Volume 22 — Washington Reports

<p>PERJURY-SUFFICIENCY OF INFORMATION.</p> <p>An indictment charging defendant with taking an oath as an election officer that he was not interested in any bet or wager on the result of the election, whereas in truth and in fact said defendant was interested in a certain bet and wager on the result of said election, but which fails to charge when, where or with whom such wager was laid, does not sufficiently charge perjury, in view of Code Proc. § 1236, which requires an indictment to be direct and certain as regards the party charged, the crime charged, and the particular circumstances of the crime charged, when they are necessary to constitute a complete crime.</p>

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

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

<p>DISMISSAL OP APPEAL — PAHAJBE TO TRANSMIT RECORD.</p> <p>A plaintiff is excusable for not having the record on appeal transmitted to the supreme court within four months after judgment, when it appears that the trial court did not sign and settle the statement of facts filed by him for a period of sixty days, that the court extended the time for serving appellant’s brief for a period of ninety days, that by a rule of the superior court it is made the duty of the clerk to not forward the statement of facts to the supreme court until the time for filing respondent’s brief has elapsed, and that the whole record had been transmitted prior to the expiration of the extension of time granted by the. trial court.</p> <p>TRIAL — CROSS-EXAMINATION OF WITNESS.</p> <p>In an action to recover damages on the ground of malicious prosecution, where the justice of the peace before whom the prosecution was instituted has been called by plaintiff as a witness merely to identify certain papers and docket entries made in his court upon the sworn complaint of defendant, it is error to permit the justice to testify on cross-examination that the defendant had asked for a writ of replevin in his court and that the criminal complaint had been instituted upon the suggestion of the justice.</p> <p>TRIAL-QUESTION FOR JUEY — SUFFICIENCY OF EVIDENCE.</p> <p>The action of the court in directing judgment in defendant’s favor in an action to recover damages for malicious prosecution is erroneous, when there is evidence tending to show that defendant had intrusted a mare to plaintiff under an agreement which entitled the plaintiff to retain possession until the fall of the year; that defendant had plaintiff arrested in July on a charge of grand larceny and that defendant had informed a witness, prior to making the charge, that he was about to have plaintiff arrested for stealing his mare.</p>

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

<p>INSURANCE-MODIFICATION OF CONDITIONS IN POLICY.</p> <p>A provision in an insurance policy that “none of its terms can be modified, nor any forfeiture under it waived, save by an agreement in writing signed by the president or secretary of the company” would not be binding or effective as to the assured, when he had no knowledge of it, never assented to it, and was not informed that the policy to be issued would contain such a provision.</p> <p>SAME-CONFLICT BETWEEN APPLICATION AND RECEIPT-WHICH CONTROLS.</p> <p>Where the delivery of an application for insurance and the giving of a receipt for the premium are contemporaneous acts, the terms of the receipt, which are wholly in writing, will control the printed terms of the application which conflict with it.</p> <p>SAME-WAIVER OF CONDITIONS-ESTOPPEL.</p> <p>Where the general agent or manager of a foreign insurance company within the state waives the condition contained in the company’s printed forms of application, stating that no policy issued thereon shall be binding until the first premium is paid, and such officer issues a receipt for part payment of premium which alleges that it is binding on the company from date of the receipt, and such matter being within the apparent scope of the authority of such general agent, the company is estopped to deny the acts of its agent, or to assert the invalidity of the agreement made by him.</p>

<p>PUBLIC LANDS-CONTESTS-JURISDICTION.</p> <p>The failure of the register of a land office, upon the cancellation of a homestead entry under Rev. St. U. S. § 2297, to find affirmatively that the entryman had abandoned his claim for six months, would not affect his jurisdiction to forfeit and cancel the entry for other causes, in view of the act of congress vesting the land department with power to determine all contests arising under the statutes granting a right to acquire title to the public lands of the United States.</p> <p>SAME.</p> <p>The rule of the land department requiring contests to be heard before the register and receiver of the local land office, made under authority of the supervisory powers given by statute to the secretary of the interior in public land matters, which rule had been long acquiesced in and become the settled practice of the department, must be held by the courts as in aid of Rev. St. U. S. § 2297, which names the register alone as the tribunal before whom hearings should be had in such cases, inasmuch as there is nothing in the rule prejudicial to contestants, since the’ contest is reviewable de novo on appeal to higher divisions of the department.</p> <p>SAME- — -ESTOPPEL.</p> <p>Even if the action of the register and receiver of a land office in deciding a contest may have been so far in derogation of Rev. St. XJ. S. § 2297 as to he irregular, the contestant complaining thereof is estopped to raise the objection in the courts, when he has failed to raise the point before the local land officers, the commissioner of public lands, or the secretary of the interior.</p>

— Hon. J. P. Houser, Judge. In an action to recover damages for the wrongful suing out of a writ of attachment, plaintiff set forth in paragraph eight of his complaint, as an element of damages, the following allegation: “That this plaintiff was compelled to be at an expense in procuring witnesses and preparing for the hearing of his motion to dissolve said attachment, and in attending the court for that purpose, of the sum of one hundred dollars.” The answer of defendant…

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

<p>Appeal from Superior Court, Walla Walla Comity.— Hon. Thomas H. Beents, Judge.</p>

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

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

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

<p>CONDITIONAL SALES-CUSTOM OF JEWELERS — MEMORANDUM MUST BE FILED.</p> <p>The custom prevailing in the jewelry business, whereby goods sent by a wholesale dealer to a retail merchant under what is called a “memorandum” contract, remain the property of the wholesale dealer and are only to be paid for after sale by the retailer, who is entitled to retain his profits, and in case no sale is made, the goods are to be returned to the wholesale dealer, constitutes a conditional sale, and an innocent purchaser of such goods from the retailer comes within the protection of Bal. Code, § 4585, which provides that all conditional sales of property, where the property is placed in the possession of the vendee, shall be absolute as to all creditors, or purchasers in good faith, unless within ten days of the taking of possession by the vendee a memorandum of the terms and conditions of the sale signed by vendor and vendee shall be filed in the auditor’s office of the county wherein the vendee resides.</p>

— Hon. E. D. Benson, Judge. One of the plaintiffs, in detailing a conversation with the defendants respecting the contract in controversy, made reference to another contract between the same parties, which was not in issue in the case, but which was so interwoven with the subject that it was impossible to omit it in testifying to that portion of the conversation which was relevant.

— Hon. E. D. Benson, Judge. Bespondents mortgaged lot 4 in block 3, Central Seattle, to appellant. The lot was partly upland and partly tide land, the title of the latter portion not being in the mortgagors. Subsequently the mortgagors acquired title to a portion of tide lands described as lot 4, block 223, Seattle Tide Lands, which included substantially that portion of the tide land which had been platted as a part of lot 4, block 3, Central Seattle.

<p>CARRIERS-REFUSAL TO TRANSPORT-MISCONDUCT OF PASSENGER.</p> <p>In an action against defendant for damages for refusal to-transport plaintiff on its ferry boat, where the defense was that the refusal was because of plaintiff’s vulgar conduct and indecent language in the presence of other passengers and that she refused to deport herself without offense or unbecoming conduct, it was error for the court to exclude testimony as to her conduct on previous occasions, unless defendant would prove-that she was intoxicated at the time of the refusal to carry her.</p> <p>INSTRUCTIONS — RELEVANCY TO EVIDENCE.</p> <p>Where all testimony as to plaintiff’s misconduct had been withdrawn from the consideration of the jury, it was error for the court to charge the jury as to what degree of misconduct and vulgarity would justify a common carrier in refusing transportation.</p>

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

<p>CARRIERS-CONVERSION — ABANDONMENT OP GOODS BY OWNER.</p> <p>The refusal of the owner of goods shipped, by himself to himself as consignee, to accept the goods at the point to which consigned and pay the freight therefor, constitutes an abandonment of the goods, and the owner is estopped from afterwards asserting that the carrier has converted them, no matter what disposition the carrier makes of them.</p>

<p>HARBOR AREAS — LEASE—IMPROVEMENTS—CONSTITUTIONAL LAW.</p> <p>Under art. 15, of the state constitution, prohibiting the sale or grant of harbor areas, except by lease, for not longer than thirty years, of the right to build and maintain wharves, docks and other structures, Laws 1899, p. 225, providirg that “the lessee of any part of such harbor area may at his or its option improve the same in such manner, subject to the approval of the board, and to such extent, as such lessee shall elect,” is invalid, because it vests the election to improve the harbor area in the lessee, while the constitution vests the option in the state.</p>

<p>APPEAL-SUFFICIENCY OF BOND-SUPERSEDEAS.</p> <p>An appeal bond for $650, which, purports to be both a supersedeas bond and a cost bond on appeal, is insufficient to confer jurisdiction on the supreme court, under Laws 1893, p. 122, §§ 6, 7, when the appeal is from a money judgment in the sum of $282.</p> <p>SAME — FILING ADDITIONAL BOND.</p> <p>The giving of an appeal bond is jurisdictional, aud an insufficent bond cannot be remedied by the filing of an additional one, where the time provided by law for the filing of the bond has expired.</p>

<p>COUNTIES — PUBLIC IMPROVEMENTS — ROAD CONSTRUCTION TAKING BOND FROM CONTRACTOR.</p> <p>Gen. Stat. §§ 2415, 2416, providing a right of action in favor of laborers and material men against counties and municipal corporations, in case they do not exact a bond from contractors upon public works for the protection of such parties, is applicable to contracts by a county for road improvements, under Laws 1893, p. 301, although the county may be liable for only one-third of the cost of constructing the road and the balance of cost is assessable against abutting property.</p>

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

<p>Appeal from Superior Court, Thurston County. — Hon. Oliver V. Linn, Judge.</p>

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

<p>APPEAX-STJEEICIENCY OE BOND-SUPERSEDEAS.</p> <p>A bond on appeal conditioned both as a supersedeas and as an appeal bond, in order to be sufficient, must be executed for sueb a penal sum as will include a sum double tbe amount of the judgment appealed from, added to tbe $200, required in all appeal bonds as security for costs.</p>

Held: Judge.

<p>JURY TRIAL-CONSTITUTIONAL RIGHT-WAIVER.</p> <p>The constitutional provision (art. 1, § 21) that the right of trial by jury shall remain inviolate, is simply intended as a limitation upon the right of the legislature to take away the right of trial by jury, and is not intended to interfere with the right of the individual to waive such privilege.</p> <p>STATUTES-CONTINUANCE IN FORCE UNDER NEW CONSTITUTION — REENACTMENT.</p> <p>Art. 27, § 2, of the constitution, which provides that the laws in force at the time of its adoption, which are not repugnant to the constitution, shall remain in force until they expire or are repealed by the legislature, cannot be construed as re-enacting a statute, but merely as continuing in force all valid laws which were then in existence.</p> <p>CRIMINAL LAW-JURY — NUMBER.</p> <p>Bal. Code, § 6930, which provides that “except as otherwise specially provided, issues of fact joined upon an indictment or information shall be tried by a jury of twelve persons, and the law relating to the drawing, retaining, and selecting jurors, and trials by juries in civil cases shall apply to criminal cases”; and Bal. Code, § 4978, which provides that in trials of civil actions by jury, the jury shall consist of twelve persons unless the parties consent to a less number, do not confer the right to try a criminal case by a jury of less than twelve persons.</p>

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

<p>VARIANCE-WHEN PREJUDICIAL' — AMENDMENT OE PLEADING.</p> <p>The fact that the complaint alleges complete performance of a specific contract, while the proof shows a part performance only and an excuse for non-performance of the contract in its entirety, does not constitute a failure of proof, but a variance merely, and, under Bal. Code, § 4950, a variance, even if material, is not ground for dismissal of the action, but the court is authorized to order the pleadings amended upon such terms as may be just upon a showing that the adverse party has been misled to his prejudice by the variance.</p> <p>MECHANIC’S LIEN-DEFECTIVE NOTICE-AMENDMENT ON FORECLOSURE.</p> <p>Under Bal. Code, § 5904, which provides that a lien notice may be amended the same as pleadings, after action brought to foreclose the same, by order of the trial court, if the interests of third parties are not thereby affected, the supreme court will treat a defective lien notice as it does a defective pleading, and, where the insufficiency of the lien notice was not particularly pointed out to the trial court, will consider it as amended in all cases where substantial justice has been done, and the alleged defect has not operated to the injury of the complaining party.</p> <p>CONTRACTS-CONSTRUCTION.</p> <p>A contract which provides to pay plaintiff a certain price for “3000 cubic yards for finishing the cut according to stakes set by the engineer, and to his satisfaction,” must be construed as referring to stakes then in place, and not as requiring the plaintiffs to continue the excavation according to stakes subsequently set by the engineer.</p> <p>SAME-NON-PERFORMANCE.</p> <p>In an action to recover for work performed in excavating for a road bed, the plaintiffs are not precluded from recovering because of failure to excavate a ditch alongside of the roadbed, where the engineer has refused to furnish them the necessary levels, without which the work could not be done.</p>

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

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

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

<p>EMINENT DOMAIN-APPEALS.</p> <p>The statute upon the subject of condemnation proceedings being a complete act within itself and containing a special enactment upon the subject of appeals in such proceedings, the general law regulating appeals is inapplicable.</p> <p>SAME-WHAT MATTERS BEVIEWABLE.</p> <p>Under Bal. Code, § 5643, which provides for the release and discharge of the corporation which has appropriated land from all further liability upon payment into court of the damages assessed “unless upon appeal the owner shall ‘recover a greater amount of damages”; and under § 5645, which provides that either party may appeal from the judgment for damages entered in the superior court within thirty days after the entry of judgment, and such appeal shall bring before the supreme court the propriety and justice of the amount of damages, no question can be raised upon appeal in condemnation proceedings other than as to the amount of damages.</p> <p>CONSTITUTIONAL LAW — SELE-EXECUTING POWERS — APPEALS.</p> <p>The constitutional provision (art. 4, § 4) conferring on the supreme court “appellate jurisdiction in all cases and proceedings,” with certain exceptions, is not self-executing, but confers a power which is dormant until methods of appeal shall be prescribed by the legislature or by the rules of the court itself.</p>

<p>Appeal from Superior Court, King County. — Hon. John K. Beowit, Judge pro tem.</p>

<p>TAXATION-CORPORATE FRANCHISES.</p> <p>Corporate franchises are taxable under the laws of this state.</p> <p>SAME-ASSESSMENT-VALUATION.</p> <p>The law having confided to the taxing officers authority to determine values, it is only when such officers act maliciously or fraudulently, or without affording the property owner an opportunity to be heard, that their conclusion as to values will be disturbed.</p> <p>SAME-ACTION OF BOARD OF EQUALIZATION.</p> <p>Where a board of equalization has received all the evidence offered by a property owner complaining of an assessment, it cannot be held to have arbitrarily refused to receive testimony from the fact that an offer on the part of the plaintiff to have one of its officers sworn was not passed upon by the board, when such officer was permitted to present his views along with others on the value of the property assessed.</p> <p>SAME.</p> <p>A corporation cannot claim that its corporate franchise was assessed without notice by the assessor and the board of equalization, when the assessor, before returning the assessment roll, had written in the column entitled “Other Property” the word “franchise,” without changing the aggregate amount of the assessment; and from the further fact that the corporation had knowledge that its franchise was listed for assessment, when before the board seeking a reduction of the valuation of its property.</p>

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

<p>RAPE — INFORMATION-CONFORMITY WITH STATUTE.</p> <p>Bal. Code, § 7062, defines carnal knowledge of a female under the age of eighteen years as constituting the crime of rape, and an information which conforms to the terms of the statute is sufficient, without conforming to the common law requirements in charging such an offense.</p> <p>SAME-SUFFICIENCY OF EVIDENCE.</p> <p>Under a statute making it rape to have carnal knowledge of a female child under the age of eighteen years, a verdict against defendant is supported by sufficient evidence, when the prosecutrix and her brother testify that her age is sixteen, and her testimony that she was invited from school to meet defendant and that they remained together in a lodging house where the offense was committed, is corroborated by other evidence.</p> <p>CRIMINAL LAW-INDORSEMENT OF NAMES OF WITNESSES ON INFORMATION.</p> <p>Where the testimony of a witness for the prosecution is offered in rebuttal for the purpose of meeting evidence tendered by the defendant, the defendant cannot complain of the failure of the prosecution to indorse the witness’ name upon the information.</p>

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

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

<p>EMINENT DOMAIN-ELEMENTS OE COMPENSATION EOR APPROPRIATION.</p> <p>Where a railroad company has entered upon and appropriated land for right of way purposes, and has placed improvements thereon, in a subsequent proceeding by the corporation for the condemnation of the premises, it cannot be required to compensate the land owner for the value of such improvements.</p>

<p>EXECUTION-SALE TO PLAINTIFF SUBSEQUENT TO DEATH-VACATION OF SALE.</p> <p>Where the plaintiff in foreclosure proceedings dies subsequent to a decree in her favor, but before sale of the premises, and her attorneys, in ignorance of her death, bid in the property in the name of plaintiff and secure a confirmation of the sale, the proceeding is a nullity, which may be vacated at any subsequent date, upon motion of her personal representative.</p>

<p>CORPORATIONS-SUBSCRIPTION TO STOCK-ACCOMMODATION NOTE — ■ LIABILITY OF MAKER.</p> <p>In an action by the receiver of an insolvent bank to enforce payment of a note given for shares of stock, against a defendant who was a director and trustee of the bank from its organization, it is no defense thereto for the maker of the note to set up that it was done merely for accommodation to the bank, until the hank could dispose of them to some purchaser, for the reason that the hank could not carry the stock in its own name, and that hy agreement between the maker and the hank’s officers he was not to be held liable thereon.</p> <p>SAME-INSOLVENCY-ACTION BY RECEIVER — DEFENSES.</p> <p>In an action hy the receiver of an insolvent hank to collect a note given in payment of a subscription to its capital stock, it is no defense to set up that no assessment has been made upon the capital stock by the hank or its receiver, or by any court, or that there had been no determination of the amount of corporate indebtedness.</p> <p>COMMUNITY PROPERTY — LIABILITY UPON ACCOMMODATION NOTE.</p> <p>The property of the community is liable upon a note executed hy the husband merely as an accommodation to a bank in which he is a director and for the purpose of promoting the interests of the bank and protecting its property and business, when it is „ to he presumed that any benefits growing out of his connection with the bank will inure to the community.</p>

<p>QUO WARRANTO PROCEEDINGS-AGAINST OEEICERS OE PRIVATE CORPORATION — PROPER PARTIES.</p> <p>Under Bal. Code, §§ 5780, 5781, providing that an information may be filed against any person who shall unlawfully hold or exercise any office in any domestic corporation, which information may be filed by the prosecuting attorney, upon his own relation, whenever he shall deem it his duty to do so, or shall he directed by the court or other competent authority, “or by any other person on his own relation, whenever he claims an interest in the office, franchise or corporation which is the subject of the information,5’ the stockholders of a corporation have such an interest in the offices as will warrant them in proceeding by information in the nature of quo warranto for the purpose of ousting those illegally holding office.</p> <p>CORPORATIONS-REMOVAL OE TRUSTEES — RIGHTS OE STOCKHOLDERS.</p> <p>Bal. Code, § 4255, which provides that “It shall be competent at any time, for two-thirds of the stockholders of any corporation organized under this chapter to expel any trustee from office and to elect another to succeed him,” must be construed, in view of all the other provisions of the same chapter governing the manner of voting shares of stock, and in the absence of any by-law making a different provision, as requiring a vote of two-thirds of the shares of stock, instead of two-thirds of the stockholders, in order to expel a trustee from office.</p>

<p>ACTION ON NOTE — WANT OF CONSIDERATION — BREACH OF WARRANTY AS . A DEFENSE.</p> <p>In an action to recover upon a promissory note given for the purchase price of goods, the maker may plead as a defense a want of consideration, partial or complete, where there has been a breach of warranty concerning tne goods.</p> <p>NEGOTIABLE INSTRUMENTS-TRANSFER BY SEPARATE ASSIGNMENT-EFFECT OF SUBSEQUENT INDORSEMENT.</p> <p>Where a promissory note is transferred by a separate assignment, and is not indorsed to the assignee until after maturity, the subsequent indorsement will not relate back so as to cut off defenses the maker may have had against the payee.</p> <p>SALES — BREACH OF WARRANTY.</p> <p>Where the seller of a pump and irrigating plant knew the use for which they were intended, selected the land to be irrigated and the pump for the purpose, and expressly represented that the pump would accomplish the work, the' representations of the sellers amount to a warranty of the machinery, whether so intended by them or not, if the purchaser relied on such statements as a warranty and was induced thereby to make the purchase.</p> <p>SAME — FRAUDULENT REPRESENTATIONS — RELIANCE ON-SUFFICIENCY OF EVIDENCE.</p> <p>In an action upon a note given for the purchase price of a pump and plant bought for irrigating purposes, the fact that the note was given by the maker after observing the operation of the pump for a few hours, that he had subsequently made a couple of interest payments on the note, and- that he had not raised objection to the failure of the pumping plant until suit for the purchase price, does not negative his defense that ne had purchased in reliance upon the representations of the seller, when it appears that at the time of the test of the machinery he 'was dissatisfied with its adequacy and the expensiveness of its operation, and that the seller’s engineer in charge claimed it would work all right at the higher stages of the river in spring and summer when irrigation was necessary, and that it would take much less fuel after the pump had been worked a while; that the seller had selected the body of land to be irrigated and represented lhat the pump would produce a how of 700 gallons per minute to the highest point of the land and would successfully irrigate ¿97 acres, when in fact it could not raise water to the higher parts of the land and could not pump more than 200 gallons per minute; and that a number of the pumps had been put in in the same county by the sellers and none of them could irrigate the lands successfully. (Dunbar, J., dissents.)</p> <p>ACTION ON NOTE — BREACH OF WARRANTY AS DEFENSE — ESTOBPEJj — PAYMENT OF INTEREST COUPONS.</p> <p>The maker of a note given for the purchase price of machinery may set up a breach of warranty thereof as a defense; and the payment of interest coupons on such note would not estop him from denying the consideration for the note.</p>

<p>TRIAL-ADMISSIONS IN PLEADING-ADMISSIBILITY IN EVIDENCE.</p> <p>Where an allegation of an amended complaint is not denied by the answer, it is error to permit the introduction in evidence of the first complaint in the action, which contains an allegation contrary to the allegation of the amended complaint admitted as true by the answer.</p> <p>SAME — EVIDENCE OF MISTAKE.</p> <p>Where the first complaint in an action is admitted in evidence for the purpose of disproving allegations' of the amended complaint, which have not been denied by answer, it is proper to allow plaintiff to testify that, although she had verified the first complaint, she was not aware of the fact that the pleading contained a certain admission, and that its incorporation therein was a mistake.</p> <p>MARRIAGE-ILLEGALITY — BURDEN OF PROOF.</p> <p>Where a party attacks the legality of a second marriage in asserting the rights of the first wife, while at the same time admitting the fact of the second marriage, he assumes the burden of proving the illegality of the latter, and must not only prove the prior marriage but also that it has never been dissolved.</p> <p>SAME — SUFFICIENCY OF EVIDENCE.</p> <p>One claiming property of a decedent as his wife is not entitled to recover, upon proof that deceased deserted her in a foreign country and that she “believes” he thereafter went to various parts of the world, including the place where he died, when there is no evidence that such was the fact and there is no description of deceased attempted, tending in any way to establish the identity between him and her husband.</p>

<p>EVIDENCE — CONTENTS Off LETTER-ADMISSIBILITY Off EXPLANATORY TESTIMONY.</p> <p>Where a letter written hy a witness is introduced in evidence for the purpose of contradicting his testimony, he is entitled to explain the statements made therein, as the letter, under such circumstances, is not governed hy the rule which precludes a written instrument from being varied or altered by parol testimony.</p> <p>SALES — BREACH Off WARRANTY-TIMELINESS Off CLAIM.</p> <p>In an action upon an account for goods sold in which the defense set up is breach of warranty concerning the goods, the fact that the breach was not claimed until after payments had been made on the account will not estop the defendant, since his case is governed by the same rule as that which permits a suit for breach of warranty even after the purchase price has been paid.</p> <p>SAME-WHAT CONSTITUTES EXPRESS WARRANTY.</p> <p>In an action to recover a balance of account for a quantity of beer sold defendant, the answer sets up an express warranty when it alleges that the beer was sold for export trade in Central America and that plaintiff undertook and agreed that the beer should be put up in proper condition for that trade and properly bottled and corked.</p>

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

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

<p>JUDGMENT-LIEN-PRIOR FRAUDULENT CONVEYANCE.</p> <p>A fraudulent conveyance of lands is good as between the parties and passes title, so that a subsequent judgment creditor acquires no lien on the lands thus fraudulently conveyed, for the reason that no interest in such lands remains in the grantor upon which a judgment lien can attach.</p> <p>FRAUDULENT CONVEYANCES — RIGHTS OF JUDGMENT CREDITORS.</p> <p>A judgment creditor, who, by suit in equity, has a deed by his judgment debtor to another set aside as fraudulent against himself as a creditor, and obtains a decree subjecting the property to sale under his judgment, and bids it in under such sale, obtains thereby a title superior to that of a prior judgment creditor who treats the fraudulent conveyance as void and purchases the property at a sale under execution upon his prior judgment.</p> <p>SAME-MORTGAGE BY FRAUDULENT GRANTEE-REDEMPTION FROM FORECLOSURE SALE.</p> <p>Where lands fraudulently conveyed have been mortgaged by the grantee and subsequently sold under foreclosure proceedings, a judgment creditor of the fraudulent grantor, who has failed to have the fraudulent conveyance set aside, but has had the property sold upon execution under his judgment and has bid it in, is not entitled to redeem from the foreclosure, as he does not occupy the position of a successor in interest, nor of a judgment creditor of the mortgagor.</p> <p>INJUNCTION-WHEN LIES.</p> <p>A plaintiff is entitled to injunctive relief where it appears that he would be compelled to part with an incident of title to one who has shown no right to obtain it.</p>

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

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

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

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

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

<p>POLICE OFFICERS AS WITNESSES — FEES.</p> <p>Art. 2, § 25, and art. 11, § 8, of the constitution, which prohibit the increase of an officer’s salary during his term of office, do not inhibit the allowance of witness fees to a policeman, although he draws a regular monthly salary as such officer, since such services as a witness do not fall within the duties required of him by his office.</p>

<p>UNLAWEUL DETAINER — PARTIES—ACTION BY SUCCEEDING LESSEE.</p> <p>Under Bal Code, § 5527, which, provides that a tenant of real property is guilty of unlawful detainer, when he holds over or continues in possession after the expiration of the term for which it is let to him, and that notice for the payment of rent or the surrender of the detained premises may be given in behalf of the person entitled to the rent upon the person owing the same; and under Bal. Code, § 4824, which provides that every action shall be prosecuted in the name of the real party in interest, except as is otherwise provided by law, an action of unlawful detainer may be maintained by a successor in interest of the estate of the landlord.</p>

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

<p>ACTION ON NOTE — DEFENSES—PLEADING.</p> <p>The answer to an action upon a promissory note states no defense when it sets up that in order to secure the note the maker executed an absolute conveyance of certain tide lands to the payee, but intended only as a mortgage, which lands the payee had an opportunity to sell and apply the proceeds on the note, hut neglected so to do, although requested by the maker, when the answer contains no allegation of an agreement hy the payee to sell the land upon the maker’s request.</p> <p>MORTGAGES-REMEDIES OPEN TO MORTGAGEE.</p> <p>In the absence of agreement a mortgagee is under no obligation to proceed otherwise than to foreclose the mortgaged premises in due course of law and apply the proceeds to the debt; or he may elect to abandon the mortgage and sue upon the note alone.</p>

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

<p>FRAUDULENT CONVEYANCES-CHATTEL MORTGAGES-EVIDENCE — DECLARATIONS AGAINST INTEREST.</p> <p>Declarations of a mortgagor, made after the execution of the mortgage, which tend to show that his object in executing it was for the purpose of hindering and defrauding creditors, are admissible in evidence where the good faith of the transaction is in issue.</p> <p>SAME-INSTRUCTIONS.</p> <p>In an action involving the good faith of a debtor in having executed a chattel mortgage, it is not error for the court to refuse to charge the jury that they would not be warranted in finding plaintiffs mortgage to be fraudulent, even if they believed from a preponderance of the evidence it was fraudulent; “the evidence must go further; it should be clear and convincing,” since it is sufficient if the minds of the jury are satisfied of fraud from a preponderance of the evidence.</p> <p>SAME.</p> <p>In such an action, a charge to the jury that if they find that any considerable part of the proceeds- of the property, after the execution of a mortgage thereon and the taking possession thereunder, were retained by the mortgagor with the consent of the mortgagee, or that if, having received any considerable part of the proceeds, said mortgagee turned the same over to the mortgagor for his benefit, then said mortgage was fraudulent and void, is erroneous, for the reason that it precludes the jury from any investigation of the good faith of the parties, or the reasons underlying their conduct.</p>

<p>APPEAL-SUFFICIENCY OF EVIDENCE.</p> <p>A judgment of the superior court will not he disturbed on appeal on the ground of the insufficiency of the evidence to support the verdict, where the evidence was directly conflicting but there was substantial testimony in favor of the prevailing party.</p>

<p>APPEAL — REVIEW OF INTERMEDIATE ORDERS-HARMLESS ERROR.</p> <p>The action of the court in refusing to strike out certain allegations of a complaint as irrelevant and redundant matter is not prejudicial error, when there is no showing that it in any way involved the merits of the controversy, or materially affected the judgment rendered, since, under Bal. Code, § 6520, an intermediate order or determination of the trial court will be reviewed only when it involves the merits of the controversy, or materially affects the judgment, and, under § 6535, the supreme court is required to hear and determine all causes upon the merits, disregarding all technicalities, and to consider all amendments which could have been made as made.</p> <p>PLEADING-PARTIES-AMENDMENT.</p> <p>In an action founded upon a deed executed by husband and wife, in which the complaint fails to name the wife as a party or recite any fact excusing the necessity of making her a party, it is not an abuse of discretion for the court upon the trial to permit the plaintiff to so amend his complaint as to show the death of the wife prior to the commencement of the action.</p> <p>SAME — REFORMATION OF INSTRUMENT-NECESSARY ALLEGATIONS.</p> <p>In a suit to reform a written instrument a complaint is sufficient which shows the original agreement of the parties, points out where the writing differs from the agreement, and alleges that the difference was caused by the mutual mistake of the parties to the agreement; and the complaint is not rendered defective by not setting out the exact language omitted from the written agreement.</p> <p>STATUTE OF LIMITATIONS-WHEN BEGINS TO RUN-REFORMATION OF INSTRUMENT-ADVERSE CLAIM.</p> <p>■ The bar of the statute of limitations does not begin to run against an action for the reformation of a deed until the assertion of an adverse claim against the party seeking reformation.</p> <p>REFORMATION OF INSTRUMENT-MISTAKE OF LAW.</p> <p>The fact that the duty of passing upon the sufficiency of a deed to the state was placed by law upon the attorney general, and that that officer duly approved the deed, would not constitute such culpable negligence on the part of the officers of the state, or such a mistake of law as equity would not relieve against.</p>

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

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

<p>COMMUNITY PROPERTY-LIABILITY FOR SURETY SHIP DEBTS.</p> <p>Where a husband who is a stockholder in a corporation signs a note of the corporation as a surety, the property of the community is liable, if his corporate stock was community property.</p>

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

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

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

<p>STREET RAILWAYS-ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE.</p> <p>Where one driving a team and seated in a covered wagon from which he could not see without putting his head out approaches a car track upon which he knows an electric car is about due, and, when near the track, slows down his team from a rapid pace and attempts to cross the track without looking for the car, but having his attention fixed on another object, his own negligence is the proximate cause of any injury sustained by reason of a collision between his wagon and the car.</p>

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

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

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

<p>APPEAL — AMOUNT IN CONTEOVEBSY.</p> <p>In an action against a surety upon a supersedeas bond given in certiorari proceedings, to recover the amount of the judgment and costs, together with an attorney’s fee for defending the certiorari proceedings, the claim for attorney’s fee is not a part of the judgment or amount in controversy; and where the sum sued for, without the claim for attorney’s fee, does not exceed the sum of $200, the supreme court has no jurisdiction on appeal.</p>

<p>REVIEW ON APPEAL-EXCEPTIONS TO FINDINGS-STATEMENT OF FACTS.</p> <p>Exceptions to findings of fact will not be reviewed on appeal, in the absence of a statement of facts.</p>

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

<p>BOND TO SECURE PAYMENT OF LABORERS AND MATERIALMEN — RIGHT OF ACTION BY THIRD PARTIES.</p> <p>Where by the terms of a lease of mining property, the lessee was to pay all debts that he might contract in and about the mine, for both labor and material, and permit no liens of any kind to be filed upon the mine or any interest therein for such debts, and pay all laborers employed by him as often as every two weeks, and a bond was executed by the lessee to the lessor to perform the promises and covenants contained in the lease, an unpaid laborer has a right of action upon the bond to recover money due him for his labor in and about the mine.</p> <p>STARE DECISIS.</p> <p>A decision creating a rule- of law for a case, which has not been subsequently applied to other cases, cannot be said to have established a fixed rule and become stare decisis.</p>

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

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

<p>INSURANCE — CHANGE OF INTEREST — EFFECT OF JUDGMENT IN FORCIBLE DETAINER.</p> <p>The judgment of ouster in an action of unlawful detainer, under Bal. Code, § 5542, which provides that when the lease has not by its terms expired, execution upon the judgment shall not be issued until the expiration of five days after its entry, within which time the tenant or other party interested in the continuance of the lease, may pay into court for the landlord the amount of the judgment and costs, and thereupon the judgment shall be satisfied and the tenant restored to his estate, does not become complete until the expiration of the five days, nor effect such a change in the interest or right of possession of the tenant, as to avoid a fire insurance policy during such period of five days, under a condition which provides that the entire policy shall be void, if any change take place in the interest, title or possession of the subject of insurance, whether by legal process or judgment or voluntary act of the insured.</p>

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

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

<p>EIKII COMMISSIONER — EXERCISE OE POWERS-REVIEW BY COURTS.</p> <p>Under Laws 1899, p. 194, prohibiting fishing with fixed appliances in any river flowing into Puget Sound and within a distance of three miles from the mouth of any such rivers, and authorizing the fish commissioner, for the purpose of enforcing the law, to indicate the mouths of said rivers by driving piles therein, the action of the fish commissioner in locating the mouth of any river at a given point cannot be reviewed by the court, when brought in question collaterally.</p> <p>FISHERIES-LOCATION — -MEASUREMENT FROM RIVER MOUTH.</p> <p>Laws 1899, p. 194, prohibiting the erection and maintenance of fixed appliances for fishing within three miles of the mouth of any river flowing into Puget Sound, contemplates that the measurement to determine whether the act has been violated should be made over an all-water course, and not in a straight line across the uplands.</p>

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

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

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

<p>EXECUTION SALES-BONA RIDE PURCHASERS-UNRECORDED DEED — PRIORITIES.</p> <p>An execution creditor who purchases real estate at a sale under his own levy, is not such a tona fide purchaser as to he entitled to priority over an unrecorded deed, within the meaning of Gen. Stat., § 1439, which provides that “all deeds and mortgages shall he recorded in the office of the county auditor of the county where the land is situated, and shall he valid as against tona fide purchasers from the date of their filing or recording in said office.”</p>

<p>STATUTES-TITLE OF ACT-CURATIVE ACT.</p> <p>Although a section of an act of the territorial legislature may have been invalid for the reason that it was passed in contravention of Rev. St. U. S. § 1924, which declared that every law should embrace but one object and that should be expressed in the title, the defect was fully cured where a subsequent act of congress expressly ratified and confirmed as a whole the act of which such section was a part.</p> <p>SAME-CONSTRUCTION-WHAT INCLUDED UNDER TERM “STRUCTURE.”</p> <p>A fence is a “structure,” within the meaning of Bal. Code, § 5433, which provides that “an injunction may be granted to restrain the malicious erection by any owner or lessee of land, of any structure intended to spite, injure, or annoy an adjoining proprietor.”</p> <p>SAME- — -CONSTITUTIONAL LAW.</p> <p>Although the legislature may not, by express enactment, have declared the commission of certain acts illegal, a statute empowering the courts to restrain by injunction the commission of such .acts, would not be unconstitutional on that ground, inasmuch as a law authorizing the enjoining of an act is equivalent to declaring that such act is illegal.</p> <p>CONSTITUTIONAL LAW-MALICIOUS ERECTION OF STRUCTURES — POLICE POWER.</p> <p>Bal. Code, § 5433, which provides that “an injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure, or annoy an adjoining proprietor; and where any owner or lessee of land has maliciously erected such a structure with such intent, .a mandatory injunction will lie to compel its abatement and removal,” is not unconstitutional on the ground of authorizing the taking of one’s property without just compensation, since it is merely an exercise of the police power of the state, intended to prohibit the erection of such structures only as are primarily or solely intended to injure or annoy an adjoining owner, and which serve no really useful or reasonable purpose.</p> <p>SAME — DOMINATING MOTIVE OE ERECTION-MALICE.</p> <p>In order to warrant the issuance of an injunction under a statute authorizing the court to restrain the malicious erection of structures on one’s own land, made for the purpose of annoying an adjoining owner, malevolence must he shown as the dominating motive.</p>

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

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

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

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

<p>MECHANICS’ LIENS — PROPERTY SUBJECT.</p> <p>Where a person causes the erection of a building upon lands in which he holds less than a fee simple title, only his interest in the lands can be subjected to the liens of persons performing labor upon, or furnishing materials to be used in, the construction of such building, under Bal. Code, § 5901.</p> <p>SAME — PRIORITIES BETWEEN LIEN CLAIMANT AND MORTGAGEE.</p> <p>Where the legal title to real property is retained by the vendor to secure payment, the relation of the vendor and purchaser to the property is in the nature of that of mortgagor and mortgagee; and where a mechanic’s lien is subsequently incurred against the premises by the purchaser, while the legal title-stands of.record in the vendor’s name, it is subordinate to the interests of the vendor, under the terms of Bal. Code, § 5903, which provides that liens for labor and material are preferred to any lien, mortgage or incumbrance which may attach subsequently to the time of the commencement of the performance of the labor, or the furnishing of the materials, for which the right of lien is given, and also, to any lien, mortgage or incumbrance which may have attached previously to that time, hut which was not filed or recorded so as to create constructive notice, and of which the lien claimant had no notice.</p>

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

<p>CITY WARRANT-NEGOTIABILITY — TITLE OF INNOCENT PURCHASER.</p> <p>A city warrant is governed by the rules applicable to negotiable paper, so far as any question involving its title is concerned; and, where such a warrant, indorsed in blank, is sold to a bona fide purchaser by its apparent owner, to whom it had been temporarily intrusted by its real owner, the purchaser acquires title thereto.</p> <p>TRIAL — DISCHARGE OF JURY AND JUDGMENT OF DISMISSAL — NECESSITY FOR FINDINGS.</p> <p>Where the court withdraws a case from the jury and enters judgment dismissing the action, under Bal. Code, § 4994, it is not required to make findings of fact and conclusions of law.</p>

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

<p>EXECUTION SALE OF FRANCHISES — TO WHAT APPLICABLE.,</p> <p>Laws 1897, p. 96, providing a method for the sale of franchises, has reference to such as are comprehended within grants from public or' quasi public authority, and has no reference to “news contracts,” which pass under the name of “franchises” in the newspaper trade, where the term is used, not in its legal sense, but as having a particular trade meaning.</p> <p>JUDICIAL SALE — FRANCHISES—'INDEFINITENESS OF DESCRIPTION.</p> <p>A sale of “franchises” under a foreclosure of a mortgage on a newspaper, its plant, franchises, circulation and good will, describes no property with sufficient particularity to- he identified, and hence passes no title to any rights which existed under a contract between the mortgagor and the Associated Press for news service.</p> <p>NEWSPAPERS — USE OF ANOTHER’S NAME AND GOOD-WILL-REMEDY.</p> <p>Injunction will not lie, at the instance of one who has purchased a newspaper, its plant, good-will and franchises, at a mortgage foreclosure sale, to restrain another newspaper company from usurping the good-will and employing a kindred name for the paper published by it, since the remedy of the purchaser at the foreclosure sale is confined to an action for damages for conversion.</p>

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

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

<p>JUDGMENTS' — -ACTION TO CANCEL-EES JUDICATA.</p> <p>Where the statute affords a full, complete, and adequate remedy against an illegal judgment hy authorizing the aggrieved party to proceed hy motion to vacate and set aside, and permitting an appeal from any order entered upon such motion, one who has attacked a judgment hy motion to vacate and has failed to prosecute an appeal from the denial of his motion, cannot subsequently maintain an action to cancel the judgment, since the question of the validity of the judgment is res judicata,.</p>

<p>VENDOR AND PURCHASER — LAND CONTRACT — FORFEITURE—RIGHTS OF' MORTGAGEE OF PURCHASER’S INTEREST.</p> <p>Although a contract for the sale of land may provide that the-time of payment of installments falling due is of the essence of the contract, and that no interest in the contract less than the-whole can be assigned, yet the action of the vendor constitutes a. waiver of both conditions, when he agrees to an extension of time for the deferred payments, having knowledge at the time-of such extension that a partial interest in the contract had been assigned by the original purchaser; and, under such circumstances, the vendor cannot enforce a forfeiture of the contract, without giving notice to a mortgagee of such partial interest, the-existence of whose lien was known to the vendor prior to any-attempted forfeiture.</p> <p>SAME — -ACTS OF EXECUTOR RESPECTING TESTATOR’S INTEREST IN CONTRACT — PRESUMPTIONS.</p> <p>Where one of the purchasers under a contract for the sale of land died, after having given a mortgage upon his interest, and his executor was a party to an agreement whereby the contract, was declared forfeited and a new contract effected between the-vendor and a portion of the purchasers, with the object of shutting out some of the purchasers under the old contract, pursuant to which agreement a conveyance was eventually to be made to the executor in his own name of a portion of the.premises equivalent to the interest held by his testator, the presumption arises that the executor was acting in the interest of his testator’s estate, and the lien of the mortgage upon the interest of the testator would continue against the premises under the new agreement.</p>

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

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

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

<p>PUBLIC LANDS-NORTHERN PACIFIC RAILROAD GRANT-WITHDRAWAL FROM SALE OR ENTRY — RIGHTS OF HOMESTEAD CLAIMANT.</p> <p>Under the act of Congress of July 2, 1864 (13 St. at Large, 365), granting public lands to the Northern Pacific Railroad Company, whenever a plat of the general route of the road shall have been filed in the office of the commissioner of the general land office, § 6 of which act provides that the lands thereby granted “shall not be liable to sale, or entry, or preemption before or after they are surveyed, except by said company,” the act, and the order of the commissioner of the general land office declaring that the company had duly filed such map showing its general route through certain public lands, and withdrawing from sale or entry all the odd numbered sections falling within the forty-mile limits of the land grant along said line, constitutes a withdrawal of said lands from sale or entry from that date, so that they are not subject to homestead entry, although the homestead claimant may have settled on a portion thereof prior to the definite location of the line of road.</p> <p>SAME.</p> <p>The act of Congress of July 2, 1864, authorizing the withdrawal from sale or entry of certain public lands along the line of the Northern Pacific Railroad excludes such lands from the operation of the homestead law, as the word “entry” covers homestead applications.</p> <p>SAME — OCCUPATION WITH INTENT TO ENTER AS HOMESTEAD — EFFECT OF WITHDRAWAL FROM ENTRY.</p> <p>The act of Congress of May 14, 1880 (21 St. at Large, 140), which provides that the rights of homestead settlers relate back to the time of settlement, would not give an occupant of public lands, who did not actually make an entry of the same as a homestead until after they were withdrawn from entry by the secretary of the interior, a right to acquire title under the homestead laws.</p>

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

<p>APPEAL — TAKEN MERELY EOR DELAY — DAMAGES.</p> <p>Although an appeal has been taken merely for delay, the respondent is not entitled to damages upon procuring its dismissal, when there is no showing of any special damage, and the judgment appealed from is a money judgment, drawing interest, and respondent’s costs and attorney fees incurred in prosecuting the motion to dismiss are recoverable.</p>

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

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

<p>TAXATION — PENALTIES AND INTEREST ON MUNICIPAL TAXES-BIGHT OE COUNTIES TO RETAIN.</p> <p>Laws 1899, p. 290, § 6, which provides that the county treasurer shall be the collector of all taxes, whether levied for state, county, municipal or other purposes; that all delinquent taxes shall draw interest at the rate of fifteen per cent, per annum; that a rebate of three per cent, shall be allowed on all payments of taxes on real property paid in full on or before March l!>th next prior to date of delinquency; and that “all rebates allowed under this section shall be' charged to the county current expense fund, and all collections from penalties and interest on delinquent taxes shall be credited to the current expense fund,” is retroactive, as well as prospective in its operation, and the county treasurer is thereby authorized io credit the county current expense fund with all penalties and interest collected on municipal taxes under levies made prior to its enactment; for the reason that the legislature has not imposed upon municipal corporations the power to impose penalties and interest on unpaid taxes, but has regulated the matter by general laws under its sovereign capacity, and has a right to dispose of the fund arising from such a source.</p> <p>SAME-STATUTES-RETROSPECTIVE EFFECT.</p> <p>By construing together the various revenue laws passed by the legislature from time to time in this state, it is apparent that different meanings were attached to the terms “penalty” and “interest”; and since Laws 1899, p. 290, §6, provides only for interest on delinquent taxes in futuro, it must he presumed that the further provision of the section, uisposing of collections of penalties and interest on delinquent taxes contemplated a retrospective application of the statute to taxes levied under prior statutes in which such terms had distinct and separate definitions.</p>

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

<p>MUNICIPAL CORPORATION S — CONTRACT NOR PUBLIC IMPROVEMENTS— EQUITABLE ASSIGNMENTS AGAINST INSTALLMENTS DUE.</p> <p>Under a public improvement contract between a city and a contractor, which provides that the contractor is to complete the work for a stipulated sum and pay all claims for labor and material; that he should be allowed monthly 70 per cent, of the amount earned by him, upon estimates made by the city engineer; and that 30 per cent, of the contract price of the estimated amount of work done should be retained by the city to secure laborers and material men; no lien is created against such 70 per cent, fund in favor of labor and material claims, but such fund is subject to disposal by the contractor; and orders drawn by him against such fund constitute an equitable assignment of so much thereof as is necessary for their payment, if assented to by the city, and these assignments being valid when made would not be invalidated by the subsequent default of the contractor.</p> <p>SAME-ABSCONDING CONTRACTOR — SUBROGATION OE BONDSMEN.</p> <p>Where the contractor absconds and the improvement is completed by his bondsmen, there are no rights held by the city, under such a contract, in or to the fund earned and assigned by the contractor to which his bondsmen can become subrogated.</p>

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

<p>TRIAL — DIRECTING VERDICT.</p> <p>In an action by a bank to establish its claim of title to certain hops which had been levied upon as the property of a firm of hop merchants, the bank is entitled to a directed verdict in its favor, when the undisputed evidence shows that, owing to the extent of the firm’s indebtedness to the bank, the latter refused to loan it any more money, but made an agreement that one of the firm should become the agent for the bank in the purchase of hops, and that the old indebtedness of the hop company should be credited with the net profits arising from their sale; and that the hops in controversy were purchased for the bank under such arrangement; and the fact that the books of the bank exhibited the account of the hop firm as one of ordinary advances and loans, and credits to that account of all profits on the sale of hops, and that a contract introduced in evidence was a memorandum of sale of a portion of the hops from the owner to the hop firm, would not overcome such undisputed testimony as to the title to the hops so as. to make it a question for the jury, when it was further shown that the account in the bank books was kept in the form in which it appeared for convenience and that the seller of the hops, whose memorandum of sale was made to the hop firm, was paid directly by the bank upon an order signed as agent by the member of the firm acting as the bank’s agent.</p>

<p>PARTITION AUTHORIZED BY Witt — ALIENATION BY DEVISEE OF INTEREST-RIGHTS OF GRANTEE.</p> <p>Where lands were devised to two sons, which they were authorized by the will to partition between themselves, and one, with the knowledge of the other, conveyed away his interest, the grantee succeeded to all the rights of the grantor, who thus became debarred of all rights and interest in the partition.</p> <p>SAME-ORDER OF DISTRIBUTION-NECESSITY OF NOTICE.</p> <p>Undef Bal. Code, §§ 6357, 6361, which provides that partition and distribution of real estate in the probate court is made on the application of the executor or administrator^ or any person interested in the estate, and only upon notice as required upon an application for the sale of land by an executor or administrator; and that partition may be had, although some of the original heirs or devisees may have conveyed their shares to other persons, who shall be entitled to an assignment of such portion in the same manner as the heirs or devisees would have been; an order of distribution made by the probate court under the provisions of the will, without notice to the grantee of the undivided moiety of one of the devisees was void.</p> <p>SAME-LACHES.</p> <p>The fact that a grantee of a devisee’s interest in lands failed to bring suit for partition until several years after an order of distribution and partition had been made by the probate court does not amount to laches, when he had no notice of the attempted division of the premises and the land was uncultivated and unoccupied and there was nothing to put him on inquiry.</p>

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

<p>APPEAL — AMOUNT IN CONTROVERSY.</p> <p>The provision of art. 4, § 4, of the constitution, limiting the appellate jurisdiction of the supreme court in civil actions to cases where the original amount in controversy does not exceed the sum of $200, applies to the amount sued for, and not to the judgment rendered.</p> <p>DIRECTING VERDICT POR NOMINAL DAMAGES-DUTY OP JURY.</p> <p>Where, under the evidence, an instruction by the court to find a verdict for plaintiff for nominal damages was proper, a verdict by the jury in the sum of twenty-six dollars was erroneous, after the court had charged them that by nominal damages was meant any unsubstantial sum, as one dollar.</p>

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

<p>TRUSTS-ABUSE BY TRUSTEE — REMEDY OE CESTUI QUE TRUST.</p> <p>Where members of a partnership deed partnership land to a trustee for the purpose of selling same and applying the proceeds to the payment of partnership debts and dividing the surplus, if any, between the partners, a conveyance by the trustee to one of the partners, in consideration of the payment of that partner’s individual debt to the trustee and the assumption by such partner of a firm debt, which does not amount to a satisfaction thereof but still leaves the other partner liable thereon to the creditor of the firm, is an abuse of the trust for which equity will grant relief.</p>

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

<p>LOCAL IMPROVEMENT BONDS — INTEREST-CONSTRUCTION OF STATUTE.</p> <p>Where bonds drawing interest and maturing annually have been issued against real estate to cover the unpaid installments due thereon for local improvements, under Bal. Code, § 1185, which provides for the issuance and collection of bonds on the property benefited; that the owner of such property may redeem from such liability by paying the entire assessment chargeable against his property, “after the issuance of the bonds by paying all the installments of the assessments which have been levied and also the amount of unlevied installments with interest on the latter at the rate of eight per centum per annum from the date of the issuance of the bonds to the time of maturity of the last installment”; and that “all sums so paid shall be applied solely to the payment of such improvements or the redemption of the bonds issued therefor,” mandamus will lie to compel the city treasurer to accept the full amount pf principal and interest of the bonds to the date of their maturity, since the treasurer cannot exact interest in full on the total assessment from date of levy until the maturity of the last bond, in view of the fact that the statute provides that all sums paid shall b.e applied solely to the redemption of the bonds.</p>

<p>MUNICIPAL CORPORATIONS — EXPENSES OF COUNCILMEN — LIABILITY OF CITY.</p> <p>Expenses incurred by a member of the city council in visiting other cities, under the authority of the city council, for the purpose of securing information upon the subjects of water works, street paving, street lighting, terminal facilities and other municipal matters, are not necessary expenses incurred in the performance of official duties, and the city cannot be made liable therefor, although the claim for such expenses may have been audited and ordered paid by the council.</p> <p>SAME-ILLEGAL EXPENDITURES-REFUSAL OF COMPTROLLER TO SIGN WARRANT.</p> <p>Where the city council is without power to authorize the payment of a claim, the city comptroller is warranted in refusing to countersign a warrant ordered drawn by the council in payment of the claim.</p>

<p>MUNICIPAL CORPORATIONS-ACTION FOR DAMAGES — DEFECTIVE WALK NOTICE OF DEFECTS — INSTRUCTIONS.</p> <p>In an action to recover damages for injuries received through falling over an obstruction on a sidewalk, which defective condition of the sidewalk had been in existence for several years, it was error for the court to refuse to charge the jury that if the obstruction “was in existence for such a length of time that the city authorities, by the exercise of ordinary vigilance, would have discovered it in time to prevent the accident, the city cannot escape liability for want of notice.”</p> <p>SAME — KNOWLEDGE OF DEFECTS — CONTRIBUTORY NEGLIGENCE.</p> <p>Although one’s previous knowledge of the defective condition of a highway, and his mere failure 'to remember such defect, would not necessarily constitute contributory negligence, when he is injured by reason of such defect, yet a requested instruction to the jury that if they find from the evidence that the plaintiff knew of the existence of the obstruction, but had forgotten about it, or failed to think of it, while walking along, he would, nevertheless, be entitled to recover, if he otherwise exercised ordinary care while using the sidewalk, was properly refused, since the only question to be determined by the jury, on the issue of contributory negligence, was whether the plaintiff was exercising such care and caution as a person of ordinary prudence would use under similar circumstances, and to determine that it was necessary to take into consideration the plaintiff’s knowledge and forgetfulness of the condition of the sidewalk.</p> <p>SAME — PROVINCE OF JURY.</p> <p>A charge to the jury that if the plaintiff had knowledge of the" defect whereby he received his injuries, and, “at the time of the accident, forgot such defect, that fact alone would not avail him as an excuse,” was erroneous, as an invasion of the. province of the jury, since it was for the jury, and not the court, to determine what effect plaintiff’s forgetfulness should have in the consideration of the question of his contributory negligence.</p> <p>SAME-OBSCURITY OF INSTRUCTIONS.</p> <p>In an action to recover for injuries occasioned by a defective-sidewalk a charge to the jury that if they find that plaintiff “knew of such defective condition, but at the time of the accident forgot such fact, and that it was by reason that he forgot, such defective condition that he was injured, that is, that, by reason of such forgetfulness, he failed to exercise a degree of care and caution commensurate with the danger to be encountered, and that such failure on his part to so remember was the approximate or direct, cause of his injury, then plaintiff cannot recover, and the fact that the sidewalk was defective and unsafe would be immaterial,” was erroneous, on the ground that it was involved and argumentative, and likely to confuse the-jury, as well as in some particulars invading the province of the jury.</p> <p>SAME-CONTRIBUTORY NEGLIGENCE — DEGREE OF CARE REQUIRED OF' INJURED PARTY.</p> <p>In an action to recover for injuries occasioned by a defective sidewalk, a charge to the jury that if they find that plaintiff was himself guilty of any negligence, and that such negligence was itself a cause of his injury; and that if plaintiff was so guilty of negligence which directly caused such injury, then it was their duty to find for defendant, and it would make no difference in such case whether any defect in the sidewalk assisted in causing such injury, was erroneous on the ground tfiat it imposed a greater degree of care on the plaintiff than the law required, which was merely the exercise of ordinary care, while a requirement that plaintiff he free from “any negligence,” in order to recover, would impose upon him the duty of exercising extraordinary care and prudence.</p> <p>SAME.</p> <p>Where one has knowledge of the defective condition of a sidewalk he has no right to act on the ordinary presumption that it is safe for public travel.</p>

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

<p>NEW TRIAL-GRANT OF — WHEN ABUSE OF DISCRETION.</p> <p>Where fraud is charged in the sale of property by the executors of an estate, and inadequacy of consideration is relied upon to raise the presumption of fraud, and the only substantial conflict in the evidence is expert testimony as to the value of the property, and the court has no doubt as to the evidence and the correctness of its decision thereon, and, in granting a new trial, assigns no legal ground therefor, but declares that, if called upon to again render judgment on the same evidence, it would render the same judgment, its action constitutes an abuse of discretion.</p> <p>SALE OF LAND BY EXECUTOR — ACTION TO SET ASIDE-INADEQUACY OP PRICE-SUFFICIENCY OF EVIDENCE.</p> <p>In an action by a residuary legatee to set aside a conveyance made by executors on the ground of great and manifest inadequacy of price, from which fraud or lack of judgment and discretion on the part of the executors should be presumed, the evidence warrants a judgment for defendants, when there is no proof of fraud on their part, and it appears that they listed the property with two different real estate agents before selling it for $1,800, which was the highest figure they were able to obtain from such agents; and that the expert testimony of the plaintiffs put a valuation on the property of from $1,800 to $2,500, while that of defendants fixed the valuation at sums ranging from $1,500 to $1,800.</p>

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

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

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

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

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

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

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

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

<p> On Petition for Rehearing. </p>