Volume 5 — Washington Reports

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — INJURY TO ABUTTING LAND — LATERAL SUPPORT.</p> <p>In this state a municipal corporation is liable for any damage caused in grading a street whereby lands abutting thereon are deprived of lateral support, although the damage may have been occasioned prior to the adoption of the constitutional provision requiring compensation for private property “taken or damaged for public use.” (Hoyt, J., dissents.)</p> <p>Where a municipal corporation in grading a street so negligently excavates the earth that the abutting land is deprived of lateral support to such a degree that buildings and improvements thereon suffer injuries, to which their own weight has not contributed, damages may be recovered therefor. (Hoyt, J., dissents.)</p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — CHANGE OP GRADE —DAMAGES — EEEECT OP DEDICATION — INJUNCTION.</p> <p>Under the constitutional provision (art. 1, §16) that no private property shall be taken or damaged for public or private use without just compensation having first been made, damages are recoverable by the owner of land abutting upon a street for any permanent injury inflicted upon such abutting land by any material change of grade or obstruction to the .abutter’s access, where the damages thus inflicted exceed the benefits derived from the grading or other improvement. (Hoyt, J., dissents.)</p> <p>The dedication of a street to public use does not authorize a municipal corporation to raise or lower the surface of the street to any extent it may deem proper without subjecting itself to damages for the injury thereby occasioned to the abutting owner. (Hoyt, J., dissents.)</p> <p>Where the proposed grading of a street will seriously reduce both the rental and selling value of an abutting owner’s property, the grading may be enjoined unless the damage has been ascertained and compensation made before the work is done. (Hoyt, J., dissents.)</p>

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

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

<p>EQUITABLE CAUSES —TRIAL OF ISSUES BY JURY — FOREIGN CORPORATIONS—VALIDITY OF CONTRACTS—PLEADING.—DEPARTURE — HARMLESS ERROR.</p> <p>The refusal of a court to direct a jury trial of issues of fact in an equity cause is not ground for reversal, although the court, while admitting that the case is a proper one to submit to a jury, erroneously assumes that it has no power to call a jury in an equity cause.</p> <p>The failure of a foreign corporation to file a certified copy of its charter in the office of the secretary of state and appoint an agent to reside at the principal place of business of the corporation in the state, as required by Gen. Stat., §§15, 24, 31, does not render void the contracts of such corporation made in this state.</p> <p>Although the complaint and reply in an action are inconsistent, and one negatives the other, yet where the issues involved have been fully tried, and no harm or surprise resulted to defendants in consequence of the pleadings, such error is harmless.</p>

<p>PUBLIC LANDS —OWNERSHIP OF QUARRIED STONE — MECHANIC’S LIENS — SUFFICIENCY OF CLAIM.</p> <p>One who quarries stone upon the public land of the United States becomes the owner of such stone, and the fact that he has filed a coal declaratory statement upon the land from which the stone is quarried does not in any way affect his ownership of the stone.</p> <p>Where an exhibit or itemized statement, which is made a part of a notice of claim of lien, contains a statement of the amount due after deducting all just credits and offsets, it is as full a compliance with the statutory requirement thereon as if the statement should be included in the notice itself.</p> <p>A verification of a claim of lien reciting that the claimant ‘ ‘ knows the contents thereof, that said claim is just and correct,” is a sufficient compliance with the statute requiring that the verification be “to the effect that the affiant believes the same to be just.”</p> <p>A claim of lien is sufficient if it fairly shows that the materials were furnished to be used in the building or structure designated.</p> <p>Where the claim of lien shows either in the notice or exhibit, the quantity of materials and when furnished, and also between what dates the materials were used in the construction of the building, it is a sufficient statement of the time when claimant ceased to furnish materials for the building.</p>

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

<p>APPEAL — FAILURE TO FILE TRANSCRIPT — EXCUSE.</p> <p>All appeal will not be dismissed for failure to file a transcript within sixty days after notice of appeal, where it appears that the delay was caused by the withdrawal from the clerk’s office and the misplacing by the attorney for respondents of the original petition in the ease, it satisfactorily appearing that appellant acted with due diligence in preparing the transcript after the finding and return of said petition.</p>

<p> Appeal from Superior Cowrt, Spohane Coimty. </p>

Action of claim and delivery by P. Laurendeau against Peter Fugelli, to recover a crop of hay or its value. The land upon which the hay was grown was within the limits of the grant from the United States to the Northern Pacific Bailroad Company. In February, 1884, plaintiff acquired the possessory right and the preference right of purchase from the railroad company, and occupied and improved the land until May, 1885.

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

Notice of appeal given orally in open court must be given at the time of rendition of judgment in order to be effective. Appeal from Superior Court, Douglas County.

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

<p>NEGOTIABLE INSTRUMENTS — WANT OF CONSIDERATION.</p> <p>The fact that a contract for the conveyance of real estate is not acknowledged does not show want of consideration for the execution of a promissory note given in part payment for such real estate.</p> <p>Although a representation that certain real estate is situated in a desirable part of a certain city, and is of great value, may be false and fraudulent, it is merely the expression of an opinion, and the mere allegation that defendants were induced thereby to execute a promissory note for such real estate, does not show want of consideration for its execution.</p>

<p>Appeal from Superior Gov/rt, Snohomish County.</p>

<p>SCHOOLS AND SCHOOL DISTRICTS—EMPLOYMENT OF TEACHER — ACTION FOR SALARY — PLEADING—EVIDENCE — TEACHER’S CERTIFICATE.</p> <p>In an action to recover for services as a school teacher, from which position plaintiff was discharged before the expiration of her term of employment, where the allegations of the complaint regarding her employment by the school directors are admitted by the answer, proof as to the manner of employment is unnecessary, and errors committed by the court in the admission of evidence to prove her employment are immaterial.</p> <p>In such an action, the introduction by plaintiff of a document which is in form a regular first grade teacher’s certificate, signed by the county superintendent of schools and two examiners, dated September 1, 1890, and effective for a period more than covering the time of her employment, and which she states was delivered to her by the county superintendent as a teacher’s certificate, is prima facie proof of her possession of a certificate entitling her to teach at the time she was employed.</p>

<p>DECEDENT’S ESTATES — SETTLEMENT OUT OE COURT —CONSTRUCTION OE WILL — PAYMENT OE DEBTS AND LEGACIES—PRIORITY.</p> <p>Under the statutes of this state (Code 1881, §1443; Code Proo. §955), where a testator provides by will that the trustees of his estate shall manage and settle the estate in the manner directed in his will without the intervention, of the court having probate jurisdiction, the power of such trustees is derived from the will and their duty prescribed by it, and, so long as they faithfully comply with its provisions, their acts cannot be called in question by any court.</p> <p>Where one item in a will directs the trustees of the estate “to sell, transfer or assign any of [ the testator’s] real or personal property, chattels, effects or choses in action, and to apply the proceeds to the payment of [the testator’s] debts, should the same be found necessary to their speedy payment and settlement,” and another item directs the trustees to collect the income, rents, issues and profits of the estate as the same may accrue or be due and payable, and pay same over to certain beneficiaries at least once in three months during a period of teu years, during which the estate is to be held in trust prior to distribution to devisees and legatees, it is, plain that the intent of the testator was to have the income, rents and profits of his estate distributed to the beneficiaries named, and the trustees have no authority to divert such income, etc., to the payment of the debts of the estate, ample provision having been made therefor by the will.</p>

<p>INSURANCE — ACTION TO RECOVER MONEY PAID—PLEADING CORPORATE CHARACTER — AUTHORITY OF AGENT — EVIDENCE.</p> <p>In an action against an insurance company to recover a premium paid, the fact that defendant pleads an affirmative defense, setting up the issuance of a policy by it in return for such premium money, is a sufficient admission of defendant’s corporate capacity to waive allegation and proof by the plaintiff on that point.</p> <p>The fact that a person is an agent of an insurance company for the purpose of receiving applications for insurance is sufficient proof of his authority to act for the company in the receipt of premium money.</p> <p>Whei’e an insurance company, in an action against it to recover money paid as a premium on a $5,000 policy, alleges in its answer that the contract was for a $10,000 policy, which was delivered with the understanding that after the first year it should be reduced to one for $5,000, at the option of the insured, it is not error to allow plaintiff to introduce in evidence a written instrument wherein a demand was made by the company upon plaintiff for payment of the second year’s premium on the $10,000 policy.</p>

<p>MANDAMUS —REFUSAL OF CLERK TO TRANSMIT TRANSCRIPT —DEFECTIVE APPEAL BOND.</p> <p>Mandamus will lie to compel the clerk of the superior court to transmit a transcript on appeal which he withholds on the ground that the appeal bond is defective, as, under Code Proc., §1421, the supreme court alone has power to pass upon the sufficiency of the bond.</p>

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

<p> Appeal from Superior Qou/rt, SpoTcane County. </p>

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

<p>SCHOOL DISTRICTS —CHARACTER OR CORPORATION —MECHANICS’ LIENS —SCHOOL BUILDINGS — ENRORCEMENT OR CLAIM.</p> <p>School districts are, within contemplation of the legislative and constitutional enactments of this state, municipal corporations; and the act of January 31, 1888, providing for liens for work done or improvements made for any “county, incorporated city or town, or other municipal corporation,” authorizes the placing of liens upon school buildings.</p> <p>Under the terms of §2 of the act of January 81, 1888 (Laws 1887-8, p.15), providing that, if a municipal corporation shall fail to take a bond from the party with whom it contracts for public work, it shall be liable to laborers and material men for the full amount of their claims, it is not necessary that the plaintiff, in an' action to enforce such a claim, should have established in a prior action the contractor’s indebtedness to him, or should make the contractor a party to his action against the municipal corporation. (Hoyt, J., dissents.)</p>

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

<p>PUBLIC LANDS — OPPOSIN& CLAIMANTS—TRESPASS —INJUNCTION.</p> <p>Under §063, Code Proc., injunction is authorized by a claimant to land under the laws of the United States against another claimant who is “threatening to commit upon such land waste which tends materially to lessen the value of the inheritance, and which cannot be compensated by damages;” and among the injuries to such land for which money damages will not be adequate compensation is the removal of the trees standing thereon. (Dunbar, J., dissents.)</p>

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

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

Mandamus against R. N. Ashmore, as auditor of Lewis county, Washington, to compel him to draw a warrant in favor of plaintiff, who was sheriff of the county, and who had incurred certain expenses in providing and fitting up rooms for the court and certain of the officers of the county. From a judgment awarding a peremptory writ of mandate defendant appeals.

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

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

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

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

<p>APPEAL—TIME OF FILING STATEMENT — TIME OF SETTLEMENT — COMMUNITY PROPERTY—CONVEYANCE BY HUSBAND—INNOCENT PURCHASER—ESTOPPEL — PRESUMPTION AS TO NON-EXISTENCE OF COMMUNITY.</p> <p>As judgment cannot be rendered in an action at law tried by the court until the findings of the court have been filed, the filing of a statement of facts on appeal within thirty days thereafter is sufficient, although the findings may have been signed more than thirty days prior thereto.</p> <p>Where proper notice of the settlement of a statement of facts has been given for a certain day, and no amendments are proposed by the respondent, the failure of the judge to settle the statement on the day named does not deprive him of jurisdiction to settle the same upon a later day.</p> <p>A conveyance by a husband alone of community property, the legal title to which is in himself, is not void, but voidable only; and where he has held himself out to the public for a number of years as an unmarried man, and his wife has lived in a distant part of the country separate from him, asserting none of her rights as his wife, and unknown to the community where he dwelt, they are estopped from setting aside the husband’s deed, provided' the grantee has made a reasonable effort to ascertain whether his grantor is a married man or not. (Per Stiles, J., and Anders, C. J.)</p> <p>A spouse in whose name community property is standing cannot dispose of the same without the other spouse joining in the conveyance, regardless of the fact as to whether or not they are living together. (Per Hoyt, J.)</p> <p>If either spouse sees fit to allow the other to act and represent himself or herself as a single person, under such circumstances and for such a time as would induce persons of reasonable prudence to believe that such spouse is in fact a single person, then the community has no existence so far as the public, having no knowledge of the legal relation of husband and wife, are concerned, and neither the community, nor either member thereof, can assert its existence to the detriment of those dealing with such spouse as a single person. (Per Hoyt, J.)</p> <p>Where a wife by her own conduct has enabled her husband to hold himself out to the world as an unmarried man, she is estopped from setting up a community interest in lands sold by him to an innocent purchaser. (Per Scott and Dunbar, JJ.)</p>

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

<p>CERTIORARI — FILING OF BRIEFS.</p> <p>Where a cause is brought to the supreme court by writ of certiorari it is governed by the rule prescribing the time within which briefs should be filed in ordinary appeals.</p>

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

Four informations charging the crime of larceny by embezzlement having been filed against John A. Kemp, and he being in the State of Iowa at the time, requisition in one case was made upon the governor of that state for his return here for trial. The defendant having been placed upon trial upon an information other than the one upon which requisition had issued, the court, upon defendant’s motion, dismissed the cause and discharged him from custody.

<p>SALE —WHEN TREATED AS EXECUTORY CONTRACT.</p> <p>The title to logs will not pass under an instrument providing for the sale of all that may be out during a certain period, when a portion of the logs were not cut at the time of its execution and cannot be distinguished from those cut prior thereto, unless there is a subsequent voluntary delivery of the logs under the bill of sale.</p> <p>Although a written instrument may be called by the parties thereto a bill of sale for certain logs, yet it is merely an executory contract incapable of passing title, unless there is a subsequent voluntary delivery under it, where there is anything to be done to the logs in the way of cutting them, or putting them in the water, or floating them down to tide water and rafting them before the purchaser is bound to receive and pay for them.</p>

<p> Appeal from Superior Cou/rt, Ghehalis Oounty. </p>

<p>WILLS —NO PROVISION FOR CHILDREN — PAROL PROOF.</p> <p>Under. §1465, Gen. Stat., providing that if a testator leave any child or children at his death not named or provided for in his will, he shall be deemed to have died intestate, parol proof is inadmissible, where a testator devised all his property to his wife and her heirs, to show that at the time the will was made he had in mind his children, and that in devising his property to his wife he thereby intended to, and did, provide for them.</p>

<p>REPLEVIN—ESTOPPEL TO DENY POSSESSION.</p> <p>In an action of claim and delivery to recover a quantity of wheat which had been seized by a constable under a notice of foreclosure given by the holder of a chattel mortgage thereon, the mortgagee is estopped from asserting that the constable was in possession, and not himself, when it appears the mortgagee admitted he had possession of the wheat, and refused to deliver it upon demand made by the plaintiff, and also gave a delivery bond and obtained possession of the property when seized by the sheriff in this action.</p>

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

<p>MECHANICS’ LIEN —SUFFICIENCY OF CLAIM.</p> <p>A claim of lien which describes the property as ‘ ‘ one three story frame building, situated on a two (2) acre tract, in section sixth (6), township twenty (20), range N. 3 E., in school district No. 13, and bounded as follows: Beginning at the northeast corner of the southeast quarter of Willamette meridian; running then west 20 rods, then south 16 rods, then east 20 rods, then north 16 rods to place of beginning,” is insufficient to identify the property to be charged.</p>

<p>RECEIVERS—APPLICATION TO SUE — DISCRETION OE COURT — APPEALABLE ORDER.</p> <p>An application to the superior court to be allowed to bring an action against a receiver in a cause pending in such court is a special proceeding within the meaning of the statute governing appeals, and an order denying such application is appealable for the reason that it finally disposes of the rights of the parties in such proceeding.</p> <p>Where a court of equity has regularly secured jurisdiction in a suit against an insolvent corporation, and has appointed a receiver to take possession of all its property, an application made by a party for permission to sue the receiver is addressed to the sound discretion of the court, and an order denying such application will be upheld unless it is made to appear that the discretion thus vested in the court has been abused.</p> <p>Where a court has, in a suit in equity, regularly acquired full jurisdiction, not only of the property of an insolvent corporation, but also of all the parties’ interests therein, and has appointed a receiver for the corporation, the refusal of the court to allow a mortgagee of the corporation to institute foreclosure proceedings in a separate suit against the receiver is not an abuse of the discretion vested in the court, although the mortgagee may allege that the property upon which he has a first lien will be charged with a greater proportion of the expenses of the receivership than would be just, and that by the terms of a deed given by the corporation to the receiver of all its property there seems to be a preference in favor of certain lien claims as against the claim of the mortgagee.</p>

<p>SPECIFIC PERFORMANCE—SUFFICIENCY OF COMPLAINT—SECONDA RY EVIDENCE — LAND OFFICE CERTIFICATE — STATUTE OF FRAUDS — FOREIGN CORPORATIONS — POWER TO TAKE BY DEED — STATUTE OF LIMITATIONS.</p> <p>A complaint states sufficient facts to entitle the plaintiff to equitable relief, when il alleges that one Gardner purchased certain lands from the United States in the year 1868, receiving the certificate of the register and receiver of the local land office, certifying said purchase and payment therefor; that thereafter said Gardner did, for a valuable consideration, execute to one G. A. Meigs, a contract in writing whereby he agreed to convey to said Meigs, or his assigns, the legal title to said lands upon demand therefor at any time after patent issued to him, and by the same instrument assigned and conveyed to said Meigs all the interest he then had in said lands, at the same time delivering to him the said register’s and receiver’s certificate; that said instrument of writing had been lost and could not be made a part of the complaint; that said Meigs entered into possession of said lands under said agreement, and upon the issuance of patent in said Gardner’s name, said Meigs surrendered said certificate and received the patent; that by mesne conveyances the lands were conveyed to plaintiff and the patent delivered to him in the year 1880, and plaintiff has ever since been and now is in the possession of said lands and of said patent; that thereafter plaintiff demanded of said Gardner a conveyance of said lands, which he refused to execute; and that on or about the 28th day of March, 1889, said Gardner entered into an agreement with the other defendants by which he agreed to convey to them an undivided part of said lands; that at the time of making said agreement all the defendants had full knowledge and notice of the eqitable title and right of plaintiff.</p> <p>Where the holder of a register’s certificate sells the land therein described and endorses the contract of sale upon the back of the certificate, a certified copy of such certificate and contract by the commissioner of the general land office is admissible in evidence to establish the contract, as, by the act of the parities, that officer became the custodian of their agreement, and it cannot be withdrawn from his custody. (Stiles, J., dissents.)</p> <p>Although the statute of frauds may require the consideration to be stated in a contract for the sale of land, yet where the price has in fact been paid, the case is taken without the operation of the statute.</p> <p>Although a deed to a foreign corporation may have been executed before the corporation had complied with the law requiring it to file its articles of incorporation in the office of the secretary of the territory, yet the deed is not void if it was not delivered until after the filing of the said articles.</p> <p>Where a contract for the conveyance of land specifies no time at which a deed should be made, the cause of action for its enforcement does not accrue until after demand for the deed or the lapse of a reasonable time.</p>

<p>APPEAL—NOTICE — NEGLECT OF CLEItK TO MAKE JOURNAL ENTRY— BUND — TIME OF FILING — PA RTIES — DEATH BY WRONGFUL ACT — REPUGNANT STATUTES—REPEAL BY IMPLICATION.</p> <p>Where written notice of appeal is served and filed within the proper time, the appeal will not be defeated by the failure of the clerk to enter the notice in the journal of the court below.</p> <p>The fact that an appeal bond is dated anterior to the notice of appeal will not invalidate the appeal, when the bond is not approved and filed until the day upon which the notice is given.</p> <p>Under Code Proc., § 1408, it is not necessary that the appellant should sign an appeal bond as principal, in order to render the bond effective.</p> <p>Section 703, Code Proc. (Code 1881, §717), authorizing actions for death by wrongful act or omission to be brought by the personal representatives of a decedent, being irreconcilably repugnant to § 188, Code Proc. (Code 1881, §8), which allows such action to be prosecuted by the heirs or personal representatives of the decedent, is necessarily repealed by § 138, which is a later enactment by the legislature.</p>

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

<p>CONVEYANCE — WHETHER DEED SHOULD BE CONSTRUED AS MORTGAGE — EVIDENCE — CONDITIONS SUBSEQUENT — FORFEITURE.</p> <p>In an action to set aside a deed on the ground that it was merely a mortgage, one of the plaintiffs testified that it had been given as part security for a loan at the same time that a mortgage was executed on 209 acres to secure a loan of $800, while the defendant testified that the four acres were deeded to him as a bonus for the loan on the other 209 acres. The evidence showed that the 209 acres were but scant security for the loan; that the four acres were of but little value; that the note and mortgage were made payable in one year, while according to the plaintiff’s testimony the defendant had agreed to erect a cannery upon the four acres within three years, in which the family of plaintiffs could find employment. Held, That the deed was intended by all parties as a conveyance and not a mortgage.</p> <p>The failure of a grantee to perform certain conditions subsequent, which were part of the consideration for a conveyance, will not work a forfeiture where the failure is due to the acts of his grantors or their successors in interest.</p>

<p>REPLEVIN—VERDICT—CONDITIONAL SALE —WAIVER—EVIDENCE — INSURABLE INTEREST.</p> <p>Under Code Proc., § 374, requiring the jury, in an action for the recovery of specific personal property, to “assess the value of the property if their verdict be in favor of the plaintiff,” a verdict is defective which merely finds for the plaintiff and assesses his damages at fifteen hundred dollars.</p> <p>Where a contract provides that certain chattels shall be leased by one party to another for a definite period, for the use of which the lessee agrees to pay certain sums at stated times, upon the performance of which provision he shall be entitled to purchase the chattels for the sum of one dollar, but in case of his failure promptly to comply with the terms of the contract the same shall be canceled and all money paid shall belong to the lessor as payment for the use of the property, which the lessor shall be entitled to retake into its possession, such contract, although described as a “lease,” is a conditional sale.</p> <p>The fact that the lessor accepted payment of money upon such a contract after maturity, and after the lessee was in default, did not constitute either an express or implied waiver of the terms of the contract; and a mere lapse of time after default of the lessee before the lessor resumed and took possession of said chattels, did not constitute a waiver of the lessor’s title and right to the possession of said property.</p> <p>A charge to the jury that if the lessor insured the chattels in the name of the lessee it is prima facie proof of the lessee’s ownership of the property, is erroneous, as the person in possession of property under a conditional sale has an insurable interest, which is not inconsistent with the title of the actual owner.</p>

<p>TRUSTS —LAND PURCHASED BY CONTRIBUTIONS — EXECUTION OE TRUST.</p> <p>A mere general contribution to a fund for the purchase of land, the title of which is taken in another, will not create a trust in favor of the donor, unless at the time of the purchase it is understood he is to have a certain proportion or aliquot part of the whole tract purchased.</p> <p>A number of persons contributed funds for the purchase of certain government land to be used for cemetery, church, school and other purposes, with the understanding that each should have a right to vote on all questions affecting the land purchased, and each should have a lot in the cemetery to be laid off therein. At a meeting of the contributors thr.ee of their number were selected as trustees to acquire title from the government, and it was decided that the trustees should manage and dispose of the property in accordance with a majority vote of the contributors present at any called meeting, seven to constitute a quorum. After most of the land had been disposed of for various purposes, a meeting of the original contributors was held, pursuant to call, at which it was proposed to sell the land used for cemetery purposes and secure other ground more favorably situated and adapted to the purpose, and give each subscriber to the original fund a lot in the new cemetery, in lieu of his interest in the old. A majority of those assembled at the meeting voted to sell, and the trustees accordingly sold and conveyed said land, and with part of the proceeds of sale purchased other ground for cemetery purposes, and conveyed the same to a corporation organized for the purpose of receiving and controlling it. The balance of the money received from the sale was deposited in bank to be used in improving and embellishing the grounds. Some of the contributors to the original fund, who were opposed to the sale, brought an action to have the sale and conveyance by the trustees canceled and annulled, on the ground that it was a violation of their trust. Held, That, conceding that the land was impressed with trust, the trust has been executed in accordance with the expressed will of the cestuis que trust.</p>

<p>APPEAL — MOTION FOR NEW TRIAL —SETTLEMENT OP STATEMENT —TIME OP NOTICE—SUFFICIENCY OP FINDINGS — WHEN QUESTION RAISED—VENUE.</p> <p>A motion for a new trial in the court below is not necessary in order to give validity to an appeal.</p> <p>Where a judgment appealed from is rendered pursuant to a decision of the cause by the judge at chambers, the time for giving notice of the settlement of a statement of facts does not begin to run until notice of the judgment has been given the defeated party.</p> <p>Under Code Proc., §§101,162, where suit is commenced in one county and service had upon defendant there, he may, upon filing an affidavit of merits and showing that he is a resident of another county, have the place of trial changed to the county of his residence.</p> <p>The insufficiency of the findings of fact made by the court below to sustain the judgment may be raised for the first time in the appellate court, when by the action of the lower court and of the respondent no opportunity was given the appellants to move against the findings in the regular manner.</p>

<p>MECHANICS’ LIENS— FORECLOSURE— SUFFICIENT OF LIEN NOTICE.</p> <p>A lien notice which states that a lien is claimed, “upon that certain wooden frame building situated upon the southeast corner of North Tenth and J street, upon lot No. 12 in block No. 4016-, city of Tacoma,” will not sustain an action to foreclose a lien for materials furnished in the construction of a dwelling house on lots one and two in block No. 3919.</p>

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

<p>APPEAL — STATELIEST OF FACTS NECESSARY —VACATION OF JUDGMENT — PROCEDURE.</p> <p>An appeal from an order denying a motion to vacate a judgment will he dismissed where the affidavits and other papers filed upon the motion to vacate have not been brought to the supreme court by a statement of facts or bill of exceptions.</p> <p>Sembla, That, under the provisions of Code Proc., §§ 1393-97, relating to the procedure in proceedings to vacate a judgment, the filing of affidavits to be used on the trial is not permissible.</p>

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

This was an action of ejectment for the recovery of certain real estate, brought in the court below by Moses H. Scott, plaintiff, against John McNeal and Augustine McNeal, defendants. The complaint was in the ordinary form.

<p>APPEAL—STATEMENT OF FACTS—REFEREE’S REPORT—VENDOR AND PURCHASER—INNOCENT PURCHASER—DELIVERY OF DEED.</p> <p>An appeal from that part of the judgment which is against appellant is sufficient, without requiring him to appeal from the whole judgment as rendered.</p> <p>The report of a referee made and filed in a cause may, on appeal, be certified to- the supreme court, under § 1424, Code Proc., without being incorporated in a statement of facts.</p> <p>Where grounds of objection to an appeal are of so general a character that they point out no specific defect, they will not be considered.</p> <p>The fact that the purchaser of certain real estate knew that a third party, who held a mortgage thereon, had proposed to take the real estate in consideration of his mortgage debt and a certain sum additional thereto, and that seven of the eight owners had signed a deed to that effect, is not sufficient to charge him as a purchaser in bad faith, when the mortgagee has no binding contract for a transfer to himself, has parted with nothing, and is under no obligation to carry out the arrangement on his part.</p> <p>Where a deed has been executed by all but one of several co-grantors, and has been left with a notary for the purpose of securing the signature of the remaining grantor, but is not to be delivered until the consideration agreed upon should be ready to pass, such notary is the agent of the grantors and bound to hold the deed for them, even after its completion, until he has their direction to deliver it to the grantee; and the grantee, by procuring the uncompleted deed from the notary and placing it upon record, obtains no rights thereunder.</p>

<p>APPEAL—STATEMENT OE FACTS—JURISDICTION TO SETTLE—NOTICE —EXTENSION OF TIME —OMISSIONS—EXTRANEOUS PROOF.</p> <p>Notice by the appellant to the respondent of the settlement of a statement of facts is necessary to give the court jurisdiction to settle, and the fact that the requisite notice was given should appear in the record on appeal.</p> <p>Although a judge may have jurisdiction to settle and certify a statement of facts when first presented to him, yet, if he returns the statement to counsel with a request to correct it in certain particulars, and no application is made to him to extend the time of settlement, he has no jurisdiction to settle and sign the statement after the statutory time has expired.</p> <p>Eacts which ought to appear in a statement of facts properly settled, signed and authenticated, cannot, when controverted, be established in the supreme court by affidavits or other proof.</p>

<p>ATTORNEYS—DEFENSE OP PAUPER CRIMINALS—LIABILITY OP COUNTY.</p> <p>An attorney is an officer of the court and takes his office with all its burdens as well as all its privileges; and among the burdens thus assumed is that of being obliged, when requested by the court, to conduct without compensation the defense of pauper criminals, unless there is some statutory provision charging the county with such, expense.</p>

<p>Appeal from Superior Cou/rt, Lewis County.</p>

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

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

<p>APPEAL —FINAL ORDER — DISTRIBUTION OF FUNDS HELD BY ASSIGNEE— ASSIGNMENT FOE BENEFIT OF CREDITORS—RIGHT OF SECURED CREDITOR.</p> <p>On an application for a partial distribution of the funds in the hands of the assignee of an insolvent debtor the court directed the assignee to pay dividends to all the creditors except plaintiff, which held collateral security; that plaintiff be first required to exhaust its collateral security and apply the proceeds to the reduction of its debt, and that it thereafter be paid dividends upon the balance of its debts, which dividends should equal at the time of payment the rate of dividends paid to the other creditors up to that time, and that in the meantime the assignee retain .sufficient funds in his hands to meet the requirements of said order. Held, That the order is final so far as it affects the plaintiff’s rights to that portion of the proceeds of the estate which was distributed, and that an appeal will lie therefrom.</p> <p>Where an assignment has been made for the benefit of creditors, a secured creditor is entitled to share pro rata with the unsecured creditors in the assets of the insolvent estáte only upon the balance of his claim which remains after exhausting and applying the proceeds of his security to its diminution.</p>

<p>CRIMINAL LAW —INFORMATION —UNNECESSARY ALLEGATIONS — BURGLARY—INTENT—PRESUMPTION.</p> <p>In the prosecution of a defendant by information for a criminal offense, it is not necessary that the information should allege that there was no grand jury in session, and that defendant had been committed on said charge by a magistrate, although such facts must exist in order to authorize the filing of an information.</p> <p>Section 47, Penal Code, providing that the presumption of burglarious intent should follow proof of unlawful entry, does not contravene any constitutional right given to one accused of crime.</p>

<p>STOCK AND STOCKHOLDERS—LIABILITY EOK SHARES— NOVATION.</p> <p>Although a stockholder ia a corporation who has given his promissory note in payment of his stock has been released from its payment by the assumption of his indebtedness by certain of the other stockholders, yet, where such stockholder subsequently executes another note to the corporation for the full amount of his stock, and agrees to the release from liability of those who had theretofore assumed his indebtedness, a contract by novation arises, and such stockholder becomes again liable to the corporation for the amount of his second note.</p>

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

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

<p>Appeal from Sxtperior Goxtn't, King Coxmty.</p>

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

<p>TRIAL— IMPANELING JURY —DENIAL OF NON-SUIT —INSTRUCTING ' JURY TO FIND FOR PLAINTIFF.</p> <p>Error arising in impaneling a jury is not prejudicial to defendants, if, under the evidence presented to such jury, the court is warranted in instructing it to render a verdict for plaintiffs.</p> <p>Where the testimony presented on the part of the plaintiffs is sufficient to establish all of the allegations of the complaint which were put in issue by the answer, and the defendants introduce no proof tending to disprove th e prima facie case of the plaintiffs, but rest upon an exception to the denial of their motion for non-suit, the court is warranted in instructing the jury to find a verdict for plaintiffs.</p>

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

<p>APPEAL—AMOUNT IN CONTROVERSY — DAMAGES TO LIEN.</p> <p>An action under Gen. Stat., §1694, by the holder of a lien upon saw logs for damages by reason of their being sawed into lumber and rendered impossible of identification, is not an action of equitable cognizance, and, where the judgment is for a less sum than two hundred dollars, no appeal can be taken therefrom to the supreme court.</p>

<p>DEPOSITIONS — NOTICE OF SETTLING INTERROGATORIES — SUFFICIENCY OF CERTIFICATE.</p> <p>Where the defendant in an action has had three days’ notice by the plaintiff of the settling of interrogatories upon which depositions are to be taken, and at the time set the defendant appears and has the hearing continued for three days to enable him to file cross interrogatories, he is estopped from claiming that he had insufficient notice.</p> <p>Where a deposition is taken pursuant to a commission issued by the court, the certificate thereto substantially complies with the requirements of the statute when it states that “F. N. Hendrix, commissioner, does hereby certify,” and is signed “F. N. Hendrix, commissioner and notary public,” especially when the caption states that it is the “Deposition of . . . taken before F. N. Hendrix . . . pursuant to the annexed commission to take testimony.”</p>

<p> Appeal from Superior Court, Fierce County. </p> <p>Proceeding in contempt based upon the failure of appellant to comply with a judgment in an action by E. A. Lorenz against the First Bank of Orting, in which the relator had been appointed receiver.</p>

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

<p>JURY —FORM OF VERDICT—AMOUNT FILLED IN BY JUDGE — COMMUNICATIONS BETWEEN JUDGE AND JURY.</p> <p>In an action upon a promissory note, where the contest is not as to the amount clue, but as to whether certain of the defendants are liable, it is not error for the judge to fill in the amount claimed by plaintiff in one of the forms of verdict submitted to the jury.</p> <p>Where the judge, after a jury has retired to agree upon a verdict, receives from them by the hands of a bailiff the form of verdict submitted for the plaintiff, in which the jury claims there is a mistake, and returns the same with the communication that it is just in the form that he intended, such communication between judge and jury is not one upon which prejudicial error can be predicated.</p> <p>Where the jury come into open court and request the judge to correct a clerical mistake in a form of verdict submitted to them, and thereafter agree upon and return such corrected verdict as their finding, no error can be predicated thereon.</p>

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

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

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

<p>TRIAL—ADMISSION OP TESTIMONY—NEGOTIABLE INSTRUMENTS — WANT OF CONSIDERATION — BURDEN OF PROOF.</p> <p>Error in refusing to admit testimony is cured by its admission later on, even though such a course may prevent a party’s presenting his evidence to the jury in a systematic manner.</p> <p>In an action upon a draft executed by defendant to plaintiffs in settlement of an account for the construction of certain embankments, to which defendants interposed the defense that, at the time of its acceptance defendant was ignorant of the fact that a large quantity of perishable material had been used in such embankments and estimated as earth, and that there was in consequence no consideration for the draft, the burden of proof is upon defendant to establish want of consideration by a preponderance of the testimony.</p>

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

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

<p>LIENS ON SAW LOGS — ACTION TO ENFORCE — STIPULATION FOR SALE — TRUST-—EVIDENCE.</p> <p>Under §§1679, 1080, Gen. Stat., a lien upon saw logs cannot be so extended as to reach the lumber manufactured therefrom.</p> <p>In an action by the holder of lien claims upon saw logs to enforce the same against the owner and another lien claimant, a stipulation was entered into between the parties providing that the logs should be sold by a special receiver and the proceeds paid into court for the pro rata benefit of such lien claimants. The logs were sold and notes taken therefor in the name of the judge of the superior court, but instead of being deposited in court, were held by the attorneys of the defendant- lien claimant and the money appropriated to the latter’s use when paid. Held, That the defendant lien claimant could not attack the sufficiency of the notices of lien claims held by the plaintiff. Held, also, That it was the duty of the court to take jurisdiction of the proceeds of the sale of the logs as a trust fund, and distribute it in accordance with the stipulation, even although some of the parties thereto objected to such a course.</p> <p>The refusal of the court to allow plaintiff to introduce proof of such stipulation is error, which would justify a reversal, if the facts did not sufficiently appear in the record to allow a modification of the decree in this court.</p>

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

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

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

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

<p> Ajopedl from, Superior Court, Sltagit County. </p>

<p>COUNTY OFFICERS — TERM OF OFFICE—CONSTITUTIONAL LAW.</p> <p>Under art. 6, §8 of the constitution, and under §14 of the schedule to that instrument, the term of office for county officers is for two years commencing on the second Monday of January next succeeding their election; and the act of February 4,1886, entitled “An act to prescribe the tenure of office in the Territory of Washington,” has been abrogated by such constitutional provisions.</p>

<p>SALE — DELIVERY BY SUB-CONTRACTOR — WHEN TITLE PASSES.</p> <p>A contractor agreed to furnish a railway company a large number of ties, which were to be delivered on the company’s right-of-way and inspected by it, those furnished during one month to be paid for on the 25th of the succeeding month. The contractor let a contract to a third party to furnish a portion of the ties, who in turn sub-contracted with another for the delivery of such ties, the contract providing that the inspection and acceptance of the ties should be by the regular tie inspector of the railway company. In addition, the usual course of dealing between the company and its contractors and sub-contractors in such transactions contemplated but one delivery. Held, That on a delivery of the ties by the second sub-contractor upon the company’s right-of-way, and the inspection and acceptance by the company as a delivery by the principal contractor under the contract, the title passed to the railway company, although the second sub-contractor may have had no knowledge of such inspection and acceptance, and may never have received any pay for the ties.</p>

<p>APPEAL —HARMLESS ERROR — ACTION FOR DAMAGES — CONTRIBUTORY NEGLIGENCE—INSTRUCTIONS.</p> <p>Irrelevant and immaterial testimony admitted over objection will not justify a reversal when it does not appear to be in any way prejudicial to the appellant.</p> <p>In an action for damages where the theory of plaintiff’s case is, that an electric car had slowed down in response to his signal, and that when he was about to jump on the rate of speed was suddenly increased to its usual rate, whereby he was thrown under the wheels and injured, it is not error for the court to charge that “if the jury believe from the evidence that the plaintiff attempted to board the front platform of the car while the same was running at its ordinary rate of speed, then the plaintiff was guilty of contributory negligence.”</p> <p>It is not error to charge the jury that if plaintiff, without signaling, attempted to board, an electric car while in motion, and was injured, he could not recover.</p> <p>It is not error to refuse to give a charge to the jury which assumes facts concerning which there is no testimony in the case.</p>

<p>HIGHWAYS — ESTABLISHMENT OE COUNTY ROAD — CHANGE OE LOCATION — ESTOPPEL.</p> <p>Under the road law of 1859 (Laws 1859, p. 7), when the board of county commissioners caused to be entered in the “road book” required to be kept by them as a public record, a petition for a county road, the report of viewers thereon, a description of the road and the adoption of the view made, the road was thereby established of the width of sixty feet, in the absence of any order of the board prescribing a less Tvidth.</p> <p>A county road was established in 1860, and in 1863 the county commissioners, on a petition therefor, irregularly ordered that the location of a portion of the road be changed, granting the order for the change on the same day the petition was filed, and instructing the supervisor to open the road “as now laid out.” But no change was made at the time and the public continued to use the original road for a number of years. In 1874, K, one of the petitioners for the change, and who had succeeded to the ownership of the land through which the old and the proposed roads lay, being at the time road supervisor of the district, obstructed and closed the old road and opened a new one thirty feet in width along the line of the changed location, at the public expense. Held, That as supervisor he took possession of the new line of road as a public road of the statutory width, and that as owner he assented to the proceedings had by the board of commissioners eleven years before, and is es-topped from claiming that the new road is not a legal road of sixty feet in width.</p>

<p>Appeal from Superior Cou,rt, King County.</p>

<p>EVIDENCE — PROOF OF PUBLICATION—ORDINANCES — SECONDARY PROOF — AUTHORITY OF ACTING MAYOR — PRESUMPTION AS TO PASSAGE.</p> <p>Any competent proof tending to establish the publication of the filing of an assessment roll is admissible in the absence of any provision in the charter or ordinances of a city requiring proof of the publication of such notice to be preserved in any particular way. (Wilson v. Seattle, 2 Wash. 548, modified.)</p> <p>Where an original ordinance has been destroyed by fire, parol proof is admissible to show that it had been signed by the mayor, although the record of the ordinance in the ordinance book fails to show the signature.</p> <p>There is sufficient prima facie proof of the authority of an acting mayor to approve an ordinance when it is shown that the mayor of the city has stated to the council that he will be absent from the city for some weeks, and the council, pursuant to the charter of the city, have elected one of their number acting mayor during his absence, who has served as acting mayor from the time of his election down to the passage and approval of such ordinance.</p> <p>An ordinance authorizing the improvement of a street will be presumed to have been passed at a regular meeting by all councilmen present when the proof tends to show that its passage was at an adjourned meeting from a regular meeting, and the record states that the same was passed, andcthat several couneilmen, naming them, voted in the affirmative, and that none voted against it.</p>

<p>MANDAMUS — SETTLING STATEMENT OP PACTS.</p> <p>At the trial of defendant on the charge of committing an assault with a deadly weapon the court defined such a weapon as one likely to produce “death or injury,” to which the defendant’s attorney, immediately after the retirement of the jury, excepted on the ground that it was not a true definition. Upon taking an appeal a statement of facts was prepared and filed by defendant, from the notes taken by the court stenographer at the trial. In settling the statement the court inserted the words “great bodily” in the charge given by him, so as to make it read that a deadly weapon was one likely to produce “death or great bodily injury,” claiming that the stenographer’s report was erroneous, but an answer to defendant’s petition for mandamus admitted defendant’s attorney “excepted to the instruction and charge given in said cause in the manner and form set out” with regard to the definition of a deadly weapon. Held, That the fact that the attorney for defendant immediately called the attention of the court to the insufficiency of the definition and was allowed an exception on the ground of its insufficiency, will preclude any question as to whether the words “great bodily” were used or not.</p>

<p> Appeals,from Superior Court, Mason-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>ATTACHMENTS—EFFECT OF DISSOLUTION — SECOND LEVY—LIEN.</p> <p>Where an attachment has been dissolved the sheriff's right to the control and possession of the property ceases, and the placing in his hands, within a few days after such dissolution and before his surrender of possession, of a second writ of attachment upon which he endorses the ordinary levy, will not create a lien upon the property where there is a bona fide sale thereof prior to actual levy under the second writ.</p>

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

<p>CRIMINAL LAW—TRIAL—AFFIDAVITS—JUDICIAL NOTICE—LARCENY — EVIDENCE — OWNERSHIP — POSSESSION OF STOLEN PROPERTY.</p> <p>It is not contrary to the provisions of Code Proc., §1363, for a defendant in a criminal action to be brought to trial within less than five days after the filing of an information against him, where he has already been taken into custody before a magistrate and held for trial upon the same charge more than five days prior to his trial upon the information.</p> <p>A ruling by a superior court that a certain person is the proper prosecuting attorney, will be upheld on the ground that such courts take judicial notice of the officers of the counties in which they sit.</p> <p>Where a defendant charged with stealing cattle has sought to show that the person alleged in the information as owner had sold the same, evidence of conversations between the owner and parties to whom he had made a conditional sale, although not in the presence of defendant, may be given to show that such sale had been rescinded.</p> <p>Upon the trial of a defendant for the larceny of certain cattle, which the evidence shows had been slaughtered by him, and the carcasses and hides fully disposed of, evidence is inadmissible that defendant had tried to conceal from the sheriff a sack containing ears cut from the heads of certain other cattle, which it was not shown had been stolen, and which were not included in the issue upon which he was being tried.</p> <p>Depositions in a criminal. case, tending to show the good character of defendant, are inadmissible in evidence.</p> <p>Petitions addressed to the county commissioners asking the employment of special counsel to assist in the prosecution of defendant, that his bond be raised, etc., are inadmissible in evideneé upon the question of the guilt or innocence of the accused.</p> <p>A charge to a jury that possession of recently stolen property, if unexplained, might be taken as conclusive evidence of the guilt of the accused, is erroneous, where it is not claimed on the part of the prosecution that defendant stole the property, and the only grounds for accusing him are the facts of his taking possession of stolen property at a distance from the place where it was taken, and the circumstances surrounding the receipt and disposition of the same. (Hoyt, J., dissents.)</p>

<p>CONVEYANCES — RESERVATION—NORTHERN PACIFIC RAILROAD — BRANCH LINES — ESTOPPEL.</p> <p>Where a railroad company conveys a tract of land, “reserving and excepting therefrom, however, a strip of land extending through the same (or so much of such strip of land as may be within said described premises), of the width of four hundred feet, that is, two hundred feet on each side of the center line of the Northern Pacific Railroad, or any of its branches, to be used for right-of-way or other railroad purposes, in case the line of said railroad, or any of its branches, has been, or shall be, located on or over, or within less than two hundred feet of, said described premises,” a mere easement is reserved thereby, and the ownership of the whole tract passes to the grantee.</p> <p>The Northern Pacific Railroad Company not being authorized by its charter under act of congress to construct a branch line between Tacoma and Gray’s Harbor, the Tacoma, Olympia & Gray’s Harbor Railroad, although constructed and operated by the Northern Pacific Railroad Company, is not entitled to the benefit of reservations of rights-of-way in conveyances made by the latter company.</p> <p>The grantee of the Northern Pacific Railroad Company is not es-topped by the recitals in the deed from denying the right of his grantor to build branch roads, when such branch road is one that the grantor is not legally authorized to construct.</p>

<p>APPEAL FROM JUSTICE OF THE PEACE — REFUSAL TO DISMISS — ABUSE OF DISCRETION.</p> <p>The supreme court will presume that the superior court did not abuse its discretion in denying a motion to dismiss an appeal from the judgment of a justice of the peace, when there is no showing to the contrary.</p>

<p>PROHIBITION — COURTS —WANT OP JURISDICTION—NON-RESIDENT OP COUNTY — WHEN ENTITLED TO CHANGE OP VENUE—COSTS.</p> <p>A court has no jurisdiction to try an action against a defendant who is not a resident of the county and has not been served with process therein, when the defendant, at the time he appears and demurs or answers, files an affidavit of merits and demands that the trial be had in the proper county; and prohibition will lie to prevent a trial by such court.</p> <p>The fact that a defendant in such case, at the time of filing his affidavit of merits, does not demur or answer, but makes demand for a bill of particulars preparatory to answering, is a substantial compliance with the provisions of § 162, Code of Procedure. (Dunbar, C. J., and Anders, J., dissent.)</p> <p>Where a writ of prohibition is granted against the superior court to prevent its trying a case for want of jurisdiction, costs should be taxed to the plaintiff in that court as the real party in interest.</p>

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

<p>INSURANCE —CONDITIONS OR POLICY — KNOWLEDGE OR AGENTESTOPPEL.</p> <p>An insurance company is estopped from asserting the invalidity of its policy at the time of its issue, on account of the violation of the condition of such policy against additional insurance, if, at the time of the issue, the fact of such additional insurance was known to the company, or its duty authorized agent.</p> <p>Where a person makes application to an insurance company for the entire amount of insurance desired, stating that he has other insurance on the property, and such company procures a policy for a portion of the insiiranee from another company, the company to which application is made is not the agent of the applicant, but of the other insurance company, and the latter company is bound by the knowledge of such agent.</p>

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

<p>CERTIORARI—REFUSAL TO VACATE JUDGMENT.</p> <p>As an order refusing to vacate a judgment is appealable, certiorari will not lie for the purpose of having the record brought to the supreme court for review.</p>

<p>OFFICIAL BONDS — ALTERATION — EXTENSION OF OFFICER’S TERM — LIABILITY OF SURETIES.</p> <p>Although there has been an alteration made in an official bond of a county treasurer before delivery, by the erasure in the body of the bond of the name of a person proposed as a surety, and the substitution of another name without the knowledge or consent of the sureties signing the same, yet where such bond is regular on its face and the erasure incapable of being detected without a close inspection, and the county commissioners have no notice sufficient to put them as prudent men upon inquiry, the sureties must be held iable on the bond.</p> <p>Where the legislature has extended the term of office of an officer beyond the limit fixed by law at the time of his election and qualification, the sureties upon his bond cannot be held liable for his official acts during such extended term.</p>

<p> Appeal from Superior Gowrt, Spoleane Cov/nty. </p>

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

<p>PUBLIC LANDS — UNIVERSITY GRANT — SELECTION OF. ENTERED LANDS—EFFECT OF CANCELLATION OF ENTRY — WHEN OCCUPANT ENTITLED TO VALUE OF IMPROVEMENT.</p> <p>The sale by the Territory of Washington of lands granted for university purposes under the acts of congress of July 17, 1854, and March 14, 1864, the selection having been approved by the secretary of the interior, confers upon the purchaser and his grantees a title superior to that obtained by a subsequent patentee from the government of the same lands.</p> <p>Although the Territory of Washington may, under the act of congress of July 17, 1854, have selected certain lands upon which there was a homestead entry as a part of its university grant, yet such selection will become effectual as a grant where it has been maintained and acted upon by the territory and its grantees continuously until the cancellation of such homestead entry.</p> <p>One who files a homestead entry upon lands subsequent to their selection by the territory for university purposes, under congressional grant, does not become a bona fide occupant under color of title entitling him to the value of his improvements made upon the land, although such homestead entry may, through error of the commissioner of the land office, have been recognized as a valid one by the issuance of a patent.</p>

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

<p>PUBLIC LANDS — HOMESTEADS — LIABILITY FOR ANTECEDENT DEBTS — VOID JUDICIAL SALE —EJECTMENT.</p> <p>Lands acquired under the homestead laws of the United States are not subject to attachment or execution for the patentee’s debts contracted prior to the acquirement of title, irrespective of the continued occupancy of the granted land by the patentee.</p> <p>Where lands acquired under the United States homestead laws have been sold under execution upon a judgment for a debt of the patentee antedating his patent, and the purchaser and his successors have gone into possession under the sheriff’s deed, ejectment may be maintained by the grantee of the patentee, although the patentee was not occupying said land as a homestead at the time of its sale upon execution.</p>

<p>BOND OF CONTRACTOR ON PUBLIC WORK—OBLIGEE—EFFECT OF MISTAKE—INSUFFICIENCY OF BOND—ACTION BY SUB-CONTRACTOR.</p> <p>Where a bond executed by a contractor for the erection, of a school house by mistake names the board of school directors instead of the State of Washington as obligee, such defect is not fatal, if from the terms of the bond it appears that its object was to secure laborers and material men as provided for by the act of January 31,1888 (Laws 1887-8, p. 15).</p> <p>Under Code Proc., §800, providing that “no bond required by law . . . shall be void for want of form or substance, recital or condition,” a bond given by a contractor for the erection of a school building under the terms of the act of January 81,1888 (Laws 1887-8, p. 15), providing for the protection of those furnishing labor and materials to such contractor, is valid, if it appears therefrom that it was executed and accepted with the intention on the part of all parties to provide the security required by said statute, although the bond may not be in strict statutory form.</p> <p>The act of January 31, 1888 (Laws 1887-8, p. 15), provides a remedy for those furnishing material or labor by virtue of a subcontract, as well as for those who furnish the same in any other capacity.</p>

Action by Frank L. Grippen against Melinda C. Benham to recover the sum of 81,200 with interest, alleged to have been loaned. April 1, 1890, and payable July 1, 3 890. Defendant’s answer set up as a defense that on the 24th day of April, 1S90, plaintiff loaned defendant 81,200, for which she gave her promissory note payable on the 1st day of July, 1890, and that on the 4th day of July, 1890, she fully paid and satisfied said note, which was then surrendered to her.

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

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

<p>TRIAL—CROSS EXAMINATION — NEGLIGENCE —PUBLIC HIGHWAY — INSTRUCTIONS —INVADING PROVINCE OP JURY — HARMLESS ERROR.</p> <p>The character and extent of cross examination rests largely in the discretion of the court, and unless such discretion is abused to the injury of the party complaining, the judgment will not be reversed, although the examination may not be allowed to the extent desired by counsel.</p> <p>Under. Gen. Stat., §744, et seq., providing that the roads, streets and alleys of every city as shown by plat thereof filed in the office of the auditor of the county in which such city is located, are public highways, it is unnecessary, in an action for injuries received upon the public highway of a city through the negligence of private parties, to allege and prove the incorporation of such city.</p> <p>In an action for injuries received from falling into an excavation in an alley, it is immaterial whether the city had ever formally accepted the alley as a public highway and improved it by grading or otherwise.</p> <p>Although a trial judge should not undertake to tell the jury upon what state of facts defendant would be deemed negligent, yet, having done so and having drawn a correct conclusion from the facts stated, a new trial should not be granted, as no injury has thereby been done to defendant.</p> <p>Although the instructions of the court may be erroneous, yet where the verdict is unmistakably in accordance with the evidence and consonant with justice, the judgment thereon ought not to be disturbed. (Hoyt and Stiles, JJ., dissent.)</p>

<p>CARRIERS—EJECTION OF PASSENGER — DAMAGES.</p> <p>The wrongful expulsion of a passenger from a car, although unaccompanied by physical force or violence, is actionable on the theory that, when the relation of passenger and carrier is established, a wrongful'violation of the contract upon the part of the carrier is a breach of a public duty.</p> <p>In such a case the sense of wrong suffered and the feeling of humiliation and disgrace engendered is an actual damage for which the injured party may recover compensation, such damages being compensatory and not exemplary. (Stiles and Hoyt, JJ., dissent.)</p>

<p>PUBLIC LANDS — ADVERSE POSSESSION — REPLEVIN FOR HAY CUT.</p> <p>A settler upon public land may maintain replevin for hay cut therefrom by one who forcibly takes possession of such land and holds the same adversely to plaintiff.</p>

<p>MUNICIPAL CORPORATIONS —CONTROL OF STREETS — INTERFERENCE WITH STREET RAILWAY — INJUNCTION — PLEADIN®.</p> <p>Where a city, in its grant of a franchise to a street railway company to lay tracks upon its streets, reserves “authority to enter upon said streets or any part thereof for the construction of sewers,” the city may cause the construction of sewers in that portion of the streets covered by the company’s tracks.</p> <p>An allegation in a complaint to enjoin the construction of a sewer by a city, which states that “the plaintiff further alleges that said sewer can be constructed in the center of said street, if necessary, without injuring the plaintiff’s property, and without interfering with the operation of plaintiff’s said street railway,” does not negative the presumption that the city was proceeding in such a manner as not unreasonably to interfere with the rights of the plaintiff, and is demurrable for want of sufficient facts.</p>

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

<p>CRIMINAL LAW —LARCENY — AMENDMENT OF INFORMATION.</p> <p>Where a defendant has been placed upon trial upon an information charging him with the larceny of “ seventeen head of horses of the value of $700, being then and there the property of one Wm. Burbank,” the name of the owner is a material allegation in the charge, and it is error for the court to allow the information to be amended by the substitution of the name “Walter” for “ Wm.”</p>

<p>LOGS AND LOGGING — LIABILITY OF BOOM COMPANY —DAMAGES — AGENCY — RATIFICATION OF CONTRACT — STATUTE OF FRAUDS — COSTS.</p> <p>Under § 4 of the act of March 17,1890, requiring boom companies to “catch, hold and assort the logs and timber products of all persons requesting such service,” etc., a written contract signed by the boom company is not essential to render it liable for the loss of logs consigned to the company by the owner.</p> <p>In an action by a logger to recover for the loss of logs consigned to a boom company, there can be no recovery for loss of profit in operating his logging camp nor for injury to his financial credit.</p> <p>An allegation by a boom company, in a mandamus proceeding against another boom company, that it had a contract with a certain individual for driving his logs, is a sufficient admission of the ratification by the corporation of the act of one assuming to be its agent in the making of such contract.</p> <p>A contract is signed, within the meaning of the statute of frauds, when the name of the party to be charged is written by him or an authorized agent anywhere in the contract.</p> <p>Where the appellant himself prepares the transcript and is charged only half price by the clerk for examining and certifying the same, he can recover as costs merely the sum paid to the clerk, and is entitled to nothing on account of his own labor upon the transcript.</p>

<p> Appeal from Superior Cou/rt, Mason County. </p>

<p>PLEADING —ANSWER—NEW MATTER—LIMITATION OE ACTIONS — NON-RESIDENCE OE DEPENDANT — PRESUMPTION.</p> <p>An answer which states that it “does not deny or admit” the allegations of plaintiff's complaint does not constitute “a general or specific denial,” and is therefore insufficient under Code Proc., § 185.</p> <p>Where an answer does not deny the facts stated in a paragraph of the complaint, but controverts the conclusion drawn by the pleader from the facts stated, the answer does not traverse any material fact.</p> <p>Where the facts stated in the complaint clearly show that more than six years have elapsed since the rendition of the judgment sued on, an answer alleging “that more than six years has elapsed since the cause of said action on said judgment accrued,” does not set up new matter constituting a defense to the action and requiring a reply.</p> <p>An action on a judgment is not barred because not commenced within six years after its rendition, where the complaint alleges, without denial in the answer, that the defendant was out of and absent from the State of Washington at the time said judgment was rendered, and did not come into or return to said state thereafter until less than six years prior to the commencement of the action.</p> <p>The fact that defendant was a non-resident of the state at the time the cause of action against him accrued must be alleged affirmatively as a fact in his answer, in the absence of such averment in the complaint, in order to rebut the presumption of his residence within the state.</p>

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS-—FRAUDULENT TRANSFER — RIGHTS OF ASSIGNEE — REPEAL OF STATUTE.</p> <p>The insolvency law of 1881 was repealed and set aside in all its provisions by the assignment law of March 6,1890 (Gen. Stat., § 935).</p> <p>Where a debtor in failing circumstances, contemplating assignment, makes a chattel mortgage in fraud of his creditors, and subsequently makes an assignment for their benefit, his assignee is entitled to, and may recover, possession of the goods thus fraudulently transferred.</p>

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

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

<p>APPEAL —SUFFICIENCY OF BOND —NEW BOND.'</p> <p>In attacking the sufficiency of an appeal bond, merely a prima facie showing on the part of the respondent will cast the burden of showing the responsibility of sureties upon the appellant.</p> <p>Where a party is, in good faith, attempting to furnish asufficient bond he should not be deprived of an appeal on account of failure, if, when required so to do, he will furnish such a bond as will protect the respondent.</p> <p>The determination of the superior court as to the amount of the bond required on appeal is prima facie conclusive.</p>

<p>ATTACHMENT—EXCESSIVE LEVY — EFFECT OF JUDICIAL SALE.</p> <p>Where an attachment has been levied upon the goods of a debtor and a sale made thereof under order of court, the title to the goods passes to the purchaser at such sale, although the levy may have been excessive and the debtor may have made a sale of such goods between the time of the levy and of the judicial sale.</p>

Action by Vandever P. Morrow against Thomas Moran to quiet title to certain land. Tbe land in controversy was bought by defendant at an execution sale, pursuant to a judgment rendered by the supreme court of the Territory of Washington against the plaintiff in this action and another. The sale was confirmed by the supreme court, and a sheriff’s deed issued to tbe defendant herein. From a judgment in favor of defendant, plaintiff appeals.

<p>NON-SUIT - ~UBROGATION - PAYMENT OF JUDGMENT BY SURETY - ATTORNEYS - AUTHORITY TO DIRECT SHERIFF.</p> <p>Where there is a variance between the proof and tile complaint in an aotion, the proof having been received without objection, the court shonid, npon a motion for a non-suit, consider the complaint amended to correspond with the facts proven.</p> <p>Where, after the levy of execution npon the property of a judgment debtor sufficient to satisfy the judgment against him, the judgment and costs are paid by a surety of the jndgment debtor, who takes an assignment of all rights of the plaintiff under such judgment and execution, the surety does not stand in the position of a volunteer, but is snbrogated to the plaintiff's rights.</p> <p>Where, after levy of execution, the sheriff is informed that the judgment has been assigned, and is directed in writing by the execution plaintiff and his assignee to proceed with the execution for the benefit of the assignee, the sheriff is liable in damages for releasing the property upon the subsequent direction of the attorney of the execution plaintiff.</p>

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

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

<p>PUBLIC LANDS—STONE DEPOSIT —LOCATION AS MINING CLAIM — SCHOOL SECTIONS—WHEN ENTRY VOID.</p> <p>Lands chiefly valuable for stone, and upon which no mineral deposits exist, are not locatable under the acts of congress, either as lode or placer mining claims.</p> <p>Under the act of congress reserving sections sixteen and thirty-six in each township in Washington Territory for the purpose of being applied to its common schools, and the enabling act, making a present grant bf such sections to the state to take efíect as soon as the state should be organized, an entry made upon such school sections subsequent to their survey and to the approval of said enabling act, is void, whether entered under the timber and stone act or under the mining laws.</p>

<p>COUNTY COMMISSIONERS —LIMITATION OF APPEAL—COUNTY PRINTING— NOTICE FOR BIDS — AWARDING CONTRACT.</p> <p>Sec. 298, Gen. Stafc., requiring appeals from an order made by a board of county commissioners to be taken within twenty days thereafter, is impliedly repealed by §119, Code Proc., which provides that an appeal may be taken from such orders within three months, as §119 is the later expression of the legislative will.</p> <p>The provision of law requiring notice for bids for county printing to be published for a certain time prior to the May session of the board of county commissioners, is merely directory, and where the rights of the public have been fully protected, and the bids were received as fully and completely as if the proper notice had been given, it is the duty of the board to award the contract to the best and lowest responsible bidder, who has been the publisher of a newspaper for at least six months preceding such May session, and they may be compelled so to do by order of the superior court.</p>

<p>SALE — TITLE DEPENDENT ON PAYMENT —RESCISSION.</p> <p>Where a contract provides for payment for a certain hop crop upon its delivery to, and acceptance by, the purchaser between certain dates, the seller is entitled, upon the failure of the purchaser to pay the stipulated price at the time of delivery and acceptance, to rescind the contract, and such right of rescission is not defeated by tender made on a day subsequent to the purchaser’s default. (Stiles and Hoyt, JJ., dissent.)</p>

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

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

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

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

<p>MECHANICS’ LIENS —BUILDING ON BONDED LAND—LIABILITY OF OWNER OF FEE.</p> <p>Where a bond for a deed to land has been recorded, the interest of the obligor, he being the owner of the legal estate in the land, cannot, under the provisions of ch. 4, Gen. Stat., be subject to liens arising from the construction of a building on such land at the instance of the obligee under the title bond.</p>

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

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

<p>LETT OE EXECUTION —CLAIM OF TITLE BY MARRIED WOMAN — PLEADING.</p> <p>Where the separate property of the wife has been seized upon an execution against her husband, and she sets up claim of title by affidavit, under §491, Code Proc., it is not necessary for her to plead the evidence of her ownership.</p>

<p>Appeal from Superior Court, Lewis Cou/nty.</p>

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

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

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

<p>FIXTURES —PLANER — CONDITIONAL SALE — TITLE OF MORTGAGEE.</p> <p>A planer used in a sawmill, although some fastening be necessary to its use, is not such a fixture as to pass with a mortgage of the realty, as against one retaining title to the machine in himself, under a contract of conditional sale.</p> <p>Where a machine is sold conditionally, a portion of the price to be cash and the balance conditional sale notes, the fact that the purchaser does not pay the cash, but subsequently mortgages real estate to secure the cash payment, no agreement being made for the surrender of the conditional sale notes, does not render the sale absolute.</p>

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

<p>. NEGOTIABLE INSTRUMENTS—FRAUDULENT TRANSFER — BONA FIDE HOLDER.</p> <p>Although one may fraudulently procure the assignment of anote and mortgage to himself and transfer them to a third person as security for a loan, yet such third person stands in the position of a bona fide holder for value to the extent of the money advanced on such security, when he is ignorant of the fraud, even if the character and value of the security may have been such as to arouse the suspicion of a prudent business man.</p>

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

<p>COMPROMISE —CONSIDERATION FOR PROMISE TO PAY — EVIDENCE.</p> <p>Where one by representing his own land as railroad land induced another to settle and make improvements thereon, and afterwards claimed the lands and improvements as his own, but as a compromise of the controversy that arose between them, promised to pay the value of the improvements, such compromise was sufficient consideration for the promise to pay.</p> <p>In an action upon a promise to pay the-cost of certain improvements evidence is not admissible to show that the value of tbe land was not enhanced by such improvements.</p>

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

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

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

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