Volume 8 — Washington Reports

<p>HUSBAND AND WIPE — PURCHASE OP PUBLIC LANDS — SEPARATE PROPERTY — EVIDENCE — EXECUTION OP DEED.</p> <p>Lands acquired by a married man under the act of congress providing for the sale of timber lands are his separate property, and can be alienated without the consent of his wife. (Dunbar, C. J., dissents.)</p> <p>Where the validity of a deed as against third parties is contested on the ground that it was an unacknowledged instrument, as disclosed by the record in the auditor’s office, the original deed itself, when purporting to be regularly acknowledged before a proper officer, is admissible in evidence without further proof of its execution.</p>

<p>DECREE EORALIMONV — WHEN SUBJECT TO RIGHT OF HOMESTEAD — SELECTION OE HOMESTEAD.</p> <p>Where, in an action for divorce, the property of the husband has not been brought into the case, a decree in favor of the wife for alimony creates no specific lien on the property; and the husband’s right to a homestead exemption is paramount to the lien created by an execution levy under such judgment.</p> <p>The provision of Laws 1877, p. 72, § 846, requiring the person claiming a homestead in certain real estate to cause the word “homestead” to be entered of record on the margin of his recorded title to such land, was repealed by the Code of 1881.</p> <p>Where a judgment debtor with his family is occupying certain lands as a homestead, such occupancy amounts to the selection of a homestead, under the provisions of Code Proe., §481.</p>

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

<p>NEW TRIAL — NEWLY DISCOVERED EVIDENCE.</p> <p>Where a personal judgment has been obtained against defendant in an action to foreclose a livery stable keeper’s lien, defendant is entitled to a new trial upon an application showing that plaintiff had written him a letter the absence of which at the trial was fully explained, notifying him that he would resort to his lien upon the horses for their keep, upon which defendant had relied; and that the plaintiff, instead of pursuing that remedy, waited until the bill against the horses had greatly increased, and then sought to hold the defendant for its payment.</p>

<p>MASTER AND SERVANT — DEFECTIVE APPLIANCES — ALTERATIONS SUBSEQUENT TO INJURY — EVIDENCE — INSTRUCTIONS — EXCEPTIONS.</p> <p>In. an action to recover for injuries received on account of the negligence of the master in providing imperfect machinery and appliances, evidence is incompetent for the purpose of showing that changes had been made in such machinery after the injury to plaintiff.</p> <p>In such a case, where defendant’s witness has testified that the machinery in use at the time the accident occurred was properly constructed and in good condition, it is not proper cross examination to question him as to changes made subsequent to the accident.</p> <p>In such a case, where testimony as to alterations has been admitted, it is error to refuse defendant’s request for an instruction that the fact of such.alterations “after the accident in question is not a matter from which you are at liberty to infer that it was out of repair, imperfect or unsafe at the time the accident occurred.”</p> <p>An exception'to the refusal of the court to give requested instructions is sufficient when in the following form: “The court refused to give instructions requested by the defendant numbered 1, 3, 4, 6, 9 and 10, to the refusal of the court to give each of said instructions number 1, 3, 4, 6, 9 and 10, the defendant then and there duly excepted, and exceptions allowed by the court.”</p>

<p>APPEAL — NOTICE — PREMATURE JUDGMENT.</p> <p>An appeal will be dismissed when one of the parties to the action has not been served with notice of the appeal.</p> <p>An appeal will not lie from a judgment which fails to dispose of all the defendants in the action, either by dismissal or by an affirmative judgment.</p>

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

<p>CRIMINAL LAW — INFORMATIONS — VERIFICATION BEFORE DEPUTY CLERK — INSTRUCTIONS — BODILY INJURY — REASONABLE DOUBT.</p> <p>Wljen an information is verified before a deputy county clerk, the verification is sufficient whether the jurat is signed by the deputy clerk in his own name as deputy or in the name of his principal by himself as deputy.</p> <p>Where the court in an instruction to the jury has correctly defined a deadly weapon as one likely to produce death or “great bodily injury,” it is not error for the court later in the same instruction to refer to such deadly weapon as one likely to produce death or “an injury” upon the complaining witness, as the omission of the words “great bodily,” in the second definition is not misleading to the jury nor contradictory of the first definition.</p> <p>An instruction defining a reasonable doubt, which is possibly open to the objection that it recognizes the right of a jury to require less positive proof of facts in cases of minor importance than in those of a graver nature, is not prejudicial, when the instruction, taken as a whole, defines such doubt as one which would make a man of common prudence pause or hesitate to act thereon.</p>

<p>Appeal from Superior Court, Pacific Cownty.</p>

<p>FRAUDULENT CONVEYANCE — INSTRUCTIONS — HARMLESS ERROR.</p> <p>Where the actual question at issue in an action of replevin is, whether or not the plaintiff had been a bona fide purchaser of the property, and the jury make a special finding that the plaintiff did not know that the sale to him was made with intent to hinder, delay or defraud creditors, a charge to the jury that "when a person purchases personal property with the knowledge that his vendor intends by the sale to defraud or defeat his creditors, or hinder or delay them in the collection of their debts, such purchaser will not be affected if he takes the property in good faith in payment of an honest debt,” is not prejudicial, even if erroneous for the reason that it may imply that any debt less than the value of the property would suffice. (Hoyt and Stiles, JJ., dissent.)</p>

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

<p>WRONGFUL TAKING OE LANDS —ACTION FOR DAMAGES — EVIDENCE OE VALUE —WHEN WIFE NECESSARY PARTY.</p> <p>In an action against a city for damages for the wrongful appropriation of land, evidence of the price the owner had been offered for the land is inadmissible for the purpose of proving its value.</p> <p>In an action for damages for the wrongful taking of community-real property the wife is a necessary party plaintiff with the husband.</p>

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

<p>MUNICIPAL CORPORATIONS — EFFECT OF REFERENCE TO GENERAL LAWS IN CHARTER — SALES FOR DELINQUENT TAXES — TAX DEED.</p> <p>The provisions of art. 9, §34, of the freeholders’ charter of Seattle relating to the execution of deeds for property sold for delinquent taxes, and providing “that no such deed shall be made until the notice is given that a tax deed will be applied for and such notice duly served as prescribed in the laws of the state of Washington relating to property sold for state or county taxes,” merely refers to the law in force at the time of the execution of the deed, and not to that which was in force at the time of framing the charter. (Dunbar, C. J., dissents.)</p> <p>Where a sale for delinquent taxes has been made under the revenue act of 1891, which required no notice of the application for a tax deed, that law will govern the execution of the deed under such sale, although prior to its execution the law of 1898, requiring notice to be given, may have taken effect.</p>

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

<p>Appeal from, Superior Court, Pierce Cov/niy.</p>

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

<p>EXECUTORS AND ADMINISTRATORS —ACTION BY HEIR PRIOR TO DISTRIBUTION— FINAL SETTLEMENT — IRREGULAR SALE BY ADMINISTRATOR— CURATIVE ACT.</p> <p>Au action to quiet title cannot be maintained by an heir until after the close of the administration upon his ancestor’s estate.</p> <p>The approval of an administrator’s final account does not de: termine the administration upon an estate, but the court retains jurisdiction of the estate until there has been a final settlement, and a distribution of the property, or some other act equivalent thereto.</p> <p>Where an administrator’s petition for the sale of land and the order of sale made thereon give such an indefinite description of the land that it cannot be located, the sale made thereunder cannot be validated by the statute curing sales of real estate by administrators (Gen. Stat., §8066).</p>

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

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

<p>PROHIBITION — WHEN LIES — AGAINST JURISDICTION OP COURT.</p> <p>Prohibition will not lie unless it appears from the petition therefor that there is some threatened injury for which the petitioner has no other adequate remedy.</p> <p>. Objection to the jurisdiction of a court must be first raised in the court itself before it can be subjected to a writ of prohibition on the ground of want of jurisdiction.</p>

Appeal from Superior Court, SpoJeane County. On petition for the modification of the judgment heretofore rendered in the supreme court in this cause.

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

<p>DEATH BY WRONGFUL ACT — DAMAGES — PROOF OF PECUNIARY LOSS — EVIDENCE.</p> <p>Pun.itive or exemplary damages cannot be recovered in an action brought under §139, Code Proc., authorizing an action for the injury or death of a child.</p> <p>In an action for damages for negligently causing the death of a child, pleading and proof of special pecuniary damages is unnecessary, as, in such cases, it falls within the province of the jury to judge of the pecuniary loss to the parents from the evidence showing the age of the child, its health, habits, character, and the station in life of the parents.</p> <p>Where, in such an action, the plaintiff has testified to the age of his girl, who was a healthy and sound child; that she was industrious and capable and willing to work; was handy about doing housework; that the parents were engaged in keeping a boarding house, and that she was of great assistance to them in such employment; that the girl was going to school and he had intended to send her through the public schools; it is error to exclude testimony on the part of the defendant tending to show the expense attached to schooling, clothing and maintaining a child of her years, and the value of the earnings of a child of the same character in the same situation.</p>

<p>MUNICIPAL CORPORATIONS — LIABILITY POR INJURIES RECEIVED IN PUBLIC PARKS.</p> <p>Where a city is given a license to occupy lands for park purposes for the use of the public, it is not liable for injuries occasioned by the negligence of its officers and employés while engaged in the improvement of the park for the benefit of the public.</p>

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

<p>COUNTY COMMISSIONERS —AWARD OE COUNTY PRINTING — MANDAMUS.</p> <p>The order of the board of county commissioners in accepting a bid for county printing, under the provisions of §2936, Gen. Stat., does not constitute a contract with the bidder nor conclude the board from rescinding its order and making another award. ( Dunbar, C. J., dissents.)</p> <p>Mandamus will not lie to compel the county commissioners to make an award for county printing, as there is an adequate remedy, by appeal from their orders in such cases.</p>

<p>MUNICIPAL CORPORATIONS — FREEHOLDERS’ CHARTER — DELEGATION OF POWER — SALARIES OF OFFICERS.</p> <p>Under the act of March 24,1890, delegating to cities of twenty thousand or more inhabitants the power to frame a charter for their government, the salary of elective officers must be provided for in the charter itself, and cannot be re-delegated, by the charter framers to the legislative bodies of such cities.</p> <p>Sec. 216 of the freeholders’ charter of Tacoma (1890) providing that " all the officers of the city . . . shall receive in full compensation for all services of every kind whatsoever rendered by them the amount of salaries that may be fixed by ordinance, ■ . . . but in no case shall said salaries exceed the following amounts: . . . City controller, $4,000 per annum,” is an attempted delegation by the charter framers of the power of fixing salaries, and an ordinance passed in pursuance thereof is ultra vires, under the provisions of §6, Laws 1889-90, p. 223.</p>

<p>CRIMINAL LAW — INFORMATION — CHARGING DIFFERENT CRIME THAN COMMITMENT — FAILURE OF ACCUSED TO TESTIFY — INSTRUCTIONS.</p> <p>The fact that an information does not charge the same crime as that upon which the accused was committed upon the hearing before a justice of the peace is no ground for setting aside the information.</p> <p>Where the accused in a criminal prosecution fails to testify in his own behalf, it is the duty of" the court, under §1307, without an affirmative request therefor, to charge that no inference of guilt should arise against the defendant on account thereof. (Scott and Hoyt, JJ., dissent.)</p>

<p>DEDICATION OE STREETS — EEEECT OE DESIGNATION ON PLAT — EVIDENCE.</p> <p>Where a recorded plat of lands contains a description of them by metes and bounds, the fact that the plat designates a street thereon as lying upon one side, but beyond the limits of the land described, creates a dedication of such street by implication merely, which presumption may be rebutted by evidence tending to show an intention otherwise.</p> <p>In an action for breach of covenant of possession, wherein the complaint alleges a statutory dedication of the land in dispute by recorded plat, proof of subsequent conveyances recognizing the plat filed is irrelevant for the purpose of establishing dedication by estoppel.</p>

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

<p>CRIMINAL LAW — SOLICITATION TO COMMIT ADULTERY.</p> <p>Solicitation to commit adultery is not indictable as an attempt to commit the crime.</p>

<p>SPECIFIC PERFORMANCE — SUFFICIENCY OF TENDER.</p> <p>Where a real estate broker, at the time of negotiating a sale, has contracted, with the purchaser to purchase back the land in one year at an advance of twenty per cent, upon the price, if the purchaser should so elect, and the purchaser has taken a bond for a deed from the owner of the land in which time was made of the essence of the contract, and full payment has not been made within the stipulated time, the purchaser cannot recover from the broker by offering to have all right and title acquired under the bond transferred to the broker, but the purchaser must tender a deed conveying a good and sufficient title.</p>

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

<p>RECEIVERS —RIGHT TO PROPERTY HELD UNDER ATTACHMENT.</p> <p>A receiver appointed by the court under an order directing him generally to take possession of the property of an insolvent corporation takes no title to property of the corporation in the actual possession of the sheriff under an attachment lien, when the sheriff and the lienors have not been made parties to the action in which the receiver was appointed. (Dunbar, C. J., dissents.)</p>

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

<p>CRIMINAL LAW — APPEAL BY STATE — CERTIORARI TO JUSTICE OE PEACE —RIGHT OE ACCUSED TO COPY OE COMPLAINT —JUDGMENT— COSTS.</p> <p>Where, in a criminal case, the defendant, after having been found guilty before a justice of the peace, has had the cause removed by certiorari to the superior court, which reversed the judgment of the justice of the peace, an appeal will lie on the part of the state to the supreme court, under the provisions of § 1, subd. 7, Laws of 1893, p. 120.</p> <p>Certiorari will lie, under Code Proc., § 1621, for the removal of criminal actions from a justice of the peace to a superior court.</p> <p>A justice of the peace is not required, under art 1, §22 of the constitution, to prepare a copy of the complaint in a criminal action and deliver it to the accused, but the constitutional mandate is sufficiently complied with when the accused is given the complaint and told to make a copy of it if he chooses to. (Dunbar, C. J., and Stiles, J., dissent.)</p> <p>The judgment rendered by a justice of the peace is not void for want of signing, when his docket shows that all the proceedings were entered consecutively under the title of the cause and that the justice signed the docket at the conclusion thereof.</p> <p>Where the only error committed by a justice of the peace in the trial of a criminal action was in taxing the costs under the provisions of a law which had been repealed, the superior court should, in.reviewing said action in certiorari proceedings, retax the costs and affirm the judgment.</p>

<p>GARNISHMENT — LIABILITY OF COUNTY.</p> <p>A county cannot be garnished when it is not liable to an action on the part of the principal defendant, for the reason that his claim against the county has not been presented to the county commissioners and rejected in whole or in part by them.</p>

<p>ACTION ON CONTRACT FOR COUNTY PRINTING — PLEADING — EVIDENCE— INTEREST OF JURORS.</p> <p>In an action to recover for services in doing the county printing, a complaint is demurrable for want of facts, when it does not allege that the work was done by plaintiff or that he had any interest in the newspaper in which the official notices were published.</p> <p>Iu such an action, the answer states facts sufficient to constitute a defense when it alleges that plaintiff sold his paper in which he had contracted to do county printing, and had refused and neglected to carry out and perform .his contract, by reason of which defendant was compelled to enter into a contract with another to do the printing for said county, for the unexpired time covered by the contract with plaintiff, and that the printing for which plaintiff now sought to recover had been done by another under such subsequent contract.</p> <p>In such an action, the plaintiff should be non-suited, when the evidence shows that he had sold the paper in which he contracted to do the county printing to another, and that the county commissioners refused to furnish him with any more notices for publication.</p> <p>The interest of jurors as taxpayers of a county in an action against the county will not disqualify them from serving as a jury to try the cause.</p>

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

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

<p>APPEAL — DISMISSAL—FAILURE TO ENTER JUDGMENT.</p> <p>Where the judgment in an action prepared by the court has been lost and never entered, an affidavit of one of the attorneys describing the judgment set forth in the transcript on appeal does not constitute such record of a judgment as will warrant the reversal of the original judgment.</p>

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

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

<p>CONTINUANCE — ABSENCE OF ATTORNEY — ACTION AGAINST SHERIFF — FAILURE TO SERVE WRIT —EVIDENCE —EXEMPTIONS.</p> <p>The refusal of the court to grant a continuance because of the absence of one of defendant’s attorneys is not error, when it appears that one of his attorneys of record was present at the time the cause was called for trial, and that the cause had been regularly set for trial upon that day several days prior thereto.</p> <p>There is sufficient evidence to sustain a verdict in an action against a sheriff for failure to serve a writ of attachment, when it is shown that the attachment defendant, at the time of the issuance of the writ, had property in the county subject to seizure; that plaintiff’s attorney gave the deputy sheriff a list of the property within an hour after the writ had been left at the sheriff’s office for service, and told him that if he would go to the plaintiff, whose residence was near that of defendant, the plaintiff would point out the property to him; that within a day thereafter said deputy again approached plaintiff’s attorney and asked for his fee for serving the papers, and said that he had no trouble in finding the property, but did not say as to whether he had made any levy; and that in fact no levy was ever made.</p> <p>In such an action it is not error to admit the testimony of plaintiff showing that the deputy sheriff came to him one day and that he pointed out the defendant’s residence and told the deputy defendant had a number of horses, which the deputy would find by going over there; and that said deputy had some papers sticking out of his pocket, but that plaintiff could not tell whether they were the summons and writ of attachment against defendant; such testimony is admissible as tending to show information furnished the officer that the defendant had property subject to seizure upon the writ.</p> <p>Although an attachment defendant may be entitled to exemption under the provisions of Code Proc., §486, subd. 4, it is for him to ■ make the claim, and the plaintiff has a right to have the property primarily seized upon the levy of the attachment.</p>

<p>ATTACHMENT — WRONGFUL LEVY — ACTION BY SHERIFF ON INDEMNITY BOND.</p> <p>Where the sheriff has levied upon certain property as the goods of the defendant in an attachment proceeding, and, acting under an indemnity bond and by the direction of the plaintiff, has held possession of the property against the rightful claim of a third party, and has been compelled to satisfy a judgment against himself obtained by said third party by reason of such wrongful levy, the title to such property passes to the sheriff in trust for the attachment plaintiff; and the disposal of such property by the sheriff at private sale by the direction of the attachment plaintiff, does not amount to a trespass, nor prejudice his right of recovery upon the indemnity bond.</p> <p>The necessary expenses incurred by the sheriff in taking care of attached property by direction of the plaintiff, pending litigation as to its actual ownership, form a proper charge against plaintiff, and may be retained from the proceeds derived from the sale of the property.</p>

<p>ATTACHMENT — UNVERIFIED AFFIDAVIT — APPEAL—OBJECTION NOT RAISED BELOW — EXECUTION SALE — PRESUMPTION OF REGULARITY.</p> <p>Where, as the foundation for attachment proceedings, a paper was filed in the form of an affidavit, signed by the attorney of plaintiff, but there was nothing upon its face nor in the record to show that it was ever sworn to, the court could not obtain jurisdiction of the subject matter, and judgment of sale rendered in such proceedings would be an absolute nullity, which could be attacked without a direct proceeding for that purpose.</p> <p>Where a case has been referred to a referee to take proofs and report same to the court, the refusal of the referee to grant a request for an adjournment, which was not objected to at the time, nor upon the trial before the court subsequently upon the report of the referee, cannot be raised as ground of error for the first time on appeal.</p> <p>In an action to quiet title to land purchased upon execution sale, proof of the sale made by the sheriff under a valid judgment and execution, and the confirmation thereof by the court, will establish a prima faoie presumption that the sale was regularly made.</p>

<p>EVIDENCE — JUDGMENT LIEN — TO WHAT INTEREST ATTACHES.</p> <p>In an action to foreclose a mortgage on certain real estate, to which one of the defendants interposes the defense that he has a paramount interest by reason of a judgment lien against a leasehold interest in the land, evidence is admissible to show that the actual interest of the judgment debtor in the lands is less than it is made to appear by the county records.</p>

<p>CERTIORARI — JURISDICTION OF SUPREME COURT — AMOUNT IN CONTROVERSY.</p> <p>The supreme court has no jurisdiction to review the action of the superior court by means of certiorari proceedings when the original amount in controversy in the case does not exceed the sum of $200, and the action does not involve the legality of a tax, impost, assessment, toll, municipal fine, or the validity of a statute.</p>

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

<p>CONSTITUTIONAL LAW — CLAIMS AGAINST CITIES — LIMITATION ON RIGHT OF. ACTION.</p> <p>The provision of art. 4, §33 of the freeholders’ charter of Seattle, declaring that no action shall be maintained against the city for any claim for damages, unless such claim has been presented to the city council and filed with the city clerk within six months after the time when such claim for damages accrued, is not unconstitutional and void as being in contravention of the statute of limitations with reference to the commencement of actions.</p>

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

<p>RE-TRIAL AFTER REVERSAL — LAW OF CASE — ■ BOUNDARIES — CONFORMITY WITH GOVERNMENT SURVEYS — LIMITATIONS — RECOVERY OF REAL ESTATE.</p> <p>Where a cause has been reversed upon appeal and sent back for re-trial, the failure of the lower court to comply with the directions for re-trial is ground of error.</p> <p>Where the -custom of surveyors in laying out plats and in running lines is to make them conform to the nearest lines of the government survey, if such lines vary from the true lines upon which they should have been run, the boundary lines given in a deed of conveyance as running north and south and east and west will be construed as conforming with the variations in the nearest lines of the government survey.</p> <p>In order to bar an action for the recovery of real estate under Code 1881, §26, adverse possession must have been maintained for a period of ten years subsequent to the taking effect of that statute.</p>

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

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

Action by James Dignan against William H. and Ellen A. Moore to quiet title to block 6 of Lake Dell Addition to the city of Seattle. On August 8, 1891, the defendant William H. Moore applied to the plaintiff for a loan of money on the property. The plaintiff refused to loan on • the property because it was incumbered. Afterward Mr. Moore offered to take $1,500 for his equity in the property, provided he was given a six months’ option for its purchase.

<p>MUNICIPAL CORPORATIONS — ASSESSMENT FOR STREET IMPROVEMENT— CHANGE OP METHOD — EIGHTS OF CITT AND ABUTTING OWNERS — DESCRIPTION OF IMPROVEMENTS.</p> <p>Although a street improvement has been initiated by a city under a law providing for assessment therefor according to valuation of property in the assessment district, and, during the progress of the improvement, the law has been changed so as to provide for assessment per front foot of the abutting property, yet the assessment under the scheme subsequently adopted will be valid and binding, provided the property owners are not thereby called upon to pay any greater amount of money nor to make any earlier payment than was required under the law in force at the time of beginning the improvement.</p> <p>Where the contract for a street improvement was let and the work partly done before the adoption of a new city charter, which changed the method of assessment, such repeal would not affect the right of the city to enforce its equitable right to reimbursement by the property owner for the obligations incurred by the city under its contract for such improvement. (Wilson-v. Beattie, 2 Wash. 543, distinguished.)</p> <p>Proceedings for a street improvement are not void because the ordinance provides for grading the street from the Seattle, Lake Shore & Eastern Railway to the south line of Buckeye street, and the assessment roll describes the work as done from the Union Pacific Railway to the Fair Grounds, when it is shown that such boundary lines are in fact identical.</p> <p>Where an ordinance provides that a certain street be “graded,” it is sufficient to authorize improvements consisting of “grading, grubbing, guttering and curbing ” the street.</p>

<p>DECEDENT’S ESTATE — SALE TO PAY MORTGAGE DEBT — ATTORNEY FEES.</p> <p>The provision of §1035, Code Proc., allowing the sale of a decedent’s mortgaged property for the purpose of satisfying the mortgage debt, if the decedent “shall not have devised the same,” merely limits the sale in case of a specific devise, and has no application to cases where the property has been devised to a residuary legatee. (Dunbar, C. J., dissents.)</p> <p>In ordering a sale of a decedent’s mortgaged real estate to pay the mortgage thereon, under Code Proc., §1035, it is error for the court to award an attorney’s fee as upon foreclosure to the holder of the mortgage.</p>

<p>APPEAL — WEIGHT OP EVIDENCE — ACTION ON CONTRACTOR’S BOND — PRIOR JUDGMENT AGAINST PRINCIPAL.</p> <p>The findings and judgment of the lower court in an action at law tried by the court will not be disturbed on appeal, where the record discloses a sharp conflict in the evidence, unless there appears to be a decided preponderance of the evidence against the court’s finding.</p> <p>An action on the bond of a contractor, given under the provisions of Gen. Stat., §3415, for the protection of those furnishing the contractor goods while engaged in making street improvements, is not barred by the procuring of a judgment against the contractor personally prior to the institution of suit upon his bond.</p>

<p> Appeal from Superior Court, Ki/ng County. </p>

<p>EASEMENT —TO DIG GRAVEL — INJUNCTION — COUNTERCLAIM — TRESPASS — PLEADING.</p> <p>Although the reservation made in a deed of the right to take gravel from the grantee’s land for the purpose of repairing a mill dam is general in terms and fixes no place from which gravel should be taken, yet the fact that for more than ten years gravel had been taken from a certain pit on the land, which was the nearest and most convenient place from which the plaintiff could take gravel, and no other specific place had been pointed out by the grantee which was equally convenient, is sufficient to render such place an established pit, and give the plaintiff a right to take gravel therefrom without interference.</p> <p>In an action to enjoin defendant from interfering with plaintiff’s right to take gravel from defendant’s land, defendant cannot counterclaim for damages committed by plaintiff to defendant’s land and growing wheat, when such trespass has no connection with his taking of gravel.</p> <p>Proof of damages subsequent to the commencement of an action is inadmissible under an answer which states "that for the period of one year prior to the commencement of said cause the plaintiff has wrongfully and oppressively torn down defendant’s fences,” etc.</p>

<p>APPEAL —BILL OP EXCEPTIONS — DIVERSION OP WATERS —ACTION BY RIPARIAN PROPRIETOR — PLEADING — DAMAGES.</p> <p>Where the record on appeal contains an exception to the'refusal of the court to grant a new trial on the ground of the insufficiency of the evidence, and a bill of exceptions is made a part thereof for the purpose of bringing the evidence into the record, it is unnecessary that the bill of exceptions contain any assignment of error.</p> <p>In an action by a riparian proprietor of lands for damages for the diversion of water from a flowing stream, it is not necessary that the complaint allege that the,plaintiff had the right to use the water of the creek, or any portion of it.</p> <p>Where a lower riparian proprietor can make use of the waters of a flowing stream for purposes of irrigation and domestic use only by means of a dam which floods the waters back upon the land of an upper riparian proprietor, he is not in a position to recover damages for the diversion of a portion of the waters of the stream by the upper proprietor.</p> <p>Where an upper riparian proprietor diverts a considerable portion of the water from a flowing stream without showing a reasonable use thereof, a lower proprietor is entitled to nominal damages.</p> <p>In an action for special damages for the loss of a hop crop by reason of the diversion of the waters of a stream so as to deprive the irrigating ditches of a riparian proprietor of water, the measure of damages is the market value of the crop alleged to be lost over the cost of producing, harvesting and marketing.</p>

<p> Appeal from Superior Gov/rt, Pierce Gowity. </p>

<p>Appeal from Superior Court, Kmg Cownty.</p>

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

<p>APPEAL — REVIEW—DEFICIENT RECORD.</p> <p>Where a judgment has been founded on findings of fact and of law made by the court in an action at law, the failure to include such findings in the record on appeal will not entitle the appellant to a review of the judgment, although a proper statement of facts may have been brought up.</p> <p>Where the question of the insufficiency of the complaint in an action to sustain the judgment has not been raised in the brief of appellant, it will not be considered on appeal.</p>

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

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

<p>FOREIGN CORPORATIONS — RIGHT TO TRANSACT BUSINESS — CONTRACTS— ACTION ON CONTRACT •— INSTRUCTIONS. ‘</p> <p>Where a foreign corporation fails to register in compliance with the laws of a state, which merely impose a penalty for every day that business is carried on in the state without the corporation’s having so qualified itself therefor, and there is no prohibition in the law against the transaction of .business nor declaration that contracts entered into prior to such qualification shall be unlawful, the contracts entered into with such foreign corporation before it is authorized to transact business must be held binding.</p> <p>In an action upon a specific contract to furnish materials and services in the construction of an electric lighting system, for which the defendant agreed to pay a certain price " when the work has been completed and found to be in good working order,” an instruction was erroneous which charged the jury that if the contract had been substantially performed and the materials retained, the plaintiff was entitled to recover.</p> <p>In such a case, an instruction was erroneous which told the jury, in substance, that, if the contract had been substantially performed, and was at the moment of its completion found to be in good working order, the plaintiff could recover, even although events sueceeding the completion of the work established the fact that the result accomplished was not that contemplated by the contract.</p> <p>In such an. action, it is not error to charge the jury that if they find for plaintiff they may include interest, as, the claim of the plaintiff being for a definite, liquidated sum, it would draw interest from the time of beginning the action.</p> <p>It is not prejudicial error to refuse to give proper instructions in the language of requests therefor, when the court in other instructions substantially covers the same questions.</p> <p>Where a contract contemplates the services of but one expert, the contractor cannot recover for the services of two experts which he put to work upon the job.</p>

<p>MUNICIPAL CORPORATIONS — PASSAGE OF ORDINANCES — STREET IMPROVEMENTS — ACTION TO ENFORCE ASSESSMENTS — COUNTERCLAIM — ILLEGAL ASSESSMENT.</p> <p>Sec. 635, Gen. Stat., governing the passage of laws by the council in cities of the third class, applies to all ordinances of every kind and for every purpose.</p> <p>The passage of an ordinance on the day it was reported to the city council by the city attorney, to whom it.had_been Referred, does not invalidate the ordinance, under the provisions of §635, Gen. Stat., when such ordinance is merely a substitute for one introduced more than five days prior to its passage, and the substitute falls clearly within the limits of the subject matter of the original proposition.</p> <p>In an action by a city to foreclose a lien for a street assessment, the defendant cannot set up a counterclaim for the value of a strip of land which it was alleged had been taken possession of by the city and improved for street purposes.</p> <p>When the boundaries of a city have been extended it has power to improve a highway falling within its limits which had been opened as a county road.</p> <p>Under the statute conferring power upon cities of the third class to make street improvements and assess abutting property, and an ordinance of the city of Vancouver passed pursuant thereto providing that when the city council shall have contracted for the improvement of any street “the cost and expense of such improvement shall be assessed upon the lots and land fronting thereon, ” property which has been rendered liable for an improvement ordered on a portion of a street cannot be subjected to an additional liability for a continuation of the improvement on another part of the street, made under another contract, although the property thus sought to be subjected has received benefits under the second contract.</p> <p>Where an assessment against property for street improvement is illegal for the reason that it seeks to charge the property with the cost of improvements for which it is not liable, there can be no recovery, in an action to foreclose such assessment, of the amount that is properly chargeable against the property.</p>

<p>FORECLOSURE OE STREET ASSESSMENT — EVIDENCE — PRESUMPTION OE REGULARITY OE PROCEEDINGS.</p> <p>In an action by the city of Seattle to foreclose a street assessment, under §§10 and 95, Laws 1885-86, pp. 248, 268, the assessment roll is prima facie proof of the regularity of all proceedings prior to the levy of the assessment, and the want of notice to property holders that the improvement was to be made is matter of defense.</p>

<p>TIDE LANDS — RIGHT TO PURCHASE — APPEAL PROM STATE BOARD OF EQUALIZATION — NOTICE.</p> <p>Notice of appeal to the superior court from the decision of the state board of equalization on a contest between applicants for the purchase of tide lands must, under §§2170, 2171, Gen. Stat., be filed with said board within ten days after the rendition of the decision appealed from.</p>

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

<p>BILL OS’ SALE AS CHATTEL MORTGAGE — EVIDENCE.</p> <p>Where, at the time of the execution of a bill of sale by a debtor to his creditor the undisputed proof shows that there was no reservation of any right to the property or to the proceeds thereof by the vendor, the presumption that the instrument is a bill of sale and not a chattel mortgage is not overcome by testimony that the purchaser admitted that if he made more out of the property than would pay the total amount due him he would be willing to pay the overplus to his vendor; nor by testimony showing that after the execution of the alleged bill of sale the purchaser took a mortgage on other property of the vendor as security for any deficit remaining after the application to his debt of the proceeds of the property covered by the bill of sale; and that at another time he sought to get money from the vendor in reduction of the amount of such indebtedness.</p>

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

<p>SALE — WHAT CONSTITUTES — CONSIDERATION — ANTECEDENT DEBT — PRIORITY OP MORTGAGEE.</p> <p>A finding of the trial court in an action at law that a sale of certain property was an absolute one will not be set aside when it appears from the evidence that the sale was made in consideration of a valid indebtedness from the seller to the purchaser, which was equal to the value of the property, and that the purchaser immediately took possession under the bill of sale and commenced disposing of the property as his own, although it appears that the purchaser was ignorant of the value of the property; that, at or near the same time the bill of sale was given, certain accounts were assigned by the seller to the purchaser; and that the testimony in regard to the cancellation by the purchaser of a promissory note as part of the consideration was not clear and satisfactory.</p> <p>The holder of an unrecorded chattel mortgage given for a consideration passing between the parties at the time of its execution has no priority over one holding under a bill of sale of the same property, though the sale is in consideration of an antecedent debt, when the failure of the mortgagee to record his mortgage was due to an agreement between the parties made for the mortgagor’s benefit.</p>

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

<p>PIRE INSURANCE — WHEN CONTRACT VOID — ACTION ON POLICY — PLEADING — INTEREST.</p> <p>In an action upon a policy issued by an insurance company incorporated in this state upon property in the State of New York, an answer alleging that the company was not authorized to do business in the State of New York; that by the laws of said state policies issued without compliance therewith are declared to be null and void unless procured by a licensed agent therefor; that the policy in suit was procured by a broker of New York city, and that such pretended policy of insurance sued on was issued, delivered and received in violation of the said laws of the State of New York, and was not procured in the manner in said laws provided or authorized, states facts sufficient to constitute a defense.</p> <p>Interest is recoverable on the amount due under an insurance policy from the time such sum becomes payable.</p>

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

<p>AMENDMENT OF COMPLAINT PENDING TRIAL.</p> <p>The amendment of plaintiff’s complaint during the progress of the trial is a matter within the discretion of the court, and no error can be founded thereon when it appears that no different answer was thereby required; that the defendant was not taken by surprise, and did not ask for time to prepare an answer to the matters covered by the amendment.</p>

<p>PARTNERSHIP — WHAT CONSTITUTES — MECHANICS’ LIENS — REPAIRS BY LESSEE — WHEN OWNER NOT BOUND.</p> <p>Partnership between the lessor and the lessees of premises is riot constituted by an agreement that the lessor shall have as rent therefor one-half of all the profits realized above expenses by the lessees in managing the premises as a sanitarium, although the agreement may provide that the board and lodging of the families of the lessees while residing on the premises and engaged in said management, and their necessary personal expenses while engaged therein, may be included in computing expenses, “but they are to receive no other compensation for their services,” when all the other terms of the agreement indicate that it was intended by the parties as a lease.</p> <p>The liens of mechanics and material men for labor performed and material furnished in the alteration and repair of a building at the instance of a lessee thereof attach only to the leasehold interest, and do not bind the owner, in the absence of authority to the lessee to act as his agent.</p>

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

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

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

<p>NEW TRIAD — EXCESSIVE DAMAGES — DISCRETION OE COURT.</p> <p>It is a matter within the discretion of the trial court to grant a new trial on the ground that the damages awarded by the verdict of the jury are excessive, and the ruling of the court thereon will not be interfered with, unless it appears affirmatively from the record that such discretion has been improperly exercised. ( Dunbar, C. J., dissents.)</p> <p>Although an order granting a new trial has been made contingent upon the plaintiff’s remitting a portion of the verdict, which he refuses to do, the plaintiff is not entitled on appeal, when no error is found in the action of the lower court, to a reversal of the order conditioned upou his remitting such portion of the verdict as may seem just to the appellate court.</p>

<p>COUNTIES — CONSTRUCTION OP DITCH — NECESSITY POR TAKING BOND PROM CONTRACTOR.</p> <p>The construction of a local ditch is not such a county improvement as to require the county commissioners to take a bond from the contractor, under Gen. Stat., §2415, for the protection of laborers.</p>

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

<p>ASSAULT WITH INTENT TO MURDER — INFORMATION —EVIDENCE — INSTRUCTIONS — VERDICT.</p> <p>In an information charging a crime, useless allegations cannot destroy the legal effect of necessary averments.</p> <p>An information charging that the accused “ did unlawfully, purposely and of his premeditated malice, and with intent to murder, assault and shoot one Benjamin Eranklin with a deadly weapon,” etc., sufficiently charges an assault with intent to commit murder in the second degree, as, under Code Proc., § 1243, allowing other words conveying the same meaning as the statutory words to be used, the place of the statutory word, “maliciously,” is supplied by the words, “of his premeditated malice.”</p> <p>Upon the trial under such an information, it is not error for the court to refuse to charge the jury that before they could And defendant guilty, they must find that the shooting was done purposely and of his premeditated malice, as premeditation is not an element of the crime charged.</p> <p>Under an information charging the accused with an assault with an intent to commit murder, a verdict finding him “guilty of assault with a deadly weapon with intent to do bodily harm,” is erroneous, as such verdict convicts him of an offense other than, the one alleged in the information.</p> <p>Error arising upon a ruling of the court in regard to the right of argument canot be urged on appeal after waiver at the trial.</p> <p>In a prosecution for assault with intent to commit murder, evidence of quarrels and disputes between the defendant and the person assaulted, prior to the assault, is competent as tending to show ill will and motive.</p>

<p>LOGGERS’LIENS — EFFECT OF REPEAL OF STATUTE — ENFORCEMENT OF LIEN — EVIDENCE — PLACE OF CUTTING — CORPORATE EXISTENCE— ORIGINAL LIEN NOTICE — TIME CHECKS — DECREE — -ATTORNEY FEES — DAMAGES FOR ELOIGNMENT.</p> <p>A statutory right of lien given loggers for labor in getting out logs becomes such a part of the contract for such labor as to be unaffected by the repeal of the statute pending the enforcement of the lien..</p> <p>Where the complaint alleges that defendant is a corporation organized and existing under the laws of the state, and the only answer of the corporation is a general denial, it cannot afterwards complain that there was no affirmative proof of its corporate existence.</p> <p>In an action to enforce a logger’s lien, proof must be made that the logs were cut in the county where the lien notice was filed.</p> <p>As all laws were continued in force and all officers continued in office by Const., art. 37, §§2, 6, the county auditor is an officer duly authorized to administer oaths as provided by §2717, Code 1881.</p> <p>The original lien notice which has been filed for record and contains thé endorsement of that fact together with the volume and page of the record certified under the seal of the county auditor, is admissible in evidence, for the purpose of proving that a proper claim of lien had been verified and had been filed for record in the proper office.</p> <p>In an action to foreclose a logger’s lien, time checks given by the employer are competent as evidence even against a third party impleaded as defendant on account of some interest in the logs.</p> <p>Where a number of lien claimants have united in one suit for the foreclosure of their respective liens, an attorney’s fee of twenty.dollars in each case is not excessive.</p> <p>Where a large number of lien claimants join in a proceeding for the foreclosure of loggers’ liens, and the pleading, proofs and findings establish that each lienor assisted in producing certain logs of which the marks and quantity in feet were given, the decree should set out the logs upon which the several recoveries can be had.</p> <p>A personal judgment against a third party for the removal of logs beyond the jurisdiction of the county, under Laws 1898, p. 428, authorizing the recovery of damages therefor in the proceeding to foreclose liens, is unwarranted when the act of eloignment was committed prior to the taking effect of said law.</p> <p>A judgment for damages for the eloignment of logs is unwarranted when there is no proof of the value of the logs.</p>

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

<p>REMOVAL OE COUNTY SEAT — JURISDICTION OP COUNTY COMMISSIONERS —INJUNCTION.</p> <p>The fact that the commissioners of a county have made an order, based upon a proper petition therefor, for the submission to the people of the question of removing the county seat to the town named in such petition, will not authorize them, under Gen. Stat., §§ 2458-61, to submit at the same election a proposition for its removal to a certain other town, when the petition for removal to the latter place contains the names of less than one-third of the number of people voting at the last preceding general election.</p> <p>Injunction will lie at the suit of a county officer to enjoin the removal of the county seat, when the board of county commissioners had never obtained jurisdiction by proper petition to order the submission of the question to popular vote. (Dunbab, C. J., dissents).</p>

<p>COSTS —FEES OF COUNTY CLERK — FILING TRANSCRIPT OF JUDGMENT OF JUSTICE OF PEACE.</p> <p>The provision of Laws 1893, p. 425, requiring the party instituting any action or proceeding to pay a fee of four dollars when the cause is entered in the court, or when the first paper on his part is filed therein, has no application to the filing and entry of a transcript of a judgment of a justice of the peace in the execution docket of the county clerk.</p>

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

<p>COUNTY WARRANTS — INTEREST — EFFECT OF LAW CHANGING RATE.</p> <p>Under the laws of this state a county warrant is a contract to pay money, and, if not paid on presentment to the county treasurer, the legal rate of interest in effect at such time enters into the contract as a part thereof, and cannot be affected by a subsequent law reducing the rate. (Hoyt and Anders, JJ., dissent.)</p>

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

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

<p>MUNICIPAL CORPORATIONS — VALIDATION OP VOID INCORPORA-TIONS.</p> <p>The act of March 9,1893 (Laws, p. 183), providing for the legalization of those cities and towns which had attempted to incorporate or re-incorporate under the act of March 27,1890, where such bodies had, at the date of the passage of the act, an organized government, which had been maintained since the date of such attempted incorporation, is constitutional and sufficient to validate a defacto town which had attempted to incorporate under the void act of February 2, 1888, and again to re-incorporate under the unconstitutional provisions of §4 of the act of March 27,1890. (Stiles and Anders, JJ., dissent.)</p>

<p>WITNESS— CORROBORATION — MISCONDUCT OF COUNSEL — INSTRUCTIONS— QUESTIONS OF FACT FOR JURY.</p> <p>Where it is sought to impeach a witness by proof that the testimony given by him on the trial as to a certain matter was at varience with a statement made by him prior to the trial, the evidence of others who heard his statement is admissible in rebuttal of the impeaching testimony.</p> <p>Although incompetent questions are asked by the prosecuting attorney upon the trial of a criminal case for the purpose of prejudicing the jury against the accused, the refusal of the court to rebuke the attorney therefor is not error, when the court, at the time of objection taken thereto, states to the jury that “they are to give no weight to that testimony which is ruled out.”</p> <p>The jury is the tribunal instituted by law to pass upon questions of fact, and, where there is a conflict of testimony, the verdict will not be disturbed by the courts.</p>

<p>STATEMENT OF FACTS — NOTICE OF SETTLEMENT — ACTION OF FORCIBLE ENTR5T AND DETAINER — COUNTERCLAIM AND EQUITABLE DEFENSES.</p> <p>The fact that notice of the settlement of a statement of facts was given prior to the rendition of judgment, is not ground for striking the statement, when the notice designated a day subsequent to the judgment as the time at which the application for settlement would, be made.</p> <p>In an action instituted by a landlord against a tenant for rent, under the forcible entry and detainer act (Laws, 1891, p. 179), an answer setting up a counterclaim on account, of repairs made by the tenant which it was the duty of the landlord to make, is demurrable on the ground that it does not state a defense.</p> <p>Semble: In such an action defendant cannot interpose an answer alleging that in drawing up the lease certain terms thereof were omitted by mutual mistake, and asking that the lease be reformed to express the contract of the parties.</p>

<p> Appeal from Superior Courts Pierce County. </p>

Action by George Reed against the Bank of Commerce of Centralia, Washington, for the conversion of a quantity of shingles. The plaintiff claimed the right of possession under a chattel mortgage. The defendant claimed to have taken possession of the shingles in controversy, prior to the execution of the chattel mortgage, under various bills of sale of different quantities of shingles given by the mortgagor as pledges for advances of money.

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

<p>TAXATION — PERSONAL PROPERTY — ABSTRACT BOOKS.</p> <p>A set of abstract books, although compiled in the form of abbreviations and cipher, so as to be intelligible to but few persons, is personal property having a money value, and is subject to taxation under the laws of this state.</p>

<p>SPECIFIC PERFORMANCE — CONTRACT BY ONE SPOUSE FOR CONVEYANCE OF COMMUNITY LAND — ESTOPPEL.</p> <p>Although a contract for the sale of community land as finally committed to writing is signed by the husband alone, yet the wife is estopped to deny her interest in the contract, when it was made by her husband at her request, with her knowledge and consent as to its terms, and she has allowed the other party to the contract to perform his part of it, and has accepted the fruits of it.</p> <p>Where an agreement for the sale of land, which is made at the request and with the full knowledge, acquiescence, consent and ratification of the vendor’s wife, recites that the vendor named in the contract is the owner of the land, the wife is estopped from setting up any title to the land.</p> <p>The fact that in an action for the specific performance of a contract to convey land the complaint contains an alternative prayer for damages in case performance can not be had, will not deprive a court of equity of jurisdiction of the action. (Morgan v. Bell, 8 Wash. 554, distinguished.)</p>

<p>Appeal from Superior Court, King Co'wnty.</p>

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

<p>RECEIVERS —SUIT IN INTERVENTION — APPEAL — FINAL ORDER — NOTICE — MORTGAGE OF ROLLING STOCK — POSSESSION OF RECEIVER.</p> <p>Where a receiver of a railroad corporation has been appointed in an action instituted for that purpose, an order, made upon a complaint in intervention by preferred creditors against a mortgagee of the property, directing the sale of the rolling stock to satisfy the claims of the preferred creditors, is an appealable order, as the title to the rolling stock is thereby absolutely determined adversely to the claim of the mortgagee.</p> <p>In such a proceeding the statute requiring all parties not joining in the appeal to be served with notice is complied with by service upon the receiver, who is the representative of all the creditors, and by the joinder or notification of all parties to the proceedings in intervention.</p> <p>Where an appeal is from an order incident to a receiver’s suit, and is not an attack upon the order appointing a receiver, the appellate court is not authorized to inquire into the regularity of the proceedings leading up to the appointment of the receiver.</p> <p>Under the laws of this state, Gen. Stat., §§1646 et seq., a mortgage upon the real estate of a railroad, and purporting to cover the rolling stock also, does not bind the latter class of property, when the instrument is executed and recorded as a real estate mortgage, and does not comply with the formalities required in the execution of chattel mortgages.</p> <p>The appointment of a receiver of a railroad corporation has the same effect in law as though the creditors, whom he represents, had taken possession of the rolling stock under legal proceedings, and the right of a mortgagee to take possession of the rolling stock does not give the mortgagee any priority over creditors, when its right of possession accrues subsequent to the appointment of the receiver.</p>

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

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

<p>APPEAL — LAWS CHANGING PROCEDURE — APPLICATION TO PEND ING APPEALS — SPECIFIC PERFORMANCE — EQUITABLE ACTIONS-FINDINGS OF COURT — TRIAL OF QUESTIONS OF FACT.</p> <p>Where a law regulating appeals provides that it “shall govern proceedings had after it shall take effect, in actions then pending as well as those in actions thereafter begun, but shall not-affect any right acquired or proceeding had prior to the time when it shall take effect,” the settlement of a statement of facts on a pending appeal must be governed by the provisions of such law, although judgment had been rendered and notice of appeal given prior to the taking effect of the law.</p> <p>A contract for the sale of a mill cannot be specifically enforced by the purchaser, when there is an outstanding judgment against him for the payment of one installment of the purchase price, without first requiring the payment of the judgment, and its payment subsequent to the rendition of the decree of specific performance will not avail plaintiff on appeal, if it has not been paid in compliance with such decree.</p> <p>Sec. 379, Gode Proc., requiring the court to make findings of fact in actions tried without a jury, has no application to causes of equitable cognizance.</p> <p>In equitable causes it is discretionary with the court to submit questions of fact to the jury, or to try all the issues itself.</p>

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

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

<p>LANDLORD AND TENANT — WHEN RELATION ESTABLISHED — DESCRIPTION OF PREMISES — ■ ASSIGNMENT OF LEASE — UNLAWFUL DETAINER — EVIDENCE.</p> <p>The relation of landlord and tenant is established where the owner of premises permits another to take possession thereof for any determinate period.</p> <p>Where tenants have entered into possession of premises under a contract of lease, neither they nor their assigns can repudiate the lease because of uncertainty in the description of the premises.</p> <p>Any conveyance by a lessee of his whole interest in demised premises, leaving no reversionary interest in himself, operates as an assignment regardless of the form of the instrument of transfer; and a purchaser entering under such conveyance becomes a tenant of the lessor, although he may have had no notice that his grantor had merely a leasehold interest.</p> <p>In an action of unlawful detainer against the assignees of a tenant, it is prejudicial error to permit proof that plaintiffs made no claim to the premises while defendants were in possession prior to the expiration of the term.</p>

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

<p>MORTGAGES —FORECLOSURE—DEFENSES—ESTOPPEL TO DISPUTE VALIDITY OF PRIOR MORTGAGE.</p> <p>In an action to foreclose a mortgage, an answer alleging nondelivery by the mortgagor and want of consideration for the execution of the mortgage states good defenses.</p> <p>The bare recital in a mortgage that it is subject to a prior mortgage will not estop the mortgagee from questioning the consideration or validity of such prior mortgage, when the mortgagor is assailing it on the same grounds.</p>

Action by the Seattle National Bank against Frank Meerwaldt to recover the possession of a certain warrant issued by the city of Port Angeles for the sum of $500, to one E. C. Burlingame, which, by various assignments and endorsements, came into the possession of plaintiff, and was transferred by it to one B. F. Schwartz for collection and credit, but was afterward sold by Schwartz to the defendant, without any authority it is claimed.

<p>PARTNERSHIP — DISSOLUTION — RECEIVER — REDUCTION OE PARTNERSHIP ASSETS — ERAUD—LEASE OE PREMISES BY ONE PARTNER.</p> <p>When a receiver has been appointed, in a suit for the dissolution of a partnership, one partner cannot subsequently, by means of a cross complaint, bring in other parties with whom it is alleged that his partner has fraudulently conspired to procure a lease of the premises upon which the partnership business was being conducted.</p> <p>The proper practice in such a case would be for the receiver to institute the proceeding necessary for reducing the contract of lease to his possession for the benefit of the partnership.</p> <p>Although one partner cannot, where partnership affairs are unsettled, acquire a lease of property which has been used in conducting the business of the partnership, yet the fact that the father-in-law and mother-in-law of one partner, with knowledge of a prospective dissolution of the firm, contract for a lease of the premises at the close of the current lease, will not make them accountable therefor to the partnership, when there is no showing that the contract was made through them in the interest of the son-in-law, and for the purpose of circumventing his partner.</p>

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

<p>CONTRACTS OF FOREIGN CORPORATION — VALIDITY — SALE — RESCISSION.</p> <p>A contract with a foreign corporation cannot be repudiated on the ground that such corporation has not complied with the law relative to foreign corporations doing business in this state.</p> <p>An order for goods cannot be rescinded on the ground that it is an executory contract, when the sale has been consummated by delivery to the carrier for shipment prior to the receipt of a countermand by mail.</p>

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

<p>LOGS AND LOGGING — RIGHT OP LIEN — RELEASE.</p> <p>Where laborers engaged in getting out saw logs have expressly released all right of lien upon the logs out within thirty days of the time of filing liens, the right to lien upon logs out prior thereto is thereby lost.</p>

<p>JUDGMENT WITHOUT SERVICE — SETTING ASIDE — UNAUTHORIZED APPEARANCE OF ATTORNEY — APPEAL — ERRORS NOT RAISED BELOW.</p> <p>Where a mortgagor has not been served with summons in a suit to foreclose his mortgage, an action on his part to set aside the decree of sale rendered in the foreclosure suit cannot be defeated on the ground of laches from the fact that he had neglected for five years to pay the mortgage debt and during the same period had not paid taxes on the land nor exercised any acts of ownership over it, though residing in a neighboring county and possessing the ability to pay.</p> <p>Where a judgment has been rendered against a party not served with process, but in whose behalf an unauthorized attorney had appeared and pleaded, the judgment will be set aside as a nullity, although innocent third parties may suffer, when the application for relief is made promptly upon the discovery of the existence of the judgment, and when the proof that the attorney did not have authority to appear is clear and convincing.</p> <p>When no exception is taken in the trial court to the affidavit of sureties upon an appeal bond, the defect is thereby waived, and cannot be raised in the supreme court.</p>

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

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

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

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

<p>AGENCY — EVIDENCE — DECLARATIONS OE AGENT — INSTRUCTIONS.</p> <p>Agency can never be established by the declarations of an alleged agent; and the erroneous admission of such declarations in evidence in an action against the alleged principal are not cured by a charge to the jury that agency cannot be proved by the declarations of the agent, unless it appears reasonably certain from all the facts and circumstances in the case that no injury has resulted to the defendant by reason of the admission of such testimony.</p> <p>In an action for the price of logs plaintiff should be non-suited, when the evidence of a sale to defendant is that the logs were purchased by an alleged agent, and the only proof of the alleged agency were the declarations of the agent himself, which there was no testimony adduced to show had ever been brought to the knowledge of defendant and ratified in any way.</p> <p>In an action to recover upon an express contract for the sale of logs, an instruction that if defendant had converted the logs to its own use it would be liable for their value, is erroneous.</p>

<p>ACTION AGAINST MUNICIPAL CORPORATION —DENIAL OP CORPORATE EXISTENCE —EXTENSION OP CITY LIMITS — TAXATION — AGRICULTURAL LANDS WITHIN CITY LIMITS.</p> <p>The validity of the incorporation of a city cannot be questioned in an action brought against it as a municipal corporation; nor can its corporate existence be attacked in a collateral action.</p> <p>The constitution and statutes thereunder, providing for the incorporation of cities and towns, do not confine the corporation to the exact limits of any preexisting city or town, but the question of boundary may be determined by the vote of the people within the limits of the proposed incorporation upon the submission of a proposition therefor by the county commissioners based upon the petition of residents within the proposed boundaries.</p> <p>The municipal taxation of agricultural lands included within the corporate limits of a city is not unconstitutional on the ground that it is a taking of private property without just compensation.</p>

<p>CORPORATIONS —SUBSCRIPTIONS TO STOCK —RIGHT OP RECEIVER TO ENPORCE — PLEADING — INSTRUCTIONS.</p> <p>The receiver of an insolvent corporation may bring a separate suit against a stockholder to recover any sum due upon his share of stock.</p> <p>In an action by the receiver of an insolvent corporation to recover upon unpaid subscriptions to its stock, the defendant cannot question the regularity of the appointment of the receiver nor the judgment of the court as to the necessity of collecting the unpaid subscriptions to capital stock.</p> <p>In such an action a complaint does not state a cause of action, under Gen. Stat., § 1507, when it fails to allege that the defendant had notice of the call for assessments upon his stock, made by the receiver under the order of the court.</p> <p>In such an action a charge to the jury that “it matters not whether the full quota of stock was subscribed or not in this case” is erroneous because it assumes that the evidence shows such conduct on the part of the defendant as an officer of the corporation as would amount to a waiver of the defense that the whole of the capital stock had not been subscribed.</p> <p>The fact that a certificate of stock purports on its face to be paid up stock of a corporation will not warrant the court in instructing the jury that the certificate should be considered as paid up and non-assessable, when the plaintiff enters a denial to such defense and introduces evidence showing that the certificate was not issued as paid up by the authority of the corporation.</p> <p>Where an action is brought to recover the whole amount unpaid on the stock of an insolvent corporation held by the defendant, and which had been declared to be due and payable by order of the court, sitting as a court of equity, it is error for the court to charge the jury that defendant is not liable to pay the whole of the unpaid balance of his subscription, unless the evidence shows that it is necessary in order to discharge the debts and liabilities of the corporation.</p>

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

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

<p>MORTGAGES —FRAUD—EVIDENCE—EXHAUSTION OF OTHER SECURITIES — RIGHTS OF MORTGAGEE.</p> <p>A charge of fraud in the procurement of a mortgage is not established by proof that the mortgagors had but a limited knowledge of the English language, and that they did not intend to give any mortgage on the land, but were led to believe they were executing an assignment of certain notes of other parties to the mortgagee in full payment for the land, when it is shown that the mortgagee never had possession of such notes, and that the interest of the mortgagors therein amounted to but $700, while the value of the land conveyed by the mortgagee was $1,250.</p> <p>. A mortgagee to whom other security is given in addition to his mortgage is not compelled to exhaust such security before relying upon the mortgage executed to him.</p>

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