Volume 3 — Washington Territory Reports

<p>Appeal — Record — Dismissal — Costs. — Where, on appeal to the Supreme Court of Washington Territory, in an action at law, there was no appearance in the transcript of a bill of exceptions, or statement of facts, or record of exceptions taken at the trial, and the description or date of the filing of the brief of plaintiff in error did not conform to the rules of court, a motion to affirm the judgment below was denied, and the case continued to the next term for a hearing on the merits, on condition that plaintiff in error pay the costs of both courts.</p>

<p>Error to the District Court holding terms at Walla Walla. First District.</p>

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

<p>Error to the District Court holding terms at Montesano. Second District.</p>

Second District. This cause was heard and determined on the merits by the Supreme Court in August, 1885, and by its judgment at said date the judgment of the lower court was reversed and the cause remanded, with directions to permit an amendment of the complaint, and then proceed to judgment in accordance with the views expressed in the opinion, and mandate to District Court was issued accordingly.

<p>Appeal — Dismissal — Transcript. —In an equitable action in which the decision of the District Court is based upon evidence which is not brought up, though notice of appeal is duly given, and a transcript properly certified is filed, the case will not be reviewed by the Supreme Court, but the decision of the District Court will be affirmed on motion. Langford, J., dissenting.</p>

<p>1. Writ or Error — Final Order. —It appearing, upon writ of error, that a so-called order awarding a writ of restitution “was the judgment in the cause,” — held, that the writ of error should not be dismissed on the ground that the order was not one from which error would lie.</p> <p>2. Same — Satisfaction or Judgment — Dismissal. — Where the dismissal of a writ of error was asked for on the ground that the plaintiff in error had satisfied the judgment, it appearing that the judgment required a ■writ of restitution, and the transcript showing that the writ of error was prosecuted to prevent restitutions, — held, that the motion should be denied.</p> <p>3. Same — Supersedeas Bond. —A supersedeas bond is not necessary to the prosecution of a writ of error.</p>

Second District. The eighth rule of the Supreme Court provided that “in all cases to be argued, each party must furnish to the court and opposite party printed briefs of his points and authorities.” The appellant failed to comply with this rule, and failed to make any showing by way of excuse or extenuation for this disregard of the rule.

<p>1. Real Property — Lease — Encumbrance. — A lease of lands in this territory is an encumbrance upon real estate within the meaning of section 2410 of the Code.</p> <p>2. Statute of 32 Henry Viil. — In this territory the statute of Henry VIII., under which the rights of the remainderman or reversioner to rent pass to his assignee or vendee, is in force as an amendment to and part of the common law of England; but the doctrine that under the condition of things there a lease is not in general to be considered an encumbrance is plainly not applicable to affairs in this territory, where the condition of things is widely different.</p> <p>3. Husband and Wife — Community Property — Contract—Encumbrance. — A contract by a married man to make a lease of community real estate, without his wife joining in the manner prescribed by section 2410 of the Code, is clearly in contravention of the prohibition on the husband contained in that section. The case of Jaclcson v. Holyoke, 3 Pac. Rep. 841, affirmed.</p>

<p>Appeal from the District Court holding terms at Walla Walla. First District.</p> <p>Appellees, on October 2, 1885, in the above-named court, filed a complaint against the above-named appellants, in which they sought to recover the sum of $1,080, and interest, alleged to be due appellees from said James B. Thompson, on account of a claim and the demand for work and services, held by John Williamson against James B. Thompson, and which, for value before the commencement of the action, had, by said Williamson, been transferred to said Catón and Stanford. The complaint shows that James B. Thompson and Agnes Thompson were husband and wife; that on the fourteenth day of May, A. D. 1885, and while Thompson was indebted to Williamson, for the purpose of hindering, defrauding, and delaying his creditors in the collection of their just demands, and in particular said Williamson, and his assigns, for the alleged consideration of one dollar, conveyed by deed to Agnes Thompson, his wife, certain real property in the complaint described, and which at the time was owned by Thompson; that said conveyance was without any consideration, and was fraudulent and void; that defendant James B. Thompson had no other property than that conveyed as aforesaid; and that unless the property, so fraudulently conveyed, cbuld be applied or charged with the payment of any judgment which appellees might recover, the same must remain wholly unpaid. They asked for judgment against James B. Thompson for $1,080 and interest, and also for a decree declaring the deed from Thompson to his wife void, and directing that their judgment be satisfied out of the property described in the deed, and that they also recover their costs of action. The complaint was served on each of the defendants, and afterwards, on November 9, 1885, on default being made, a judgment was rendered by the court (Wingard J., presiding) in favor of appellees, and against Thompson and wife, substantially as prayed for in the complaint. From this judgment Thompson and wife appealed.</p>

<p>Appeal — Assignment op Errors —Dismissal. —The fact that the assignment of errors required by rule 5 of the Supreme Court, in case of writs of error taken under the appeal act of 1883, is not a jurisdictional defect; and where appellee makes no proof of prejudice, and it appears that he filed his printed briefs in answer to the errors assigned, more than a year and a half prior to his motion to dismiss, his motion will not be granted.</p>

<p>1. Railroad Companies — Evidence — Eminent Domain. — On appeal to the District Court from an award made under proceedings for the condemnation of land by a railroad company, under chapter 188 of the Code, in which the land-owner appealing is the plaintiff, where it is shown that at the time of the institution of the proceedings the construction of the road over plaintiff’s land was not completed, testimony of defendant’s engineer, that, according to the plans for construction, certain irrigating ditches, for the prospective destruction of which plaintiff claimed damages, were to be placed by the company in the same condition as before construction, and maintained in the condition afterwards by defendant at its own expense, and also as to the expense of replacing the ditches as they were before the commencement of construction, that he was instructed to replace .them in the same condition, is admissible as proper evidence on the question of damage.</p> <p>2. Instructions — Jury—Amount of Evidence — Burden of Proof.— It is error to instruct a jury that in order to render an affirmative defense available to the defendant, the latter “must prove the same by a preponderance of evidence, and to your satisfaction,” etc. From such an instruction the jury would naturally understand that the burden was on the defendant to prove his defense to a greater degree of certainty than that afforded by a mere preponderance of the evidence.</p> <p>3. Estoppel en Pais — Eminent Domain — Damage. — If a defendant in condemnation proceedings under the statute, and in attempting the exercise of the right of eminent domain, has surveyed and located a railroad over and across the land of the plaintiff, as described in his complaint, at a different place from that where it is now located and constructed, and intended to construct the same at said place, and that plaintiff thereupon offered to give a right of way and to make no claim for damages if defendant would construct its railroad at the place where the same is now located and constructed, and that defendant, relying upon such promise, and induced thereby, changed said location, and constructed its railroad as it is now constructed, over and across the lands of plaintiff, at considerable extra expense over and above what it would cost to construct said railroad at the place where the same was originally located, then the plaintiff cannot recover damages in this action for the right of way described in plaintiff’s complaint.</p>

<p>Error to the District Court holding terms at Walla Walla. First District.</p> <p>• The complaint alleged the purchase from plaintiff by-defendant, at Portland, Oregon, about June 25, 1882, of a twine-binding harvester, for three hundred dollars, payable October 1, 1883; the machine- to be shipped at Portland, Oregon, to defendant, at New York Bar, in Washington Territory. ' The complaint also alleged the delivery and shipment pursuant to the contract; the compliance with the contract by plaintiff; defendant’s breach in refusing to comply with the contract. The answer denied the contract as alleged, and by way of an affirmative defense set forth that on the twenty-third day of June, A. D. 1882, plaintiff and defendant entered into an agreement for the purchase of the harvesting machine on the following conditions: that the same was to be shipped by plaintiff, at Portland, Oregon, on the 1st of July, 1882, to the defendant, at said New York Bar, where he agreed to receive it, pay the freight and charges thereon, and purchase on plaintiff’s advertised terms of sale and warranty for three hundred dollars, and make payment by note on October 1, 1883, with legal interest; that plaintiff did not comply with the contract on its part in not shipping on the day stated, and not shipping the machine complete; and that plaintiff exceeded the terms of the contract by including in the package with the machine certain twine not purchased by defendant, and thereby compelling defendant to take and pay freight on the twine in order to obtain the machine. The reply denied the allegations of the answer, and set forth the warranty contained in the contract of purchase, a compliance with its terms by plaintiff, and breaches by defendant. The cause went to trial to a jury; after evidence had been adduced by plaintiff and defendant, the court, refusing to give a number of instructions requested by plaintiff, directed the jury to return a verdict for defendant, for the reason that only an executory contract for a future sale had been proven, and not a sale authorizing a recovery for the purchase price. Judgment on the verdict, and case appealed by plaintiff. The contract in question appears in the opinion of the court.</p>

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

Fourth District. This is a “submitted” case, brought under chapter 26 of the Code; the statement of facts agreed upon by the parties, as well as all other material facts, appear in the opinion of the court.

<p>Appeal from the District Court holding terms at Tacoma. Second District.</p>

<p>Appeal from the District Court holding terms at Walla Walla. First District.</p> <p>The material facts are fully stated in the opinion of the court.</p>

<p>Indians — Rights to Fisheries — Treaty or June 9, 1855 — Injunction. . — Under the treaty of the United States with the Yakima tribe of Indians, entered into June 9, 1855, conferring on them the right of taking fish at all usual and accustomed places, in common with the citizens of Washington Territory, etc., the privilege is reserved to them to enjoy all the fisheries they had theretofore enjoyed; and when a person, under an act of Congress passed subsequently to the treaty, obtained a patent for homestead land abutting upon the Turn Water fishery, and erected and maintained a fence thereon, which obstructed the approaches to the= fishery, and prevented the enjoyment by the Indians of the right which, had been so reserved to them, equity will interfere by injunction and cause the removal of the obstruction.</p>

Fourth District The plaintiff in error was convicted of a criminal offense in a Justice's Court, and on certiorari the judgment was affirmed by the District Court, from which he attempted to appeal at the time of judgment, by giving oral notice in open court. Having failed to assign error under rule 5 of Supreme Court rules, 1884, he abandoned this procedure, and attempted to perfect an appeal by giving written notice as required by section 458 of the Code.

Second District. The defendant in error, being plaintiff in the court below, sued out a writ of attachment and attached a stock of merchandise. The plaintiff in error, being defendant in the lower court, moved to quash the writ, which motion was denied. He then retook possession of attached property by giving a forthcoming bond as provided by section 189 of the Code. In framing the issues, defendant urged a motion to strike the reply, which motion was denied.

<p>Error to the District Court holding terms at Olympia. Second District</p> <p>On September 18, 1885, plaintiff Langert sued defendant Brown on an account, and attached a certain lot ■of liquors then in his possession. On September 21, 1885, Ward, Heathcote, & Co. applied to the court for leave to intervene in said action as mortgagees of the property attached. Leave being granted, Ward, Heath-cote, & Co. filed their petition oí intervention for a foreclosure of their mortgage, praying the court for a decree thát the mortgage lien be adjudged prior to the attachment lien of plaintiff Langert. By the petition of intervention, it appeared that on September 5, 1885, defendant Brown, being indebted to Ward, Heathcote, & Co., made his promissory note for $1,117.98, and to secure payment of the same executed a chattel mortgage upon his stock of liquors, being the same property attached by plaintiff. By the terms of the mortgage, the mortgagor was to remain in possession of the property, to sell the same, and to apply the proceeds for the extinction of the mortgage debt. In pursuance of this stipulation, the mortgagor remained in possession until the plaintiff Langert attached the same as above stated. The petition further stated that they had demanded possession of the goods of the sheriff, and that possession was refused, and that the sheriff claimed to hold possession under the writ ■of attachment. To this petition plaintiff in error demurred, because the same did not state facts sufficient to constitute a cause of action, nor facts sufficient to give the intervenors any prior right or lien to the property attached. The demurrer was overruled, and judgment rendered in favor of the intervenors as prayed for. Plaintiff Langert appealed.</p>

<p>1. Pleading — Rules of Construction. — Under tlie rule of liberal construction of pleadings of the Code of Washington Territory, a suitor is no longer to be turned out of court, if by making all reasonable intendments in his favor enough can be seized hold of in his pleadings to show that he has rights which ought to be enforced.</p> <p>2. Same — Motion to Reform — Demurrer. — A party may be required, on motion, to conform his statements in pleadings to the rules of good pleading, and if he refuses, may be turned out of court; but as against a demurrer, the office of which is to raise a substantial issue on the law of the case, and not on the law of the practice and pleading, evidentiary facts, and even inferences from averments amounting to mere conclusions of law, will be considered in his favor.</p> <p>3. Forcible Entry and Detainer — Pleading — Liberal Construction. —In an action of forcible entry and detainer, a complaint from which it appears that the plaintiff, by an instrument in writing, not witnessed or acknowledged, leased the premises to defendant for at least one year, and probably for a longer period, and that the defendant went into possession; that plaintiff had the option of terminating the tenancy at the end of one year by giving one month’s notice; that such notice was given, but that defendant refused to vacate, —is sufficient, without a formal averment to the effect that the defendant withholds the premises by force, under tne provisions of the Code of Washington Territory requiring a liberal construction of pleadings, and a demurrer for failure to state a cause of action should have been overruled.</p>

.Second District. Suit was brought in the District Court by defendants in error against Weisbach, on an account, and an attachment issued against the property of the latter, and garnishee process was issued and served on the above-named Joseph Klee, Jacob Ralph, Peter O’Riley, and Frederick Naehtstein.

Second District. The receiver of the estate of an insolvent, appointed by the court to take possession of and hold and manage the property under the direction of the court pending the election of an assignee, petitioned the court for the allowance and payment of his fees out of funds belonging to the estate in the hands of the clerk, and that a mortgage creditor of the insolvent, who by leave of the court had foreclosed his mortgage and purchased at foreclosure sale the…

Second District. The plaintiff sued the defendant Gaddis, as sheriff, and the sureties on the sheriff’s official bond, to recover damages for the wrongful act of the sheriff’s deputy, who attached and took possession under a writ of attachment issued out of the District Court, of certain real estate which as a homestead was exempt from attachment.

Second District. Proceedings by information in the nature of quo warranto to try title to the office of county surveyor of Pierce County. The material facts appear in the opinion of the court.

Second District. On the seventeenth day of May, 1886, one Jacob C. Livensparger made complaint before a justice of peace for Pierce County, that the plaintiff in error, Jeff.

Second District. Plaintiff as owner sued for $350, the value of a*• billiard-table alleged to have been wrongfully converted by defendant. The defendant answered, alleging that plaintiff had conditionally sold the property to one Shelton in May, 1883, who was to pay the purchase price within one year in monthly installments, with interest.

<p>1. Evidence — Pleading and Proof — Amendment —Variance. — In an action to recover land, and set aside defendant’s deeds, plaintiff averred title under a defective deed from W. T. G., executed by bim as T. G., ■which they asked to be declared the deed of W. T. G. On the trial plaintiff introduced, over defendant’s objection, a prior deed from W. T. G., to remedy a supposed defective description in which the second deed, under which plaintiff averred title, was executed. Held, no error, since, the case being an equitable one, the particularity of pleading made use-of by plaintiff was unnecessary; the liberality of the rule in regard to amendments permitted the plaintiff to put in the evidence and amend his pleadings to conform thereto on proper terms, and it appeared that defendant was denied no indulgence that he asked by reason of being misled by the pleadings, though the deed would have been inadmissible at common law, because plaintiff had declared specially on the other.</p> <p>2. Deed — Defective Acknowledgment — Curative Act. — In the certificate of the notary who took the acknowledgment of the first deed, he; described himself as a notary for-Territory: Held, that if this defect was material, it was cured by the act of Washington Territory, November 10, 1873, curing defective acknowledgments.</p> <p>3. Public Lands — Deeds byPre-emptor — Date — Presumption. — The-deed of a pre-emptor bore the same date as his certificate of purchase. Held, that there was no presumption that the deed was executed before the certificate, and therefore void, under United States Revised Statutes, section 2262, declaring all such assignments or transfers theretofore void.</p> <p>4. Deed — Description — United States Survey. — Land was described in a deed according to the system of the United States government survey, without designating the county and territory in which it lay, though the deed was executed and recorded in the county where it lay: Held, that since the court takes judicial notice of the United States-surveys, the description was sufficient.</p> <p>5. Public Lands — Pre-emption — Fraud — Cancellation. — Defendant alleged that C., through whom plaintiff claimed, colluded with the preemptor to enter the land in his name for the benefit of C.: Held, that the law does not avoid a deed made after receipt of patent certificate because of such collusion, if it exist, since only the United States can do that in a direct proceeding against the guilty parties, while the title is in their hands.</p> <p>Note by Reporter. — The appellant filed a petition for rehearing. At the special adjourned term held in July, 1887, the petition was denied.</p>

<p>Appeal from the District Court holding terms at Tacoma. Second District.</p> <p>The complaint alleged that in November, 1882, one Mary I. Walker was owner and in possession of the real estate described in complaint, and that on that day she sold it to plaintiffs for five thousand dollars, executing a deed for the same with full covenants of warranty, and that defendant wrongfully claimed to own the land. Prayer for possession, damages for withholding, and judgment for rents, issues, and profits. Defendant in his answer admitted seisin in Walker and execution of deed to plaintiffs by Walker, but denied all other allegations. For new matter, defendant pleaded a lease by Walker to defendant, dated March 1,1880, whereby she leased said premises to defendant from said date until March 1, 1883, on the conditions stated in the lease, Walker reserving the right to terminate the lease at the end of each year upon giving three months’ notice to defendant; and that on October 21, 1881, the lease was extended by agreement in writing from October 21,1881, until March 1, 1886, and that the lease and extension were duly recorded; and that under the lease defendant went into possession, and with plaintiffs’ knowledge made permanent improvements on premises prior to plaintiffs’ deed, and that defendant duly complied with all the conditions of the lease. Plaintiffs for reply averred that Mary I. Walker acquired title to premises by descent, on death of her father, John Walker, in December, 1869, and that she, being an infant at said date, removed from the territory to the Atlantic states, where she resided ever since. That in April, 1879, defendant was appointed and qualified as administrator of John Walker’s estate in this territory, and acted in that capacity until July, 1880, and as such administrator, and also as agent for Mary I. Walker, undertook to care for and manage the property for her interest and advantage. That Mary I. Walker at the time of her father’s death was only eleven years of age, and at no time since and up to the time hereafter stated had any knowledge or means of knowledge of the condition or value of said premises or of its rental value, but reposed entire confidence in defendant, and in his statements concerning the premises, and the value of the same, and depended on him for information and guidance in her actions relating thereto, all of which was known to the defendant. That while acting as such administrator and agent, defendant represented to her that former occupants of premises were in arrears of rent, and that he had taken possession; that premises were of little value and would be difficult to rent, but that he would pay two hundred dollars per annum rent for three years; and that defendant sent to her for execution the lease set forth in his answer, and that she, relying upon defendant’s representations, signed the lease. That similar false representations were made to her by defendant when he procured an extension of the lease in October, 1881, and that she did not discover the fraud, concealment, and misrepresentations of defendant until November 29, 1882, whereupon she demanded of defendant the cancelation of the lease and extension, which he refused. That Walker thereupon sold and conveyed the premises to plaintiff Gardella by warranty deed against all encumbrances, who thereafter sold an undivided half to plaintiffs Wagner and Farquharson.</p> <p>After trial the court found as follows: 1. That at the time of the making of the so-called lease from Mary I. Walker to the defendant, to wit, on the first day of March, 1880, whereby said Mary I. Walker purported to demise and lease unto the said defendant, Ezra Meeker, the premises in controversy and described in the complaint herein, the said defendant was acting in the double fiduciary capacity of administrator of the estates of John Walker, deceased, and Margaret Walker, deceased, of both of which estates the said Mary I. Walker was an heir, and was also the agent of the said Mary I. Walker. 2. That at the time of the execution of the so-called extension, to wit, on the twenty-first day of October, 1881, the said defendant, Ezra Meeker, was acting as the agent of the said Mary I. Walker. 3. That the said defendant did not, either at the time of the making of the so-called lease or at the time of the making of the so-called extension, so fully disclose the facts relative to the said premises to the said Mary I. Walker, as to enable her to contract intelligently and prudently in reference thereto, nor had she been informed by anybody of the facts necessary to give her an intelligent and correct idea of the character and value of the land described in the so-called lease and extension; her agent, the defendant herein, was fully informed in regard to these matters, but she had little or no knowledge in reference thereto, having been absent and away from said premises for a long period of time. 4. That if said Mary I. Walker had been fully apprised and advised of the real situation of affairs, and of the nature and value of said land and premises, she would not have executed either said so-called lease or said so-called extension. 5. That on the first day of May, A. D. 1883, the said Mary I. Walker by warranty deed duly conveyed to the plaintiff A. Gardella the land and premises in controversy, more fully described in the complaint herein, and that thereafter, and before the commencement of this action, to wit, on the fourth day of August, 1883, the said A. Gardella duly conveyed by deed an undivided one half of said premises to the plaintiffs, William Wagner and A. S. Farquharson. 6. That after the conveyance of said premises to the plaintiffs as aforesaid, and before the commencement of this action, the said defendant claimed said property and premises as his own, adversely to and in defiance of the title of and claim of the plaintiffs. 7. That the amount due plaintiffs from defendant, at the date of these findings, for the use and occupation of said premises, is equal to and is balanced by the value of the improvements made on said premises by the defendant. And from the foregoing facts the court found the following conclusions of law: 1. That th.e said so-called lease and so-called extension, and each of them, were at all times voidable, and were duly disaffirmed and avoided within the proper time by the said Mary I. Walker and her said grantee, the plaintiff Gardella. 2. That the said plaintiffs are now, and were at the time of the commencement of this action, the owners in fee-simple of said premises, and were at the date of the commencement of this suit, and are now, entitled to the immediate possession of the same. 3. That the claim'of the plaintiffs for use and occupation of said premises, from the date of the purchase thereof by said Gardella as aforesaid to the date of the commencement of this action, should be set off against the claim of the defendant for improvements under said so-called lease and said so-called extension, each against the other. 4. That plaintiffs are entitled to a judgment against the defendant for the immediate possession of said premises and for their costs herein. Judgment was rendered accordingly, from which defendant appealed.</p>

First District. Action to recover the possession of a billiard-table or its value. The opinion states the facts.

<p>Pleading — Complaint oe — Sopeiciency op. — A complaint alleging in substance an instrument made and delivered by defendant to plaintiff, whereby he promised to pay to the plaintiff a certain sum of money twelve months after date, as the purchase price of a sewing-machine delivered to him by the plaintiff, with a stipulation that the machine should remain the property of plaintiff until payment of purchase price as agreed, and that in consideration of the making and delivery of the instrument plaintiff delivered the machine to said defendant, who retained possession thereof ever since and refused to make payment of the amount: held, that the complaint stated facts sufficient to constitute a cause of action, and upon that state of facts plaintiff could recover the amount stipulated to be paid by defendant in the instrument.</p>

Fourth District. Defendant in error in his complaint alleged in substance the erection and maintenance, by the railroad company, of a freight-depot adjoining a public street in the town of Sprague, and the leaving by the railroad company of freight or box cars standing on a side-track adjacent to said depot and extending to the crossing of said public street, and the backing of another train of cars rapidly and negligently over the crossing of said public street, while his…

Third District. . Action to recover damages arising from a personal injury to the plaintiff in the course of his employment, through the negligence of the defendant, by suffering to be used unsafe, defective, and insufficient appliances in a smelting-furnace, owned and operated by defendant, and about which the plaintiff was employed.

Third District. John O. Hildreth was appointed guardian of the person and estate of the appellant by a court of competent juristion of the State of Indiana, both guardian and ward then being residents of that state.

<p>Error to the District Court holding terms at Seattle. Third District.</p> <p>In this case, D. B. Jackson brought his-action against R. Holyoke, alleging in his complaint that on April 7, 1880, defendant was the owner of certain real estate; that on said day the parties made an agreement in writing, whereby plaintiff bought and defendant sold the property, paying two hundred dollars as part payment, and defendant was to make and deliver a good deed for the property upon the payment of two thousand eight hundred dollars, being balance of purchase price. The alleged contract was in writing as follows:—</p> <p>“ Poet Gamble, April 7, 1880.</p> <p>“ Received of D. B. Jackson $200, to apply on trade,, made this day for lot 1, in block 12, on Front Street, Seattle, for $3,000, to be paid on delivery of deed, ten days from date. Richaed Holyoke.”</p> <p>The complaint further alleged tender by plaintiff of balance of purchase price, refusal by defendant to execute conveyance, and an offer by plaintiff to perform his contract upon delivery of deed. Plaintiff also alleged damage sustained by defendant’s breach of contract, the enhancement of the value of the property between date of contract and time fixed for performance, and other facts showing special damages. Plaintiff prayed for a specific-performance of the contract, or for damages sustained by the breach. The defendant, appearing, moved that plaintiff be required to elect whether to pursue his equitable remedy for specific performance, or prosecute his action at law to recover damages. Motion granted, and plaintiff elected to proceed at law. In his answer, the defendant denied the agreement in writing, and denied the sale, except on condition that his wife should consent to the sale; and also denied tender, and all allegations of damages. As an affirmative defense, he pleaded his marriage relations before and ever since 1873 with his wife, now living, the acquisition of the property in 1873 as community property, and the continued ownership of the property as such thereafter, and the refusal of the wife to join in the sale, and immediate notice-thereafter to plaintiff of such refusal, and a tender back of the money paid, with interest, which was deposited in court. There was also an allegation that plaintiff knew of the marriage relation at the time of the contract, and that defendant’s wife had not consented to the sale, and that the agreement was made upon the condition that she would consent. Plaintiff in his reply denied the matter set forth in the affirmative defense. There was a judgment for the plaintiff, from which defendant appealed.</p>

First District. Suit in equity appealed to this court under the appeal act of 1883. Appellee moved to affirm the judgment on the grounds that no statement of facts on appeal had been settled or allowed, and that the evidence in the action had not been certified and required by law and the rules of the court. The statement of facts appearing in the record was signed without any notice to the appellee.

Third, District. Judgment in this cause was rendered January 21, 1886.

<p>Appeal — .Failure to Perfect — Judgment—Appeal Bond — Surety.— Where the appellant has failed to file a transcript, and the appellee, under section 461 of the Code, brings up a copy of the judgment and notice of appeal, and moves for an affirmance and judgment against the appellant and his sureties on appeal, the motion mil be granted as against the appellant, but denied as against the sureties.</p>

Third District. Motion to affirm the judgment in the court below. The case was appealed under the appeal act of 1883, and plaintiff in error had failed to send up a transcript with a certified statement of facts, as required by law and the rule of the court.

<p>AppeaIí from the District Court at Pomeroy. First District.</p> <p>Appeal from the District Court holding terms at Dayton. First District.</p> <p>Appeal from the District Court holding terms at Walla Walla. First District.</p>

Second District. Motion to affirm judgment for want of transcript, based upon the production of a duly authenticated transcript of the judgment and of the journal entry of notice of • appeal.

<p>1. Railroad Companies — Eminent Domain —Asreement to Convey Land. — A railroad company, eleven days after it commenced to construct its road through certain lands, obtained an assignment of a contract by which the owner agreed to convey a strip of land to another company, in consideration of its building its road between certain points: held, that the right of the owner to compensation accrued when the-company entered upon the land; and that having entered and built its road without reference to the agreement in question, the company could, not claim any right thereunder to have the land conveyed, which it had already appropriated under the power of eminent domain.</p> <p>2. Same — Estoppel. — Heidi o&o, that the land-owner was not estopped from claiming compensation by his previous contract, the company having acted independently, and not upon the faith of the contract, which was not assigned to it until after its road was commenced.</p> <p>3. Real Property — Contract to Convey. —Semble, that it is not necessary that an executory agreement to convey land should be sealed or acknowledged to make it valid.</p>

<p>Appeal from the District Court holding terms at Tacoma. Second District.</p> <p>Suit in equity brought in the District Court holding terms at Tacoma, for Pierce County. Both parties treated the case as an action at law, and a trial by jury was had in the lower court. The suit was brought prior to July, 1884, in said court, when Pierce County was within the Third Judicial District, and when the Hon. Roger S. Greene was the presiding judge of the District Court held therein. This judge, prior to July, 1884, made some interlocutory orders and decisions in the case, none of which were assigned as errors in the record, or urged as such in appellant’s brief filed in the Supreme Court. By act of Congress, approved on July 4,1884, Pierce County was made a part of the Second Judicial District, presided over by Hon. John P. Hoyt as judge, before whom the case was tried and final judgment rendered, from which appeal was taken. In the Supreme Court at the January term, 1887, a motion was made by the appellant to continue the cause, on the ground that Greene, C. J., and Hoyt, J., were both disqualified to sit, and for that reason there was no quorum in the Supreme Court entitled to hear and determine the cause.</p>

<p>Error to the District Court holding terms at Spokane Falls. Fourth District.</p> <p>Defendant with two co-defendants were jointly indicted for conspiracy to defraud a person by obtaining property under false pretenses, and all pleaded not guilty, and moved for separate trials, which motion was granted. Bradshaw was tried and found guilty. He moved for a new trial, but the motion, failing to point out definitely any statutory ground, was overruled. He then made a motion in arrest of judgment, because the facts as stated in the indictment did not constitute a crime, which was overruled. It was also urged that the court had no power to sentence the defendant before the conviction of' any co-conspirator, and the indictment against his co-defendants, after a mistrial, was dismissed. Other facts appear in the opinion of the court. There was a judgment against the defendant, from which he appealed.</p>

Fourth District. On the tenth day of October, 1884, the grand jury of the territory, at a regular term of the District Court for Spokane and Adams counties, found an indictment against the defendant Daniel Ainsworth, charging him with having obtained property from one Whitney by means of false pretenses, with intent to defraud said. Whitney. On October 14, 1884, the court made an order authorizing Ainsworth to be admitted to bail in the sum of six thousand dollars.

<p>.Error — Assignment of — Appeal Act of 1883 — Supreme Court Rules — Dismissal of Appeal. — An assignment of error must be filed under rule 5 of the Supreme Court in all eases at law appealed under the act of 1883; and an appeal will be dismissed for a non-compliance with this rule.</p>

<p>Mandamus — Mayor and Clerk- of City — Attorney’s Lien on Judgment. — Mandamus will not lie against the mayor and clerk of a city to. pay an attorney’s lien which had been filed on a judgment obtained for a client against the city, which the client had assigned, and satisfaction of which had been entered of record, where no judicial proceedings have been had to determine the amount or validity of the lien, as against the-attorney, the assignee, or the city, or to set the assignment or satisfaction aside.</p>

<p>Appeal from the District Court holding terms at Olympia. Second District.</p> <p>Action by appellant, Ada C. Andrews, against her husband, Julius Andrews, and his half-sister, Jane L. Jaqua, commenced April 8, 1884, to vacate a judgment by confession against said Julius Andrews in favor of said Jane L. Jaqua for $2,892.68, and costs, and to set aside a sale of real estate by the sheriff of Chehalis County, on February 24, 1884, upon an execution issued upon sáid judgment January 16, 1884. The plaintiff claimed. that the real estate sold by the sheriff was community property, and that her husband suffered the judgment and sale for the purpose of defrauding -'her of her interest in the community property, and that the alleged indebtedness, upon which judgment was confessed,, was a fictitious one. Defendants appeared and answered, admitting judgment and sale of the property, but claiming a part of the property sold to have been the separate property of the defendant Andrews, and that the debt upon which judgment was obtained was bona fide, and became due for moneys loaned to defendant Andrews by defendant Jaqua, and expended by him for the benefit of the community. After the cause was at issue the plaintiff obtained leave to file a supplemental complaint alleging her divorce from defendant Andrews, to which a demurrer was interposed and sustained. A reference was made and the referee’s report was excepted to by both parties. Plaintiff then moved for leave to file a supplemental complaint showing her divorce from and judgment against the defendant Julius Andrews, and her purchase of her husband’s interest in the community real estate at an execution sale under said judgment recovered December 22,1884, for alimony and costs, and alleged to have been filed as a lien in the auditor’s office on January 14, 1885, and three months before the judgment lien of defendant Jaqua attached. Leave was refused by the court, and judgment entered dismissing the complaint, and for costs against plaintiff, who appealed.</p>

Second District. The complaint of Samuel C. Wingard alleged, in substance, the issuance of a patent by the United States to one John Swan, on a day prior to October 12, 1872, to a tract of land embracing the premises in controversy, also the subsequent sale and conveyance by Swan, then and there the owner in fee of the same, of a part of the premses in question, to one M. S. Drew, on the twelfth day of October, 1872, and a subsequent sale and conveyance of the same at the…

<p>1. Negligence — Railroad Companies — Cattle on Track — Fencing Pastures. — The law of Washington Territory does not require cattle to be fenced in or herded, and it is not negligence in the owner to permit them to go upon a railway track, even though he knew it to be unfenced.</p> <p>2. Same — Fencing Track. —Neither does the law require the track to be fenced, and it is not, in itself, negligence on the part of the company to suffer it to remain unfeneed.</p> <p>3. Same — Freight Train — Duty op Engineer. — An engineer is bound to use such skill and caution in the conduct of his train as a man of ordinary prudence, and of skill and experience in the management of trains, under like circumstances, would exercise; and such skill and prudence requires him, in the running of an ordinary freight-train not peculiarly circumstanced, where he sees cattle on the track, and sounds his engine whistle, and they afterwards run a distance of about 260 yards upon the track away from the train, to bring it to a stand-still, if he can do so with reasonable diligence, and with due regard to the safety of property and life on the train, rather than to injure the cattle.</p> <p>4. Same — Contributory Negligence — Nonsuit. —It is error to direct a nonsuit where the evidence offered by plaintiff on resting his ease showed that the engineer did not attempt to stop the train, under this state of facts, but ran over the cattle, as it was prima facie negligence on the part of the engineer, in the management of the train, not to stop it under such circumstances.</p>

<p>Error to the District Court holding terms at North Yakima. Fourth District.</p> <p>Proceeding by mandate to compel the railroad company to furnish and maintain for the use and convenience of the public a depot and other facilities for the transaction of business at Yakima City. All the material facts appear in the opinion of the court.</p>

<p>1. Appeal — Admiralty — Notice. — Where the only notice of appeal in an admiralty suit was given more than two months after the decree, and more than forty days after the expiration of the time given, when sentence was entered, in which to perfect an appeal, the notice is ineffectual, either under civil-law rules or those rules as modified by rules in admiralty.</p> <p>2. Same — Record. —An appellate court cannot hear a cause in equity or admiralty upon the merits, unless it has before it the facts upon which the court below acted.</p> <p>3. Same — Record — Dismissal. — Where there is nothing in the certificate of the judge to the statement of facts, or elsewhere in the transcript, to-show that the adverse party was present when the statement was made-up, or had any notice that it would be made, in the absence of a showing of one or both of these facts, the certificate to-the statement will be of no avail, and the appeal should be dismissed.</p>

<p>1. Chattel Mortgage — Interest oe Mortgagee. —A chattel mortgage in Washington. Territory is a mere security, under which no title can pass except by foreclosure and sale.</p> <p>2. Same — Validity—Stock of Goods. — A chattel mortgage, after describing the property as a certain stock of goods “marked throughout with the private tag and cost-mark” of A, provided that the mortgagor should retain possession and carry on the business, and keep up the stock of goods, those sold to be disposed of for the sole use and benefit of the mortgagee, either by applying the money so obtained to payment of the mortgage debt, or in keeping up the security or adding to the stock: held, that the mortgage was void for indefiniteness, and as being a fraud on creditors of the mortgagor.</p> <p>3. Execution — Levy on Mortgaged Personalty — Notice to Mortgagee. — The provisions of section 1990, Code of Washington, relating to the giving of notice to the mortgagee of chattels by the sheriff when levying upon the same under process issued against the mortgagor, are mandatory, but do not affect the validity of the sale.</p> <p>4. Same — Failure to Notify — Liability of Sheriff. —A sheriff is not liable for non-compliance with section 1990, Code of Washington, where it does not appear that being well informed of the mortgagee’s address he failed to notify him of a levy upon mortgaged chattels, and where it does not appear that the mortgagee lost his security, or suffered damage from the sheriff’s acts.</p>

Second District. The plaintiff brought suit to foreclose a chattel mortgage against the mortgagee and Ellis, a subsequent purchaser of the mortgaged property.

Eeboe to the District Court holding terms at Seattle, Third District. The plaintiff in error was convicted upon an indictment for riot, and judgment was rendered against him, from which he appealed. Against his objections, a married woman was impanneled as a member of the grand jury which returned the indictment upon which he was tried.

Appeal in Admiralty from the District Court holding terms at Seattle. Third District. John W. McAllep, owner of the steamer Underwriter, libelled the British bark Latona, for damages arising out of a collision between the bark and steamer, which occurred in the bay at Port Townsend, on January 21, 1885, and which resulted in the total loss of the steamer. There was a decree for the libellant, from which the claimant appealed.

<p>Error to "the District Court holding terms at Seattle. Third District.</p> <p>Plaintiffs being partners in the logging business, each having a family, and' all depending wholly for support upon said business, jointly owned as such copartners certain oxen used in said business of the value of $750, and were not owners of any of the domestic animals mentioned in subdivision 4, section 347 of the Code, and therefore claimed the right to select, under said section, of the above named property not to exceed the value of $150 for each partner as being exempt from execution. The defendant being sheriff, and having an execution upon a .judgment against both of said plaintiffs, rendered for debts owing by said copartnership, levied upon said oxen and advertised them for sale; whereupon, plaintiffs served timely notice, in writing, upon the sheriff, as required by the Code relating to exemptions, demanding the property as exempt from execution, and complied with, all requirements of the statute relating to such demand. The sheriff refused such demand, and sold the property to satisfy said judgment; whereupon plaintiffs brought this suit against the sheriff, alleging in their complaint the wrongful conversion of the property, and demanding damages for the value thereof. The sheriff demurred to the complaint, claiming that the same did not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and, plaintiffs electing to stand by their pleading, the court gave judgment to defendant for his costs, from which judgment the plaintiffs appealed to this court.</p>

<p>Sade of Peesonad Peopebtx — Consignment—Pactobs—Custom and Usage. —In an action by commission merchants in England, having acted as factors for defendants in the sale of hops, etc., and purchasing goods for, and advancing moneys to them, and claiming a balance on account due them, to recover which suit was brought, and it appearing that such balance due plaintiffs was largely in excess of the value of consignments of goods made by defendants to plaintiffs: Held, that under these ' circumstances plaintiffs acquired a special property in such consignments, and held the same for their own indemnity as well as for the benefit of the defendants, and that plaintiffs had the right to sell the property at such time as in the exercise of a sound discretion, and in accordance with the usages of trade, they deemed best to secure indemnity to themselves and to promote the interests of their consignors.</p>

<p>1. Master and Servant — Defective Appliances — Knowledge of Master— Negligence. — Plaintiff, an employe of defendant, was injured by the falling of a pulley, caused by a wheel working from its shaft impinging upon and unscrewing the nut holding it on the shaft. The nut should have been so fastened that the friction would tighten it. The defect was known to the defendant, but not to the plaintiff: Reid, that the injury was caused by a defect in the machinery, for which the defendant was liable.</p> <p>2. Negligence — Evidence—Admissions.—In an action to recover for such injury, evidence that after the accident defendant put planks under the pulley, to arrest its fall in the future, is competent as an admission against the party’s interest,</p> <p>3. Damages — Negligence—Loss of Ability to Work — Nature of Work.— Under an allegation in such ease that plaintiff cannot follow his business by reason of the injury complained of, evidence as to what particular kind of business he is deprived of is admissible; no motion to make the complaint more definite or for a bill of particulars having been made.</p> <p>á. Instructions — Servant's Knowledge oE Danger. — In such a case the defendant asked the following instruction, viz: “If you find the machinery was defective, and also find that the defendant knew it, yet if you find that the plaintiff continued to run, operate, and manage the same with knowledge that it was dangerous and unsafe, then your verdict should be for the defendant:” Held, that thesame was properly refused.</p> <p>5. Same — When Appliances abe Defective. — In such an action, an instruction that such machines had been considered safe when babbitted and oiled is properly refused, as failure to keep the machine in question oiled could not have contributed to the injury.</p> <p>6. Same — Proximate Cause of Intuby. — In such action, an instruction that if plaintiff was disabled by heart disease, even though caused by the accident, he could not recover, is properly refused.</p> <p>7. Defective Machinery — Continuous Use — Pbesumption.—In such an action, an instruction that if the machinery had been in use several years, without causing any accident, it should be deemed Sife, is properly refused, when it appeared that it had been dangerous during the whole time of its use.</p> <p>8. Practice — Teial—Abgument of Counsel — How Objected to. — An exception to improper remarks of counsel in argument to the jury will not be considered when no instruction as to how the jury shall consider such remarks is requested.</p> <p>9. Insteuctions — Modification of. — In such an action, when defendant objected that certain numbered instructions were not modified, and it appearing that such modification was made in instructions of a different number: Held, to be no error, for the reason that it was enough to give an instruction once, and that reiteration would have been a fault, which the court properly avoided.</p> <p>10. Special Yebdiot — Discretion of Tbial Court. — A direction to the jury to make special findings is within the discretion of the court, and in the exercise of this discretion, a refusal by the court to so direct is not error.</p> <p>11. Witness — Examination—Husband and Wife — Consent to Testify. — A husband, being party to a suit and calling his wife as a witness and interrogating her, thereby consents that she may testify under section 392 of the Code of this territory.</p> <p>12. Damages — When not Excessive — Permanent Loss of Health. — When one is entirely deprived of health and ability to labor for life by a permanent injury, a verdict of $10,000 is not excessive.</p>

Third District. Proceedings in insolvency. After the petitioner had prayed for his discharge, Hilton, one of the creditors, opposed the same on the ground of fraud, and filed his specification and opposition as required by section 2033 of the Code, which was answered by a plea of not guilty.

<p>1. Injunction — When Lies — Tkespass—Adequate Legad Remedy. — A complaint averring that defendant, an adjoining land owner, had removed the division fence between them over on to plaintiff’s land and withholds possession of so much thereof as is thus inclosed, thereby obstructing a way used by plaintiff to reach other portions of his farm, to his great damage, etc., states a cause of action at law under the Code (chap. 46) for the recovery of an interest in real property, and equitable relief will not be granted. The fact that the allegations in complaint of irreparable injury, inadequate remedy at law, and multiplicity of suits, not being sustained by the case as made, were not denied by the defendant, is immaterial.</p> <p>2. Juby — Right of Juby Tbiad — Waived of. — Section 204 of the Code provides that ‘ ‘ an issue of fact shall be tried by a jury, unless a jury trial be waived,” and that “a waiver shall be by stipulation of the parties filed, or by oral consent of the parties in open court entered of record,” and section 245 provides that it may also be waived by ‘ ‘ failure to appear at the trial.” Defendant demanded a jury on the original complaint, but. after the latter had been amended, went to trial without again demanding a jury, but requested the appointment of a reporter to take the evidence: Held., that this did not operate as a waiver of his right to a jury, and that section 204 was mandatory.</p>

<p>Sale — Conditional—Effect of. — A contract for the sale of property, by the terms of which the legal title remains in the vendor until the payment of purchase price and interest, although the possession goes to the vendee, is good^and valid not only against the parties to the transaction, but also against attaching creditors of the vendee. (Si. Germain v. Wind, S Wash. 189, reaffirmed.)</p>

<p>Error to the District Court holding terms at Olympia. Second District.</p> <p>The opinion of the court states all the material facts.</p>

<p>Appeal — Dismissal—Assignment op Ebeoe — Supbeme Oodbt Peaptice.— In an action of law, where the plaintiff in error failed to file or serve an assignment of error, and where there is nothing in the complaint or answer to make the case one of equitable cognizance, an appeal will be dismissed.</p>

Fourth District. The defendant in error recovered a judgment against the county for damages sustained by the establishment of a public highway through his timber culture claim, to which he had not yet acquired title, but which was lawfully in his. possession. The county appealed from the judgment.

<p>Error to the District Court holding terms at North Yakima. Fourth District.</p> <p>All the material facts appear in the opinion of the court.</p>

<p>Error to the District Court holding terms at Tacoma. Second District.</p> <p>All the necessary facts are fully stated in the opinion of the court.</p>

<p>Supreme Court Pbactioe — Bbieps—Failuee to File Judgment — Appirmance op. — Where a plaintiff in error fails and neglects to file and serve a brief, as required by the rules of the Supreme Court, and fails to appear, the judgment of the lower court will be affirmed, with costs, on motion of the defendant in error.</p>

<p>Error to the District Court holding terms at Ellensburg. Fourth District.</p> <p>The facts sufficiently appear in the opinion of the court.</p>

Second District. This action was brought by an abutting property owner on a street ordered to be improved by the city of Tacoma, against said city and its treasurer, to restrain them from •collecting certain assessments levied upon his property, situate on said street, to pay for such improvement. The action was brought for himself and all others similarly situated.

<p>1. Timber Act op June 3, 1878 — Purchaser—Public Lands. — An applicant to purchase timber land under the act of congress has no right to enter thereon and cut or remove timber from the land for the purpose of sale as logs, or to engage in the manufacture thereof into lumber for commercial purposes, prior to his proof and payment therefor.</p> <p>2. Same — Same.—No entry of any kind, and no cutting of any timber for any purpose, is necessary to perfecting title under said act, or permissible for any purpose whatever.</p> <p>3. Trespass — Laches by Government Officers — Estoppel.—The fact that government officers had knowledge that applicants to purchase public lands, under the timber act, were unlawfully cutting timber upon the land before proof and purchase, and did not interfere to prevent it, does net make such trespass lawful, nor does it estop the government from claiming its own, and the subsequent issue of a patent to the applicant cannot change the title to the timber severed from the soil by his own act, while the government had the title and payment had not been made.</p> <p>it. Public Lands — Trespass—Damages—Measure of. — -In an action by the United States to recover the value of lumber manufactured out of logs unlawfully cut on public lands of the United States, by willful trespassers, who sold the logs to defendant, and the defendant innocently purchased the logs without knowledge or notice of this trespass, and manufactured the same into lumber: Held, that the measure of damage was the value of the property at the time of the purchase, and not the value of the lumber manufactured out of said logs by such innocent purchaser.</p> <p>6. -Same — Nonsuit—Failure of Proof. — When in the trial of such an action sole reference was had to the question of liability of innocent purchasers for the value of manufactured lumber, under the circumstances above stated, and it being conceded in the argument by the plaintiff that if such liability did not exist the judgment of nonsuit in the lower court should be affirmed, and there being no evidence from which the value of the logs, at the time of the purchase, could be ascertained, and there being no claim by plaintiff for nominal damage: Held, that judgment of non-suit against plaintiff was properly granted.</p> <p>6. -Conversion — Personal Property — Accession.—Where no element of willfulness or intentional wrong appears on the part of him who applies another’s material, and the identity of these materials has finally disappeared in the new product, or where it is shown that his own labor and materials contributed more to the value of the present chattel than those materials which he took without intentional wrong, he is entitled to keep the chattels as his own, making, however, due compensation to the owner of the materials for what he took. Per Turner, J.</p>

<p>Appeal from the District Court holding terms at Seattle. Third District.</p> <p>The appellant, acting as agent for others, sold to the defendant a quantity of what is commonly known as Soldiers’ Additional Homestead Scrip. This scrip purported to be the evidence of the right granted by congress to every soldier or officer who served in the United States army for ninety days during the rebellion, who was honorably discharged therefrom, and who had remained loyal to the United States ever since that time, and who had prior to June 8, 1872, entered under the homestead laws of the United States a quantity of land less than 160 acres, to enter as a homestead sufficient land to make 160 acres when added to that already entered. (See sec. 2306, Rev. Stats. U. S.) This evidence was accompanied by an affidavit of the soldier that he made the application for his own exclusive benefit, and not directly or indirectly for the benefit of any other person whatsoever, and also by an assignment of the claim by the soldier and by his power of attorney authorizing the person therein named to enter the additional homestead in the name of the soldier and receive the duplicate receipt and patent therefor, and in terms irrevocable authorizing the person therein named to enter the additional homestead in his name and to sell the same and execute deeds thereof. The appellee paid for the scrip and papers, which were all executed in blank, and which were purchased by the appellee as a means of acquiring timber land, and, to make it serviceable, inserted the names of their own employes in the blank powers of attorney, and then presented the same at the United States land office to enter the land. The entries were refused, and the scrip rejected, on account of the spurious character of the signatures of the officers before whom the affidavits of the soldier and his powers of attorney were acknowledged. The appellee then sued the appellant, in an action at law, to recover back the money so paid for the scrip. Among other defenses, the appellant pleaded that the purchase was made by the appellee for the purpose of fraudulently acquiring title to timber lands of the United States; that said Soldiers’ Scrip was not assignable under the law, and that the contract was illegal and void. A jury having been waived, the cause was tried by the court, and the court found the contract to be illegal; but further found that the contract was entered into under an innocent mistake of law on both sides, and that therefore the appellee was entitled to recover. Judgment was accordingly entered, which, on appeal, was reversed by the Supreme Court. (See Mackintosh v. Benton, 2 Wash. 121.) The appellee then amended his complaint, which, was substantially the same as the former, except that it appealed to the equitable jurisdiction of the court for relief from a mistake of law. Other pleadings were practically the same as formerly, and by stipulation the same testimony was used- The court made the same findings, and entered decree against the appellant for the purchase price of the scrip paid him by the appellee, with interest, from which decree the appellant appealed.</p>

Second District. Application for a writ of mandate by the territory on the relation of Premont Campbell, prosecuting attorney, against the directors of a school district, commanding them to pay to the county treasurer certain moneys received by them as insurance money on a loss by fire of the school house in the district.

<p>Section 1975, Oode — Lien of Fabm Labobebs — Contbactob and Emeloye.— Section 1975 of the Oode was intended to secure and protect only the personal earnings of laborers, and was not intended to give a lien to contractors who hired the services of others to do labor upon a farm or land as provided by section 1957. The lien is given to laborers actually performing the services with their teams or other implements of labor, but not to persons performing no personal labor themselves, but employing the labor of others.</p>

<p>1. Indictment — Suffioiencx of — Murder.—An indictment charging that “ H. T. is accused by the grand jury of the Territory of Washington, for the county of Klickitat, by this indictment, of the crime of murder in the first degree, committed as follows: He, the said H. T., in the said county of Klickitat, on the third day of October, 1886, purposely, and of his deliberate and premeditated malice, killed W. S. by then and there purposely and of his premeditated malice shooting and mortally wounding the said W. S. with a pistol which he, the said H. T., then and there held in his hand, and from which mortal wound the said W. S. instantly died, ’ ’ sufficiently charges the crime of murder in the first degree, and will support judgment of death in ease of conviction. (Leonard v. Territory, 2 Wash., p. 381, reaffirmed.)</p> <p>2. Jukors — Challenge of — Eerob.—Alleged error by District Court in overruling challenges for cause to jurors will not be reviewed in Supreme Court, unless the evidence is brought up.</p> <p>3. Criminal Peactice — Murder—Verdict—Form of. — In the trial of an indictment charging the crime of murder in the first degree, a verdict in the following form: " We, the j ury in the case of The Territory of Washington against J. H. T., find the defendant guilty,” is in substantial compliance with section 1103 of the Code, and is a verdict of guilty of murder in the first degree, although the defendant might have been convicted under the same indictment of murder in the second degree or of manslaughter.</p> <p>4. Evidence — Corpus Delicti — Proof of. — While in capital cases the corpus delicti, like every other material fact, must be proved beyond a reasonable doubt, it need not be proved by direct evidence. The law is satisfied when so proved by either°circumstantial or direct evidence.</p> <p>5. Instructions — Refusal of — Reasonable Doubt. — -When the court has rightly and fully instructed the jury upon the question of reasonable doubt, to which no exception was taken, it is not error for the court to refuse an instruction upon the same subject asked for by the defendant, although the latter is correct in law.</p> <p>6. Same — Same.—An instruction, asked for by defendant, and refused by the court, as follows: ‘ ‘ When circumstances alone are relied upon by the territory for conviction, each and every circumstance must be consistent with the other, and with the whole chain; and each and all must point to the defendant exclusively as the guilty agent; and every link of the chain of circumstances must be so complete and consistent with the guilt of the defendant as to exclude every reasonable hypothesis of his innocence, and so perfect and complete as to establish his guilt to a moral certainty ”: Held, that the instruction was rightfully refused, because liable to mislead if given as asked, for the circumstances might point to two persons as thb guilty parties, the defendant being one of the two; or one or more of the circumstances proved might have no reference whatever to the defendant, or to the crime charged, or form no part of “ the chain,” or not point to any particular part connected with the crime, and therefore justifying the jury in not considering the same at all.</p> <p>7. Judgment — Death Sentence — Execution oe — Ieeegulaeity—Gbiminad Pbactice. — It is irregular for a death sentence to fix a specific day for its execution. The time of execution should be fixed in the warrant, and not in the judgment. But this irregularity is mere surplusage and does not affect the validity of the judgment.</p>

<p>Local Option Law — Intoxicating Liquors — Delegation op Legislative Authority. — The local option act of this territory (Sess. Laws, 1885-G, p. 31), giving to election precincts the power to repeal existing laws and prohibit the sale of liquor within its boundaries, by a petition to the county commissioners and a vote of the majority of the electors of such precinct, is invalid, as a delegation of legislative authority, and also because precincts are not municipal corporations capable of receiving such grant, and therefore cannot exercise the power granted. (Following Thornton v. Territory, supra, p. 482.)</p>

<p>Appeal from the District Court holding terms at Ellensburg. Fourth District.</p> <p>The railroad company brought a suit against W. Whalen and forty-four other defendants, each of whom were alleged keepers of liquor saloons and gambling houses at various points along the line of plaintiff’s railroad, then in process of construction, and each of them doing business on his own account, to enjoin them from selling liquor at retail, thereby making drunk plaintiff’s employes and incapacitating them from doing plaintiff’s work, and from running the saloons and gambling houses mentioned in the complaint. The county commissioners of the county in which the alleged saloons and gambling houses were situate were also joined as defendants for the purpose of restraining them from issuing licenses to the other defendants, authorizing the sale of intoxicating liquors at retail. The defendant demurred to the complaint because the same did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff elected to stand by his pleading. Judgment was rendered against plaintiff, dismissing the complaint, from which it appealed. The complaint appears in full in the opinion of the court.</p>

<p>1. Judoment — Effect—Res Adjtoicata — Tbespass—Code, Section 350.— Where plaintiff’s goods were attached as the debtor’s property, and in the special statutory action provided for by section 350 of the Code, which plaintiff brought against the sheriff and the attaching creditor, he obtained a judgment for the return of the goods, such judgment is a bar . to another action against the sheriff, the attaching creditor, and the sureties on the indemnity bond, to recover damages for the trespass.</p> <p>2. Attachment — Tobts by Shebiff — Subeties—Liabilities of. — The sureties on an indemnity bond, preliminary to the issue of an attachment, are not liable for a tort committed by the sheriff making the levy, as by a willful conversion of the goods taken to his own use, unless such act was contemplated or advised by them or unless they assisted in or directed it.</p> <p>3. Same — Same—Malice.—Malice cannot be presumed as against the sureties on such bonds, who are strangers to the controversies, and not interested in the result, though they signed it without previously examining into the merits of the case.</p> <p>■4. New Tbial — Motion fob — Peactice—Statement of Gbounds. — A motion for a new trial, not specifically stating the grounds relied on save in the language in the statute setting out the various causes therefor, will be denied. (See Stats, of Wash., 1888, p«. 30. — Rep.) Jones, O. J., dissenting.</p>

Fourth District. Motion for continuance until next term, because notice of appeal in court below was not given thirty days prior to the first day of the term of the Supreme Court.

Eirst District. Plaintiff filed his complaint in the District Court against Barton L. Baker and Lizzie Baker, and thereupon a summons was issued wherein the cause and general nature of the action was stated as follows: “This action is brought to recover the sum of $1,500 in gold coin, and interest thereon from the 27th day of September, 1883, and for his costs and disbursements.” The sheriff served defendant Lizzie Baker personally on March 26, 1887, in the county where…

Eirst District. Motion to strike out the statement of facts, because not settled in the district where the action was pending.

<p>1. Complaint, Suppioienot op — Waives. — A complaint cannot be attacked after judgment on appeal, if no objections Lave been reserved, if it is sufficient to support a judgment.</p> <p>2. Costs — United States Cases. — In cases arising under tbe laws of tbe United States, tbe costs, fees, and disbursements must be taxed according to tbe provisions of tbe act of congress, and not according to the territorial statutes regulating costs, wben tbe United States is tbe prevailing party.</p> <p>3. Witnesses, Dees op — Mileage — Distbict Coubt, Jubisdiotion op.— Witness fees in United States cases are taxable, irrespective of distance, when tbe witness is summoned anywhere in tbe territory, be being compelled to attend without regard to distance. If tbe witness comes from without tbe territory, tbe one-hundred-mile limitation applies. Dor tbe purpose of compelling the attendance of witnesses, tbe process and jurisdiction of tbe District Courts are co-extensive with the territorial limit.</p>

Third District. The plaintiff in error was indicted for selling intoxicating liquors in Snohomish precinct, in Snohomish county, in violation of the local option act, said precinct, at an election held therein under the provisions of that law, having by a majority of its legal voters declared against licensing the sale of liquors in that precinct.

Ebro» to the District Court holding terms at Spokane Palls. Fourth District. The county of Spokane sued the plaintiff in error, who was sheriff and ex-officio collector of taxes, to recover taxes collected by him, and which he failed to pay over, as required by law. The plaintiff had judgment, from which the defendant appealed. The facts appear sufficiently in the opinion of the court.

Second District. This is a suit in equity brought by the appellee H. P. Oadwell to quiet the title to the premises described, in the complaint.

<p>Appeal from the District Court holding terms at Walla Walla. First District.</p> <p>All the material facts are stated in the opinion of the court.</p>

<p>School Lands — Oeganic Act — Teespass—Unlawful Fencing. — By tbe organic act of Washington Territory reserving sections 16 and 36 of each township for the common schools of the territory, such sections are not severed from the public domain nor are their character as public lands thereby destroyed; but the United States may maintain an action under the act of congress approved February 25, 1885 (23 U. S. Stats. 321), prohibiting the inclosure of public lands of the United States, without claim or color of title, against any one inclosing such sections.</p>

<p>Error to the District Court holding terms at North Yakima. Fourth District.</p> <p>Action by plaintiff in error against the defendant as sheriff to recover a team of horses levied upon by the latter and claimed as exempt from execution. Trial resulting in verdict and judgment for defendant, from which plaintiff appealed.</p>

Second District. Sarah McMahon, mortgagee, sued Simon and Simon, the mortgagors, to foreclose her mortgage given to secure a note made by the mortgagors to the mortgagee. M. D. Wells & Co. were joined as defendants, and claiming as attaching creditors an interest adverse to plaintiff in the mortgaged property.

<p>Jurisdiction, Loss of — Sunday — Cebtioeabi, Application fob.— When the application for a writ of certiorari shows that the cause was continued to a certain day, which day was Sunday, and afterwards the cause proceeded without new notice to or personal appearance of the defendant, it is error to dismiss the application for insufficiency, as the justice, by such continuance, lost jurisdiction over the person of the defendant, which could not be regained without a new notice or by waiver of such notice by voluntary appearance.</p>

Ebbob to the District Court holding terms at Spokane Falls. Fourth District. This is an action by James Holmes against the Northern Pacific Eailroad Company, to recover damages for personal injuries sustained by reason of the negligence of the latter and its employes. The plaintiff recovered judgment, from which defendant appealed.

<p>Error to the District Court holding terms at Seattle. Third District.</p> <p>The defendant in the court below was convicted of murder in the first degree, and sentenced to death, from which judgment he appealed. All the necessary facts appear in the opinion of the court. No authorities were cited in the briefs of counsel on the point decided by the court, that the verdict was insufficient under the evidence brought up by the record to allow the verdict of guilty to stand.</p>

<p>Admibalty — Collision between Sailing Vessel and Tdg — Negligent Steebing. — A ship following a swinging path, deviating about half a point alternately to starboard and port of its main course,.approached about two o’clock in the morning a steam-tug, with a bark in tow, with the red lights visible. The tug, when about one-third of a mile distant, the ship bearing about one and three-eighths points off the port bow of the tug, and showing both lights to the bark and the red one to the tug, for the purpose of avoiding the ship, put her helm hard-a-port, when the ship, instead of keeping her course or putting her helm to port — either of which would have avoided the collision — negligently put her helm hard-a-starboard, and kept it in that position until the collision occurred. The mate of the tug had no license, and the tug kept no lookout, as required by law, but neither of these facts contributed to the collision, which was caused solely by the negligence of the ship’s crew: Held, that the ship was liable for damages caused by the collision.</p>

First District. The plaintiffs, in April, 1886, had recovered judgment against defendant A. Oldakers upon several promissory notes, upon which judgment an execution issued and was returned wholly unsatisfied.

First District. The complaint alleged, in substance, the execution of a deed by the defendants to the plaintiff, containing a covenant of warranty against all incumbrances upon the property conveyed, and the existence of a valid mortgage upon the property at the time of the conveyances, which was after-wards foreclosed and the property was sold to satisfy the same, and the plaintiff’s title, under the deed, was divested by the sale; and that defendants had failed to satisfy…

<p>Appeal from the District Court holding terms at Walla Walla. First District.</p>

Fourth District. Nevada H. Bloomer, the plaintiff below, sued the defendants John Todd, J. E. Gandy, and H. A. Clarke, judges of election, and conducting the regular municipal election in one of the wards of the city of Spokane Falls, in April, 1888, for fraudulently, maliciously, and without sufficient cause,, and with intent to injure her, refusing to receive her ballot, which she tendered to said judges, containing the names of the persons for whom she intended to vote…