Volume 6 — Washington Reports

<p>DAMAGES — RAILROAD IN STREET — INJURIES TO ABUTTING PROPERTY — PLEADING — CITY AS PARTY DEPENDANT.</p> <p>In an action for damages to abutting property from the construction and operation of a railroad in a street, an answer by the railroad company which is, in effect, a plea of license from the city to construct and operate their railroad in the street cannot be stricken out on the ground of irrelevancy or immateriality.</p> <p>In an action against a railroad company for damages caused by raising the grade of a street five feet, thereby shutting off access thereto from abutting property, an answer alleging that the right to enter upon the street and change the grade thereof was authorized by an ordinance of the city is demurrable for want of sufficient facts, when the charter of the city, while authorizing the grant of franchises to lay railway tracks, provides that “no railway track can thus be laid down until the injury to property abutting upon the street . . . has been ascertained and compensated.” (Hoyt, J., dissents.)</p> <p>Where a city enacts an ordinance, under its charter, granting the privilege to a railroad company to tunnel a street, build a bridge over it, and lay a railroad track therein, the city is not liable therefor/ and the dismissal of the action against the railroad company for plaintiff’s failure to make the city a party defendant is error.</p>

<p>PROCEEDINGS SUPPLEMENTARY— GARNISHMENT — PRACTICE — APPEAL.</p> <p>In garnishment proceedings supplementary to execution it is unnecessary that the affidavit filed as a basis for the order summoning a garnishee should state that execution had been issued against the judgment debtor.</p> <p>On appeal from a judgment against a garnishee in such proceedings, the fact that execution was issued against the principal debtor should appear in the statement of facts, as it is a jurisdictional matter that the garnishee has no right to waive.</p> <p>Judgment against a garnishee is unwarranted where it appears from the evidence that he signed a promissory note in' his own name in favor of the principal debtor, but that his liability thereon was in fact as a trustee for others; that the note was not due; and that it was in the hands of a third party not before the court.</p>

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

<p>HABEAS CORPUS — GROUNDS FOR WRIT — FORMER JEOPARDY.</p> <p>The supreme court cannot, upon an application for habeas corpus, pass upon the question of former jeopardy of the petitioner, but such plea must be raised and tried in the lower court; nor can jurisdiction to determine such question be conferred upon the supreme court by stipulation accompanying the petition for habeas corpus.</p>

<p>Appeal from Superior Oou/rt, Ki/ng Gov/nty.</p>

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

<p>WILLS — REVOCATION — DECREE — ERRORS NOT APPARENT ON RECORD — ATTORNEY PEES.</p> <p>A will devising all the testator’s real estate to his wife, and which expressly declares that it is the last will and testament of the testator, cannot be construed as a codicil to a former will whereby all the real estate was devised to the wife, and certain sums bequeathed to the children, but such former will is necessarily revoked by the last one; and the last will not naming or providing for the children is inoperative as to them.</p> <p>A decree vesting one-half of community property in the children of a testator remains unaffected by the setting aside of a decree rendered in the same cause upon proceedings in intervention declaring the rights of the parties to be as decreed in the original action, except that the interests of all parties should be subject to the lien of a certain mortgage.</p> <p>The refusal of the court to grant a motion for a default for failure to answer within the x>rescribed time will be presumed to have been based ivpon a showing of good and sufficient cause therefor, in the absence of any showing to the contrary in the statement of facts</p> <p>In the absence of any showing or allegation in the statement of facts that the appointment of a guardian ad litem for certain children was made without any application therefor on their part, it will be ]iresumed that the appointment was regularly made.</p> <p>A judgment against plaintiff, on the dismissal of his action in ejectment, for $125 attorney fees, on the ground that plaintiff knew at the time of instituting suit that certain of the defendants were infant children for whom it would be necessary for the court to ax>point a guardian ad litem, is erroneous.</p>

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

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

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

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

<p>TAXATION —NATIONAL BANK SHARES —INJUNCTION.</p> <p>The assessment of the capital stock of a national bank, made to the bank in solido, is valid.</p> <p>The collection of the tax assessed upon the capital stock of a national bank will not be enjoined on the ground that the moneyed capital of such institutions is unjustly discriminated against, when the complaint does not show that, either by reason of the law or through the action of the assessors, some considerable moneyed capital, which is employed by individuals* in the business of making profit by the use of their moneyed capital as money, is permitted to escape taxation. The non-taxation of “credits” is not ground for such injunction.</p>

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

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

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

<p>RESCISSION — PLACING PARTY IN STATU QUO — TENDER.</p> <p>In an action to obtain the re-conveyance of land on the ground of fraudulent misrepresentation, a tender of the purchase price less the commission paid the agent negotiating the sale, he being the agent of the party seeking rescission, is not sufficient to uphold the action. (Hoyt, J., dissents.)</p>

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

<p>APPEAL — WEIGHT OE TESTIMONY — INSTRUCTIONS — HARMLESS ERROR.</p> <p>Where the testimony in a damage case is voluminous and conflicting, the verdict of the jury will not be disturbed on appeal, especially when the jury has examined the premises and property alleged to be damaged.</p> <p>Although detached expressions in the court’s charge to a jury, if considered as independent expressions, may be technically erroneous, yet if the instructions as a whole, and considered together, fairly state the law, in nowise misleading the jury, there is no prejudicial error.</p>

<p>APPEAL — TIME OF FILING STATEMENT — PARTNERSHIP — DISSOLU-■ TION — NOVATION — PRACTICE—INSTRUCTING JURY TO FIND FOR PLAINTIFF.</p> <p>The time within which a statement of facts should be filed on appeal begins to run from the date of the judgment on a verdict for the defendant, and not from the date of the verdict.</p> <p>An agreement between parties, whereby the partnership is dissolved and one of them released from liability for past debts, does not bind a creditor to whom notice thereof is sent, when there is no consent or act of acquiescence on his part.</p> <p>Where the defendant in an action of debt admits the indebtedness but sets up an affirmative defense which throws the burden of the issue on him, and the undisputed proofs show a failure to prove the facts necessary to sustain such defense, the jury should be instructed to find a verdict for the plaintiff.</p>

<p>BURGLARY — SUFFICIENCY OF INFORMATION.</p> <p>An information for grand larceny which charges the breaking and entry of an office, is sufficient under Penal Code, §40, without also charging that such office was a place where goods, merchandise or valuable things were kept for sale or deposit.</p> <p>An information sufficiently alleges burglarious entry with intent to commit a felony when it charges intent to commit grand larceny, followed by a statement of the acts intended, which, if carried into effect, would have constituted such offense.</p>

<p>ACTION FOR BREACH OF CONTRACT — LEASE OF COMMUNITY LAND — PARTIES.</p> <p>The fact that one of two joint lessees paid all the money on the contract of lease does not warrant an action by him alone for breach of the contract.</p> <p>An action for money had and received cannot be maintained for the breach of a contract, although such contract was invalid for the reason that it was a lease of community lands executed by the husband alone.</p>

<p>prohibition — enforcing judgment on stay bond pending APPEAL.</p> <p>Prohibition will lie to prevent the superior court undertaking to enforce the collection of a judgment against sureties on a bond for stay of execution, when notice of appeal from such judgmeut has been given and a supersedeas bond filed by the sureties.</p>

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

<p>REPLEVIN OE PARTNERSHIP GOODS BY ONE PARTNER — ENJOINING JUDGMENT.</p> <p>. .Where one partner has replevied partnership goods which had been levied upon under a judgment against his co-partner, he cannot enjoin the enforcement of a judgment against him for the return of the goods, or for their value, on the ground that the goods were the property of an insolvent partnership and that he had appropriated them to the use of said partnership.</p> <p>Where the proof in a replevin suit shows that the defendant has merely a special interest in the property levied upon and does not show the amount, an erroneous judgment against plaintiff should be remedied by appeal and not by injunction.</p>

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

<p>MECHANICS’ LIENS — FOR WHAT MATERIALS — CLAIM OF FOREIGN CORPORATION — NOTICE — VERIFICATION—PRIORITY OF LIENS — ATTORNEYS’ FEES — ESTOPPEL.</p> <p>Where materials have been specially designed for a certain building and furnished the contractor therefor, a lien may be claimed for the whole amount furnished, although only^a portion has been used in the construction in consequence of the contractor having suspended work on the building. .</p> <p>The filing of articles of incorporation by a foreign corporation and the appointment of an agent after the filing of a lien notice, but before suit to foreclose same, is a sufficient compliance with the law relating to foreign corporations doing business within the state.</p> <p>Where a notice of lien is prematurely filed for the reason that the last portion of the materials furnished had not arrived, although on the way, the claimant has a right to file a second notice after the delivery of the materials.</p> <p>Under § 1667, Gen. Stat., it is unnecessary that the attorney verifying a mechanic’s lien notice for a foreign corporation should be specially authorized by appointment and the appointment filed in the office of the secretary of state.</p> <p>Where there is a partial cessation of work upon a building because of differences between the owner and contractor, but the abandonment of the contract is not complete and permanent until after the furnishing of certain materials, lien may be claimed therefor.</p> <p>An attorney’s fee of $2,000 for enforcing a lien of $21,000 is excessive and should be reduced to the sum of $1,000, or lower.</p> <p>Under the provisions of our statutes, a material man can claim a lien only from the time he commenced to furnish materials for the building, and if such time is subsequent to the creation of a mortgage lien, of which he had notice, his claim for materials is subject thereto.</p> <p>A mechanic’s lien will not date, for the purpose of priority over mortgage and other liens, from the time the claimant commenced the preparation of the materials in another state, which, by the contract, were to be delivered at a certain building in course of construction in this state.</p> <p>The fact that a mortgagee loaning money for the erection of a building on certain land reserves the right in the mortgage to pay liens that may be created against the property from the amount of the mortgage loan, does not make the mortgagee a party to such liens or estop him from disputing the claims of lienors.</p>

<p>JUDGMENT BY DEFAULT —APPEAL —PRACTICE.</p> <p>Where judgment has been irregularly entered against a defendant by default, he should seek a remedy by motion in the court below to set aside such judgment before appealing to the supreme court.</p>

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

<p>CORPORATIONS — CAPITAL STOCK — LIABILITY OP SUBSCRIBERS — SUBSCRIPTIONS BY OTHER CORPORATIONS.</p> <p>A corporation in this state cannot enforce subscriptions to its stock until the full capital stock has been subscribed, for.</p> <p>Under the laws of this state one corporation cannot subscribe to the capital stock of another corporation.</p>

<p>MUNICIPAL CORPORATIONS — PURCHASE OP WATER WORKS — ISSUANCE OP BONDS — SUBMISSION TO VOTERS — REGISTRATION — TITLE OP ACT.</p> <p>The provision of the act of March 26,'1890 (Laws 1889-90, p. 520), authorizing cities to purchase water works and light plants which had theretofore been erected by private enterprise, is sufficiently expressed in the title of the act, which reads, “An act authorizing cities and towns to construct internal improvements, and to issue bonds and pay therefor.”</p> <p>An ordinance providing for the purchase by a city of the existing plant of a light and water company, embracing its water works and electric light plant, with a certain exception, and that the city extend the water works by a gravity system from certain springs, is sufficient without the ordinance containing a schedule showing the extent of territory covered, the miles of pipe laid and of what sizes, the sources of water supply and the extent of the rights of the seller therein, the quantity of water available, and if brought to the city in aqueduct or flume, of what capacity, the capacity of the pumping stations and their character, and the amount of land and where situate.</p> <p>Under the act of March 26,1890 (Laws 1889-90, p. 520), and the amendment thereof (Laws 1891, p. 326), the question of purchasing water works and light plant, and paying therefor with the proceeds of bonds, may be submitted to the voters at the same election as one proposition.</p> <p>It is not necessary that the ordinance itself providing for the purchase of water works should be set out in full in the election notice where the latter contains a fair statement of the matters to be voted upon.</p> <p>There is no state law requiring registration of voters at elections to decide upon propositions for purchasing water works and light plants, and bonding the city to pay therefor.</p>

<p>CORPORATIONS — ACTIONS TO RECOVER ON STOCK SUBSCRIPTIONS — EFFECT OF PART PAYMENT</p> <p>A subscriber to the stock of a corporation does not waive any right to object to the validity of other subscriptions, or to dispute the authority of the corporation to sue, merely from the fact that he has made payment on such subscription, when he haS no knowledge as to the validity and bona fieles of other subscriptions.</p>

<p>HUSBAND AND WIPE — MORTGAGE EXECUTED BY HUSBAND — PORE-CLOSURE.</p> <p>Although a mortgage of real estate may have been executed by the husband alone, foreclosure thereof may be had, when the mortgage itself declares that the maker is an unmarried man, and there is little or no testimony showing knowledge on the part of the mortgagee of the maker’s marriage.</p>

<p>CONTINUANCE — ABSENCE OE WITNESS.</p> <p>A party to an action cannot be forced to trial the instant the cause is at issue, but is entitled to a continuance, upon a proper showing that the principal witness is absent from the state.</p>

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

<p>COUNTY OFFICERS — TERMS OF OFFICE — CONSTITUTIONAL LAW.</p> <p>A prosecuting attorney holding office under the provisions of art. 37, §6 of the constitution, does not fill such a term as is contemplated by art. 11, §7 of the constitution, which prohibits a county officer from holding more than two terms in succession.</p>

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

<p> Appeal from Superior Court, Whatcom County. </p> <p>On motion by appellant to re-tax costs allowed on appeal.</p>

<p>APPEAL — AMOUNT IN CONTROVERSY</p> <p>An appeal will not lie from a judgment where the original amount in controversy is less than $200, and does not involve the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute, although the action maybe for the recovery of a portion of a stipulated price under a contract which, in the aggregate, exceeds $200 in amount.</p>

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

<p>APPEAL — OBJECTIONS NOT BAISED BELOW — VACATION OE JUDGMENT.</p> <p>The fact that a petition to vacate a judgment hacl been filed in a cause subsequent to the denial of a motion to vacate the judgment on the same grounds, cannot be urged for the first time on appeal.</p> <p>Where judgment has been taken against defendant by default for his failure to answer, the judgment should be set aside when it appears that he has a defense upon the merits of the case and was misled by a statement of plaintiff’s attorney that the cause would be tried several months later than the time at which default was taken.</p>

Action by Staver & Walker against C. A. Missimer and H. W. Illman, copartners, and their wives, to foreclose two mortgages given to secure the sum of §2,044, evidenced by four notes, each dated November 10, 1890, one for §500, due March 10, 1891, and one for §500, due May 10,1891, one for §500, due July 10, 1891, and one for §544, due August 10,1891. The first note had been paid prior to suit.

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

Action by Kate Tootle, W. E. Hosea, W. W. Wheeler, Joshua Motter and Frances S. Tootle, partners as Tootle, Hosea & Co., against the First National Bank of Port Angeles, to recover the sum of §783.33 and interest. The facts are as follows: On April 20, 1891, the Port Angeles Mercantile Company was indebted in a sum exceeding §7,000, included in which sum was its indebtedness to plaintiffs, amounting to §759.38.

<p>MUNICIPAL CORPORATIONS — LIABILITY FOR INJURIES TO FIREMEN.</p> <p>A municipal corporation is not liable for the negligence of firemen engaged in the line of their duty.</p> <p>The apparatus used by a fire company being under the special control and inspection of such company and not of the city, the city cannot be held liable for injuries received on account.of the defective condition of the apparatus.</p>

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

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

<p>FORECLOSURE OF JIORTGA&E— ATTORNEY FEES.</p> <p>Although a mortgage may provide for the payment to the mortgagee out of the proceeds of sale on foreclosure, of “counsel fees at the rate of ten per cent, upon the amount which may be found to be due for principal and interest by the said decree ” of sale, the mortgagor is not liable to the payment of such counsel fee where, before the expiration of the time for answering in the foreclosure suit, he pays into court the full amount of principal and interest and costs to date. (Dunbar, C. J., dissents.)</p>

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

<p>EVIDENCE — RELEASE — BURDEN OF PROOF — NEW TRIAL.</p> <p>An allegation by a plaintiff that his signature to a written release exempting defendant from liability for injuries received through the latter’s negligence was secured from him by fraud is not sufficiently supported by proof on plaintiff’s part that he was misinformed as to the contents, and did not understand the nature of the paper he signed, while three witnesses, who were present at the time, testify that the release was read over and explained to plaintiff twice before he signed it, and that he then said he understood it; especially in view of the fact that the burden of proof is upon plaintiff, and the other testimony in the cause tends to corroborate defendant’s side of the issue.</p> <p>A new trial may be awarded, although the verdict be supported by some evidence, where it appears that the evidence is insufficient to justify the verdict.</p>

<p>REAL estate brokers — commissions.</p> <p>Where land is placed in the hands of a real estate broker for sale on certain tei'ms, and the broker introduces to the owner prospective purchasers, who refuse to buy the land on such terms, but take an option on it for sixty days, the broker is not entitled to any commission.</p>

Action by the First National Bank of Seattle and Fred Bense against James H. Woolery, as sheriff, and Henry Bode, praying an injunction to restrain the sheriff from paying over to defendant Bode the amount realized on a foreclosure sale of certain mortgaged personalty, on the ground that plaintiffs, who had been secured by the same mortgage on certain other notes, were entitled to a pro rata share of the proceeds, and praying the court to distribute the fund arising from…

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

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

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

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

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

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

<p>conveyances — warranty — covenant for quiet enjoyment— PAYMENT BY GRANTEE OF DELINQUENT TAXES.</p> <p>Where a grantor, instead of simply using the word “warrant” in a conveyance and leaving the statute to define what should be implied thereby, goes farther and sets out the particular thing or things which he will warrant against, he cannot be held to have intended other covenants than the one or ones thus set out. (Dunbar, C. J., dissents.)</p> <p>The payment by the grantee of taxes which were a lien upon the land at the time of the conveyance, is not a breach of a covenant for quiet enjoyment, when there is nothing to show that anything is being done by the city or county that will in any manner endanger the title of the grantee. (Dunbar, O. J., dissents.)</p>

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

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

<p>FRAUDULENT CONVEYANCES — DEED INTENDED AS MORTGAGE — TRUST DEED — PREFERENCES — EVIDENCE.</p> <p>A conveyance of land intended as a mortgage to secure an existing debt is not void as to creditors, in the absence of any showing that the value of the land is greatly in excess of the indebtedness which it is intended to secure.</p> <p>A conveyance of property in trust for those to whom it equitably belongs can in no event be void as to creditors.</p> <p>The fact that, within a few days after the conveyance of certain land for a given consideration, another conveyance is made of the same land, with additional land, to the same grantee and for the same consideration as expressed in the former deed, is not evidence of fraud.</p> <p>A debtor, although in failing circumstances, may pay or secure any one or more of his creditors, to the exclusion of others.</p>

<p>HABITUAL DRUNKARD — APPOINTMENT OE «U ARDIAN — WHEN WANT OE JURISDICTION CURED.</p> <p>The appointment of a guardian for the person and estate of one whose mind has become unsound from the constant and excessive use of alcoholic liquors, thereby rendering him incapable of conducting his own affairs, is authorized by §1154, Code Proe. (Hott, J., dissents.)</p> <p>Although the court did not have jurisdiction to appoint a guardian for a habitual drunkard, for the reason that the latter was not before the court at the time, yet where, without attacking the proceedings, he subsequently submits himself to the jurisdiction of the court by filing a petition denying the allegation of the original petition, and asking for an investigation upon the merits and for an order setting aside the appointment of such guardian, the court thereby obtains jurisdiction of his person, and from any final order in the premises appeal will lie. (Hovt and Stiles, JJ., dissent.)</p>

Action by Frank Ladouceur against the Northern Pacific Railroad Company for injuries received as the result of a collision between a train and plaintiff’s wagon at a railroad crossing. The evidence tended to show that numerous teams were passing to and fro at the time on the street; that the train was making but little noise; and that the engine bell was not rung, nor the whistle blown, till almost upon the crossing.

<p>CORPORATIONS — INSOLVENCY — PREFERRING CREDITORS — UNAUTHORIZED CONTRACTS —ESTOPPEL.</p> <p>A chattel mortgage given by a dairy association cannot be held void on the ground that it is a preference of creditors by an insolvent corporation, when the evidence shows that the association had not enough money on hand to pay all of its indebtedness, but that its business was profitable; and that the mortgage was given for the purpose of inducing the mortgagee to continue to supply milk to the association, in order that its business might be carried on.</p> <p>Although a contract of a corporation may not have been properly authorized by its board of trustees, yet, where the corporation continues to receive the benefits accruing from such contract, it is estopped to deny the validity thereof.</p>

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

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

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

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

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

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

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

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

<p>SALE — ARTICLES MANUFACTURED TO ORDER — STATUTE OF FRAUDS — DELIVERY AND ACCEPT ANCE — APPEAL — DELAY IN PILING TRANSCRIPT.</p> <p>Although a complaint may be based upon a conLract of sale which is void within the statute of frauds, yet where the ease made by the answer and reply, and tried without objection by the defendant, shows the contract to be one for the manufacture and delivery of an article, the statute of frauds has no application.</p> <p>In case of the manufacture of specific articles upon order, a tender of the manufactured article is a sufficient delivery, without its acceptance by the purchaser.</p> <p>If, upon the tender of a manufactured article ordered by the purchaser, defects of construction or departure from the terms of contract are alleged, they must be pointed out within a reasonable time, and the maker given a chance to repair defects, or acceptance will be presumed.</p> <p>The omission of the clerk to send up the statement of facts with the transcript of the record is not ground for dismissal of the appeal, where the mistake is corrected as soon as discovered.</p>

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

<p>LANDLORD AND TENANT — UNLAWFUL DETAINER — SUFFICIENCY OF EVIDENCE.</p> <p>The verdict of the jury for defendant in an action of unlawful detainer will not be disturbed, where the relation of landlord and tenant is not clearly established by the evidence. (Hoyt, J., dissents).</p>

<p>EXEMPTIONS — ABSCONDING HOUSEHOLDER.</p> <p>Where a person has left the state with intent to defraud his creditors his property is not exempt from attachment, and his wife cannot claim the statutory exemption in his behalf.</p>

<p>MUNICIPAL CORPORATIONS —STREETS OVER TIDE LANDS.</p> <p>Under the constitution and laws of this state cities of the first class have, as against private parties, the absolute right to extend their streets over and across the tide lands lying within their corporate limits, subject only to the rights of navigation in the waters covering such tide lands.</p> <p>Where a city, by an ordinance regularly passed, recognizes the existence of a street over a certain portion of tide land, and provides for the widening and extension thereof, and the city, by its proceedings, is estopped to deny that such location is a street, such location must be held to be a street as to the public generally, and no private person can question the city’s right to establish it.</p> <p>(Stiles and Anders, J J., dissent.)</p>

<p>FOREIGN CORPORATIONS — GARNISHMENT IN ANOTHER STATE — DEFENSE TO ACTION -ON POLICY.</p> <p>Where a foreign fire insurance company has been garnished in another state upon its indebtedness to a citizen of this state upon its policy of insurance, such fact is a good defense to an action in this state against the corporation.</p>

<p>LOGS AND LOGGING — LIENS — SUFFICIENCY OF CLAIM — TIME OF FILING —ENFORCEMENT — VENUE.</p> <p>Under the provision of §1679, Gen. Stat., that every person performing labor upon, or who shall assist in obtaining or securing saw logs, shall have a lien therefor, a notice of lien that alleges that the claim is for labor performed upon, and assistance rendered in preparing and securing certain saw logs, is sufficiently definite.</p> <p>The thirty days’ limitation for the filing of liens for labor in securing saw logs does not begin to "run from the time such logs are rafted into booms, but from the time the services rendered in securing the logs ends.</p> <p>An action to foreclose a logger’s lien is properly brought in the county where the logs were cut and the lien notice filed, regardless of the fact that the logs are in another county. (Hoyt and Stiles, JJ., dissent.)</p>

<p>NEGOTIABLE INSTRUMENTS — EVIDENCE — ALTERATION OF NOTE— PRESUMPTION — OWNERSHIP—PROOF OF INCORPORATION — INTEREST— HARMLESS ERROR.</p> <p>Although a promissory note may show upon its face that it has been changed after it was originally written, yet, in a suit thereon, it may be offered in evidence, as the presumption is that the note was in the same condition when signed as when offered in evidence.</p> <p>The fact that plaintiff is a corporation may be prima facie established by parol proof that it is carrying on a general banking business as a national bank under the name by which it has brought suit, as judicial notice will be taken by the court of the general laws of the United States which authorize national banks.</p> <p>In an action upon a promissory note by an indorsee, who makes the payee a party defendant, the production of the note in evidence with an indorsement in blank thereon, is sufficient to prima facie establish the fact that the plaintiff is the owner.</p> <p>Under the legislation of this state the established rate of interest is ten per cent., and can be properly charged by national banks.</p> <p>The fact that the court, in an action upon a promissory note, assessed the amount of attorney’s fees due thereon, and added same to the verdict of the jury, is not prejudicial error.</p>

<p>CERTIORARI — WHEN LIES — SERVICE BY PUBLICATION — AFFIDAVIT— SUFFICIENCY OF PUBLICATION.</p> <p>The jurisdiction, of the supreme court to inquire into the proceedings of the superior court under a writ of certiorari, is not dependent upon the amount in controversy; but the writ will lie whenever judgment is rendered by the superior court without proper service of summons. (Dunbar, C. J., dissents.)</p> <p>An affidavit, upon which publication of summons in an action is based, is not sufficient under Laws of 1887-8, p. 26, § 5, when it alleges merely that the defendants “are absent from the county of Pierce, and that their place of residence is unknown.”</p> <p>Under a statute requiring publication of summons to be made not less than once a week for six consecutive weeks, six publications is sufficient, where it is made once in each of six consecutive weeks.</p>

<p>PUBLIC LANDS — ENTRY WITHIN CORPORATE LIMITS — KNOWLEDGE OE ENTRYMAN.</p> <p>Under the act of congress of March 3, 1877 (19 St. at Large, p. 392), where entry had been regularly made upon vacant unoccupied land of the United States, within the limits .of an incorporated town, which was not settled upon, nor used for municipal purposes, and such land was afterwards ascertained to be within the corporate limits of a town, it was the duty of the secretary of the interior to issue a patent therefor to the enlryman, regardless of knowledge on the entryman’s part that such land was within the corporate limits. (Hoyt, J. dissents.)</p>

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

<p>MUNICIPAL CORPORATIONS ■— BONDS FOR INTERNAL IMPROVEMENTS — CONSTITUTIONAL LAW — CITIES OF FIRST CLASS.</p> <p>The act of March 9, 1893, entitled “An act relating to internal improvements in cities, authorizing the issuance and collection of bonds upon the property benefited by local improvements, and declaring an emergency,” is constitutional, and is applicable to cities ofnthe first class, as well as to all other cities.</p> <p>Where an act, general in terms, contains such reference to special acts as to show an intent on the part of the legislature thereby to repeal or change them, the rule that general acts have no effect upon special ones, though covering the same subject matter, must yield to the manifest intention of the legislature.</p>

<p>CERTIORARI — QUASHING WRIT — WHEN LIES — REVIEW OE STREET ASSESSMENT — PROCEEDINGS.</p> <p>Although a writ of certiorari has been granted in favor of plaintiff, it may, before compliance with its directions, be quashed on motion of defendants therefor.</p> <p>While the statute does not fix the time within which a writ of certiorari should be applied for, it should be applied for within a reasonable time after the act complained of has been done, and two years is not a reasonable time.</p> <p>Where the only method prescribed by a city charter for the collection of a street assessment is by foreclosure in a court of record, certiorari will not lie for the purpose of reviewing the assessment proceedings.</p>

<p>TAXATION IN CITIES OF FIRST CLASS —ASSESSMENT BY COUNTY ASSESSOR.</p> <p>The general revenue law adopted March 15, 1893, requiring that the names of persons to whom personal property is assessed shall be listed alphabetically in the roll, and that real estate shall be listed numerically, must be construed in connection with the provisions of the act of March 9,1893, requiring assessors in counties containing cities of the first class to list the property within the limits of any such city in as compact a form as practicable on the assessment roll, and when, by reason of a change in the boundaries of any city, or otherwise, the rate of taxes is required to differ in different districts thereof, the assessor shall properly segregate the real and personal property in each district so that each rate of taxation may be readily applied to property lawfully coming thereunder; and for the purposes of city assessments, the making of separate lists for different districts, which shall themselves be arranged alphabetically, in the case of personal property, and numerically in the case of real property, will be a full compliance with the statute.</p>

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

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

<p>MUNICIPAL CORPORATIONS — FRANCHISE FOR RIGIIT-OF-WAY OVER STREETS — ESTOPPEL —CHANGE OF GRADE — PERPETUAL GRANT.</p> <p>Where the city of Seattle has laid, out a street over tide land, and granted a railway company the right to lay tracks thereon, by virtue of provisions contained in the charter conferred upon the city by the territorial legislature, and its acts in exercising such power have been subsequently confirmed by the provision of the state constitution authorizing cities to extend their streets over tide lands, such city is estopped to dispute the validity of the franchise granted the railway company, on the ground of want of authority in the city to grant the right-of-way.</p> <p>Although an ordinance of a city granting a railway company a right-of-way over a certain street may impose a condition that the railway must be constructed within a certain time, yet the city is estopped to urge that the grant is void by reason of a failure to comply with such conditions, when the ordinance has never been repealed and the city has permitted the railway company to continuously operate its road for several years.</p> <p>A municipal corporation has no right to make such a change in a street grade as will effect a destruction of the franchise theretofore granted a railway company to lay its tracks therein.</p> <p>A municipal corporation may grant a perpetual franchise for a right-of-way over its streets.</p>

<p>Appeal from Superior Court, SpoJcano Coimty.</p>

<p>PROMISSORY NOTES — PROVISION EOE ATTORNEY PEES — EFFECT UPON NEGOTIABILITY.</p> <p>A condition in a promissory note providing for the payment of attorney fees in the case of a suit to enforce its collection, does not affect the negotiability of the note.</p>

<p>LANDLORD AND TENANT — DESTRUCTION OE PREMISES — RECOVERY OE RENT PAID IN ADVANCE.</p> <p>Where a building, occupied by a tenant under a lease whereby he covenants to pay a certain rental per month in advance, is destroyed by fire, the tenant may recover the money paid in advance for that portion of the month remaining after the destruction of the premises.</p>

<p>APPEALABLE ORDER — APPOINTMENT OF ASSIGNEE BY COURT — MANDAMUS.</p> <p>An appeal will not lie from an order of the superior court-appointing an assignee in place of the one appointed by the assignor in his deed of assignment for the benefit of creditors; and, under such circumstances, the superior court cannot be compelled by mandamus to fix the amount of the supersedeas bond for an appeal from such order.</p>

<p>APPEAL — SETTLEMENT OF STATEMENT — DISQUALIFICATION OF JUDGE.</p> <p>Where the judge of the superior court who tried a case has ceased to hold office, an appellant should give notice of the settlement of a statement of facts before the superior court of the county in which the case was tried, and if, when the matter comes on to be heard, it is ascertained that the judge of said court is disqualified from acting in the matter, it should be continued until a judge qualified to act is present. (Anders, J., dissents.)</p>

<p>ATTACHMENT — TRIAL OF TITLE — FAILURE OF SHERIFF TO FILE CLAIMANT’S AFFIDAVIT — JURISDICTION OF SUPERIOR COURT.</p> <p>The failure of the sheriff to file with the clerk of the superior court the affidavit and bond delivered to him by a third person, who claims property seized by him under an attachment, will not deprive the court of the county in .which the property was seized of jurisdiction to adjudicate the title to the property.</p>

<p>NEGOTIABLE INSTRUMENTS —SPOLIATION —PLEADING.</p> <p>A material alteration will not invalidate a written instrument . when made by a stranger to the contract.</p> <p>Where a promissory note has been changed by altering the provision for attorney’s fee from 5 to 15 per cent., and a complaint is founded upon the note as originally executed, to which defendants answer, alleging the change made in the note without their knowledge or consent, a reply which admits the change as alleged, but avers that the note was not changed by plaintiff or by his authority, and that said alteration was made without his authority, knowledge or consent, is equivalent to pleading spoliation of the instrument by a stranger.</p>

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

<p>NEGLIGENCE — DEFECTIVE WATER CLOSET — PLEADING — INSTRUCTIONS — DISMISSAL OF ACTION.</p> <p>In an action for damages caused by the leakage of water from a water closet, where, under the pleadings, no question is raised as to the manner in which the plumbing had been originally done, nor as to the make or construction of the water closet, it is prejudicial error to charge the jury that, unless the best kind of closet known at the time was placed in the building by the defendant, the jury may from that fact alone find him guilty of negligence.</p> <p>Where, under all the evidence, it appears that the defendant was entitled to have the jury instructed to find a verdict in his favor, the supreme court will, on reversal of the judgment on appeal, direct a dismissal of the action.</p>

<p>MUNICIPAL CORPORATIONS — PURCHASE OF WATER WORKS — ISSUANCE OF BONDS — NOTICE OF ELECTION — LIMITATION OP INDEBTEDNESS.</p> <p>Where there has been a substantial compliance with the requirements of the law governing notice of elections, in the matter of voting municipal bonds, and there has been a fair election thereunder, the result cannot be defeated by technical irregularities, such as posting the notice only twenty-six days instead of thirty, and failure to publish the notice in the official paper on the day immediately preceding the election, when the ordinance required publication for the thirty days next preceding election day.</p> <p>Under the charter of the city of Tacoma the assessment for purposes of taxation is not complete when the board of equalization has finished its labors in fixing and equalizing values, but the assessments, as equalized, must be added up on the rolls by the comptroller, and the same delivered by him to the city council before the assessment can be used as a basis for computing the limitation on municipal indebtedness. (Dunbab, C. J., dissents.)</p> <p>An election for the issuance of bonds for the purchase of water works is not void for the reason that at the same election there was also submitted another proposition for the issuance of bonds for the. construction of a bridge.</p> <p>Where, subsequent to a municipal election for voting bonds for the purchase of water works, but prior to their issuance, a new assessment becomes operative, whereby the valuation of taxable property is reduced, the city may. be enjoined from issuing bonds in excess of five per cent, of the existing valuation, although, under the valuation in force at the time of the election, the city could lawfully vote for a larger issue.</p> <p>Under the act of 1891, the limitation upon municipal indebtedness for water works, light plants and sewers-is five per cent, of the total valuation of property within the city limits. (Metcalfe v. Seattle, 1 Wash. 29Í, distinguished.)</p> <p>Where municipal bonds are not payable out of the general fund, but out of the proceeds of special taxes, the amount of cash in the general fund cannot be credited upon the amount of bonded indebtedness proposed so as to reduce the municipal indebtedness below the five per cent, limit.</p>

<p>MUNICIPAL CORPORATIONS — ILLEGAL CONTRACTS — RATIFICATION —DISCOUNTING WARRANTS — BREACH OE CONTRACT — MEASURE OE DAMAGES.</p> <p>Where the charter of a city provides against liability on any contract for the payment of any sum exceeding fifty dollars, unless the same is authorized by ordinance and made in writing and signed by clerk or an authorized agent, the city cannot he rendered liable by the verbal agreement of the mayor and a council committee to pay certain sums exceeding fifty dollars, in addition to those duly authorized by the council; nor can the city, by its conduct, acquiesce in and ratify the acts of its officers, so as to make such verbal contract valid and binding retroactively.</p> <p>A municipal corporation has no authority to make a contract to discount its own warrants; and the fact that the city has paid a portion of the discount on its warrants in accordance with an agreement of its officers, will not estop it from asserting the illegality of such a contract.</p> <p>Where there is a breach of a contract to pay cash when due for certain work, the only damages recoverable, when the injured party proceeds with the work to completion, is interest on the money from the time of the default.</p> <p>Wherever a person enters into a contract with an agent of a municipal corporation, he must at his peril ascertain the extent of such agent’s authority, and, if he fails to do so, he alone must suffer the consequences.</p>

<p>STATUTES — REGULARITY OE PASSAGE — CONCLUSIVENESS OE ENROLLED BILL.</p> <p>The enrolled bill on file in the office of secretary of state of an act of the legislature, which is duly signed by the presiding officers of both houses, and otherwise appears fair upon its face, is conclusive evidence of the regularity of all proceedings necessary for its proper enactment in conformity with the constitutional provisions.</p>

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

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

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

<p>CHATTEL MORTGAGES —POSSESSION OE MORTGAGEE — ATTACHMENT BY OTHER CREDITORS — PRIORITIES.</p> <p>Where a chattel mortgage on a stock of goods is given to a bona fide creditor, who immediately takes possession, and, placing an agent in charge thereof, proceeds to the county seat to file the mortgage for record, the levy of an attachment, subsequent to the execution of the mortgage, but prior to its filing for record, will not give the attaching creditor any prior rights, although he may have had no notice of the mortgage until the sheriff was notified at the time of making the levy.</p>

<p> Original Application f/or Mcmdamus. </p>

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

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

<p>PARTNERSHIP — LIABILITY OF INCOMING PARTNER.</p> <p>An incoming partner, in the absence of some agreement assuming past indebtedness, becomes liable only for the future, and not for the preexisting, debts of the partnership.</p>

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

<p>-MUNICIPAL CORPORATIONS — FRANCHISE FOR STREET RAILWAY — ESTOPPEL — UNAUTHORIZED TRACKS — ABATEMENT AS NUISANCE.</p> <p>AVhere a street railway company, under an ordinance granting it a right to lay tracks in certain streets, lays and operates in connection with such system a track upon a street not named in its franchise, the city is estopped to interfere therewith, when it had knowledge thereof through its officers, the tracks, in fact, being laid under the direction of its superintendent of streets, and the company had, for several years, operated its railway thereon without objection, and paid taxes assessed upon the property by the city.</p> <p>Where a street railway company holds a franchise to operate a cable railway Upon certain streets, through compliance with the absolute conditions contained in the grant, but operates a horse, railway instead of a cable railway upon one of the streets, the proper course for the cit}7 is, not to abate such horse railway as a nuisance, hut to take such legal proceedings as will compel the operation of the road by cable instead of by horses.</p> <p>Although a street railway track constructed without authority may be technically a nuisance, yet where there is no general law of the city declaring such railway a nuisance and authorizing its abatement, the city is not authorized, under a charter provision empowering it “to cause any nuisance to he abated,” to tear up such street railway track..</p>

<p>COMMUNITY REALTY — DEED OF HUSBAND — WHAT TITLE PASSES.</p> <p>Where husband and wife are living together, a deed executed by the husband alone will pass no interest in community real estate, although the husband may have represented himself as a single man, and have so recited in the deed.</p>

<p>APPEAL — WEIGHT OP TESTIMONY — NEW TRIAL — NEWLY DISCOVERED EVIDENCE.</p> <p>Where there is evidence in an action tending to support the issues made, the supreme court will not pass upon the weight of the testimony.</p> <p>Where the complaint in an action for damages alleged that the ties of defendant’s road bed were rotten and unsafe, whereby the injury was caused, defendant had sufficient notice to put it upon an investigation of-all its road bed at the place where the accident occurred, and the defendant is not entitled to a new trial on the ground that it was surprised at the proof of the defective condition of a particular tie, and that it now has newly discovered evidence to the contrary.</p>

<p>LIMITATION OF ACTIONS — WHEN TIME BEGINS TO RUN — BOUNDA RIES — HOW ASCERTAINED.</p> <p>Under the statute of 1881, which reduced the limitation for the commencement of actions to recover the possession of real estate from twenty to ten years after the accrual of the cause of action, a party whose action had not been barred under the old law has the full period of ten years after the taking effect of the act of 1881 in which to commence such action, although the time had begun to run under the former law.</p> <p>The patentee from the government, of the northeast quarter of a certain section, which was described as containing 160 acres of land, made conveyances thereof as follows: To one grantee, a tract commencing 30 rods south of the northeast corner of the northwest quarter of the northeast quarter of said section, thence 8 rods west, thence 20 rods south, thence 8 rods east, thence 20 rods north to the beginning; to another grantee, a tract commencing at the northwest corner of the northeast quarter of the northeast quarter of said section, thence south 40 rods, thence east 20 rods, thence north 40 rods, thence west 20 rods to the beginning. Both grantees claimed a strip of land averaging eighteen feet in width. In an action by one for possession of said strip of land it was shown that none of the lines of said quarter section were one-half mile in length. Held, That the starting point for the survey of the two tracts in controversy should be the exact middle of the line between the northeast corner of the section ancj. the half-mile post set by the government surveyors, and that a line run south from that point would establish the boundary between the two tracts.</p>

<p>MECHANICS’ LIENS — MATERIALS FURNISHED HOLDER OF EQUITABLE TITLE — LIABILITY OF OWNER OF FEE.</p> <p>Where materials are furnished for a building to one who has possession of the land upon which the building is being constructed under a contract of purchase, a lien can attach only to the interest of the holder of such contract; and on a forfeiture of his rights thereunder, the owner of the legal title is not liable to, personal judgment for such materials, nor is his interest in the land subject to a mechanic’s lien therefor.</p>

<p>FRAUDULENT CONVEYANCES — SUFFICIENCY OF EVIDENCE — ASSIGNMENT FOR BENEFIT OF CREDITORS.</p> <p>A debtor in failing circumstances made a bill of sale of his stock of goods and store fixtures to the plaintiff, the consideration paid by the plaintiff being the surrender of three promissory notes executed by the debtor as follows: One for $500, to the plaintiff, one for $3,700, to the debtor’s father, and one for $300, to the debtor’s brother-in-law, the latter two notes having been turned over to the plaintiff by the father and brother-in-law in payment of valid indebtedness from them to him; it was not clearly established that the debtor owed these sums to his father and brother-in-law, but it was clearly shown that the latter parties owed the sipns named to the plaintiff, and that the plaintiff acted in good faith, without knowledge of the debtor’s other indebtedness, or of any intent on his part to defraud. The plaintiff took possession of the stock of goods, but shortly thereafter it was attached by other creditors and sold as the property of the debtor, although the creditors had full notice of the plaintiff’s rights. Held, That the plaintiff was entitled to recover the value of the stock of goods and store fixtures.</p> <p>' The fact that a debtor in failing circumstances disposes of his entire property to one creditor does not work an assignment thereof, by operation of law, for the benefit of creditors.</p>

<p>MUNICIPAL CORPORATIONS — VIOLATION OP ORDINANCES —PROSECUTION — EVIDENCE—MAINTAINING SLAUGHTER HOUSE IN CITY LIMITS.</p> <p>A prosecution for the violation of a city ordinance may be conducted in the name of the city instead of in the name of the state.</p> <p>The charter of the city of Spokane providing that the city attorney shall conduct all prosecutions for violations of its ordinances does not require that officer to subscribe and swear to the complaints therefor, and the prosecution may be had upon the complaint of any private person.</p> <p>In a prosecution for maintaining a slaughter house within the city limits at a certain time in the year 1892, evidence is immaterial as to what the boundaries were in 1886.</p> <p>Cities of the first class are authorized to prohibit the erection and maintenance of slaughter houses within their corporate limits.</p>

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

<p>JUDGMENT — FAILURE TO ANSWER INTERROGATORIES — MOTION TO VACATE — DISCRETION OF COURT.</p> <p>Judgment may be given against defendants in an action for failure to answer interrogatories within the time prescribed by statute, although a formal order on the part of the court requiring defendants to answer such interrogatories has not been made.</p> <p>A motion to vacate and set aside a judgment is directed to the discretion of the trial court, and its action in passing thereon will not be reversed on appeal, unless the showing made therefor leaves no room for the exercise of discretion by the lower court.</p>

<p> Appeal from Superior Gow% SJeagit Ooimty. </p>

<p>CONVEYANCES — SEIZIN OF GRANTOR — BREACH OF COVENANT — AFTER ACQUIRED TITLE — RIGHT OF ACTION BY GRANTEE.</p> <p>Where the grantor of land is neither in possession nor has any right of possession at the date of his deed, the covenant of seizin confers upon the grantee an immediate right of action for the recovery of purchase money paid, and the action cannot be defeated by the grantor’s acquiring title subsequent to the commencement of the action.</p>

<p>APPEAL — SETTLEMENT OP BILL OP EXCEPTIONS — JURIES — MANNER OP SELECTION — EVIDENCE — PROOF OF FORMER CONVICTION — CREDIBILITY OF WITNESS — LARCENY — SUFFICIENCY OF EVIDENCE — ADMISSIONS.</p> <p>Where an appellant has filed his bill of exceptions with the judge and served the respondent with a copy within the prescribed time, to which the respondent has filed objections and suggested certain amendments, the fact that the judge does not settle and sign the bill at the designated time, but subsequently, after á considerable length of absence from the state, settles and signs the bill of exceptions without notice to the respondent, but embodying the amendments proposed by the latter, is not sufficient ground for striking the bill from the transcript.</p> <p>Under §§59, 61, Code Proc., prescribing the method of drawing a jury from the jury list certified by the county commissioners, a deputy sheriff is not authorized to act in place of the sheriff.</p> <p>The fact that a sheriff does not make a return of his doings in summoning a special venire of jurors until after the commencement of the trial, is not ground for a challenge.</p> <p>The certificate of the officers to a jury list drawn by them should state how the drawing was actually done, and not simply that it was conducted fairly and as provided by law.</p> <p>Proof that a defendant in a criminal prosecution has formerly been confined in the county jail is irrelevant.</p> <p>The only competent evidence of the former conviction of defendant in a criminal prosecution is the production of a judgment of a court of competent jurisdiction founded upon an indictment or other proper accusation.</p> <p>The former conviction of a witness for the commission of a misdemeanor cannot be proved for the purpose of affecting his credibility.</p> <p>An admission by defendant that he knew a certain larceny had been committed, was not evidence that he actually participated in the commission of the crime, and he could not be convicted on such an admission as a principal and active participant in the larceny.</p> <p>The evidence is insufficient to sustain the conviction of defendant for the crime of grand larceny, when it is shown that the defendant and A and C, who had been drinking together, went to bed in a lodging house, occupying one room; that the defendant and A got up in the night, leaving C in the room with the door unlocked, and repaired to a neighboring saloon, where they spent -the night in drinking, the defendant paying for the drinks with a twenty dollar gold piece; that C discovered in the morning that he had been robbed of his pocket book containing a twenty dollar gold piece; but there was no evidence identifying the coin spent by defendant as the one stolen from C, and defendant proved that he had received two twenty dollar gold pieces, in addition to silver coin, about a month prior thereto from a man for whom he had been working; and it was further shown that defendant had and was spending money on the night of the larceny and before the alleged commission of the crime.</p>

<p>appropriation op county road — action by county por DAMAGES — PLEADING.</p> <p>In an action against a railroad company, under §1570, Gen. Stat., to recover the cost of relocating and opening a portion of a county road alleged to have been appropriated by the company, the complaint fails to state a cause of action, when its only allegation of damage is “that the expense of relocating and opening that portion of the road so destroyed and appropriated by defendant as aforesaid is and will be the sum of thirty thousand dollars.”</p>

<p>NEGLIGENCE —COAL MINING — VENTILATING MACHINERY — EELLOW SERVANTS — CONTRIBUTORY NEGLIGENCE — NON-SUIT.</p> <p>The fact that a coal mining company had stopped its ventilating machinery from Saturday night until Sunday night does not constitute negligence when coupled with the fact that the machinery had been started and continuously run for a period of twelve or fourteen hours before an explosion of gas occurred on Monday morning. (Dunbar, C. J., dissents.)</p> <p>A “fire boss” in a coal mine, whose duty it is to direct the men to leave the place where they are working and go to another place if, in his opinion, continuance at work in such place is dangetous, but who has no control of the action of the miners in the prosecution of their work, does not stand in the position of a vice principal. (Dunbar, C. J., dissents.)</p> <p>Where a miner assured a “fire boss” about to test the air in a gangway in a mine that there was no gas there, and the “lire boss” resting upon such assurance opened his lamp to light his pipe, and an explosion ensued, killing the miner, such remark on the part of the miner amounted to contributory negligence.</p> <p>Although a defendant may go into his defense after the denial of his motion for a non-suit, he is entitled to the benefit of such motion if, at the time the proofs are finally closed, they are not sufficient to establish a prima facie case for the plaintiffs.</p>

<p>INFORMATION — SUFFICIENCY OF — VERIFICATION BEFORE DEPUTY COUNTY CLERK.</p> <p>An information is sufficient to show that the prosecution is in the name of the state when the caption of the information entitles the case as the “State of Washington against” the defendants, naming them.</p> <p>When the verification to an information is made by the prosecuting attorney before the deputy county clerk, it is proper that the jurat should be signed by such officer in his own name; and it is unnecessary that he sign, in such case, in the name of his principal by himself as deputy.</p>

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

<p>CORPORATIONS — UNAUTHORIZED ACTS — ESTOPPEL — INSTRU CTIONS.</p> <p>In an action upon a note of a corporation signed in its name by its president and secretary, but for which there was no express authorization of the company, the company is estopped from asserting that the officers acted outside of their authority, when all the business of the company, including the making of numerous notes of the kind in question, had been for a long time transacted by said officers, and informally ratified by the company by its action in paying the same, no fault ever being found with the action of such officers in so conducting the business.</p> <p>Where an instruction, taken altogether, fairly informs the jury of the law, it will be upheld, although separate clauses in themselves may be misleading.</p> <p>Although a defendant may be entitled to have a certain requested instruction given for the purpose of making more definite a matter touched upon by the court in its charge, yet, if he embodies with that instruction other matter that is improper, it is not error for the court to refuse to give the instruction as a whole.</p>

<p>CORPORATIONS — TRANSFER AND PLEDGE OF STOCK — WANT OF RECORD —EFFECT OF JUDICIAL SALE AGAINST STOCKHOLDER.</p> <p>The transfer by a stockholder of his shares of stock in a corporation, although no registration has been made thereof on the books of the corporation, will pass the title thereto to the transferee as against a subsequent purchaser on execution sale against the transferer.</p> <p>Under §2432, Code 1881, the interest of a pledgee in shares of stock in a corporation cannot be divested by judicial sale against the owner thereof, although such shares have not been transferred to the pledgee on the books of the corporation.</p>

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

<p>PARTIES — DEFECT OF PARTIES PLAINTIFF — ESTOPPEL OF DEFENDANT— REAL ESTATE BROKERS — AGENT OF BOTH PURCHASER AND SELLER — NON-SUIT.</p> <p>Where a person is joined as a party plaintiff in an action by an amended complaint, after the answer of defendants had averred such person had an interest in the controversy, the defendants cannot afterward, on appeal, raise the objection that such additional party plaintiff is not a party in interest.</p> <p>A real estate broker, who secretly acts as the agent both of the purchaser and of the seller in a sale of land, is guilty of constructive fraud, and is not entitled to recover commissions from the seller; and should be non-suited in an action for commissions, if such fact sufficiently appears from the evidence.</p>

<p>RESISTING OEEICER — SUFFICIENCY OF INFORMATION — EVIDENCE.</p> <p>Although the information in a prosecution for resisting an officer does not allege that defendant knew that the officer was a deputy sheriff, when he resisted him, yet, if such knowledge on the part of the defendant sufficiently appears from the reading of the information as a whole, the information is sufficient, under the code, to sustain a verdict, the defendant having gone to trial without interposing a demurrer.</p> <p>In a prosecution for resisting an officer in the service of a legal warrant, a statement of the facts constituting its legality is better pleading than to allege that the warrant was a legal warrant.</p> <p>In such a case, where the information alleges that the warrant was issued by a justice of the peace for a certain precinct and county for the arrest of defendant, the fact that in the warrant offered in evidence there were other names mentioned in addition to defendant’s, does not constitute a prejudicial variance.</p>

<p>TAXATION — GROSS EARNINGS LAW — EXEMPTION OE RAILROAD PROPERTY — CONSTITUTIONAL LAW —ASSESSMENT BY MUNICIPAL CORPORATIONS.</p> <p>The act of November 28, 1883, known as the “gross earnings law,” which exempted railroad property from taxation and substituted a tax upon the gross earnings of the railroads, was not in conflict with §1924 of the organic act, requiring all taxes to be equal and uniform, and that no distinction be made in the assessments between different kinds of property.</p> <p>Under said act all the property of the railroads was exempted, whether actually used in the operation of the roads or not.</p> <p>Where the charter of a city limited its right to impose taxes upon all property within the city to that taxable for territorial and county purposes,” the city had no right to impose taxes upon a railroad whose property was exempted by territorial law.</p>

<p>SALE — BILL OF SALE — RECORDING — RESCISSION.</p> <p>Under §1434, Gen. Stat., no sale of personal property is valid as against existing creditors or innocent purchasers, where the property is left in the possession of the vendor, unless such sale be evidenced by a memorandum in writing, and such memorandum be recorded in the auditor’s office of the county in which the property is situated within ten days after such sale.</p> <p>Where there has been an absolute delivery of goods under a contract of sale, thus resting title in the purchaser, and he has sold a portion of the goods, an agreement to return the remaining goods to the original owner does not amount to a rescission of the original contract of sale, but to a re-sale of the goods, and is void as to creditors, when there is no delivery of possession nor any bill of sale executed and recorded.</p>

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

<p>ATTACHMENT — LABOR CLAIM NOTICES —EFFECT OF DISMISSAL OF ACTION.</p> <p>Where an actiou of attachment has been commenced and certain property levied upon, but before judgment the action has been dismissed by the plaintiff, and a chattel mortgage on the same property taken from defendant by plaintiff and subsequently foreclosed, the fact that certain parties served labor claim notices, under § 3124, Gen. Stat., in the original action, will not give them a cause of action against the mortgagee.</p>

<p> Appeal from Superior Court, Lewis County. </p> <p>Opinion on application for reduction of bail of U. A. Gile.</p>

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