Volume 4 — Washington Reports

<p> Appeal from Superior Court, King County. </p> <p>Proceeding by Herman Chapin against D. M. Bokee and J. H. McGraw, sheriff, to recover certain personal property levied upon under an execution against one Thomas-F. Robertson. Judgment for defendants, and plaintiff appeals.</p>

From a judgment overruling a demurrer to the affidavit upon which the application for the alternative writ was made, the defendants appeal.

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

Proceeding by the Seattle & Montana Railway Company against Patrick O’Meara and others for the condemnation of land for the uses of its railway. Decree-appropriating lands and awarding, judgment for damages to defendants, from which decree and judgment defendants appeal.

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

<p>COSTS IN CONTEMPT PROCEEDINGS.</p> <p>In a proceeding for contempt, brought in the name of the state on the relation of parties in interest to a suit out of which the contempt proceeding grew, the discharge of the defendant will throw the costs upon the county, as such proceeding is of a criminal nature; and under the general law in relation to costs in criminal cases, where the defendant prevails, not the state, but the county, is responsible for costs.</p>

<p>WRIT 037 PROHIBITION — WHEN LIES — STENOGRAPHER'S PEES — LIABILITY OP COUNTY.</p> <p>A court has no power to charge a county with the expense of a stenographer’s notes of the testimony upon the trial of a civil action, although the case may involve many parties and conflicting rights.</p> <p>The prosecuting attorney of a county is the proper relator in an application for a writ of prohibition to prevent a court from enforcing payment of stenographer’s fees against the county in a civil case.</p> <p>Prohibition will lie against a court which threatens to enforce by contempt proceedings the issuance of a county warrant in payment of a stenographer’s fees which are not a proper county charge.</p>

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

<p>RAILROADS — INJURY TO PASSENGER — CONTRIBUTORY NEGLIGENCE.</p> <p>The direction of the conductor of a train to an intending passenger as to his method of getting upon such train is clearly within the scope of his authority as such conductor, and in complying with such direction the passenger is not guilty of negligence unless he exposes himself to open and apparent danger.</p>

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

<p> Appeal from Superior Court, Pierce County. </p> <p>Proceedings by the city of Tacoma against the State of Washington, Jos. Muller, Seymour R. Allen, H. C. Whitman, David Settlemier, H. O. Clement, J. H. Hall, Mary A. Shead, Baltzell & Rouse, C. M. Easterday, C. A. Gove, Samuel C.oulter, F. McDonald, Phoenix Land, Loan and Building Association, and C. P. Ferry, for the purpose of condemninglandsforthe opening and extension of Chicago avenue from Sixth, avenue to South Twelfth street in the city of Tacoma. From a judgment sustaining a demurrer of defendants to the petition, the city appeals,</p>

<p>TIDE LANDS — APPRAISAL.</p> <p>Under g 5 of the act of March 26, 1890 (Laws 1889-90, p. 432), providing that county boards of appraisers shall meet in “their respective counties within thirty days after the location of the harbor lines in front of incorporated cities and towns,” and that after organization they shall “examine, survey and appraise so much of the shore and tide lands ... as lies within or in front of the corporate limits of any incorporated city or town, and within two miles thereof; . . . and thereafter from time to time such other lands as application to purchase may render necessary,” a county board of appraisers cannot lawfully organize to survey and appraise tide lands of the third class before the harbor lines of the county have been established.</p>

Action by M. Wunsch, A. Heilbronner and H. Brunn, co-partners as M. Wunsch & Co., against John H. Mc-Graw, sheriff, to determine the priority of certain executions. Judgment for defendant, and plaintiffs appeal.

Action by P. Frederick and W. H. Maud against Walter A. Shorey and Adeline J. Shorey, his wife, to set aside certain conveyances by Shorey to his wife and subject the property thereby conveyed to the payment of a judgment obtained against the husband.

<p> Appeal from Superior Court, King County. </p> <p>Action by Amelia Boyer against Charles S. Boyer for divorce. Judgment for plaintiff, and defendant appeals,</p>

Action by F. M. Wade to restrain the city of Tacoma from amending its charter, which the city was proceeding to do in accordance with a section of the charter providing for the publication of proposed amendments in the official newspaper for thirty days. From the judgment for defendant plaintiff appeals.

<p>APPEAL — SUBSTITUTION OP PARTIES — ASSIGNEE OP INSOLVENT CORPORATION.</p> <p>Where judgment has been obtained against a corporation and appeal taken therefrom, the assignee of such corporation cannot compel the substitution of himself as defendant and appellant.</p> <p>Such motion for substitution will be denied where it appears that a stipulation of all parties has been duly filed agreeing to a dismissal of the appeal, and no reason is shown by the assignee why the stipulation should not have force.</p>

Certified from Superior Court, Jefferson Covmty. Action by William J. Rohde against James Seavey to compel him as auditor of Jefferson county to draw a warrant in favor of plaintiff for salary as justice of the peace in and for Port Townsend. Judgment for defendant. The cause is certified to the supreme court by the judge of the superior court of Jefferson county for its decision of certain questions of law.

<p> Appeal from Superior Cowrt, San Juan County. </p> <p>Information against Thomas Brew, charging him, with two other parties, with stealing certain carpenters’ tools, “of the value of fifty dollars.” From a judgment of conviction defendant appeals.</p>

<p>COSTS ON APPEAL — STENOGRAPHERS’ NOTES.</p> <p>The stenographers’ minutes of the trial in the court below are not a proper item of costs to be recovered on appeal, whether procured for the purpose of preparing the statement of facts on appeal or used as the statement itself.</p>

<p>SCHOOL LANDS — SALE—IMPROVEMENTS—FAILURE TO APPRAISE — REMEDIES.</p> <p>Under Gen. Stat., title 24, ch. 1, regulating the- appraisal and sale of school lands by boards of county commissioners, the commissioners are not required to act in their ordinary capacity, but as appraising and selling agents of the state, and an appeal will not lie from their failure to appraise improvements on leased school lands.</p> <p>Where a lessee of school lands has made improvements thereon for which no appraisement was made when the lands were sold by the state, his remedy is not injunction to prevent the delivery of a contract of sale, but he can retain possession of the lands until compensated as the law requires, or he can sue the purchaser, for debt and have the value of his improvements fixed by a court and jury.</p>

Action by Fred Page Tustin, assignee, against J. M. McFarland and others. Judgment for defendants, and plaintiff appeals. Motion to dismiss for want of appellant’s brief, under rule 18 of the supreme court.

<p>MURDER — INFORMATION—SUFFICIENCY.</p> <p>Upon a trial for murder in the first degree an information is sufficient which charges that the defendant “purposely and of his deliberate and premeditated malice killed” deceased “by then and there, purposely and of his deliberate and premeditated malice, shooting and mortally wounding” deceased, etc., as it is unnecessary, under Code Proc., H 1202, 1236, 1244, to allege that the act was done unlawfully, feloniously and of malice aforethought, or that the deceased was murdered, or that he then and there died, or that he was a human being; nor need the part of the body wounded be designated.</p>

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

<p>CONVEYANCE — CONSIDERATION—UNDUE INFLUENCE.</p> <p>Where a conveyance of lands has been given in consideration that the family of the grantee should reside thereon as neighbors to the grantor, the -.conveyance will be upheld, although the grantor was an old man, easily influenced by little attentions and acts of kindness, and in spite of the fact that a more intimate acquaintance disturbed their -congeniality, or that they had trouble over some subsequent transaction.</p> <p>Where a man nearly seventy years of age, freehearted and confiding and easily imposed on by those in whom he had confidence .conveyed away his last acre of land to a grantee whom he trusted,, without receiving a dollar in money, taking only the grantee’s word that he would pay his debts, which were less than the value of the land, and conveyed all his personal property to the father of such grantee on his naked promise to take care of him the balance-of his days, the presumption is that the transaction was tainted with, fraud and that the deed and transfer were procured by undue influence.</p>

<p>DIVORCE — CRUELTY—SUPPLEMENTAL COMPLAINT — REFUSAL TO DISMISS ACTION — WAIVER OF ERROR.</p> <p>In an action for divorce on the ground of cruelty, acts of cruelty subsequent to the commencement of the action, should be alleged by supplemental complaint.</p> <p>Although the court may have erred in denying defendant’s motion to dismiss an action for divorce at close of plaintiffs testimony, the error was cured by defendant’s thereafter proceeding with the case.</p> <p>In an action for divorce by a wife on the ground of her husband’s cruelty in maliciously and publicly charging her with adultery, a decree in her favor will not be reversed, although her indiscreet conduct in receiving the visits of a man to whom her husband made objection was the direct cause of his accusation. (Hoyt, J., dissents.)</p>

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

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

Action on the relation of P. V. Wiesenthal for a writ of mandate against the members of the city council of the city of Seattle, to compel said city council, as a canvassing board, to declare him elected a delegate to the city council from the Third ward of said city, at the election held March 8,1892.

Application by the board of directors to the superior court for a confirmation of the proceedings for the issuanee of proposed bonds. Tbe respondent appeared and answered the petition, no other parties appearing. The appellant demurred to the answer, the demurrer was overruled, and from judgment thereon appeal is taken.

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

Action by John Shoufe and Hugh McCrum, as co-partners, under the name of Shoufe & McCrum, against H. H. ' Griffiths and M. L. Abbott, doing business under the name • of Abbott & Griffiths, William B. Robertson, Minda S. ■ Graff, Hannah Kistenmaeher, Alice J. Roberts, G. W. ’ Traverse and Thomas B. Hardin to foreclose a mortgage • on the alleged undivided two-thirds interest of Abbott & Griffiths in certain real estate.

<p>CLAIMS AGAINST DECEDENTS — r-PRESENTATION—LODGING LIEN — NOTICE— ASSIGNMENT.</p> <p>An action to foreclose a laborer’s lien on saw logs cannot be maintained against the personal representative of a decedent’s estate unless the claim shall have first been presented to the executor or administrator as required by Code 1881, ch. 104. Such provision does not, however, prevent such liens being primary claims upon the property covered by them.</p> <p>Where a notice of lien describes logs as marked © on each end while the proof described them as marked “ circle T,” without showing the location of the mark, the notice and proof will be held sufficient in the absence of any showing that anyone was misled thereby.</p> <p>Although the inchoate right of lien cannot be assigned, yet where the lien is perfected by the filing of notice thereof, the assignment of the claim will give the assignee-the benefit of the security.</p>

<p>EJECTMENT — ACTION BY DEVISEE PENDING ADMINISTRATION.</p> <p>A devisee of lands under a foreign will which has been admitted to probate in the county where the lands are situated cannot maintain ejectment therefor, as in the absence of a showing to the contrary, the necessary presumption is that the administration of the estate under the will followed its admission to probate; and under § 956, Code of Procedure, the personal representative of the estate is the only person entitled to possession pending administration.</p>

<p>DIVORCE — ALIMONY—FRAUDULENT CONVEYANCES — JOINDER OF ACTION —JURY TRIAL — DOMICILE—ATTORNEY’S FEES.</p> <p>In an action for divorce and alimony it is not an improper joinder of causes of action to seek at the same time to set aside certain fraudulent conveyances on which an award of alimony is dependent.</p> <p>Under the provision of the statute dispensing with trial by jury in divorce cases, the fraudulent vendees of the husband are not entitled to have the qharge of their conspiracy with him to defraud his wife tried by jury.</p> <p>Where the husband has been domiciled in the state for one year, the wife may maintain an action for divorce though she’did not come to the state until some months after her husband, as her residence dates from the time his commenced.</p> <p>Where the only property of the husband within the jurisdiction of the court is certain lands which have been fraudulently conveyed, the court is warranted in adjudging the same to plaintiff on decreeing divorce, although the husband may be possessed of other property, sufficient to cover the award of alimony, but which is not within the jurisdiction of the court.</p> <p>Under Code 1881, \ 2006, authorizing the court to impose upon the husband the payment of all reasonable expenses incurred by the wife in an action for divorce, a judgment for attorney’s fees against defendants charged with conspiring with the husband to prevent plaintiff from obtaining alimony is unwarranted.</p>

<p>CORPORATIONS — SALE OE STOCK — AGREEMENT TO REPURCHASE — PRESUMPTIONS.</p> <p>Where a party enters into contract with a corporation by which he receives fifty shares of stock on payment of $5,000 to the corporation, and in consideration thereof he is appointed manager of a branch house, under an agreement that in case of his discharge from such position he should return such shares of stock and receive back his $5,000, such transaction renders him a stockholder of such corporation, and does not establish merely the relation of debtor and creditor between them.</p> <p>In the absence of proof as to the powers of a foreign corporation in regard to the sale and repurchase of its own stock, it will be presumed, for the purpose of upholding a contract, that the corporation possesses such authority.</p>

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

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

<p>CONVEYANCES — DELIVERY OF DEED — CONSIDERATION—PROMISE TO MARRY —FRAUDULENT CONVEYANCE.</p> <p>Where a deed has been drawn up by a grantee and sent to the grantor to be executed, with directions to record same, the recording officer on delivery to him becomes the agent of the grantee, and such delivery gives the deed full force.</p> <p>Where a deed recites that the consideration therefor is the promise of the grantee to marry the grantor, the deed containing the recital having been drafted by the grantee and sent to the grantor for execution, it is unnecessary, in order to render the consideration sufficient, that there should be a written memorandum of the contract of marriage signed by the grantee.</p> <p>Where the grantee was unaware at the time of the execution of the deed to her in consideration of her marriage to grantor of the intent of the grantor to defraud his creditors, the fact that she became aware of such fraudulent intent before she complied with her contract of marriage, is not sufficient to avoid the deed, as the consideration for the deed is the agreement to marry, and not its actual consummation.</p>

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

<p> Appeal from Superior Court, King County. </p> <p>Motion by appellant to amend his notice of appeal.</p>

<p>DECEDENTS’ ESTATE — DISPUTED MAKBIAGE — ALLOWANCE TO WIDOW PENDING APPEAL.</p> <p>Where a person claiming to be the widow of a decedent has filed petition asking for the appointment of an administrator, which application has been resisted by the daughter of decedent on the ground that the petitioner was never married to her father, and, from a decision in favor of petitioner, an appeal has been taken to review and determine such question, the superior court has no jurisdiction, pending the appeal, to make an order allowing such person claiming to be the widow anything for her maintenance.</p>

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

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

<p>APPEAL — RIGHT TO DISMISS.</p> <p>Rule 22 of the supreme court, providing that a motion by respondent to dismiss an appeal must be stated in his brief, and will be heard at the time the canse is assigned on the calendar, cannot be construed as taking away the appellant’s right to dismiss his appeal at any time.</p>

<p> Appeal from. Superior Court, Thurston County. </p> <p>Motion to dismiss for want of Brief under Bule 18.</p>

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

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

Action by Charles H. Spinning, Mildred D. Spinning, A. J. Frost and Mary Frost against Bertie Sherman Drake, J. C. Drake and Edward Huggins to restrain the recording of a certain deed, and for its cancellation, and the quieting of plaintiffs’ title. Complaints in intervention were filed by Emma and Frank F. Gray, and by Edward P. Cadwell and Galusha Parsons. Trial by the court, and decree rendered in favor of plaintiffs and intervenors Gray and wife.

<p> Appeal from Superior Court, Pierce County. </p> <p>Action by Perry G. Luzader, W. W. Brown and I). L. Gill against W. P. Sargeant, J. H. Sheets and Perry G. Luzader, directors of school district No. 46 of Pierce county, State of Washington, and James O. Fairchild, treasurer of said county, to restrain the issuance of bonds for said school district. Plaintiffs appeal from a judgment for defendants.</p>

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

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

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

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

<p>MECHANICS’ LIENS — COMMUNITY PROPERTY — PARTIES.</p> <p>A claim of lien against a husband, and his interest in certain realty, which shows on its face that the claimant has knowledge that the wife has a community interest in the real estate, is defective under $ 1667, Gen. Stat., which requires a claim of lien to give the name of the owner or reputed owner of the land sought to be charged. (Scott, J., dissents.)</p> <p>The wife is a necessary party to an action to foreclose a lien upon community real estate.</p>

<p>APPEAL — ERROR NOT SHOWN IN RECORD — FAILURE TO ANSWER INTERROGATORIES — JUDGMENT OF DISMISSAL — PRACTICE IN EQUITY.</p> <p>The refusal of the superior court to render judgment for defendant because of the plaintiffs’ failure to reply to an affirmative answer, will not be treated as ground of reversal on appeal when the record contains no showing of the rule of the court prescribing the time in which a reply must be filed.</p> <p>Under Code Proc., ? 1665, providing that if a party refuse to answer interrogatories, his pleading may be stricken out and judgment taken against him, the only judgment authorized is one of dismissal of his action, where no default is taken for his failure to reply to an affirmative defense, and no proof is introduced in support of the matters alleged in such defense.</p> <p>There being no statutory provision regulating the right of dismissal in equitable actions by the voluntary act of the party, the complainant may, as at common law, dismiss his bill at any time before final decree, upon the payment of costs.</p>

<p>MANDAMUS — PABTIES.</p> <p>Mandamus will not lie to compel two of the three judges of the superior court of King County, State of Washington, to perform certain acts, for the reason that, if it takes all of the judges of the court to do the act, all must be necessary parties, while if anyone could do the act, the one whose duty was to act should have been proceeded against alone.</p>

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

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

<p>CONVEYANCES — WHAT CONSTITUTES DELIVERY OE DEED.</p> <p>Where a grantor delivers a duly executed deed to a grantee with the understanding that it should take effect upon the payment of certain hens and the execution of a mortgage by the grantee, the deed becomes operative at once and passes title to the grantee absolutely. (Stiles and Dunbar, JJ., dissent.)</p>

<p>PERJURY — INSUFFICIENCY OF INDICTMENT.</p> <p>An indictment for pequry which does not describe the proceeding at which the alleged perjury was committed, is defective. (Hoyt, J., dissents.)</p>

Action by Cutter & Curtis against Striegel & Stanley and others to enforce a lien for materials furnished. From a judgment sustaining a demurrer to the complaint for want of sufficient facts, plaintiffs appeal.

<p>APPEAL — •FINDINGS IN EQUITY CASES — COMMUNITY PROPERTY — PRESUMPTIONS — APPEALS PROM PROBATE COURTS.</p> <p>Under the law requiring a trial de novo in appeals in equity cases, the supreme court is not bound by the findings of fact as made by the superior court.</p> <p>Under the statutes of this state lands acquired after marriage by a deed of purchase expressing a money consideration are presumed to be community property, and the presumption can be rebutted only by clear and convincing proof that the lands were acquired by gift, or that the consideration was furnished out of the grantee’s separate property.</p> <p>The fact that a hushand permitted his wife to use the money arising from the rents and profits of his separate real estate for the purchase of lands in her own name affords no presumption of a gift to her of snch money.</p> <p>Where a wife has obtained money by inheritance, from the rents and profits of her husband’s separate property, and from keeping boarders, all which sums she has disposed of indiscriminately in the purchase of land, and in personal expenses and gifts, the confusion of the separate and community funds will work a forfeiture of the separate character of the property thus purchased.</p> <p>The filing of an inventory, under the act of 1873, by the wife in the office of the county auditor setting forth that certain property is her separate property cannot be treated as an admission of that fact on the part of the husband.</p> <p>The execution by the husband and wife of a power of attorney reciting that certain real estate is the property of the wife is a binding admission of such fact by the husband, in the absence of any evidence to the contrary, despite the subsequent revocation of the power of attorney.</p> <p>Lands purchased by a wife with the proceeds of a loan secured by mortgage on her separate property become the common property of husband and wife.</p> <p>The fact that but one of several heirs appealed from the order of distribution entered in the probate court did not confine the superior court -to an adjudication merely upon the interest of the heir appealing, hut the whole cause was removed to the superior court, under ch. 114, Code 1881, for trial de novo.</p>

<p> Appeal from Superior Court, King County. </p> <p>Action by Andrew J. Port for foreclosure of mortgage against John, Hattie and Edward Parfit, Isaac M. Dunn, George D. Corbin, Irving H. and Carrie E. Yail. Judgment for plaintiff, and tbe defendants Parfit appeal.</p>

Action by F. S. Coats against the West Coast Fire & Marine Insurance Company to recover upon a policy of insurance in the sum of $1,000. Judgment for plaintiff, and defendant appeals.

<p>APPEAL — INSUFFICIENT BOND — JUKISDICTIONAL AMOUNT.</p> <p>Where an appeal bond is signed by but one of several parties joining in the appeal, the appeal will be dismissed.</p> <p>Where defendants, arrested upon a charge of vagrancy and brought before a justice of the peace, were released upon cash bail for the sum. of ten dollars each for their appearance at the time set for trial, and, upon their failure to appear at the exact hour, their bail was forfeited by the justice, upon which a writ of certiorari was procured which resulted in an order of the superior court remanding the cause to the justice to hear and give judgment, the case assumes the character of a civil proceeding, and an appeal will not lie from such order to the supreme court, as the amount in controversey is below the constitutional limit.</p>

A span of mares in the possession of John T. Medealf ■were attached in an action by W. D. Baker against H. F. Donnelly. Medealf, claiming the mares as his property, delivered his affidavit and bond to the sheriff, and in a •trial by jury of the right of property therein, with John T. Medealf as plaintiff and W. H. Bush, sheriff, and W. D. Baker, as defendants, a verdict was rendered in favor of defendants. From the judgment thereon Medealf appeals.

<p>ACTION ON BUILDING CONTRACT — WHEN ARCHITECT'S CERTIFICATE REQUIRED.</p> <p>In an action npon a building contract, providing that payment should be conditional upon a proper certificate from the architect that the work had been satisfactorily done and accepted by him, an instruction to the jury that if they found that the contract had been substantially complied with by the plaintiffs, and that a certificate of due performance had been demanded and refused, these facts would authorize them to find that the architect had wrongfully withheld the certificate and recovery could be had without it, is erroneous. If there remains any material part of the work which can reasonably be done in accordance with the contract, the architect may rightfully withhold his certificate until the contractor has completed the same, and so long as he can rightfully withhold the certificate there can he no recovery without it.</p>

<p>COUNTY TREASURERS — SCHOOL FUNDS-COMMISSION FOR RECEIPT AND DISBURSEMENT — INTEREST.</p> <p>A county treasurer, who is also ex officio treasurer of a school district of his county, is not entitled to a commission or percentage for receiving and disbursing the proceeds of certain school bonds of the district, whether he acted in the performance of such duties as the treasurer of the county, or of the district.</p> <p>Where a county treasurer, having in his possession the funds of a school district, refuses “for want of funds ” to pay a proper warrant drawn upon him, he is chargeable with interest on the whole sum in his hands from the date of his refusal to pay such warrant.</p>

<p>DEATH BY WRONGFUL ACT — ACTION BY ADMINISTRATOR DOES NOT BAR ACTION BY FATHER.</p> <p>A father may maintain an action for the death of his child, under Code 1881, \ 9, although the administrator of the child’s estate may have, theretofore, recovered judgment against the same defendant for causing the child’s death by wrongful act or neglect.</p>

Action by Nelson & Swanson, against Clerf, Kleinsmidt and the West Side Irrigating Company to foreclose a laborers’ lien upon a ditch, belonging to the irrigating company.

<p>INJUNCTIONS — RESTRAINING ORDER — PENDING APPEAL.</p> <p>Where, on the ground of emergency, a restraining order has been granted without notice to the adverse party, and an order made requiving the adverse party to show cause on a day certain why a temporary injunction should not be granted, but before hearing upon the application for the temporary injunction the court dismisses the cause, such restraining order cannot be kept in force pending appeal from the judgment of dismissal.</p>

<p>HABEAS CORPUS PENDING IN FEDERAL COURT — PROCEEDINGS IN STATE COURT.</p> <p>Where a defendant convicted in a criminal prosecution in the superior court applies to the federal court for a writ of habeas ■corpus, and also appeals from the judgment of the superior court; the settlement óf a statement of facts at his request is not a “proceeding against the person,” etc., within the provisions of § 766, Bev. St. TJ. S., so as to render the act of the court in settling the statement null and void. Such action of the superior court was, however, open to objection on the part of the state, pending the jurisdiction assumed by the federal court, but in the absence of objection at the time of settlement, a motion to strike the statement will not be entertained in the supreme court. (Hoyr and Dunbab, JJ., dissent.)</p>

<p> Appeal from Superior Court, Chehalis County. </p> <p>Action by tbe Town of Elma against John J. Carney and wife to foreclose certain street grade assessment liens. Judgment for defendants upon a general demurrer to,tbe complaint, and plaintiff appeals.</p>

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

Information against George W. Carey, charging him, on the 14th day of July, 1891, with practicing medicine without having first obtained the license required by law. From a judgment of conviction defendant appeals.

Action by Theresa Klepsch, as administratrix, against the defendants, who were partners nnder the firm name of Donald, Smith & Howell, to recover damages in the sum of $5,000 for the death of her husband, George Klepsch, alleged to have been caused by the negligent explosion of a blast on the part of defendants and their servants. The jury returned a verdict in favor of plaintiff for the sum of $5,000, and from judgment thereon defendants appeal.

Action by Landon Bethel and wife against J. W. Robinson for the foreclosure of a mortgage. Judgment for plaintiffs and defendant appeals.

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

<p> Appeal from Superior Court, Pierce County. </p> <p>Motion by respondents to strike the statement of facts.</p>

<p>APPEAL — EQUITY CASES — CERTIFICATE TO STATEMENT OP PACTS.</p> <p>It is as necessary in an equity as in a law case that the judge’s certificate to a statement of facts should show that the statement contains all the material facts; and a certificate in an equity case that the statement contains all the testimony upon which the- cause was tried, together with all objections and exceptions taken to the reception or rejection of testimony, is inadequate.</p>

Action by Nellie M. Scurry and others against W. M. Jones and others to recover possession of certain land situate below the line of ordinary high tide, but within the government meander line, in part of the original donation grant to D. S. Maynard and wife. The plaintiffs are the heirs of Maynard’s grantee of such lands. From a judgment of non suit, plaintiffs appeal.

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

Action by Louis Henschel against The Oregon Fire & Marine Insurance Company to recover on an insurance policy for the loss of goods contained in his clothing store in Tacoma, Washington. Judgment.for plaintiff, and defendant appeals. *

Action by Christian Kley against Joseph Geiger and wife to foreclose a purchase money mortgage to secure the payment of $19,000 and interest. The defendants attempted to avoid on the ground that it was not legally acknowledged.

<p>EVIDENCE — SUFFICIENCY OF.</p> <p>In an action to recover a balance due upon a promissory note, to which the defendant, by way of affirmative defense, alleges that a certain described house had been conveyed in full payment, a verdict for defendant is unwarranted, where letters of the defendant introduced in evidence show that he wrote the payee about the time of the conveyance to him, requesting him to sell the house for whatever could be obtained for it, at the same time proposing to pay the note in installments of twenty-five dollars per month, and other letters, three and four years later in date, advise of inclosures to be applied upon the note, and make excuse for failure to make further remittances.</p>

<p>STATUTE OF FRAUDS — PARTNERSHIP AGREEMENT TO BUY LAND — RESULTING TRUSTS*</p> <p>A partnership agreement between two that they shall be jointly interested in a speculation for the buying and improving of lands for sale is not within the statute of frauds, and may be proved without being evidenced by writing signed by the party to be charged.</p> <p>Where one of two partners purchases lands in his own name with the funds of the partnership for partnership purposes there is a resulting trust in favor of the partnership.</p>

Action by Emma Blurock against George E. Blurock for divorce on the ground of cruel treatment in publicly accusing plaintiff of not being a true and virtuous wife. From a judgment for defendant plaintiff appeals.

<p>RECOVERY OF REAL ESTATE — ACTION BY HEIRS — SEIZURE—AMENDMENT OF PLEADINGS.</p> <p>An allegation in a complaint for the recovery of real property that the ancestor of plaintiffs died seized and possessed of the property is a sufficient allegation of the possession of plaintiffs, as when seizin is once shown, it will be presumed to continue until allegation and proof of adverse possession in someone else.</p> <p>Under the statutes of this state, as a general rule, the intervention of the probate court and an adjudication and distribution thereunder are essential to passing the title of a decedent to his heirs, and an allegation that several persons plaintiff are heirs-at-law of a decedent is not sufficient to establish the fact they are jointly interested in the property to be recovered, and entitled jointly to maintain an action therefor. -— -—</p> <p>Where a complaint has been amended twice, the refusal of the court •to allow a third amendment is not an abuse of discretion, especially when plaintiffs, in their application to amend, do not present with their application the proposed amended pleadings.</p>

Action by Mary C. Cunningham against J. R. Duncan, Sarah E. Duncan, C. S. Boyer, W. C. Sivyer, Alonzo M. Murphey and wife and R. G. Tabor and wife for specific performance of a contract to convey real estate and for alternative relief.

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

<p> Appeal from Superior Court, Kittitas County. </p> <p>Motion to strike statement of facts.</p>

Action by Dittenhoefer, Hass & Co. against the Coeur d’Alene Clothing Company, principal defendant, and the St. Paul German Insurance Company and the Hekla Fire Insurance Company, garnishee defendants. Judgment for plaintiffs, and the garnishees appeal.

<p>■ Appeal from Superior Court, Thurston County.</p>

<p>ADMINISTRATOR ACTING AS ATTORNEY — COMPENSATION.</p> <p>When - an administrator acts as attorney for the estate and prosecutes and collects a claim for damages for the death of his decedent; he is not entitled to more than the usual commissions as administrator, although he may have made an agreement with the hems for extra compensation.</p>

<p>APPEAL — EQUITY CASES — FINDINGS OF TRIAL COURT.</p> <p>On appeal in causes of equitable cognizance it is not sufficient that the record contain a full finding of facts by the trial court, but, under Code Proc., § 1423, it is necessory that the testimony be incorporated in a properly settled and certified statement of facts.</p>

Motion by respondents to dismiss appeal, for the reason that no statement of facts was ever settled or certified by the judge hearing the cause.

<p>INSURANCE — INSURABLE INTEREST — PROOF OF LOSS — WAIVER.</p> <p>In an action upon a fire insurance policy .brought jointly by the owner and the contractor of a building in course of erection, and asking a reformation of the policy on the ground of mistake in that the owner’s name had not been included as a party insured, the refusal of the court, on a finding that there had been no mistake, to absolutely dismiss the complaint, is not error.</p> <p>Where a building contract provided that the contractor should keep the building insured with builders’ risks until the written acceptance of the budding by the architects, the policy to be paid for by the contractor and filed in the office of the architects, and another clause provided that he should be “ held liable for all damages, real or constructive, caused by his neglect, carelessness or want of ordinary skill and judgment,” the failure of the contractor to insure in favor of the owner rendered him liable to rebuild or pay damages, and accordingly he had an insurable interest in the full value of the building.</p> <p>The fact that the adjuster of a fire insurance company was present on the ground after a fire taking affidavits in regard to the loss is a waiver of the proof of loss required by the terms of the policy.</p> <p>Where a policy is issued upon credit for the premium, the premium becomes a mere debt, and its non-payment does not vitiate the policy.</p>

<p>FRAUDULENT CONVEYANCES — SUFFICIENCY OF EVIDENCE.</p> <p>In an action by judgment creditors to set aside a conveyance of real estate and mortgages on a stock of goods, made by the debtor to defraud his creditors, a decree in favor of plaintiffs is upheld by sufficient evidence, where it appears that the parties to the conveyance and mortgages are relatives; that the deed, though dated some months prior to the debtor’s failure, was not recorded until two days before his giving the mortgages, and had never been in the hands of the grantee; that a note formerly given by the debtor to his father-in-law, for the payment of which the conveyance was made, had been altered, and made to become due at a later date than the time which had been specified for its payment when given; that the note and indorsements thereon of the payment of interest for several years after its execution, had, with one exception, all been made at the same time, with the same ink, and by the debtor himself; that the note had been recently executed, but rubbed and torn with intent to give it an aged appearance; that one of the mortgagees, having procured the interest of the first attaching creditor, prosecuted the same to judgment and to a sale of the property thereunder, and gave an order upon the debtor for the payment of the sheriff’s fees, which were paid in trade out of the stock of goods in the course of business carried on by said debtor; that the debtor was allowed by the grantee and mortgagees to carry on the business, giving credit, collecting money on the books and selling the mortgaged property without applying the proceeds to the judgment or the mortgages, so continuing until the mortgaged property was nearly all sold, the mortgagee’s indebtedness remaining unsatisfied; that new goods were brought, and mixed with the goods mortgaged, and the business conducted by the debtor as it had been prior to the transfers, while he occupied part of the real estate for his residence without payment therefor. (Hoyt, J., dissents.)</p>

<p>MANDAMUS — REFUSAL OF JUDGE TO TRY CAUSE.</p> <p>Under the rules of the superior court of King county allotting the equity cases to one judge, the civil cases to another and the criminal cases to a third, it is the duty of the judge having charge of the equity business, when a suit for partition is brought before him to hear and decide the same, calling in, if necessary, a jury to try any issue as to title; and an order transferring the cause to the civil jury department of the court for the purpose of having a jury trial of the facts, is unauthorized.</p>

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

<p>MARRIAGE — COMPLIANCE WITH STATUTES NECESSiRY TO VALIDITY.</p> <p>Under the statutes of this state regulating marriage (Gen. St-at., §(j 1381-1396) an agreement between parties to live together as husband and wife is ineffective to establish that relation.</p>

<p> Appeal from Superior Coui t, King County. </p>

<p> Appeal from Superior Court, Jefferson Comity. </p> <p>■ This action arose out of the claim of John Seibenbaum to. property which had been attached by the sheriff in a suit brought by the Rosenfeld-Smith Company against A. G. Lundstrom. From a judgment for claimant the sheriff and the Rosenfeld-Smith Company appealed.</p>

<p>ACTION BY TRUSTEE — INSOLVENT CORPORATIONS — PREFERENCE—INTERVENTION — RECEIVER.</p> <p>A trustee named in a mortgage to secure the payment of certain notes is the proper party to institute foreclosure thereof, whether he has the legal title to any of the notes or not.</p> <p>A mortgage to a trustee, made by an insolvent corporation to secure the payment of certain notes, providing that the mortgagor should remain in possession of the property and conduct the business as before, paying all expenses and applying the surplus to the payment of the debts secured, and further providing that all renewals and extensions of the notes are to be secured, and no renewal or extension shall be construed as payment, is voidable by creditors, on the ground that it is a device to continue indefinitely the corporate life of an insolvent corporation, and tends to hinder and delay other creditors.</p> <p>A voluntary preference by an insolvent corporation is void.</p> <p>Under Code Proc., ?156, providing that parties may intervene in an action “before trial,” a complaint in intervention is in time, although not filed until after a motion in the principal action for a default against the defendant.</p> <p>A contract creditor, without judgment or other lien, cannot intervene in a foreclosure suit.</p> <p>Where a receiver has been appointed for an insolvent corporation, he is a trustee for the corporation and all of its creditors, including those not intervening in the action wherein he was appointed; and a bona fide creditor, though an illegal preference was attempted to be created in his favor, is entitled to share in the funds on the same basis with other creditors.</p> <p>The fact that a creditor is a stockholder and director in an insolvent corporation does not estop him from participating in the fund in the receiver’s hands.</p> <p>Under Code Proc., $ 1439, providing that the petition for rehearing in a cause shall be the argument of the applicant therefor, the applicant for rehearing is not entitled to argue his application orally before the court.</p>

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

<p>APPEAL — FAILURE TO FILE BRIEFS.</p> <p>The fact- that two of the three members of a law firm have been so continuously engaged in other matters as to prevent their preparing and filing a brief in a cause on appeal within the time prescribed by the rules of the supreme court, is not such an excuse as to warrant the denial of a motion to dismiss the appeal.</p>

<p>COURT COMMISSIONER — REFERENCE—-REPORT—WAIVER OF OBJECTIONS-ADDITIONAL REPORT — MECHANICS’ LIENS — NOTICE—JURY TRIAL— ORDER SEVERING CONSOLIDATED ACTIONS.</p> <p>Where a cause has been referred to a court commissioner, and the record shows that the issues were settled some days before testimony was taken, and it does not appear that the commissioner reported his findings of fact prior to the completion of the testimony as to the issues involved in the decree, and there was no offer of additional testimony on the part of defendants at any time, an objection that the cause was referred to the commissioner before the issues were made up, and that he found and reported the facts before the testimony was all taken, will be disregarded on appeal.</p> <p>Where a lien notice is offered in evidence for the purpose of establishing the hen, all questions going to the sufficiency of the notice, if not raised at the time of its offer, will be deemed waived.</p> <p>Where parties to an action, on hearing before a court commissioner, agree that the commissioner shall fix the attorney fees in the case, no proof is necessary as to what constitutes reasonable attorney fees.</p> <p>A court commissioner may, on the order of the superior court, after the fifing of a report in a cause referred to him, make a supplemental report concerning stipulations entered into between the parties before him.</p> <p>It is not necessary for the lien notice to name a particular building, where a number of buildings are constructed upon contiguous lots under one contract between the same owner and the same contractors, the materials furnished being used indiscriminately in all the houses, and there being no intervening rights of third parties.</p> <p>An action to foreclose a mechanic’s lien being one triable in equity, it is within the discretion of the court to grant or refuse a jury trial as to any questions of fact involved in actions consolidated for the purposes of trial with the action of foreclosure.</p> <p>Where several actions between the owner of a'building, the contractors for its construction, and lien claimants thereon have been consolidated, by order of court, a subsequent order directing an issue to be made up between the owner and contractors, has the effect of segregating to that extent the actions theretofore consolidated.</p>

<p>Appeal from Superior Cowrt,King County. •</p>

<p>BAILMENT — MEASURE OE DAMAGES.</p> <p>Where goods are deposited upon a wharf for hire, and hy reason of its rotten condition the wharf gives way and precipitates the goods to the bottom of the sea, the measure of damages is the value of the goods at the time of loss.</p>

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

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

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

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

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

<p>MANDAMUS — APPLICATION POE, PENDING APPEAL.</p> <p>Where a plaintiff has appealed from a judgment dismissing his action, the supreme court will not consider an application by the plaintiff for a writ of mandate to compel the court to set aside the judgment of dismissal and reinstate the cause and proceed with its trial. <■</p>

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

<p>SCHOOL DISTRICTS — ELECTION—ESTOPPEL TO BELT ON IRREGULARITIES— CLERK OP DISTRICT — TERM OP OPPICE.</p> <p>Where the notice of election, published by the clerk of a school district, notified the electors that the polls would be open until 7 p. m., instead of until 8 p. m., as the statute required, the clerk, being himself a candidate for re-election, cannot take advantage of his own error and urge the illegality of the election.</p> <p>The successful candidate in the election having received 650 votes as against 280 for the defeated candidate, the latter must allege and prove; in order to overthrow the election, that, had the polls been kept open until 8p. k., the result would have been different.</p> <p>Under \ 18 of the act of March 7,1891 (Laws 1891, p. 255), amending. ¿'.54, Laws 1889-90, p. 375, the terms of existing clerks of school districts were shortened by two months.</p>

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

<p>MECHANICS’ LIENS — MATERIALS FURNISHED CONTRACTOR.</p> <p>Where materials are sold and delivered to a contractor without any knowledge on the part of the persons furnishing such materials that they will be used in the construction of a particular building, no lien can be maintained against the owner of such building.</p>

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

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

<p>APPEAL — STATEMENT OP PACTS — EXCEPTIONS—ATTORNEY AND CLIENT— CONTRACT POR PEES — CONSTRUCTION.</p> <p>The mere taking of exceptions to the ruling of the court excluding a material fact from the record on the settlement of a statement of facts, is not sufficient to entitle the excluded matter to consideration in the supreme court.</p> <p>Under a contract whereby an attorney agrees to render professional services in certain cases for a reasonable attorney fee, such as the client is able to pay and thinks reasonable, the attorney is bound by the client’s judgment as to what is a reasonable fee, in the absence of any showing that the client has refused, through some fraudulent or other had motive, to name or pay what is clearly a reasonable fee.</p>

<p>SALE OP REAL ESTATE — CONSTRUCTION OP CONTRACT — AGENCY.</p> <p>A contract giving a person “the exclusive sale of my land for sixty days, .... for $6,000,” and providing that he “must get his commission above that,” simply confers upon him the exclusive agency for the sale of said property, and does not entitle him to an option authorizing him to demand and receive a deed to himself. (Dunbar, J., dissents.)</p>

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

, Action by Peter Nelson against the Pyramid Packing Company to recover upon a contract for hire.

<p> Appeal from, Superior Court, Mason County. </p> <p>Action by David Shelton, William Shorter and wife, and Thomas Read against Ella A. Jones and husband to have certain sums adjudged a lien upon certain real and personal property. Defendants demurred to the complaint, which was overruled, and, upon their refusal to plead further, the court made the following findings of fact:</p> <p>1. That at all times in said complaint stated and now the plaintiffs William Shorter and Sarah Shorter were and they are husband and wife.</p> <p>2. That on the 1st day of May, 1890, the plaintiffs William Shorter and his wife Sarah were seized in fee as owners and in possession as tenants in common of the certain lands and property situated in Mason county, State of Washington, known as the Central hotel property, Shelton, on lot six (6) of block ten (10) of Francis Shelton’s addition to the town of Shelton, with the furniture and upholstery and appurtenances thereto belonging; that plaintiff Thomas Read was the owner of an undivided half of said property, and plaintiffs William Shorter and his wife Sarah were the owners of the other undivided half thereof.</p> <p>3. That on said day the plaintiffs William Shorter and his wife Sarah and Thomas Read bargained and sold said property to defendants Ella A. Jones, wife of defendant Amasa Jones, for the consideration of seven thousand dollars, payable as follows, to wit: Three thousand dollars cash upon such sale, and four thousand dollars as follows, to wit: Two thousand dollars on or before the 6th day of May, 1891, and two thousand dollars on or before the 6th day of May, 1892, said sums to bear interest at the rate of four per cent, per annum from date until paid.</p> <p>4. That thereupon the said plaintiffs Thomas Read, William Shorter and wife Sarah made, executed and delivered unto said defendant Ella A. Jones their certain bond and writing obligatory in which they duly covenanted to make a good and sufficient deed of said property to said Ella A. Jones upon the payment of said sums and upon the keeping of said property insured for the benefit oí said vendors in the sum of said four thousand dollars.</p> <p>5. And thereupon, in due pursuance of said contract of sale, the said defendants Ella A. Jones and her said husband made, executed and delivered to Thomas Read their two certain promissory notes bearing date May 5,1890, as follows: One for the sum of one thousand dollars, with interest at the rate of four per cent, per annum from the date thereof until paid, payable on or before May 6, 1891; and one for one thousand dollars, with interest at the rate of four per cent, per annum from date until paid, payable on or before the 6th day of May, 1892.</p> <p>6. And in due pursuance of said contract of sale the said Ella A. Jones, her husband Amasa Jones joining her, on said 5th day of May, 1892, made, executed and delivered to plaintiff William Shorter their two certain promissory notes, as follows: One for thousand dollars, with interest at the rate of four per cent, per annum from date until paid, payable on or before May 6, 1891; and one for one thousand dollars, with interest at the rate of four cent, per annum from date until paid, payable on or before the 6th day of May, 1892; and also paid to plaintiffs Read and Shorter on said contract of sale the said sum of three thousand dollars cash, and then and there entered into possession of said property, and have since remained and are now in such possession under said contract of sale.</p> <p>8. That thereafter, to wit, on the 5th day of May, 1890, the said William Shorter borrowed of plaintiff David Shelton the sum of twelve hundred dollars ($1,200), and agreed to pay the same on or before the 5th day of May, 1891, with interest thereon at the rate of one per cent, per month; and to secure the payment of said sum the said William Shorter, his wife Sarah joining him therein, made, executed and delivered to David Shelton a mortgage of all his interest in said Central hotel property, subject to said contract with said Ella A. Jones, and also assigned said two notes to said David Shelton as further security for the payment of said sum, and provided by said mortgage that in case said sum, with interest, should not bepaid,then said David Shelton might proceed to foreclose said mortgage and assignment in the manner provided by law, sell said property a-nd pay all costs and said debt, and attorney fee of one hundred dollars; which said mortgage and assignment were duly signed, sealed, witnessed and acknowledged by the makers thereof, and delivered to said mortgagee, and were duly filed and recorded in the office of the county auditor of Mason county, on the 5th day of May, 1890, in book 0, at page 515, Mason county records of deeds.</p> <p>9. The said defendants have paid to Thomas Read, on June 1, 1891, the sum of three hundred dollars, part payment of principal and interest on the note falling due on May 6, 1891, and though often requested so to do, have made no other payment of either principal or interest on either of said notes. That there is due to William Shorter on the note falling due May 6,1891, the sum of one thousand and sixty dollars and forty-five cents; and to Thomas Read on note falling due May 6,1891, seven hundred and fifty-five dollars and ninety-four cents; that there is due David Shelton from William Shorter and wife, on their note falling due May 5, 1891, $</p>

Complaint in intervention by Fabin S. Potvin in an action brought by John E. McCorvey, wherein certain machinery and other chattels were attached as the property of E. L. Clark. From a judgment sustaining a general demurrer to the intervenor’s complaint, appeal is taken.

<p>MARRIAGE OE DIVORCED PERSONS — WHEN INVALID.</p> <p>Under Code 1881, 12008, providing that when a divorce is granted neither party shall be capable of contracting marriage with a third person until the time for an appeal shall have expired, a man and woman divorced from wife and husband, respectively, and between whom marriage was solemnized within six months thereafter, are not husband and wife, although living together as such after the period within which they could lawfully contract marriage.</p>

<p>DIVORCE — CRUEL TREATMENT — ADULTERY—COHABITATION—MISCONDUCT OP PLAINTIFF.</p> <p>Where the evidence in an action for divorce on the ground of cruelty shows that the husband was often violent in the treatment of his wife, forcibly laying hands upon and striking her at times; that he was in the habit of calling her vile and abusive names, this treatment oftentimes occurring in the presence of their minor children, the decree of the lower court in granting a divorce will be sustained.</p> <p>In charging adultery it is necessary to allege time and place of the act, and make proof with some particularity of circumstances going to show the commission of the offense.</p> <p>Where the wife, after bringing an action for divorce, continues to reside in the home of herself and defendant, but testifies that she slept in a room separate and apart from defendant, and no longer lived with him as his wife, cohabitation will not be presumed.</p> <p>Where the evidence is conflicting as to the misconduct of the wife being the cause for the husband’s jealousy and mistreatment of her, a divorce will not be denied on that ground. (Hoyt, J., dissents.)</p>

<p>HUSBAND AND WIPE — COMMUNITY PROPERTY — POR WHAT DEBTS LIABLE.</p> <p>A business prosecuted by the husband in the interest of the community, and from which the community will receive the benefits and profits, is a community business, and for debts incurred in the prosecution thereof, the property of the community is liable.</p>

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

<p>SUPERIOR JUDGES — TERM OP OPPICE — CONSTITUTIONAL LAW — ELECTION OB' STATE OFFICERS.</p> <p>Under the provisions of the constitution (art. rv., § 5) declaring that there shall be one superior court judge elected for the county of King “until otherwise directed by the legislature,” that “the first superior judges elected under this constitution shall hold their offices for the period of three years, . . . and thereafter the term of office of all superior judges in this state shall be four years,” so much of the act of March 3, 1890 (Laws 1889-90, p. 346) as fixes the term of office of the two additional judges for King county therein provided for at “four years from and after the second Monday in January, 1891,” is void.</p> <p>Judges of the superior courts are state officers within the purview of art', vi., 18 of the constitution, which provides that “the first election of all state officers not otherwise provided for, , . . after the election held for the adoption of this constitution, shall be on the Tuesday next after the first Monday in November, 1892, and . . every fourth year thereafter.”</p>

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

<p>EVIDENCE — PBOOF OE CONTBACT — IN COMPETEN CY OE BOOK ENTBY.</p> <p>In an action for goods sold to defendant hut delivered, under the alleged terms of a contract, to a third party, it is error to permit the plaintiff to introduce in evidence, as proof of the contract, a ledger kept hy him in which he had at first charged the goods to the third party, and had subsequently written defendant’s name above that of the third party.</p>

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

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

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

<p>HUSBAND AND WIFE — COMMUNITY PEOPEBTY — LIABILITY FOE SEPAEATE DEBT OF ONE SPOUSE.</p> <p>A husband’s interest in community property cannot be sold on execution to satisfy a judgment against him for his individual debt.</p>

Action by John Doyle and fifty-three others to foreclose their respective liens upon a large quantity of logs lying in the waters of Puget Sound at Shelton, Washington. The defendants were Alex.

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

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

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

<p>APPEAL — ASSIGNMENT OP EBBOB — STATEMENT OP PACTS — BEAL ESTATE BBOKEBS — LIABILITY TO CÜSTOMEE.</p> <p>Tbe technical assginment of errors is obsolete in the practice of this state, and an orderly statement by the appealing party in his brief of the errors complained of is sufficient.</p> <p>Where a real estate broker signs a contract for the sale of his principal’s land, the broker having merely an authority to sell which would not authorize a contract of sale binding upon his principal, the broker is not liable for the damages resulting therefrom.</p> <p>Where the trial judge certifies that all the material facts have been included in the statement, it is conclusive that all the evidence has been sent up, and will warrant the supreme court in passing upon the sufficiency of the evidence..</p>

<p>EXECUTION — TRIAL OE TITLE — COUNTERCLAIM—APPEAL—NOTICE—DISCRETION OE COURT — VACATING JUDGMENT — APPEALABLE ORDER.</p> <p>Where property seized hy the sheriff on execution is claimed by a third party, who delivers his affidavit and bond therefor, as required by Code Proe., I 461, the execution plaintiff cannot, on a trial of the issue of title, interpose a counterclaim.</p> <p>Notice of appeal from an order overruling a motion to set aside a judgment theretofore rendered is not effective as a notice of appeal from the judgment itself.</p> <p>It is not an abuse of discretion for the trial court to deny a motion to vacate a judgment when the affidavits in support of the motion show only a want of attention to the case by counsel and clients.</p> <p>An order denying a motion to vacate a judgment is a final order after judgment, and therefore appealable.</p>

<p>QUIETING TITLE — ADVERSE POSSESSION — PLEADING—EVIDENCE.</p> <p>In an action to quiet title, testimony on the part of the plaintiff tending to pi ove adverse possession is admissible under an allegation in the complaint that “the plaintiff and its grantors have been in actual, open and notorious possession of the said property continuously since the 28th day of March, 1862, under color and claim of title; that neither the defendant nor his ancestors or predecessors have been seized or possessed of the premises in question, or any part or parcel thereof, within more than ten years before the date of the commencement of this suit.”</p> <p>In an action to quiet title it was shown that the original grantor and his wife each owned half of a certain tract of land; that the husband executed a deed of the land in his own name and as attorney in fact of his wife to a grantee under whom plaintiff claims by mesne conveyances; that the power of attorney was never placed of record, and was lost; that the grantee under said deed went into possession of said land, paid taxes thereon, leased portions of it, gave permission to various persons to cut timber on it, sold timber therefrom, and exercised absolute control over the land for more than the statutory period necessary to establish adverse possession, although he did not live thereon, nor fence or cultivate it, the land being chiefly valuable for its timber. Held, That possession adversely to the wife’s heirs was sufficiently established.</p>

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

<p>SURVIVAL OF CAUSE OF ACTION — ASSIGNABILITY—DAMAGES FOR WRONGFUL ATTACHMENT.</p> <p>Mere personal torts, which die with the party and do not survive to the personal representative, are not capable of passing by assignment.</p> <p>Where an insolvent debtor makes an assignment for the benefit of his creditors, the assignee cannot maintain an action against an attaching creditor and the sheriff for injury to the business credit and reputation of his assignor as a result of the alleged malicious levy of a writ of attachment prior to the assignment.</p>

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

<p>APPEAL — PREMATURE ACTION — DISMISSAL.</p> <p>Where, on appeal, the appellant claims the action was prematurely-brought, and the respondent, who was plaintiff in the court below, concedes the point, the judgment will be reversed, and the Cause dismissed without prejudice to another action.</p>

<p>CITY COUNCIL — COMPENSATION OP MEMBERS — EXTRA PAY — RECOVERY BY CITY — VOLUNTARY PAYMENT.</p> <p>Where a city is authorized by its charter “toestablish and regulate the fees and compensation of all its officers,” but has made no provision by ordinance for salary or compensation for councilmen, it cannot, after having ordered by resolution that a councilman be paid for his official services, recover back the amount paid, on the ground that it failed to pass an ordinance authorizing the payment.</p> <p>Where there is an ordinance of the city in force establishing the salary of councilmen, the council cannot, by resolution, vote themselves additional compensation for services rendered in their official capacity.</p> <p>The principle of law that money voluntarily paid, with full knowledge of the facts, and without fraud or duress, cannot be recovered, has no application to cases where the person wrongfully receiving payment is a member of the council or board which orders such payment.</p> <p>A councilman, while acting as such, can perform no extra services for the city; by accepting the office he undertakes to discharge all of its duties, whatever they may be, whether they are increased or diminished during his term.</p> <p>Although the contract between a city council and a member thereof for services, outside of the scope of his official duties, is unauthorized by law and contrary to public policy, yet, where it is fully executed by both parties, and is beneficial to the city, the city cannot retain the benefit and recover the consideration paid therefor.</p>

<p>DISMISSAL OF SUIT — DEFECT OF PARTIES — MECHANICS’ LIENS — FORECLOSURE —PARTIES—CONSOLIDATION OF CAUSES.</p> <p>Where a defect of parties is not raised by answer or demurrer, the court cannot dismiss an action for such defect except upon the refusal or neglect of the plaintiff to make the necessary parties after being ordered so to do by the court.</p> <p>The assignor of a leasehold interest in real estate is. not a necessary party to an action to foreclose a hen thereon,</p> <p>Although a deed absolute upon its face is intended as a; mortgage between the parties to it, yet the mortgagee so holding rtji legal title is, for the purposes of foreclosure of lien under our - statutes, properly designated as the “ojraer or reputed owner” of the premises, both in the lien notice. a¿nd in the complaint in the action tQ foreclose.</p> <p>A decree of foreclosure should not, be refused, although, it may be apparent that interested parties are not before the court, as their rights cannot be effected by tjie decree.</p> <p>Where several, actions for..the foreclosure of liens are consolidated and tried together, each should be tried on its merits, as if standing alone, and the introduction of improper testimony in one of the several causes so consolidated cannot be urged as ground for reversal in another,.</p>

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

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

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

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

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

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

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

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

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