordinate Court is necessary, in order to confer jurisdiction upon the Appellate Court; but no particular formality, by which the allowance is made to appear, is required.</p> <p>In the absence of a rule or statute, such appeal must be taken during the sitting of the Court, or, at least, at the time of sentence.</p> <p>In the absence of rule, an appeal in Admiralty must be taken to the term of the Appellate Court, next after the term of the District Court, at which the decree was rendered.</p>

<p>This Court will not reverse a finding of fact, made by the trial Court, so long as there is evidence tending to uphold that finding, although from the evidence, this Court would make a different finding were the question presented to it as to the lower Court.</p> <p>In this country, the sale of chattels in the possession of the vendor carries with it a warranty of title which extends to incumbrances.</p> <p>If the vendee is not advised by the vendor of the facts constituting a breach of warranty of title, and does not discover the same until the delivery to him of the goods, he may, upon discovering such a fact, rescind the contract, by tendering back the property purchased, and set up the breach of the contract, against an action for the purchase price.</p> <p>It is not the duty of the vendee to pay liens, existing against such property at the time of the purchase, although he may do so, and make the amount so paid an offset against the purchase price, at the hazard, however, of the lien being a valid one, and the amount paid being correct.</p>

<p>If a written instrument constitute both a promissory note and a mortgage,, the holder, at his option, may recover a money judgment upon it, as a promissory note, or proceed to foreclose.</p>

<p>Error to the First Judicial District for Yakima county.</p>

<p>The owner of certain real estate entered into an agreement for the sale of the same and the execution of a deed, upon the vendee, as a condition precedent, paying the purchase price and its interest and all taxes accruing against the land.</p> <p>That non-payment of the agreed sums at the specified time should render moneys to be paid, at once due, with a right in the vendor of the foreclosure.</p> <p>Held, an executory contract of sale on terms, and an equitable mortgage, securing to the vendor the right to foreclose all interest of the vendee acquired in the property, for non-performance of the contract on the part of the latter.</p> <p>Held, also, that the vendor had the option of tendering a deed and recovering the purchase price of the land, or proceeding to foreclose the mortgage.</p> <p>When the Court improperly sustains a demurrer to the complaint; exception is allowed and an amended complaint is filed; judgment rendered against the plaintiff; his right of objection based upon the exception is not waived.</p> <p>All actions, for the causes mentioned in Sec. 48, Practice Act of 1877, must be brought in the Court of the County or District in which the subject of the action lies and the jurisdiction of such Court is exclusive.</p>

<p>Error to .First Judicial District, holding terms at Walla W alia.</p>

<p>Error to the Third Judicial District, holding terms at Seattle.</p>

<p>Appeal from Third Judicial District, holding terms at Seattle.</p>

<p>Error to Third Judicial District holding terms at Seattle.</p>

As- disclosed in the opinion of the Court, these actions were for damages, civil and maritime, resulting from a collision of the “ Ranier,” a vessel owned by the Puget Sound Commercial Company, and the Barkentine “ C. L. Taylor.” Each party instituted an action, but the two were consolidated for trial. The collision occurred off Cape Flattery, about the hour of nine o’clock in the forenoon.

<p>A loggers’ lien notice complies with the requirement of the statute in those respects, if it appears from the notice taken as a whole, what was the entire demand before the deduction of offsets, and what amount remained due after making such deductions.</p> <p>The lien of a vendor of timber attaches to each log, for the contract price per thousand feet, as if a separate contract of sale had been made respecting it.</p> <p>As between an attaching creditor and a mortgagee of the attached chattel, an attachment otherwise regular is valid, although the sureties on the attachment bond did not justify as to their financial responsibility.</p> <p>Actual prior notice of an unrecorded chattel mortgage does not give such mortgage precedence over the attachment of the creditor of the mortgagor.</p>

<p>The trial Court, in. a criminal prosecution, is authorized after the return of a jury into Court with its verdict, but before the reception of the same, to correct any erroneous instruction that may have been given — and send the jury back to deliberate upon a verdict, under the instructions as altered.</p> <p>In such case, the presumption is, the jury returned a verdict pursuant to the instructions as corrected.</p> <p>In this case, there being no evidence tending to show the fatal blow was accidental or in self defense, it was not necessary for the Court, in charging the jury, to so qualify the instructions as to meet a case of accident or self-defense.</p> <p>The distinction between an exhibit and the testimony of a witness, whether oral or in writing, pointed out.</p> <p>In applying the liberal rule of construction prescribed in Section 758, of the Code of 1881, to Section 231 of the same Code, which provides, among other things, that the jury may take to their room all papers admitted in evidence, it was not error on part of the trial Court t > permit the jury to take to their room a hat and blood-stained garment that had been admitted in evidence; the intention of the legislature being to give the jury the representations made upon or the ideas conveyed by the tangible matter termed paper, and not to narrow the term to its literal meaning.</p> <p>By necessary implication, Section 1105 of the Code authorizes the Court to permit such evidence to he taken to the jury room.</p>

<p>A gave a mortgage to B, which was defective for want of a scroll or seal, and in other respects, but which was placed on record in the County Auditor’s office. Subsequently he gave a mortgage to C, who had notice of the first mortgage, which was likewise recorded.</p> <p>After the second mortgage, A gave to B a new mortgage, to correct the defects of the first, and in lieu of it. Suit to foreclose the last mortgage of B was instituted, to which C was a party defendant, but made no appearance. B made defense of want of sufficient mental capacity to execute the mortgage, which was sustained. The decree of the lower Court was reversed on appeal to this Court, and a decree of foreclosure here entered and enforced.</p> <p>Service of the notice of appeal upon the Clerk of the District Court was evidenced by his own admission in writing, according to the practice up to that date.</p> <p>At a subsequent term of this Court, it was decided that the Clerk of the lower Court could not waive service upon him of the notice of appeal, and that such service was necessary to givé jurisdiction.</p> <p>Upon application made, this Court afterwards permitted the return to be so amended, as to show that notice of appeal had actually been served upon the Clerk of the lower Court.</p> <p>In the trial of the cause at bar in the Court below, question was made of the validity of the mortgage of B as against C, and also of the said foreclosure decree of this Court.</p> <p>Both were overruled, because adjudicated in the former suit.</p> <p>Appeal from Second District Court, holding terms at Olympia.</p>

<p>Error, to the First Judicial District, at Walla Walla,</p> <p>In addition to the statement of the case found in the opinion of the Court, the following facts disclosed by the record may be of assistance to a more correct understanding of the case. The judgment relied upon by the defendant was rendered in 1867, but had not been entered in the journal of the Court, nor was there any file-mark upon-it; neither was it attached b}*- any fastening to the papers in the case. The cause had been tried by the Court, a jury being waived. The present Clerk of the ■Court testified, against the objection of the plaintiff, that the findings and judgment entry were in the handwriting of the Judge then presiding; that on taking possession of the clerk’s office, the witness had found the same among the papers in the case; and he also found on the original calendar of such Judge, in the same handwriting, a memorandum to the effect that such judgment had been entered. Others also testified to the handwriting of the Judge. From this evidence, the trial Court found the judgment a valid and subsisting judgment, and that the same was conclusive against the plaintiff, as an adjudication of the title of the premises in dispute.</p>

Cockran & Day, loggers, who at the time were indebted to Crawford & Harrington, merchants, employed them, without compensation,.to sell for them a large quantity of logs, which the merchants did to one Sayward, operating a saw-mill. In making the sale, the merchants employed the mill-man to tow the logs to his mill, and there measure the same himself. After allowing the cost of towage, the merchants, credited the owners with the balance of the purchase price .

W. Hartley and one Theodore F. Barnes, of Nebraska, for the sale of what is commonly known as “ Soldiers’ Additional Homestead Scrip ” ; but of which alleged agency defendants in error claimed entire ignorance, and, on the contrary, produced numerous letters and writings, tending to show that he held himself forth as the owner of the scrip in which he dealt.

Terms at Seattle. Schwabacher Brothers brought an action ag’ainst James E. Murne, in the District Court holding terms at Port Townsend,, on a money demand, and obtained judgment against him by default before the Judge of the district, at his chambers at Seattle,, in February, 1876. Execution was issued on the judgment December 29,1881.

The following is the memorandum introduced in evidence, and in explanation of which the Court permitted evidence to be introduced, such as the place and circumstances under which the same was executed, and that Mrs. Dodge signed the same in the capacity of an executrix: “ Dodge’s Farm, November 13th, 1880. “ This is to certify, that I have this day sold to D. K. Baxter, of Seattle, W. T., seventy (70) tons of baled hay, more or less, stored in warehouse on slough bank, the…

<p>Error, to the Second District, holding terms at Olympia.</p>

<p>An action for damages, by reason of breach of contract, cannot be maintained by an unlicensed liquor dealer, for liquors purchased byhimto.be sold in violation of the license law, because such a contract is illegal, and also because to enforce it would be opposed to the policy of the law requiring liquor dealers to pay a license fee, to be used in the regulation of the liquor traffic.</p>

<p>Error, to the Third. Judicial District, holding terms at Seattle.</p> <p>Captain George D. Hill, plaintiff in error, was, prior to December, 1870, an officer in the regular army of the United States, at which time he was placed on the retired list, with the rank of captain.</p> <p>Subsequently, he was for a number of terms elected Treasurer of King County, in Washington Territory.</p> <p>He was reelected at the general November election of 1880, and entered” upon the duties of the office under this election.</p> <p>In the course of proceedings in the District Court at Seattle, it being publicly brought to the Court’s attention- that Captain Hill was holding this office in alleged violation of Section 1860 of the Revised Statutes of the United States, the Honorable El wood Evans, Prosecuting Attorney for the Third Judicial District, was directed to file an information in the name of the Territory, contesting his right to the office for the foregoing reasons.</p> <p>A demurrer was interposed to the information, because of want of jurisdiction of the Court over the subject matter ; because of want of capacity on the part of the Territory to maintain the proceedings by the Prosecuting Attorney; and especially because of an insufficiency of facts.</p> <p>From a decision of the Court overruling the demurrer, the cause was brought into this Court.</p>

<p>Appeal from Third Judicial District, holding terms at Seattle.</p> <p>Merritt, the appellee, sold and conveyed to appellants certain real estate for $2,000, the payment of which was evidenced by certain promissory notes, payable at future times, and bearing interest payable monthly in advance. These notes were secured by mortgage bn the property conveyed.</p> <p>Appellants were placed in possession of premises, and continued to reside upon and improve the same.</p> <p>After the decision of the Court upon various questions presented by the pleadings, appellants filed an amended answer, in which, by way of defense, they averred that Merritt’s wife had a dower interest in the premises, which Merritt agreed should be conveyed to appellants within one year — and that the notes and mortgage were conditional, to be valid if such dower interest was conveyed as agreed ; but if not, to be void.</p> <p>To this amended answer the plaintiff below demurred, and bis demurrer was sustained.</p>

<p>The provisions of Section 459 of the Code, that the clerk shall forthwith, upon payment of his fees, transmit a transcript of the record' in the cause, does not cast upon the clerk any unreasonable instantaneousness of action, nor does it, together witli the connected words, take from appellant the right, nor relieve him from the duty, of looking after and supervising, nor abridge the privilege of interrupting, the preparation of his transcript.</p> <p>The obvious intent of the language of said section is, that the clerk shall as quickly as may reasonably be, consistently with the nature of the record and the appellant’s actions and directions, send up the transcript.</p> <p>Failure of the transcript to reach this Court speedily, even after payment of fees, is not to he imputed to negligence of the clerk, until the presumption that lie has acted as he ought is fairly rebutted.</p> <p>Tinder Seotion 453 of the Code, a party to a judgment has a full six months within which to decide whether he will appeal.</p> <p>If the six months allowed for appeal expires within the thirty days required before the commencement of the term for service of the notice of appeal, or the fifteen clays for filing the transcript, no fault could he attributed to the appellant, if the failure to do either in time depended on that date.</p> <p>Such a case, and all others, where, through any circumstances beyond his control, the statutory provisions of Section 460 may not have been observed, are met and provided for in that clause of the section which says that, either of these provisions failing, there shall be no trial at the return term, unless by consent.</p> <p>Provision is made in Section 460, where omission or tardiness in filing trans-script has happened through some circumstance not under appellant’s control, or otherwise excusable; and in Section 461, provision is made for the rights of the appellee, in cases where the same was under appellant’s control.</p> <p>Great weight should be given to the liberal provisions of our Code, but the provisions of the section are not meant in any case to shield a man from. inexcusable neglect.</p> <p>Appellants failing to show any excuse whatever for failure to file the transcript in time, the cause.is dismissed.</p>

Error, to the Second Judicial District, holding terms at Olympia. The pleadings upon which judgment was rendered are set forth in the opinion of the Court.

<p>“When a trial by jury is waived, and trial is had by the Co&rt, the findings may be amended by the Court at any time before judgment.</p> <p>In ease of counter demands between parties, where no application of payments has been made by either party, the Court may make such application, and in a manner to effect equity, if not restrained by the pleadings.</p>

<p>The notice of appeal to this Supreme Court, and the notice in case of error, while intended by the legislature to be similar in structure, do not necessarily assume the same form. The one contains a particular description of the errors assigned, while the other contains only a specific list of injurious rulings, orders, or decisions. The object of both is to narrow the range of controversy, and to apprise the opposite party and the appellate Court of its extent.</p> <p>At common law, an assignment of errors was a pleading whose allegations were to be tested by the record, and the nature of our statutory notice is essentially the same. The list of objectionable rulings in the notice of appeal is not in the nature of a pleading, but rather of an election; but the same rules of brevity and simplicity should apply to the latter as to the former.</p> <p>In a notice of appeal, it is sufficient to state that the appellant has been aggrieved by the orders, rulings, and decisions following, and then severally enumerate them by descriptions sufficient to identify each.</p> <p>-A. bill of exceptions has no place and performs no offiee in a Chancery Court.</p>

Eeeoe, to the Third Judicial District, holding terms at New Tacoma. The plaintiff in error was tried and convicted for an offense under the laws of the United States, alleged to have been committed upon the high seas. The indictment contained no allegation that the district in which he was indicted was the one in which he was found or was brought. It did contain the general allegation that the offense was committed within the jurisdiction of t.he Court.

Error, to Second Judicial District, holding terms at Olympia. The defendant was charged with stealing one horse, the property of “.Mary,” whose name is to the Grand Jury unknown, and one horse, the property of -, whose name- is to the jury unknown. The proof showed that one horse was the property of Mrs. O’Shay, and that the witness did not know the name of the owner of the other hoi’se. This witness was not examined by the Grand Jury.

This was a suit in equity in which said city was plaintiff, and plaintiffs in error were defendants, to have a certain building occupied by defendants declared a nuisance, because in one of the public streets of plaintiff; to have the same abated as such,, and the ground upon which it stood declared a part of Second Street of said city.

<p>Error, to the Third Judicial District, holding terms at Seattle.</p>

' Error, to First Judicial District, holding terms at Dayton. This was an action for the recovery of the possession of certain personal property, or, for the value thereof, in case a recovery could not be had. Issues were joined ; the cause was tried by a jury; each party introduced proofs; a verdict was returned, and entered in favor of the plaintiff, for the return of the property, and for a given amount — the value of the property — in case it was not returned.

Error, to First Judicial District, holding terms at Walla Walla. This was an action of ejectment. The complaint alleges plaintiff’s ownership in fee, his right of immediate possession, and defendant’s wrongful possession for a number of years, and rents of the premises while so withheld.

Error, to the First Judicial District, holding terms at Walla Walla.

<p>¡By the language of the Donation Act there is granted to every man of a certain description, or if he has a wife, to him and her in equal parts, as shall be set off to them severally by the Surveyor General, a tract of land, on condition that the same shall be selected, resided upon, and cultivated a certain length of time ; subject to this qualification, that if either die intestate after compliance and before patent issues, the survivor and children or heirs of the deceased shall in equal proportions be entitled to the share of deceased.</p> <p>'Throughout the transaction of acquiring land under the Donation Act, the Government acts as seller, and the donee as purchaser ; and when selection, residence, and cultivation are completed, the transaction is closed. Nothing remains except for the donee to furnish proof of such compliance, and for the Government to furnish proof of title.</p> <p>The act and not the patent is the instrument which effects the transfer of title —the latter only evidences title, and relates back to the act.</p> <p>A claimant of title under patent, issued to the widow and heirs at law of a deceased donation claimant, is conclusively estopped from denying that such widow and children acquired title under that act.</p> <p>'The partition of property set up in this case, effected in the Probate Court, considered merely as a judicial proceeding, was void; but regarded as a voluntary proceeding entered into by persons of full age, or by minors through their guardians, under the supervision of and with the sanction of the Probate Court, was valid.</p> <p>If a guardian, in the management or disposition of the ward’s property, acts under judicial authority, no difference how irregularly exercised, such acts are valid against collateral attack.</p> <p>Though the act of a guardian in disposing of his ward’s property be void, still, if not disaffirmed by the ward, within a reasonable time after attaining majority, he will be deemed to have ratified it. \</p> <p>A parol partition, consummated by possession and dominion in severalty, confirmed by long continued acquiescence and many changes of title, will not be disturbed in equity.</p> <p>When one by bargain and sale, for a consideration received and enjoyed, undertakes to dispose of property lie does not own, his after-acquired title inures to the benefit of the vendee.</p> <p>Although there is no definite description of property to be sold in a, guardian’s, petition for sale, and although the notice of sale was published hut three,, when the statute prescribes four weeks; still the sale, having been confirmed by the Probate Court, will not he held void in a collateral attack, enough appearing to show the Probate Court was applied to, to act upon a definite matter within its jurisdiction.</p> <p>If such sale he held void, still the ward, having for many years after attaining-majority tacitly acquiesced in, and allowed without objection, valuable improvements to he made upon the property, cannot he heard to question the-validity of the sale.</p>

Plaintiff was united in marriage with the late Stephen H. Hilton, of Pierce County, Washington Territory, in said Territory, September 1G, 1871, and thereafter lived and cohabited with him until his death in said Territory, August 19,1873. At the date of the marriage, said Hilton was seized in fee of the lands described in the complaint, being two acres of land in New Tacoma.

<p>Error, to Third Judicial District, holding terms at Seattle.</p> <p>The action was commenced by the defendants in error, to recover the sum of $7,484.05, with interest at the rate of ten per cent, per annum, from the 10th day of November, 1881, upon the balance of a current account for goods, wares, and merchandise sold and delivered by them to the plaintiffs in error, and for money advanced by them to said plaintiffs in error, and for money paid by the defendants in error for the use of the plaintiffs in error, and for interest upon that account.</p> <p>The account referred to in the complaint extended from the 23d day of May, 1877, to the 31st day of December, 1880. The evidence shows that during all that time the defendants in error were commission merchants, dealing in wines and spirits, doing business in Liverpool, England, and the plaintiffs in error were merchants doing business in Seattle, Washington Territory.</p> <p>Their mutual dealings commenced under an arrangement made in December, 1876, whereby the defendants in error were to sell, or cause to be sold, for plaintiffs in error, on commission, such consignments of hops, furs, and other goods as might be made to them, and were to guaranty the proceeds, and were to receive for their services a commission.</p> <p>Under this arrangement, the dealings of the parties continued from the 3d day of May, 1877, until the 31st day of December, 1880. Accounts of sales, showing disbursements and charges and statements of accounts, were sent every six months. During all this time the parties were in correspondence, both by letters and telegrams. The defendants in error were advancing money to the plaintiffs in error, and making sales for them, and no objection was made by the plaintiffs in error to the items of the accounts, nor was the balance shown by these statements to be due the defendants in error questioned.</p> <p>Plaintiff in error contended that the accounts were not correct; that the reason he had not by correspondence pointed out their errors and sought to correct them, was, that it was his intention to see defendant in error in person, and thus bring about an adjustment of their differences.</p> <p>Against objection of defendant in error, certain depositions and statements of account were admitted in evidence, and in the course of the Court’s charge to the jury, the following instruction was given :</p> <p>“ The reception by defendants of accounts of sales rendered them by plaintiffs, and defendants’ failure to object to the accounts, affords only -prima facie evidence of the correctness of the accounts thus rendered; and the defendants may nevertheless show that such accounts are not correct by showing fraud, mistake or errors, and if the jury believe from the evidence that there are errors or mistakes, fraudulent or otherwise, in such accounts against the defendants, and of which defendants were not aware at the commencing of the suit, or which defendants, if aware of them, have not suffered to go an unreasonable length of time unobjected to, or which defendants show excuse satisfactory to the jury for not objecting to, then the jury are not bound by such accounts, but may correct such mistakes and errors as the evidence shall warrant.”</p> <p>Other questions were presented, but the foregoiug statement will explain the opinion rendered.</p>

<p>In the year 1879, A, the owner of a parcel of land, mortgaged the same to B, to secure the payment of $800.</p> <p>Afterwards, A and B discover the existence of a mortgage upon the same premises, to C, to secure the payment of a larger amount of money.</p> <p>Eor the purpose of having the latter mortgage removed, as a cloud upon the-title to the premises, A and B, without the knowledge of 0, allow the condition of their mortgage to he broken, by the failure to pay an installment of interest, and by mutual agreement enter a suit of foreclosure, making-O a party thereto ; in which B voluntarily appears, and consents to judgment.</p> <p>A decree is thereupon entered, subordinating G’s mortgage to that of B.</p> <p>The property is sold at sheriff’s sale to B, who agrees with A to purchase for the amount of the mortgage and costs, and reconvey the same to A upon, being indemnified.</p> <p>B refused to reconvey, upon compliance with the terms of the agreement one A’s part; whereupon A brings the present action.</p> <p>Held, that the foreclosure proceeding was a sham, a fraud upon the Court, and. npon C ; that no right was determined thereby, and that a Court of Equity-will grant no relief to either party claiming under such sham decree.</p> <p>It is against public policy for persons to agree or undertake to occupy the attention of Courts with pretended litigation, in which there areno questions, to be judicially determined.</p>

<p>Appeal from First Judicial District, holding terms at Walla Walla.</p>

<p>When S. contracted to furnish J. hrick sufficient to construct a building, at Spokane Falls, at a given price per thousand, but violated the «mtract, J., in an action for breach of contract, is entitled to recover the difference between the contract price, and what he was compelled to pay for brick necessary to complete the building.</p> <p>And if in this contract, S. agreed to furnish a superior quality of brick, for the purpose of lending ornament to the front of the structure, which he failed to do, and J. was compelled, by reason of such failure, to place inferior brick in the front of the building, J. would be entitled to recover as damages the amount of the lessened value of the building occasioned by the inferior brick ; but if upon the failure of S., J. made no attempt to procure such superior brick, and changed the plan of the front of his building, then he would not be entitled to additional damages.</p>

To appellee’s suit of foreclosure of a mortgage, given to secure the payment of two promissory notes, representing in part the purchase price of the mortgaged premises, the appellant, by way of recoupment of damages, pleaded a conveyance of the mortgaged premises by the appellee to appellant, by a deed of warranty save as to a single incumbrance, and also a corrective deed warranting against all manner of incumbrances — a breach of the covenants contained in such deeds, by…

<p>3Tm a transit ory action, the Statute of Limitations of the forum, and not that of the place where contract was made, governs : hence, when a maker of a promissory note, given in California, removes to Washington Territory before the statute of that State had run upon the note, he cannot thereafter, in a Court of Washington Territory, interpose the Statute of Limitations of California for the purpose of barring the action.</p>

<p>Error, to First Judicial District, holding terms- at Cheney.</p>

Error, to Third Judicial District, holding terms at New Tacoma. The plaintiff in error was indicted by the Grand Jury of the county of Pierce, at the May term of the District Court of the Third Judicial District of Washington Territory, holding terms at Tacoma, charged with the crime of keeping a house of ill-fame, resorted to for the purposes of prostitution.

Error, to Third Judicial District, holding terms at Seattle. In addition to the question presented in Bosencrantz v. Territory, infra, respecting the qualifications of married women to serve as grand jurors, the indictment in this case charged the-keeping of a gambling house within the corporate limits of the-city of Seattle ; but did not aver any county as the venue-of the-crime, nor the particular kind of gambling complained of.

<p>Married women are qualified to act as grand jurors.</p>

<p>Error, to Second Judicial District, holding terms at Olym-</p> <p>These plaintiffs in error were held to answer for a violation! of the game law, viz : hunting and pursuing deer with dogs in the county of Thurston.</p> <p>Upon the impaneling of the Grand Jury, it was found by examination of the individual members thereof that Agnes W. Prather and A. P. Elliott were each married women, residing: with their husbands, and John McPeavy, foreman of the Grand jury, and E. L. Willey and John T. Kelly, individual members-thereof, were residents of Mason County, a political division of Washington Territory to which that portion of the game law under which this indictment was found does not apply.</p> <p>The plaintiffs in error challenged these grand jurors.</p> <p>The challenge was disallowed by the Court, and the plaintiffs in error duly excepted.</p> <p>The question of the qualification of married women residing with their husbands to serve as grand jurors, was discussed in the briefs and authorities cited, substantially, as ins Rosenerantz v. Territory, infra.</p>

Error, to Third Judicial District, holding terms at Walla. Walla. The action was brought to this Court under the Act of 1883, relating to appeals, by giving notice of appeal in open Court. Ho assignment of error was made, and for that reason the defendant in error moved the Court to affirm the judgment of the lower Court.

Error, to the Third Judicial District, holding terms at Seattle.. Dr. H. B. Fox, plaintiff in error, having been indicted, tried,, convicted, and fined at the October term, 1883, of the Territorial Disti'ict Court in King County, for the alleged practicing of medicine for gain, without first having complied with the requirements of Chapter-169 of the Code, thereupon sued out a, writ of error to this Court.

On the 11th of December, A. D. 1882, Wells, Fargo & Company applied to the Judge of the District Court holding terms at New Tacoma for, and obtained, an ex parte interlocutory injunction against the Northern Pacific Eailroad Company. The order granted enjoined the Northern Pacific Eailroad Company,, its agents, servants and employees, from ejecting Wells, Fargo & Company’s messengers and express matter off the road of said defendant, then constructed and operated.

Error, to First Judicial District, holding terms at Walla Walla. - The complaint in effect set forth, among other matters, that Thomas K. McCoy died in the State of Illinois, on the 10th day of February, 1877. At the time of his death, his wife and family were living in a house in the city of Walla Walla, county of Walla Walla, in this Territory, and had been for some time prior thereto. The house was rented and furnished by said decedent.

The complaint in this cause states the following facts : That the defendant city is a municipal corporation, under and by virtue of the laws of Washington Territory, and has the exclusive control of its streets and walks ; that it was the duty of defendant to keep Third street, in said city, and the sidewalks therein, in safe condition for pedestrians; that defendant neglected this duty; that on the 1st day of October, 1882, and in the night time, the plaintiff, being…

<p>Error, to Third Judicial District, holding terms at Seattle.</p>

<p>If the owner of a stock of general merchandise gives a chattel mortgage ois his stock in trade, and continues to sell and dispose of the same, in the usual course of business, appropriating the proceeds of such sales to his own use. with the knowledge and consent of the mortgagee, the mortgage is void a» to the creditors of the mortgagor.</p> <p>In so holding, the Court follows the binding authority of the Supreme Court of: the United States, as laid down in the case of Robertson v. Elliott, 22 Wallace. 513, and does not attempt to establish a rule from the conflicting views off the State Courts on the subject.</p> <p>The Statutes of the Territory respecting chattel mortgages, and the registration thereof, do not change the rule of the common law, so as to relieve such a mortgage from being void as to third persons.</p>

Error, to First Judicial District, holding terms at Walla Walla. In this action the'complaint was filed on the 26th day of May, 1883, and the summons issued on the 26th day of April, 1883, and served on the 29th day of May, A. D. 1883.

<p>Error, to the Second Judicial District, holding terms at Olympia.</p> <p>The questions in this case involved the constitutionality of the ordinance of the City of Olympia, fixing the rate of license for saloons within the corporate limits of the City of Olympia, and prescribing the punishment for selling spirituous liquors without such license. No point is made as to the form or sufficency of this particular ordinance; but the sole question presented to this Court (as by counsel stipulated) is, Has the City of Olympia, under its present charter, power to pass an ordinance fixing the rate of liquor license at a greater sum than the maximum amount fixed by general law, and to prescribe punishment by fine and imprisonment for a violation of such ordinance ?</p>

<p>'The fact that the same person acted as chairman, or president of a meeting of the Board of Trustees of a corporation, and also as secretary thereof, -would not of itself invalidate its proceedings.</p> <p>It is not essential to the legality of an unstated meeting of a Board of Trustees of a corporation, that proof of the notice of such meeting he spread upon its records. Such proof may he supplied aliunde. Until proof to the contrary appear, the meeting will be presumed to have been rejularly called.</p> <p>The fact of a trustee of a corporation, who had a demand against the corporation, being present at a meeting of the Board of Trustees which gave the note of the corporation to such trustee inpayment, would not of itself invalidate the note.</p> <p>In the absence of statute to the contrary, a corporation can contract with one of its trustees, and he can treat with such corporation respecting said contract through its Board of Trustees, of which he is a member, and be present at their meeting for that purpose, so long a,s bis conduct is open and fair.</p> <p>"Whether under the circumstances the transaction was fraudulent, would be a matter of fact, to be established before a jury by the party alleging the fraud.</p>

Error, to Third Judicial District, holding terms at Seattle. In this cause, a notice of appeal was given, and entered in. the journal of the District Court under the Statute of 1883. Shortly thereafter a notice of appeal was filed and served, as-provided by the Code of 1881.

In this cause a notice of appeal was given, and duly entered in the journal of the lower Court, as prescribed by the Act of 1883. Afterwards the appellant served and filed a notice of appeal, conformably to the Code of 1881, and caused the evidence to be certified into this Court by the Clerk of the District Court, as such clerk is required to certify written evidence under Section 451 of the Code.

Ajppeal from the First Judicial District, holding terms at Walla Walla.

Sections 458 and 488 of the Code of Washington, relative to appeals, are as follows : Sec. 458. “ An appeal or writ of error is taken by filing with the clerk of the Court in which the judgment or order appealed from is entered, a notice, stating the appeal from the same, or some specific part thereof, and serving a copy of said notice on the adverse party or his attorney. “ Every notice of appeal or -writ of error must be signed by the party taking the same or his attorney…

<p>Penalty inflicted by the Court for non-compliance with its Rules VHI. and IX., respecting endorsements upon briefs, and failing to set forth names of parties to cases cited.</p>

<p>According to the weight of modem authorities, an action for breach of covenant for quiet enjoyment will not lie until there has been some hostile assertion of a better title than that obtained by the covenantee, and this the-Court adopts as the most equitable doctrine.</p>

<p>-A vendor who knowingly and fraudulently sells to an innocent purchaser, who relies solely on his representations, certain lots of little.or no value, representing the same to be certain other valuable lots, which he points out to the purchaser, is liablein an actionfor the deceit to damages in an amount equal to the difference in value between the property purported to be sold and that actually sold.</p>

This was an action at law, commenced by filing complaint and issuing writs of summons and attachment, tried before referee by consent, and judgment rendered by the District Court upon, findings of referee. Appeal was sought to be taken under the provisions of the Code of 1881, as from a decree in equity; the Court was asked to dismiss, because the cause had not been brought into this-Court by writ of error.

<p>The controverted allegations of a complaint, of the giving of a certain due hill for value received, may properly he supported hy showing that the maker had given the same in satisfaction of the payer’s interest in real estate, purchased in the name of the maker.</p>

<p>Wingakd, Associate Justice, dissents from the reasoning and conclusion as to the sufficiency of the indictment.</p> <p>Turner, Associate Justice, dissents from the reasoning of the Court as to the'thirteenth instruction, holding that the failure of the accused to offer evidence can in no case be regarded by a jury as a circumstance tending to establish guilt.</p> <p>Error, to Second Judicial District, holding terms at Olympia*</p> <p>The prisoner, Andrew J. Leonard, was found guilty of murder in the first degree, and sentenced to death, on an indictment that charged him with purposely and of his deliberate malice assaulting and shooting Ambrose Patton, from the effects of which Patton died. After setting forth the facts constituting the homicide, the indictment concluded: “ And so the jurors aforesaid do say * * * in manner and form aforesaid, said Andrew Leonard, the said Ambrose Patton feloniously, purposely, and of his deliberate and premeditated malice, by means of said gun and the shooting aforesaid, did kill and murder. * * ”</p> <p>The indictment is set forth at length in the opinion of the Court, as also the several instructions to which exception is made.</p> <p>The oath administered to the jury departed from that given in the Code in a capital case, in its closing sentence, to this extent ; that they should make a true deliverance of the prisoner whom they shall have in charge, “ according to the law and the evidence, as given them on the trial,” instead of the statutory words, “ according to the evidence.” There was no record entry relative to the service of a copy of the indictment upon the prisoner.</p> <p>The Court permitted a witness on behalf of the Territory, against the prisoner’s objection, to state the contents of a letter signed J. Jackson, because no foundation had been laid for the proof, and because there was no evidence to connect the evidence with the prisoner.</p> <p>The prosecution depended upon circumstantial evidence to establish the killing and the prisoner’s guilt; to overcome the effect of such proofs, the prisoner offered to prove by a witness that a certain person was seen near the place where the body of deceased was found, who, shortly before Patton’s death, entertained feelings of hostility toward, and who had threatened the life of deceased; but the evidence was rejected. In the course of the trial, the Court also refused to admit in evidence a map of the place of the supposed murder, because the map was ¡so written over as to bear upon its face many statements of a hearsay character.</p> <p>Instructions were given the jury as to a reasonable doubt as to the sufficiency of the evidence as to presumptions arising from the failure of the prisoner to explain certain circumstances, all of which will appear in the opinion of the Court.</p>

The appellant, who was plaintiff in the Court below, filed his complaint on January 23, 1885, alleging in substance as follows: 1. That plaintiff was, and for more than ten years last past had been, the owner of the real estate therein described. 2. That during said period he had been continuously in the lawful, peaceable, quiet, undisturbed and actual possession and enjoyment of the same. 3.

<p>Appeal dismissed, because a complete transcript was not certified to this. Court, and because the brief of plaintiff in error was not filed within the-time prescribed by Rule X. of this Court.</p>

Error, to the Third Judicial District, holding terms at Seattle. This action was brought against the appellant and the Seattle Gas Light Company, upon a promissory note given by appellant for the sum of $300, on the 21st day of March, 1874, to John Leary, due on or before September 1, 1874, with interest at the rate of two per cent, per month, payable monthly in advance. This note, it is alleged, was secured by ten shares of the capital stock of the Seattle Gas Light Company.

<p>In case of a foreclosure by a wife of a fraudulent chattel mortgage given her by the husband, an attaching creditor of the husband, in order to protect his lien on property covered by the mortgage, is entitled to an injunction restraining the foreclosure of the mortgage.</p> <p>This right is not only accorded him as a matter of equity jurisdiction, but is also secured to him under Section 1997 of the Code of 1881, relating to the foreclosure of chattel mortgages.</p> <p>"Where a temporary injunction had been granted an attaching creditor, before* judgment in a law action, against the foreclosure by a wife of a fraudulent chattel mortgage of the attached property, under 'Section 114 of the Civil Practice Act, the Court should have permitted a supplemental bill to be filed, showing the rendition of judgment in the law action, instead of dismissing the original bill, for failing to show a judgment to be protected.</p>

<p>TEt it appear from the face of a complaint that the Statute of Limitations has run against the demand pleaded, advantage may he taken of the statute by a demurrer to the complaint.</p> <p>A complaint filed April 18, 1884, setting forth the execution of a bond for the conveyance, within five years after April 13,1869, of certain real estate, on payment of the purchase price, and also setting forth compliance with the bond on part of the purchaser, payment within the prescribed time, and demanding a conveyance pursuant to the bond, discloses a cause of action barred by the Statute of Limitations,</p>

In this cause appellees appearing, specially moved the Court to dismiss the appeal, because no notice of appeal was given or filed with the Clerk of the Court in which the- judgment appealed from was entered, and because no errors had been assigned in the purported notice.

<p>"While this Court does not pass upon the validity of a deed acknowledged before a county auditor in the year 1867, and not authenticated by his official seal, it holds that if such deed were, for that reason, defective, the defect was remedied by the curative act found on page 481, Laws of Washington Territory, 1873.</p>

<p>Appeal from the Second Judicial District, holding terms at Vancouver.</p> <p>This suit was commenced for the purpose of compelling the defendants to convey the lands described in the amended complaint to plaintiff, Jerusha Sparks, on the grounds that she is the equitable owner thereof, and that the defendants hold the legal title in trust for her.</p> <p>The complaint was lengthy; it set forth substantially among other matters that in a controversy pending before the Secretary of the Interior, the following findings of fact were made:</p> <p>• That in October, 1850, a tract of land four miles square was selected by Col. Loring, then commanding at Yancouver, for military purposes, and that an order was published by him to that effect. In other words, that in October, 1850, Col. Loring, then commanding at Yancouver, published an order establishing a military reservation at Fort Yancouver, of four miles square.</p> <p>That in August, 1851, the acting Secretary of War, declaring so large a reservation was not needed for military purposes, directed the officer then in command at that point to lay off a reserve containing about a quarter section.</p> <p>This order not having been complied with, the Secretary of War, on October' 29, 1853, directed General Hancock to limit this reservation to 640 acres.</p> <p>That these instructions were carried into effect on December 3, 1858, “ and the reservation ivas reduced to 640.”</p> <p>That Bolen made settlement November 27, 1853, on the land described in the complaint, as a claimant under the Donation Act, the same being “ wholly ■within the boundaries of the selection and reservation disclosed in 1850.”</p> <p>The following conclusions of law were deduced therefrom :</p> <p>That from October, 1850, to December 8, 1853, “ neither the land embraced in the original selection and reservation of •four miles, nor the land within one mile thereof, was subject to the location of a Donation Claim.”</p> <p>That as Bolen’s claim was located wholly within the boundaries of the selection and reservation declared in 1850, and his ¡settlement was. The complaint also alleges the death of Bolen, .and that his widow, in June, 1860, filed proofs in the proper Land Office of his compliance with the conditions of the Donation Act up to the time of his death.</p> <p>The bill also alleges that one Langford, under whom Brown ■claims, made an entry Nov. 16, 1863, of a portion of the land described in the complaint, and a patent issued May 8, 1869; that one Holstein, under whom Brown claims, made entry Mar. 20, 1865, of another portion of the land described in the complaint; and that Hidden made cash entry January 2, 1882, of another portion of said land, and a patent issued April 20, 1882.</p> <p>The case was heard upon the amended bill of complaint and a demurrer thereto, specifying as grounds thereof — that the amended complaint shows upon its face plaintiffs have a complete and adequate remedy at law, under Section 530 of the-Code, without the aid of a Court of Equity.</p> <p>That the same does not state facts sufficient to entitle- the plaintiffs to the relief prayed for, or to any relief in equity.</p> <p>Because of want of equity.</p> <p>Because, on the facts as set forth in the complaint, a Court: of Equity has no jurisdiction.</p> <p>At the April term at Vancouver, 1885, judgment was entered sustaining the demurrer and dismissing the bill of complaint. From this judgment plaintiffs appeal.</p>

This action was to foreclose a number of mechanics’ liens, for labor upon and materials fu nished in the construction of seven houses, on lots five and six, in block thirty-nine, in Maynard's-Addition to Seattle. The liens were set for h-in the complaint.

<p>■Chapter 33 of the Act of the Legislative Assembly, 1873, deals entirely with executions at law and the right to redeem granted by Sections 364, 365 and 366, and does not. in terms or by fair implication extend to property sold in any other manner. The execution provided in this chapter is entirely different from the order of sale on foreclosure of a mortgage.</p> <p>The conclusion that real estate sold to satisfy a decree of foreclosure is not subject to redemption under the Act of 1873, is strengthened by a consideration of the nature of mortgages under our system, and the effect of foreclosure proceedings.</p> <p>A mortgage of real estate in the Territory simply creates a lien on real estate, to be enforced by a proper judicial proceeding. Under our system there is no equity of redemption in the mortgagor, because the legal title has not passed from him.</p> <p>A. Court of Equity, by virtue of its inherent equitable power, imposes as a condition of sale tlie right in the mortgagor to redeem upon proper conditions-within a certain time, hut in the absence of such conditions the sale is absolute.</p> <p>The cause of action, if any in this case, accrued in 1875; the complaint was not-. filed until May, 1881, and was therefore barred, for such action is controlled, by Sec. 33 of the Code, which prescribes two years, and not by the provision relating to real actions.</p>

<p>Admiralty Rule XVI. precludes a suit in rem against a vessel for assault upon and cruel treatment of seamen by officers of tbe vessel.</p> <p>The remedy is by action in personam.</p> <p>Appeals in admiralty are taken to this Court under the statutes of the Territory, and not the civil law.</p>

<p>Ebbob, to Second Judicial District, holding terms at Tacoma.</p>

<p>Appeal dismissed.</p>

<p>The rules of this Court require an assignment of errors in legal actions.</p> <p>There being no such assignment, the appeal should be dismissed.</p> <p>JSven when an equitable defense is made to an action at law, jurisdiction is to be determined by presuming everything to be of common law cognizance, until the necessity of making equity jurisdiction appears. •</p> <p>Therefore, a party who has failed to make an assignment of errors, pertaining to his legal defenses, cannot have the matters growing out of suoh equitable defense heard in this Court.</p>

Error, to First Judicial District, holding- terms at Walla Walla.

Error, to Third Judicial District, holding terms at Port Townsend. A special appearance was made by the defendants in error, accompanied by a motion to dismiss because no notice of appeal had been given, and because there had been no assignment of errors.

<p>Appeal from the Second Judicial District, holding terms at Olympia.</p>