Volume 20 — Washington Reports

<p>HOMESTEAD — JUDGMENT LIEN—KES JUDICATA.</p> <p>Under the homestead exemption statutes of this state, a general judgment lien does not operate upon, and does not attach to, premises which constitute a homestead.</p> <p>In an action to set aside a transfer of certain realty, as in fraud of a judgment creditor, and subject it to the lien of his judgment, a decree that the premises were subject to the satisfaction of the judgment and should be sold under execution for that purpose, is final and conclusive upon the right of the judgment debtor or his vendees to raise the issue in a subsequent action that the premises were the homestead of the debtor, since that defense should have been raised in the prior action.</p>

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

<p>APPEAL — NOTrCE— BOND—BRIEFS — OBJECTIONS NOT RAISED BELOW— CREDITOR’S BILL AGAINST RECEIVER—LEAVE TO SUE — PLEADINGS.</p> <p>A second notice of appeal may be given and the appeal perfected thereunder, without a formal order of dismissal of an appeal attempted under a prior notice.</p> <p>Objection to an appeal bond, because the justification of the sureties is technically defective, cannot be raised for the first time in the appellate court.</p> <p>Reference in a brief to the pages of the transcript, as required by the court rules, is not necessary, when the case was disposed of upon a motion to strike portions of the complaint and upon a demurrer to the complaint, and the brief contains the substance of both.</p> <p>Fraud in the valuation of property transferred to a corporation in consideration of an issuance of corporate bonds cannot be taken advantage of by a creditor, when the transaction took place prior to the time that his cause of action arose.</p> <p>An action in the nature of a creditor’s bill against a corporation in the hands of a receiver states a cause of action when it alleges that the corporation, although not insolvent, was put in the hands of a receiver in an action which was not brought in good faith, but for the purpose of hindering, delaying and defrauding unsecured creditors, including the plaintiff.</p> <p>In such an action, an allegation that a mortgage given by the corporation covering its real and personal property was invalid as to the personalty, because not containing the affidavit of good faith required by the statute relating to chattel mortgages, states a cause of action.</p> <p>Where it appears by the allegations of a creditor’s bill that a receiver of a corporation was appointed for the purpose of hindering creditors, it is not necessary that relief should be sought in the receivership action, but the institution of an action in the same court, after leave of court obtained to sue, is sufficient, under the circumstances.</p> <p>The fact that a creditor’s bill against a receiver does not allege leave of court to sue, being a purely technical objection ■which was not relied on in the lower court nor in respondents’ original brief, although a demurrer for want of sufficient facts had been interposed against the complaint, cannot be raised in a supplemental brief which is filed under the rule permitting the citing of additional authorities to sustain points raised in the regular brief. (Gordon, J., dissents.)</p>

<p>RAILROADS — LAND GRANTS — FORFEITURES — EJECTMENT — PATENTS — COLLATERAL ATTACK.</p> <p>Ejectment is the proper remedy where a railroad company ■claiming land under a prior grant of the government seeks to ■obtain possession as against parties holding the land under a subsequent patent from the United States; and in such action the validity of a patent is subject to collateral attack.</p> <p>Under the act of congress of September 29, 1890, providing for the forfeiture to the United States of all lands granted to railroads opposite to, and co-terminous with, the portion of the road not completed and in operation, for the construction or benefit of which such lands were granted, and declaring that all such lands are a part of the public domain, an equal undivided moiety of the land within the conflicting overlap of the grants to the Northern Pacific Railroad Company for the-main line down the Columbia river and the branch line across the Cascades reverted to the United States, by reason of the failure to construct the main line.</p>

<p>HIGHWAYS — AUTHORITY OF BOARD OF CONSTRUCTION — PAYMENT OF CONTRACTOR — ISSUANCE OF WARRANTS — ASSIGNMENT.</p> <p>Under Laws 1893, p. 301, § 33 (Bal. Code, § 3948), providing for the establishment of a system of improved roads, a board of construction appointed thereunder with power to inspect the work and suspend it in case of disagreement until the engineer can decide the controversy, is not authorized to cancel and annul a contract made by the county or declare a forfeiture thereunder, but may merely suspend construction pending the engineer’s determination whether the work is being done according to contract and the proper material is being used.</p> <p>Under Laws 1893, p. 301, § 31 (Bal. Code, § 3946), providing that when the board of construction shall file with the clerk of the board of county commissioners their certificate stating the total amount of work done or material furnished upon the construction of a public road,. the clerk shall thereupon draw a warrant upon the county treasurer in favor of the contractor for the amount due, such amount becomes vested in the contractor, by virtue of the statute, upon the filing of the required certificate.</p> <p>A contract stipulation that no assignment of a claim due a contractor by a county for work done in the construction of a public road shall create any cause of action against the county, or prevent it from settling with the contractor, does not excuse a failure to deliver warrants to a party designated by the contractor, when the contractor is entitled under the statute and the action of the board of construction to the warrants.</p> <p>County warrants in payment of sums due a contractor for work done in the construction of public roads, under Laws 1893, p. 301, which provides that such warrants, upon the filing of the required certificate by the board of construction, shall “thereupon” issue, may be drawn at once, although by general statute the auditor is granted ten days’ time in which to draw warrants.</p>

<p>MINING CLAIMS — COMMUNITY PROPERTY — JUDGMENT LIENS.</p> <p>The possessory right which the locator of a mining claim has under Rev. St. U. S., § 2322, is not community property.</p> <p>The possessory right which' the locator of a mining claim has under Rev. St. U.S., § 2322, is not such an interest as will support the lien of a general judgment within the meaning of Bal. Code, § 5132, making such judgment a lien upon “the real estate of any judgment debtor.”</p>

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

<p>MANDAMUS—AGAINST STATE AUDITOR — ALLOWANCE OF CLAIMS.</p> <p>Mandamus will not lie to compel the state auditor to issue a warrant, under an appropriation for the benefit of certain claims arising out of the construction of a normal school building, to a person designated in the appropriation act, where the act does not provide what sum he shall receive, but authorizes the auditor to examine and allow the unpaid claims on account of the construction of the building, and to draw warrants therefor, and, in compliance therewith, he has made such examination and has disallowed the claim.</p>

<p>LANDLORD AND TENANT — LEASE — PAYMENT FOR IMPROVEMENTS — PLEADINGS-ALLEGATION OF VALUE.</p> <p>A stipulation in a lease that on its expiration the lessor will pay to the lessee the actual value of any wharf or dock placed in the river in front of the demised premises, hut will pay for no other improvements except the actual cost of making such dock or wharf, which shall he appraised by three persons, one appointed by each party, such two to select a third, contemplates payment of the value of the wharf at the expiration of the lease.</p> <p>In an action by a lessee to enforce an agreement by the lessor to pay the value at the expiration of the lease of a wharf erected by him, an averment “that the actual cost of making such a wharf was $2,745, said sum being the value thereof as contemplated by said contract,” is an insufficient allegation of value.</p>

<p>SCHOOL DIRECTORS—CONTRACT EMPLOYING TEACHER — ANNULMENT — MEETINGS—PRESUMPTIONS AS TO REGULARITY,</p> <p>The board of directors of a school district have power to-engage a teacher for the ensuing year, notwithstanding the-fact that there would be a change in the membership of the-board before the time for the commencement of the term should arrive.</p> <p>School directors are not authorized to annul the contract, made by their predecessors employing a teacher, although there-was objection on the part of citizens that she was incompetent,, if she was legally qualified to teach, and nothing has since-occurred to warrant the annulment of the contract.</p> <p>The fact that a teacher was hired at other than the stated- and regular meeting of the board of directors would raise the-presumption, in the absence of proof to the contrary, that the meeting was held in pursuance of an adjournment of a regular meeting.</p>

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

<p>Appeal from Superior Court, Lewis Oouuty.—Hon. Henry S. Elliott, Judge.</p>

<p>DRAINAGE — CONDEMNATION — EVIDENC E — JUDGMENT,</p> <p>Evidence in an action to condemn a right of way for a drainage ditch, that the ditch, after its construction, was extended, and thus caused greater damage to the owners of the land sought to be condemned, is inadmissible, where the alleged extension was constructed under a different petition, and condemnation of the right of way therefor is not sought in the action at bar.</p> <p>A judgment condemning a right of way for a ditch for drainage purposes should provide that unless the damages assessed be paid within a reasonable time fixed by the court, the right to appropriate shall be thereafter forfeited.</p>

<p>INFORMATION — DUPLICITY — MISCONDUCT OF COURT — INTERFERENCE WITH JURY.</p> <p>The fact that under an information charging the defendant with the crime of assault with a deadly weapon he might be convicted of assault and battery, or an assault, does not render it invalid as charging more than one crime, since these are but lesser grades of the offense charged.</p> <p>A conviction will he reversed where the court, without permission of the defendant, delivered to certain of the jurors letters and a newspaper addressed to them, although the letters were from a .distance and had been in transit for several days, and the newspaper contained nothing relative to the cause ■on trial.</p>

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

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

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

<p>APPEAL — PREPARATION OP TRANSCRIPT — ACTION ON ATTACHMENT-BOND — WHEN PREMATURE — ATTORNEY’S PEE — QUESTION POR JURY — EVIDENCE — JUDICIAL NOTICE.</p> <p>A motion to strike appellants’ brief, because the latter had not caused the clerk of the lower court to prepare or certify a transcript of the record on appeal at the time the briefs of the parties were prepared, will be denied, where the respondent did not move against the record on that ground, or make any attempt to procure its preparation at an earlier date, and there-is no showing that injury resulted therefrom.</p> <p>An action on an attachment bond is premature, where an appeal from the final judgment is pending, involving an interlocutory order dissolving the attachment, as the provision of Code Proc., § 295 (Bal. Code, § 5357), authorizing an action on the bond before the principal suit is determined, is repealed by Laws 1893, p. 119, § 1, subd. 1 (Bal. Code, § 6500), providing that an appeal from a final judgment shall bring up for review any order made in the same action or proceeding, either before or after judgment, in case the record presents it sufficiently for the purpose of review.</p> <p>Both the trial and the appellate court will take judicial notice, in an action on an attachment bond, of the pendency of an appeal involving an order dissolving the attachment, where the records of the respective courts disclose that fact.</p> <p>The attorney’s fee received in proceedings for the dissolution of an attachment, as distinguished from the attorney’s fee for the action on the bond, which Code Proc. § 295 (Bal. Code, § 5357), provides shall be fixed by the court, is a matter of damages to be submitted to the jury in an action on the attachment bond.</p>

<p>COUNTIES—DEFECTIVE BRIDGES — LIABILITY FOR INJURIES.</p> <p>A county is liable for personal injuries resulting from a defective bridge, under Code Proc. § 672 (Bal. Code, § 5674), providing tbat an action may be maintained against a county “for an injury to the rights of the plaintiff arising from some act or omission of such county,” since the duty of keeping bridges in repair is imposed upon counties by Gen. Stat., §§ 2068, 2070 (Bal. Code, §§ 3834, 3836).</p>

<p>PRINCIPAL AND SURETY — NOTICE TO SUE — WAIVER — PLEADING.</p> <p>Where the answer of defendant in an action on a promissory-note sets up the defense that he was a surety and that plaintiff failed, on his request, to sue the principal, a reply that after the alleged notice to sue was given by the surety, the latter instructed the plaintiff not to sue upon the note, is sufficient to warrant proof of the waiver.</p> <p>Unreasonable delay in suing the principal at the request .of a surety is not shown, where notice to sue was given some time in February and a waiver of the notice given on the third, day of the succeeding month.</p>

<p>QUIETING TITLE—STREET ASSESSMENT AS CLOUD—PLEADING — TENDER.</p> <p>Under Code Proc., § 544 (Bal. Code, § 5521), authorizing an action to quiet title against any one claiming an interest in land adverse to the owner, such an action may be maintained for the removal of a street assessment as a cloud upon title, although the assessment is apparently barred by the statute of limitations.</p> <p>A complaint in an action to remove a street improvement assessment as a cloud upon title, upon the ground that it is barred by the statute of limitations, and also that it was without foundation in the first instance, is not demurrable because it does not allege a tender of the amount of the assessment.</p>

<p>Appeal from Superior Court, King County.—H011. William Hickman Moore, Judge.</p>

<p>ACTIONS BETWEEN STOCKHOLDERS — PLEADING—DEFAULT JUDGMENT — EVIDENCE.</p> <p>In an action by one stockholder of a corporation against another, the complaint is good against demurrer, when it alleges that the corporation was indebted to plaintiff and others in amounts aggregating $763.77; that the defendant was treasurer of the corporation, and had, in collusion with its other officers, sued the corporation and obtained judgment by default; that an execution had been issued and the real estate of the corporation was about to be sold thereunder; that the defendant, as treasurer, had $500 in money belonging to the company and was also indebted on his stock subscription in the sum of $762.25; that he had refused to render any account to the stockholders, as treasurer, of the moneys alleged to be in his hands; and that, if allowed to proceed with the sale, the corporation would be rendered insolvent and the plaintiff’s debt would be lost, as well as his interest in the corporate property sacrificed.</p> <p>Where judgment is given against defendant for failure to answer, after the overruling of his demurrer to the complaint, the court is authorized, under Code Proc., § 412 (Bal. Code, § 5090), in proceeding to take evidence upon the allegations of the complaint.</p>

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

<p>APPEAL — BOND CONDITIONED BOB. COSTS AND SUPERSEDEAS— SUFFICIENCY.</p> <p>A bond for $200 conditioned both as a stay bond and a cost bond on appeal is insufficient to confer jurisdiction on the supreme court, under Laws 1893, p. 122, §§ 6, 7 (Bal. Code, §§ 6505, 6506), which provide that an appeal bond in the penalty of $200, conditioned for the payment of costs and damages, must be given; and, in case a stay of proceedings is sought, the bond, where the appeal is from a final judgment for the recovery of money, shall be in a penalty double the amount of the damages and costs recovered in such judgment, and in other cases shall be in such penalty, not less than two hundred dollars, as a judge of the superior court shall prescribe.</p>

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

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

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

<p>TAXATION—STATE LANDS HELD UNDER CONTRACT OF PURCHASE.</p> <p>A purchaser of state lands, holding the same under an executory contract until certain conditions are complied with, the title meanwhile remaining m the state, must pay the taxes thereon, under Laws 1893, p. 335, § 6, which provides that state, county or municipal lands, held under a contract for the purchase thereof, shall he considered, for all purposes of taxation, as the property of the person so holding the same.</p>

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

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

<p>ASSAULT WITH INTENT TO KILL—SUFFICIENCY OF INFORMATION— DUPLICITY — MALICE — EVIDENCE — INTERPRETER.</p> <p>Tbe fact tnat an information charging defendant with assault with intent to commit murder also contains a charge of assault and battery does not render it bad on the ground of duplicity, since, under Code Proc., § 1320 (Bal. Code, § 6956), a defendant may be found guilty of any defense necessarily included within the crime charged.</p> <p>An information charging that defendant maliciously cut and stabbed a person with intent to kill and murder him, sufficiently alleges malicious intent, which constitutes a necessary element in the charge of assault with intent to commit murder.</p> <p>The locus delicti is sufficiently established, although eyewitnesses did not testify that the crime was committed in the ■county, when their testimony gives the point where the deed was committed and another witness testifies that such point is located within the county.</p> <p>The fact that an interpreter was subpoenaed as. a witness would not detract from his competency as an interpreter, when he knew nothing of the circumstances surrounding the case, and was subpoenaed as a witness merely for the purpose of having him available as an interpreter.</p>

<p>PARTNERSHIP — CONTRACTS OF CO-PARTNER — PROMISSORY NOTES-PAYMENT —PLEADING.</p> <p>Although one co-partner may have had no authority to bind the firm by the execution of promissory notes in its name, a subsequent memorandum, executed by the co-partnership and reciting that the company is indebted to the payee in sums evidenced by promissory notes executed by the company now overdue, amounts to a ratification of the notes, even if several of them may not be quite due, when there were no other notes between the parties than the ones in suit.</p> <p>Proof of payment of a promissory note cannot be introduced! in evidence, unless pleaded.</p> <p>A bank is not obliged to retain deposits for the purpose of applying same on the depositor’s notes held by it, if there is no agreement to that effect.</p>

<p>RECEIVERS—APPOINTMENT PENDENTE LITE — REVIEW ON APPEAL— PLEADING—MISMANAGEMENT OP CORPORATION.</p> <p>The appointment of a receiver pendente lite is a matter within the sound discretion oí the trial court, and its action will not be interfered with on appeal, when it is a question of the mere weight of evidence.</p> <p>The interposition of a sworn answer denying all the equities of plaintiffs’ complaint, which entitles them to the appointment of a receiver pendente lite, will not raise a prima facie case in favor of defendants, unless such answer is full and responsive to all the material allegations of the complaint.</p> <p>Where the property of a corporation is being mismanaged, and is in danger of being lost to the stockholders and creditors through the collusion and fraud of its officers and directors, or mismanagement and waste, courts of equity have inherent power to appoint receivers.</p>

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

<p>NEGLIGENCE OR CARRIER — INJURY TO PASSENGER-PLEADING — EVIDENCE -INSTRUCTIONS.</p> <p>In an action to recover damages for injuries sustained through the falling of a gang-plank leading from a dock to the deck of a steamer, a paragraph of the complaint is sufficiently particular and specific, as against a motion to make more definite, where it alleges that the gang-plank was carelessly and negligently supported on the boat and was not properly tied or fastened thereto.</p> <p>Where defendant, in an action for damages resulting from the falling of a gang-plank between a steamer and the dock, has put in evidence to the effect that the gang-plank had been properly fastened but had broken loose by the mooring of a second steamer to the first in such a way as to forcibly pull the first steamer from the dock, evidence in rebuttal is admissible to show that the second steamer tied up to the first one more than an hour before the accident occurred.</p> <p>A negligent carrier cannot set up a defense, as against a passenger, that the negligence of a third party contributed to the injury, although the latter acted independently of the carrier.</p> <p>Although a requested instruction embraces two different subjects that may well be submitted as separate instructions, it is not error to refuse the instruction, in whole or in part, if it is partly erroneous.</p>

<p>CONTEMPT PROCEEDINGS-APPEAL-NECESSITY FOB BOND.</p> <p>Proceedings against defendant as for contempt, in refusing to obey the order of the court compelling hiin to pay alimony upon a decree of divorce, do not constitute a criminal action; hence the failure to give an appeal bond upon an appeal from an order adjudging the appellant in contempt is not warranted by Laws 1S93, p. 122, § 6 (Bal. Code, § 6505), which provides that no bond shall be required when the appeal is taken by a ■defendant in a criminal action.</p>

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

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

<p>¡PERSONAL INJURIES—NEGLIGENCE—PROXIMATE CAUSE—RELEASE OF LIABILITY—TENDER—TRIAL-ORDER OF PROOF.</p> <p>Although, a person may be held to have assumed the risks incident to crossing a slippery railway trestle on a dark night, when there was a longer and safer way around, yet he may recover against the railway company as the direct, proximate cause of injury to him, where at the time he attempted to cross "the trestle there was no train near, but, his foot having been ■caught fast between two ties, he was unable to extricate it before being run down by a backing train, with no lookout stationed on the rear car to observe the track or heed the calls of himself and ■others to stop the train.</p> <p>Where, in an action for personal injuries, the reply admits the execution of a release by the plaintiff but charges fraud in its procurement, and the court, without objection by defendants, rules that proof of fraud may be put in evidence after the introduction of the release, defendants cannot claim a non-suit, because of the failure to prove fraud in plaintiff’s case in chief.</p> <p>In an action for personal injuries,'the failure of plaintiff to-beep a tender good of moneys received by him under a release of injuries fraudulently obtained is not prejudicial error, when the-amount recovered exceeded the amount paid for the release and the latter amount was credited by the jury upon the gross amount, of damages awarded by them.</p>

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

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

<p>DEFAULT JUDGMENT-VACATION-AFFIDAVIT OF MERITS.</p> <p>Where a judgment of default is prematurely-entered before-the expiration of the time to plead, the defendants are entitled, to have it set aside as a matter of right, without furnishing an. affidavit of merits. (Dunbar, J., dissents.)</p>

<p>SERVICE OE PROCESS— DISQUALIFICATION OP SHERIPP •—-BY WHOM SERVED-RECEIVERS-LIABILITY TO GARNISHMENT.</p> <p>The fact that a private individual, when serving a writ of garnishment upon the sheriff, requested an acceptance in writing, which was refused, and afterwards, upon the sheriff’s suggestion, has service made by the coroner, does not prove a waiver of the original service.</p> <p>Under the statutes of this state (Code 1881, § 2776, as amended by Laws 1897, p. 21; and Code Proc., § 796), where the sheriff of a county is disqualified from acting by reason of being a party to the action, a writ of garnishment may be served upon him by a private individual.</p> <p>Where the case in which a receiver was appointed has been settled or dismissed and no .further duty remains to the receiver than to turn over the money and property held by him to the parties entitled thereto, the property in his hands as receiver is; liable to garnishment.</p>

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

<p>SUPERIOR COURT JUDGES-ELECTION TO FILL VACANCY—WHEN UNEXPIRED TERM BEGINS.</p> <p>A judge of the superior court, who has been elected to fill an unexpired term, is entitled to qualify and take office as soon as the result of the election has been declared, under art. 4, § 5, of the constitution, which provides that “if a vacancy occurs in the office of judge of the superior court the governor shall appoint a person to hold the office until the election and qualification of a judge to fill the vapaney, which election shall be at the next succeeding general election, and the judge so elected shall hold office for the remainder of the unexpired term,” as the constitutional provision fixing the second Monday in January succeeding their election as the date when officers shall qualify applies exclusively to original terms beginning on that date, and not to unexpired terms.</p>

<p>Appeal from Superior Court, J efferson County.—Hon. James Gr. McClinton, Judge.</p>

<p>BUILDING AND LOAN ASSOCIATIONS—LOANS TO MEMBERS-CONTRACTS AGAINST PUBLIC POLICY-FORECLOSURE-PLEADING-ESTOPPELAMENDMENT OF PLEADINGS AFTER REVERSAL.</p> <p>Contracts for loans between a building association and a member cannot be held void as against public policy, when the organization and method of doing business of such corporations is authorized by statutes.</p> <p>In order to render proof admissible showing that, by the terms of the contract entered into by defendant with the agent of a building and loan association, tbe mortgage given to the association had been fully paid prior to suit, such special contract must he set up iu the answer.</p> <p>All the essential facts constituting equitable estoppel must be pleaded.</p> <p>Upon foreclosure of a mortgage given by a member to a building and loan association, the note, mortgage and contract of membership should all he construed together as parts of the same transaction, in order to determine the liability of a borrowing member.</p> <p>Where a cause is reversed and remanded for further proceedings not inconsistent with the decision on appeal, the matter of allowing amendments to the pleadings remains within the discretion of the trial court.</p>

<p>APPEAL—BURDEN OF PROOF-SUFFICIENCY OF EVIDENCE.</p> <p>Error of tlie trial court in imposing tlie burden of proof on defendant, tbougb unappealed from by defendant, cannot be taken advantage of by plaintiff’s contending on appeal that, under the ruling of the trial court, sufficient proof had not been made by defendant.</p>

<p>JURORS—EXAMINATION ON VOIR DIRE—BIAS-RELIGIOUS BELIEF.</p> <p>In the examination of a juror on the voir dire, it is improper to ask him whether he would give as much credit to witnesses professing a certain religious belief as he would to members of any other faith.</p>

<p>CRIMINAL LAW-COMMENT ON EVIDENCE—MISCONDUCT OF JUDGE.</p> <p>■ Under art 4, § 16, of the constitution, which, provides that “judges shall not charge juries with respect to matters of fact, nor comment thereon,” it is reversible error for the court,' though requested by the jury because of a disagreement as to their recollection of the testimony, to state to the jury that his notes showed that a witness testified to a certain fact, and that he did not recall whether he testified to a certain other fact concerning which the jury requested information.'</p>

<p>EVIDENCE-ADMISSIBILITY 03? WRITTEN INTERROGATORIES—EXAMINATION OP WITNESS—IRRESPONSIVE ANSWER.</p> <p>Under Code Proe., §§ 1660-1665 (Bal. Code, §§ 6008-6013), authorizing the admission in evidence of written interrogatories and the answers thereto, without any restriction being imposed, they are admissible although the party interrogated may be present as a witness at the trial.</p> <p>Where a defendant on the witness stand, who had signed the name of another defendant to a written instrument in issue, was asked whether he had advised such other defendant of his act, and answered: “No; he certainly knew it; he did not need to</p> <p>be advised,” it was error to strike the answer without a showing by further examination that the testimony was incompetent, since it was prima facie legitimate and competent to show authorization or ratification of the act. (Dunbar, J., dissents.)</p>

<p>ATTEMPT TO COMMIT INCEST-INFORMATION-INTENT-KNOWLEDGE OF RELATIONSHIP—CONSENT—EVIDENCE-MARRIAGE—CROSS-EXAMINATION.</p> <p>A preliminary examination before a committing magistrate, prior to tbe filing of an information for a felony, is not essential, under art. 1, § 25, of tbe constitution permitting prosecutions by information, as tbe legislature may prescribe, and under Bal. Code, § 6802 (Code Proc., § 1204), providing in wbat cases informations may be filed.</p> <p>An information charging an attempt to commit incest is not bad because it does not specifically allege the purpose and intent of tbe parties to carnally know each other, if such intent is tbe necessary and irresistible inference to be derived from tbe language employed.</p> <p>An information charging an attempt to commit a crime need not negative the presumption that it failed of commission through the volition of defendant, since the subsequent abandonment cannot avail defendant, if the elements of an attempt existed on his part.</p> <p>An information charging a man with the crime of incest is not bad for failing to charge the woman with knowledge of their relationship, if the knowledge of the defendant is duly charged.</p> <p>Where a witness had testified to the marriage between his mother and defendant, on his direct examination, it was not proper cross-examination to question him as to a previous marriage between his mother and his own father.</p> <p>The refusal of the court to exclude defendant’s wife from the court room, during his trial for incest, was not error, although she was not a competent witness, if there was no demonstration or improper conduct on her part.</p> <p>In determining the consent or non-consent of the woman, upon the trial of the man for an attempt to commit incest with her, the jury are not restricted to a consideration of her testimony alone, but have a right to consider all the surrounding circumstances.</p> <p>A legal marriage under the laws of Idaho is established by proof that a marriage ceremony was performed in a church, in the presence of witnesses, by a minister who, under the law, was authorized to perform such ceremony, and that the ceremony was followed by the cohabitation of the parties as man and wife, although there is no proof of a previous license being procured and a subsequent return of the marriage made to the officer issuing the license, as § 2429, Rev. Stat. Idaho, 1887, while requiring marriage to be solemnized, authenticated and recorded as provided in this chapter, further provides that “non-compliance with its provisions does not invalidate any lawful marriage.”</p> <p>Where secondary evidence of marriage has been received without objection at the trial, it cannot be urged on appeal that the best evidence should have been required.</p>

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

<p>NON-SUIT-SUOTTCIENCY 03? EVIDENCE.</p> <p>Where defendant’s liability, if any, arises through the acts of an agent, whose authority it denied, defendant is not entitled to a non-suit if there is any testimony sufficient to go to the jury tending to establish the agency.</p>

<p>COUNTIES-CONTRACTS FOR ROAD WORK-AUTHORIZATION BY COMMISSIONERS-CLAIMS FOR WORK—ASSIGNMENT TO ROAD OVERSEER-RECORDS OF COUNTY BOARD—EVIDENCE-COMMENTS BY COURT.</p> <p>Although, no formal order had been made by a hoard of county commissioners authorizing certain road work, the road supervisor and those under him performing the work are entitled prima facie to recover therefor against the county, where two of the commissioners, when asked by the supervisor for instructions, had referred him to the third commissioner, who was road commissioner for the district in which the work was done, stating that whatever the latter ordered would be affirmed by the board, such having been the loose, but universal, practice of the board, under Gen. Stat., § 1937, which provided the boards of county commissioners should divide their respective counties into suitable road districts, and each commissioner should be ex officio road commissioner of the several road districts in his commissioner district, and should see that all orders of the board pertaining to the roads in his district were properly performed.</p> <p>Gen. Stat., § 1940, providing that no road overseer shall be interested, directly or indirectly, in any contract work to be done in the road district under his charge, would not invalidate the assignment to him, as against public policy, of claims for labor earned by those who had been employed under him, and whose rights had already accrued against the county.</p> <p>The transactions of a board of county commissioners authorizing the performance of services for the county may be proved by evidence aliunde the record, where the board has failed to make a proper record.</p> <p>A lecture by the trial judge on matters not strictly in issue will not be held as error, when it does not appear that it could possibly have prejudiced the verdict of the jury.</p>

<p>Appeal from Superior Ooturt, King County.—Hon. Oeangke Jacobs, Judge.</p>

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

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

<p>MUNICIPAL CORPORATIONS-TORTS OP OPPICERS—RATIFICATION.</p> <p>Where a city ratifies the acts of its mayor in tearing down the electric wires of a private company which were lawfully upon the city’s poles, the city is liable for the damages caused.</p> <p>The ratification by a city of the unauthorized acts of an officer need not be by ordinance, but, ratification being a question of fact for the jury, any acts which tend to prove it, are admissible in evidence.</p>

<p>MASTER AND SERVANT—COAL MINING—EELLOW-SERVANTS—EIRE IN MINE-INJURY TO EMPLOYEE—CONTRIBUTORY NEGLIGENCE.</p> <p>Where a coal miner, after notice that the mine was on fire and a request sent him to leave the mine, for which there was ample time, remained and was suffocated through the stoppage of the ventilating fan and the opening of a tunnel door, thus permitting the smoke to rush into the gangway where he was, he was guilty of contributory negligence sufficient to bar the recovery of damages for his death.</p> <p>In the conduct of the business of coal mining, when neither those in charge of the ventilating fan, nor the gas testers, nor pit boss, nor outside boss, are clothed with any authority to employ or discharge men, or to take the supervision and charge of any department of the business, but are engaged in serving the same master in the same general business, for the purpose of accomplishing one general object, they are all fellow servants with the miners working underground.</p> <p>Although the shutting down of a ventilating fan at the time of a sudden outbreak of fire in a coal mine may have been one of the causes of the death of plaintiffs intestate, yet such act cannot be charged as negligence, when it appears that it was done in the excitement and confusion incident to learning that the mine was on fire, while in ignorance of its location, and that, had the fire been in a place other than it was, the shutting down of the fan would have been the proper thing to have done.</p> <p>The mere fact that a fire occurred in a coal mine is not proof of negligence, when it does not appear to have been the result of any act imputable to the company.</p> <p>The fact that the fan was shut down at the wrong time, at the outbreak of a fire in the mine, does not show negligence in selecting or retaining the servants in charge of the fan, when it does not appear that they had ever failed to discharge any of their duties in connection therewith, or that the fan had not been at all times properly operated, but that the omission was due to an error of judgment when suddenly placed in a situation demanding immediate action.</p>

<p>APPEAL-EXAMINATION OF SURETIES ON BOND-BECOBD-BBIEFS-BEFEBENCES TO TRANSCRIPT.</p> <p>Tbe testimony of sureties upon an appeal bond, taken on tbe court’s examination as to tbeir qualifications, under Bal. Code, § 6510 (Laws 1893, p. 123, § 11), need not be reduced to writing and attached to tbe judge’s certificate, in tbe absence of a motion by tbe party aggrieved to have a record made thereof.</p> <p>Tbe rule of court requiring briefs to refer to tbe pages of tbe transcript for verification will not be rigidly enforced, when tbe transcript is short and the only error assigned is directed to tbe order of tbe court sustaining a demurrer to tbe complaint.</p>

<p>PUBLIC LANDS-GRANT TO NORTHERN PACIFIC RAILROAD—INDEMNITY LANDS-OPERATION OF GRANT—BIGHT OF ENTRY.</p> <p>Under the land grant to the Northern Pacific Railroad Company (13 Stat. at Large, 365) of alternate sections for forty miles on each side of the line as located, and, in case of prior selection by settlers, granting the company the right to select in lieu thereof alternate sections from indemnity lands lying not more than ten miles beyond the original grant of place lands, the grant as to lands in the indemnity limits did not take effect until actually selected by the company, and prior thereto such lands were open to settlement.</p> <p>Under the land grant to the Northern Pacific Railroad Company giving it the right to select lands within certain indemnity limits in case lands within the place limits granted the company have been lost by prior settlement, there must be a finding by the United States land department of a deficiency of the grant within the place limits in order to give the company any standing in a contest between it and settlers over lands lying within the indemnity limits.</p>

<p>DISMISSAL OF APPEAL-SERVICE AND FILING OF NOTICE AND BOND.</p> <p>An appeal will be dismissed where there is no proof in the record of the service of the appeal notice or of the time of its filing; also, when the record fails to show the time of filing of the appeal bond.</p>

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

<p>WIFE’S SEPARATE PROPERTY—LIABILITY FOR HUSBAND’S DEBTS.</p> <p>Where there is no proof of when the marriage relation between husband and wife was assumed, and nothing to show that a promissory note in her favor was community property, the maker of the note is not entitled to offset a bar bill due him from the husband against the amount due on the note to the wife.</p>

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

<p>TROVER—ACTION AGAINST WAREHOUSEMAN.</p> <p>A complaint against a public warehouseman for conversion of wheat states a cause of action when it alleges that the wheat was stored in defendant’s warehouse and a receipt therefor issued to the owner, not in the form of a warehouse receipt, as prescribed by statute, but in the form of a memorandum slip with instructions to be returned for storage ticket, and notice not to buy the slip printed thereon; that the owner sold the wheat to another, who transferred same to plaintiff, together with the memorandum receipt, which passed by indorsement of the several transferees to plaintiff; that plaintiff presented the memorandum and demanded a regular warehouse receipt, and, upon the same being refused, demanded the wheat or the value thereof, tendering all storage and other legal charges due on the wheat.</p>

<p>STREET IMPROVEMENTS—RE-ASSESSMENTS—LIEN—INTEREST—COLLECTION IN INSTALLMENTS—JUDICIAL POWER OF CITY COUNCIL—DOUBLE TAXATION.</p> <p>Where an assessment for a street improvement was invalid for the reason that it included the valuation of improvements, on the abutting land, no part of the assessment could be enforced, although the valuations of lands and improvements was separately stated.</p> <p>The objection that an assessment for a street improvement was not restricted to the benefits received could not be urged upon foreclosure of the assessment, when not raised prior to the confirmation of the assessment by the city council.</p> <p>A statute authorizing city councils to sit as boards of equalization and pass upon the validity of re-assessments for local improvements is not unconstitutional on the ground of conferring judicial powers on such bodies.</p> <p>The power of cities to make assessments for local improvements payable in installments, without the issuance of bonds, is conferred by Bal. Code, § 789 (1 Hill’s Code, § 520), which authorizes cities to provide for the manner of collecting such assessments.</p> <p>In making a re-assessment to pay the expense of a local improvement, the city may properly provide for the payment of interest maturing on deferred installments of the assessment.</p> <p>The fact that an assessment is made payable in installments does not prohibit the property owner from paying the whole amount at one time, when there is no express prohibition in the ordinance providing therefor.</p> <p>A re-assessment for the cost and expense of local improvements, necessary because of the invalidity of a prior assessment, creates a lien upon the property benefited under the provisions of Laws 1893, p. 226 (Bal. Code, §§ 1139-1149), governing reassessments.</p> <p>The adoption by the city of Spokane of an amendment to its charter, known as “amendment No. 40,” providing for the levying of taxes to provide “moneys for the redemption and settlement of warrants issued heretofore for the improvement and repair of streets and alleys, including sewers and sidewalks,” does not show an intention on the part of the city to pay the expenses of such improvements by general taxation and relieve abutting property owners of the burden, since such amendment further provides that “nothing in this section shall be construed to render the city liable for the payment of warrants issued for local improvements.”</p> <p>The defense of double taxation is not available to defendant in a court of equity, unless he first shows he has paid one of the taxes before he asks to be relieved from the other.</p>

<p>FRAUDULENT CONVEYANCES—BADGES OF FRAUD—CHAMPERTY—RE-NEWAL NOTES-EFFECT ON SECURITIES-CONTINUANCE.</p> <p>A conveyance fair upon its face, but alleged to be fraudulent as against creditors, will not be set aside upon tbe uncorroborated testimony of the grantor that it was given with fraudulent intent.</p> <p>Tbe existence of one or more badges of fraud is not sufficient to invalidate a written instrument, where, in view of all tbe circumstances, it is apparent that fraud was not intended.</p> <p>A cbampertous contract can be set up as a defense only in an action in which tbe agreement itself is sought to be enforced.</p> <p>Tbe fact that notes secured by mortgage are superseded by renewal notes would not affect tbe securities held by tbe secured creditor as against subsequent judgment creditors.</p> <p>In a suit to set aside a deed and mortgages to a bank, tbe bank was entitled to a continuance for tbe purpose of taking depositions, on the ground of surprise, of former officers of the hank, who had since become non-residents, when it appeared that defendant had been informed by one of the grantors, prior to trial, that he would testify to the dona fides of the transactions, but that on the trial his testimony was that the instruments had been given for the purpose of defrauding creditors.</p>

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

<p>VOLUNTARY ASSOCIATIONS-CONTROVERSIES BETWEEN MEMBERS-REMEDIES—BY-LAWS.</p> <p>The courts will not assume jurisdiction of a controversy between members of a voluntary, unincorporated association so long as there is an unexhausted remedy within the association itself.</p> <p>A by-law of a national unincorporated organization making the executive committee of the body a court of final appeal in disputed questions arising between members or in and between branches of the order, cannot be presumed to be repealed by the adoption of a new constitution, but must be given effect until repealed, either expressly or by necessary implication.</p>

<p>Appeal from Superior Oourt, [Kittitas County.—lion. John B. Davidson, Judge.</p>

<p>LEASES-EXTENSION OF TERM-COVENANT BY LANDLORD TO PURCHASE: IMPROVEMENTS—EQUITABLE LIEN.</p> <p>Where a lease of premises for a term of twelve years provided that the lessee might make improvements thereon and at the end of his term the lessor would either buy the improvements or extend the lease, the lessor cannot, by an extension of the lease for one day, after the close of the original term, defeat the right of the lessee to a substantial extension of the lease or to have his improvements purchased by the lessor, as provided for by the terms of the lease.</p> <p>Where a lease provided that the lessee might make improvements on the land, which should not become attached to it, but could be removed by him at any time, the making of improvements on the leased premises would not give him an equitable lien therefor.</p>

<p>MORTGAGES-MERGER.</p> <p>Where two notes secured by the same mortgage are held by different parties and the holder of one note surrenders it to the maker and accepts a deed of the mortgaged premises, such act does not work a merger of his equitable lien, but he is entitled to intervene in a foreclosure of the mortgage by the other note-holder, and share pro rata in the proceeds of the sale.</p>

<p>Appeal from Superior Court, King County.—Hon. Orange Jacobs, Judge.</p> <p>Action by the plaintiff to recover the value of certain improvements placed upon leased school lands by plaintiff’s assignor, the complaint alleging that defendant became liable therefor by reason of a subsequent purchase of the lands by him from the state. Among other defenses set up, it was alleged that plaintiff’s assignor, Hart, was the actual purchaser of the land in controversy; that after the sale defendant, at the request of Hart and for his use, paid the purchase money with the understanding that the land should be transferred to Hart and he should assume all obligations of the sale; and that Hart subsequently repudiated his agreement to take the lot, and the auditor entered defendant as the purchaser thereof.</p>

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

<p>MANDAMUS—PROCEDURE—EES JUDICATA—JUDGMENT AGAINST TOWN— MANNER OP SATISFACTION.</p> <p>In a proceeding by mandamus, under Laws 1895, p. 117, § 17 (Bal. Code, § 5756), it is unnecessary that a summons issue, as in ordinary civil actions, but the writ of mandamus must be issued upon affidavit, on application of the party beneficially interested.</p> <p>Upon application for a writ of mandate to compel a town to issue its warrant in payment of a judgment, it is no defense to set up that the contract upon which the judgment had been obtained was void, because at the time of entering into the contract the town was beyond its constitutional limit of indebtedness.</p> <p>Under Bal. Code, § 5676 (2 Hill’s Code, § 674), providing that, in order to obtain payment of any judgment against a public corporation, a certified transcript of the docket of the judgment, including a memorandum of acknowledgment of satisfaction, must be presented to the officer authorized to draw orders on the treasury, who shall thereupon draw a warrant in favor of the judgment creditor, a transcript of the execution docket showing the judgment and its satisfaction is a sufficient compliance with the statute, without giving a transcript of the judgment in full.</p>

<p>SCHOOL DISTRICTS—EMPLOYMENT OF TEACHERS—RESCISSION—PLEADING AND PROOF.</p> <p>Where the only issue raised by the pleadings is an allegation and a denial of a contract of employment as a teacher, evidence of a rescission of the contract is inadmissible.</p> <p>Where a school board, after determining to reduce its corps of teachers from thirteen to twelve, for the ensuing year, passed a resolution re-employing all, but reserving the right to remove one of the teachers, in case all accepted, the action of the board in requesting one of the teachers to resign after she had accepted the contract of employment, was not equivalent to a removal.</p>

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

<p>FORECLOSURE SALE—BID IN EXCESS OF JUDGMENT—ACTION BY MORTGAGOR FOR SURPLUS.</p> <p>Where upon the foreclosure of a mortgage the plaintiff in the action bids a sum of money at the sale in excess of the judgment debt and costs, the mortgagor may recover the surplus over the actual amount necessary to satisfy the judgment, in an action against the plaintiff as upon an implied contract.</p>

<p>BOND FOB DELIVERY OF PROPERTY—SCOPE OF OBLIGATION-CONSIDERATION.</p> <p>Although the appointment of a receiver for a partnership may have been wrongful, yet a bond given by one partner in -order to obtain exclusive possession of the partnership property from the receiver is based upon a valid consideration and is binding on the obligors.</p> <p>In such a case, the obligation of the bond is not weakened by the fact that it was- never consented to by the partner in whose favor it was executed, since it was for the court, not for •the obligee, to accept and pass upon the sufficiency of the bond.</p> <p>In an action upon a bond given to secure the delivery of property in the hands of a receiver, appointed in a suit for dissolution of a partnership, to one of the partners, a judgment on the bond is not excessive because including the assets of the partnership as well as the value of the property actually delivered by the receiver, when the obligation of the bond was that the obligor should account for the value of the assets and the property of the partnership as the same might be ascertained by the court.</p>

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

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

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

<p>REVIEW ON APPEAL •—REFUSAL TO TRY ACTION PIECEMEAL—LIMITATIONS—EXTENSION BY PARTIAL PAYMENTS—POWER OF HUSBAND TO BIND WIFE.</p> <p>An order of the trial court overruling a motion for another trial upon issues raised by one of the defendants in a mortgage foreclosure suit will not be disturbed, when it appears that the court deemed the decree entered on the former trial a final one, in which the plaintiff had tacitly acquiesced for a period of ten months, and had perfected an appeal therefrom as a final decree.</p> <p>Where a note secured by a mortgage of community realty has been executed by a man and wife, payments of principal or interest mereon made by the husband without the authority of the wife after maturity will not extend the time of the running of the statute of limitations as against her.</p>

<p>FOREIGN JUDGMENTS-AMENDMENT OP RECORD—EVIDENCE.</p> <p>In an action on a foreign judgment, the judgment roll is admissible in evidence, although it appears therefrom that subsequent to the entry of judgment the return was amended so as to show that defendant had been duly served, hut without personal notice to the defendant of the proposed amendment, where the judgment was by default and the statute of the state in which judgment was had did not require personal notice in such cases.</p>

<p>IRRIGATION COMPANIES-APPROPRIATION OF RIGHT OF WAY-PUBLIC USE-JUDICIAL NOTICE.</p> <p>In a condemnation proceeding to secure right of way for an irrigating canal, it is not necessary for the irrigation company to show that it has condemned or purchased water rights from the riparian owners of the stream it proposes to tap.</p> <p>Under the constitution and statutes of this state the condemnation of lands for the construction of an irrigation ditch constitutes an appropriation for a public use.</p> <p>Courts will take judicial notice that irrigation is necessary in order to produce agricultural crops upon light sage-brush soil.</p>

<p>SUPPLEMENTARY PROCEEDINGS AGAINST WIFE-EXAMINATION WITHOUT HUSBAND’S CONSENT.</p> <p>In proceedings supplementary to execution, brought against the wife of a judgment debtor to discover if she have property belonging to him in her possession, the wife may be examined without the consent of the husband, as he is not a party to the proceeding, and the ease, consequently, does not fall within Code Proc., § 1649 (Bal. Code, § 5994), which provides that a wife shall not be examined for or against her husband without his consent.</p>

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

<p>PARENT AND CHILD—CONVEYANCE FOB LIFE SUPPORT—RESCISSION—• RES JUDICATA.</p> <p>A court of equity bias jurisdiction to cancel a deed made by a parent to a child in consideration of support and maintenance, where the consideration therefor, which is a personal and continuing one, fails either from the refusal of the child to perform the agreement, or from an attempted conveyance or mortgage of the land by the child, or from the death of the child.</p> <p>A decree in a former action by a father against a child denying a rescission of a conveyance to the child for failure to furnish support does not constitute a bar to a later action by the father for a rescission, when the grounds of the second action, viz., the conveyance of the lands in controversy to a third party and the death of the child, were not considered or determined by the court in the prior action.</p>

<p>HOMICIDE-RESISTING ARREST-EVIDENCE.</p> <p>Under the statutes of this state, as at common law, an officer may, without a warrant, arrest a person against whom he knows there is a charge of felony pending m another county.</p> <p>The illegality of an attempted arrest constitutes no defense for the killing of the person making the arrest, but renders the one committing the homicide guilty of manslaughter.</p> <p>Upon the trial of a defendant charged with killing an officer while resisting arrest, where the officer had cause to suspect the defendant, evidence that the defendant was innocent of the crime for which the arrest was attempted, is inadmissible.</p> <p>The admission in evidence of the warrant upon which the accused was arrested, is not erroneous, even if void upon its face, in a prosecution for killing an officer who had arrested the defendant upon the charge alleged in the warrant.</p>

<p>FISHERIES-WATERS OF FUGET SOUND—EIGHT TO SET-NET LICENSE-ASSIGNMENT OF LICENSE—FINDINGS OF COURT-ERRONEOUS CONCLUSIONS OF LAW—HOW FAR BINDING.</p> <p>Under Laws 1897, p. 218, § 7 (Bal. Code, § 3353), traps and pound nets are recognized as the only fixed appliances for which licenses may be issued for fishing locations in the waters of Puget Sound.</p> <p>A decree which coincides with, and is fully supported by, correct findings of fact, will not be set aside because the court has erred in some of its conclusions of law. under Code Proc., § 380 (Bal. Code, § 5030), making the findings of fact in an action tried by the court correspond with the verdict of a jury; nor is an incorrect conclusion of law, unexcepted to, binding on the appellate court.</p> <p>Where notice is not given to the fish commissioner of an attempted transfer of a fishing license and of the location and appliances in use thereunder, the person attempting to transfer is guilty of a misdemeanor, under Laws 1897, p. 215, §' 3 (Bal. Code, § 3349), and such attempted transfer amounts to an abandonment of the location and can confer no rights upon the assignee.</p>

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

<p>CRIMINAL LAW-REVIEW ON APPEAL-NEW TRIAL-MISCONDUCT OF JURY-NEWLY-DISCOVERED EVIDENCE-SURPRISE-VARIANCE.</p> <p>Where only a portion of the evidence is brought up on appeal, the presumption on the record is that the evidence was sufficient to justify the verdict.</p> <p>The court is warranted in denying a new trial on the ground of the misconduct of the jury when the showing of misconduct is contradicted by the members of the jury.</p> <p>The discretion of the trial court in refusing a new trial on the ground of newly discovered evidence will not be disturbed, when the affidavits for the motion are met by counter affidavits.</p> <p>A ease of surprise, sufficient to warrant a new trial, because the evidence at the trial did not correspond to that on the preliminary examination before a justice of the peace, is not established, when it appears that the witnesses before the justice, the •justice himself and one of defendant’s counsel, who was present at the preliminary examination, were all present at the trial.</p> <p>Inasmuch as the distinction between principals in the first and second degree and accessories before the fact has been abolished by statute in this state, it is no variance for an information to charge defendant as a principal and for the evidence to show that he was guilty in the second degree or as an accessoiy before the fact.</p>

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

<p>HABEAS CORPUS—EXTRADITION-CONVICTED PRISONERS OF SISTER STATE IN CUSTODY WITHIN THIS STATE.</p> <p>Extradition laws governing the detention and delivery of fugitives from justice have no application to the case of convicted prisoners of another state, who are passing through this state in the custody of an officer of the state in which they were convicted.</p> <p>Habeas corpus for the release of a convicted prisoner under the judgment of a court of a sister state, who is brought within the boundaries of this state by an officer in charge on his way lo the penitentiary of the sister state, will not lie, under § 1 of art. 4 of the constitution of the United States requiring full faith and credit to be given in each state to the judicial proceedings of every other state, when it appears by a duly authenticated record that the judgment of conviction was properly rendered and the prisoner legally sentenced.</p>

<p>MURDER-SUFFICIENCY OF INFORMATION-VERIFICATION-FORM OF VERDICT.</p> <p>The verification of an information charging defendant with a crime, to the effect that it is true as the affiant “verily believes,” is sufficient under Bal. Code, § 6833 (2Hill’s Code, § 1231), which provides that all informations shall be verified, but prescribes no particular ioim.</p> <p>An information charging murder in the first degree states sufficient facts when it alleges that defendant, at a certain time and place, “purposely and of his deliberate and premeditated malice killed” deceased, “by then and there purposely and of his deliberate and premeditated malice shooting and wounding the said” deceased “with a pistol, which” defendant “then and there held in his hand.”</p> <p>A verdict returned by the jury signed by one member as “foreman,” followed by the signatures of the other eleven, one of whom signs by mark, is in substantial conformity with the requirements of Bal. Code, § 6961 (2 Hill’s Code, § 1325), which provides a form for guidance, to be signed by the foreman alone, but is directory merely.</p>

<p>INJUNCTION-PARTIES—DIKINO DISTRICT-WARRANTS-CONSIDERATION—PLEADING-ISSUES.</p> <p>In an action to enjoin the payment of alleged illegal diking district warrants, the diking district is not a necessary party defendant, where the collection and disbursement of the dike taxes is in the hands of the county treasurer, and the diking district has no control over the funds or the treasurer.</p> <p>Where warrants for the construction of a dike were issued under an act which the courts had declared unconstitutional and no method for their payment had been afterwards provided by the legislature, the subsequent issuance of warrants to take up such invalid warrants was without consideration.</p> <p>The denial in an answer of an allegation in the complaint that plaintffs have no adequate remedy at law tenders no issue of fact.</p>

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

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

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

<p>APPEAL-JURISDICTIONAL REQUIREMENTS-APPEALABLE OEDEE—VACATION OP JUDGMENT—DENIAL OP MOTION TO SET ASIDE.</p> <p>An order vacating a judgment must be attacked on tbe hearing of tbe motion therefor, or on appeal from the order, and cannot be questioned later by a motion to set it aside; hence, an order made denying tbe latter motion is not appealable.</p> <p>Under the statutes governing appeals, tbe provisions requiring that an appeal from an order that is not a final judgment be taken within fifteen days, that notice of appeal be filed with the clerk within five days after its service, and that tbe appeal bond be filed within five days after tbe service of tbe notice, are jurisdictional and must be strictly complied with.</p>

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

<p>MANDAMUS TO COURT-JURISDICTION IN INSOLVENCY CASES—BANKRUPTCY LAW-APPOINTMENT OE RECEIVERS.</p> <p>Mandamus will lie to compel a superior court to assume jurisdiction of an action by a receiver of an insolvent corporation, which the court had declined on the ground that the enactment of the federal bankruptcy law of July 1, 1898, had suspended the jurisdiction of state courts in insolvency cases, where there has been no proceeding in bankruptcy instituted respecting the matter in controversy.</p> <p>Under the laws of this state authorizing the courts to appoint receivers of corporations which are insolvent, or in imminent danger of insolvency, with a view to rendering the insolvent estate a trust fund for the benefit of. all creditors, ratably and equally, the courts retain jurisdiction over such corporations until they may he adjudged, bankrupt under the law of congress, by the proper tribunal.</p>

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

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

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

<p>CONTEMPT-APPEAL-CONSTRUCTION OF AFFIDAVIT—DISCRETION OF COURT-JUDICIAL NOTICE.</p> <p>An affidavit charging contempt will be construed on appeal with every intendment in its favor, where no objection by demurrer or otherwise was interposed to its sufficiency in the lower court, and the testimony introduced on the hearing is not brought up in the record.</p> <p>The discretion reposed in trial courts, in the matter of punishing for contempt the refusal to obey their judgments, even though they may be irregular or void in part, will not be interfered with by appellate courts, unless it plainly appears that such discretion has been abused.</p> <p>In a proceeding for contempt for violation of an injunction, the court will take judicial notice of its own order in granting the injunction.</p>

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

<p>CARRIERS-ABANDONMENT OF VOYAGE-DUTY TO PASSENGER—LOW WATER—ACT OF GOD—INSTRUCTIONS-EVIDENCE.</p> <p>Where a transportation, company agrees to take a passenger by steamer to a point within the interior of Alaska upon the Yukon river, but is compelled to abandon the trip until the next, season, by reason of the low stage of water in the river, the company cannot put the passenger off at any intermediate point, but it is its duty to return him free of charge to the point of embarkation.</p> <p>Where it appears from the evidence that defendant, after agreeing to transport plaintiff from Seattle to Dawson City in Alaska, and after carrying him to a point on the Yukon river. abandoned the trip for the season, a requested charge that if the jury “shall find that defendant carried plaintiff to Fort Yukon without any unreasonable delay, and at that place encountered a stage of water so low as to make a continuance of navigation towards Dawson impossible, that this constitutes the act of God, and that the company was excused from carrying him further towards Dawson until the stage of water should be sufficient,” was properly refused as inapplicable to the case, since it contained no qualification as to the duty of the defendant to inform itself concerning the stages of water on the route and the probability of its being able to carry out its contract.</p> <p>The fact that plaintiff’s witnesses have testified to a conversation to which plaintiff was in no wise a party does not warrant the defendant in putting in evidence further details of the conversation, to the effect that other parties had released defendant from liability for the performance of a contract to carry.</p>

<p>GARNISHMENT—PROPERTY SUBJECT.,</p> <p>Where under a decree it is necessary to pay a sum of money into the hands of the clerk of the court in order to obtain certain rights, money so paid by a third person, who takes an assignment of all rights under the judgment as security, cannot upon the subsequent vacation of the judgment be subjected to garnishment proceedings by a creditor of the person for whose use the money had been advanced, as on 'failure of the security the assignee would become entitled to a return of the money.</p>

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

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

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

<p>MECHANICS’ LIENS—BUILDING ON ANOTHER’S LAND—PRIORITIESESTOPPEL.</p> <p>Where a vendor of land who has given an executory contract for its sale, which he is entitled to declare forfeited for nonpayment of installments of purchase price due him, stands hy and sees materials furnished for improvements made thereon by third parties in ignorance of his rights, under a lease of the premises by his vendee, he is estopped from claiming a forfeiture as to the improvements, and they may be removed and sold, under Bal. Code, § 5916, for the purpose of satisfying the lien claims of material men and laborers.</p> <p>Under Bal. Code, § 5903, providing that mechanics’ and material men’s liens shall be preferred to any lien or other incumbrance which may have attached prior to the furnishing of the same, which was not recorded so as to create constructive notice prior to such time, and of which the lien claimant had no notice, where materials have been furnished in ignorance of the real title, to persons in undisputed possession claiming ownership under an executory contract for the sale of land, which had not been recorded and which was forfeitable for breach of conditions therein, the lien for such materials is entitled to priority over the rights of the vendor, although entitled to a forfeiture under the contract and although the record title has been in the vendor during the whole time.</p>

<p>FIXTURES-—MANTELS, BATH TUBS AND WATER HEATERS—RIGHT OF REMOVAL AS AGAINST MORTGAGEE—REPLEVIN—EVIDENCE.</p> <p>In an action by a mortgagee to replevin certain articles claimed as fixtures, which had been removed from the premises by the mortgagors, a declaration of homestead made by the mortgagors is inadmissible in evidence for the purpose of establishing their intention of attaching the articles to the premises as permanent fixtures.</p> <p>In a controversy between a mortgagor and a mortgagee as to whether certain mantels and a porcelain bathtub and hot water boiler placed in the dwelling on the mortgaged premises were fixtures or not, evidence as to whether the house was or was not a finished house without such articles, and that the value of the premises was impaired by their removal, was immaterial and irrelevant.</p> <p>The question of whether or not a particular piece of furniture is a fixture is a mixed one of law and fact, and, where the question has been determined by the jury under proper instructions, their verdict will not be disturbed, unless it is clear, as a matter of law, that the furniture or machinery was in fact a part of the realty.</p> <p>Stock mantels carried by dealers as merchandise and made adaptive to any kind of a house; hot water heaters and bathtubs, all of which can be readily attached to, or detached from, the house without injuring the realty, are not fixtures, as between a mortgagor and a mortgagee.</p>

<p>ARPEAD-SUEFICIENCr OP COMPLAINT-WAIVES OP OBJECTIONS—REMOVAL OP LATERAL SUPPORT-MEASURE OP DAMAGES—INSTRUCTIONS.</p> <p>Where the sufficiency of a complaint has been sustained upon appeal, and another trial has been had upon the same complaint, from which a second appeal has been prosecuted, the sufficiency of the complaint cannot be again attacked upon the second appeal, upon a point not presented upon the former hearing, if the objection could have been presented at that time.</p> <p>In an action against a city for damages caused by so grading a street as to deprive abutting property of lateral support, in which the evidence shows that injury resulted and that the city had knowledge that it would probably result from its act, the question of what a reasonably prudent contractor or grading engineer would have done under the circumstances is not a proper one for submission to the jury.</p> <p>Where damages are recoverable by reason of the removal of lateral support, the depreciation of the property caused by an approaching slide as a result thereof, although the slide began to approach plaintiff’s property two years prior to the commencement of the action, should be eliminated from the jury’s calculations in assessing the amount of damages.</p>

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

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

<p>INSOLVENT CORPORATIONS—FRAUDULENT PREFERENCE-CONSIDERATION FOR MORTGAGE - PRE-EXISTING DEBT - EQUITABLE ESTOPPEL - RECEIVERS.</p> <p>Creditors of a bank in the hands of a receiver who consent to the discharge of the receiver and the re-opening of the bank, under an arrangement whereby one of the creditors is to advanee money to the bank for the purpose of enabling it to resume business and partially pay outstanding claims, are estopped from claiming they had no notice of a mortgage for an antecedent indebtedness being given in consideration of such advance, when they have agreed to an extension of the time in which the bank might pay their claims, and have received dividends thereon out of the moneys so advanced; and they are also equitably estopped from setting up the insolvency of the bank at the time of the discharge of the receiver, for the purpose of showing that the giving of the said mortgage constituted a fraudulent preference.</p> <p>The subsequent insolvency of a corporation cannot be given in evidence for the purpose of affecting the validity of a prior instrument, which was valid at the time of its execution.</p> <p>Where general creditors have for more than a year acquiesced in an order of the court discharging a receiver and permitting an alleged insolvent bank to resume business, they cannot be heard to object that the receiver did not represent them at the hearing.</p>

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

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

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

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

<p>Appeal from superior Court, Walla Walla County— U os. Mblviu AI. Godman, Judge.</p>

<p>PRINCIPAL AND AGENT—AUTHORITY TO SELL LAND—AGEN OY—EVIDENCE —PAROL.</p> <p>Although the authority of an agent may be merely an oral authorization to find a purchaser for certain land, yet his written contract for its sale is binding on his principal, when the principal subsequently; ratifies the same by agreeing to the terms of sale and accepting earnest money paid thereon.</p> <p>In the examination of a witness, it is not error for the court to permit him to state his conclusion or opinion as to the relationship of principal and agent between defendant and another, without disclosing facts which would constitute agency, as the grounds upon which the conclusion of the witness is based may be probed on cross-examination.</p> <p>Parol testimony as to the contents of a written instrument is admissible, upon proof of loss of the original, and that it could not he found after diligent and careful search.</p> <p>In an action for damages for failure to convey land, to which the defence is raised that the contract of purchase was made with an unauthorized agent of defendant, an unexecuted contract transmitted in a letter by defendant to the alleged agent, conforming to the terms of the contract as made by him, is admissible in evidence as a fact tending to show the alleged agent’s authority and ratification by the defendant.</p>

<p>TAXATION-NATIONAL BANKS-SHARES OP STOCK OP OTHER CORPORATIONS—DOUBLE TAXATION-UNIFORMITY.</p> <p>The fact that double taxation results from the method of taxing personal property, if such was the plain intent, will not invalidate the tax, unless forbidden by the constitution.</p> <p>Where the statutes provide for a method of taxation upon the shares of capital stock of banking institutions, and provide further for the taxation of their real and personal property at the same rate at which other moneyed capital in the hands of citizens is assessed, a bank is not entitled to deduct from the valuation of its capital stock the value of the shares of stock held by it in other corporations located and taxed within the state, although the ownership of such other corporate stock may enter into and contribute to the value of the bank’s capital stock.</p> <p>The constitutional provision (art. 7, § 2) requiring a uniform and equal rate of assessment and taxation on all property in the state according to its value in money, does not prescribe uniform methods of assessment for all classes of property, but is a requirement that the rate of assessment and the method of valuation shall be uniform as to property sought to be taxed.</p> <p>A national bank is not entitled to deduct, for the purposes of taxation, from the value of its capital stock, the value, of stocks in other corporations acquired by it in the course of business, although such other corporations are located within and taxed by the state, under Rey. St. U. S. § 5219, providing that taxation of such banks shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state, since there is no discrimination between the individual shareholder of a national bank, when taxed upon his shares as on other personal property, and the individual citizen, who is by the statute taxed upon all personal property owned by him.</p> <p>(Gordon, C. X, dissents.)</p>

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

<p>STATUTE OF FRAUDS-PROMISE TO PAY ANOTHER’S DEBT—IMPROPER JOINDER OF CAUSES OF ACTION.</p> <p>A verbal promise to pay the debt of another, as consideration for a transfer of property between promisor and promisee, even' though the original debt is not discharged by the new promise, does not fall within the statute of frauds, as such verbal promise constitutes merely an agreement of the promisor to pay his own debt.</p> <p>Under Bal. Code, § 4836. providing that persons severally liable upon the same promissory note may all. or any of them, be included in the same action, a complaint declaring against the maker of a note on his written undertaking, and also against another party on a verbal promise to pay the same note, is not demurrable on the ground of improperly uniting two causes of action.</p>

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

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

<p>ORIGINAL APPLICATION EOR PROHIBITION.</p>

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

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

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

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

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

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

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

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