Volume 9 — Washington Reports

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

<p>ACTION AGAINST SCHOOL DISTRICT FOR MATERIALS FURNISHED CONTRACTOR —INSTRUCTIONS — EXCEPTIONS.</p> <p>Under Laws 1898, p.U3, §4, the grounds of objection to an instruction need not be stated in the exception thereto.</p> <p>Where the court, throughout its instructions, gives undue prominence to the testimony of plaintiffs, and makes no reference to the testimony offered by defendant, except in the most general terms, the instructions must, when the testimony is conflicting, be held erroneous on the ground that they do not fairly submit the cause to the jury.</p> <p>In an action by material men against a school district, founded on its failure to take a bond from a contractor employed in the construction of a school building, where there is evidence showing that the lumber sued for was furnished to a firm of which the contractor was a member, and not to the contractor for use in said building, in addition to evidence of a charge upon plaintiffs’ books which showed a sale to the firm instead of to the individual contractor, an instruction “that if plaintiffs satisfy your mind that there was a mistake [in making the charge] and the evidence is not in conflict, you will find that there was a mistake, and that the goods were sold to the contractor,” is misleading, as it makes the whole question as to whom the lumber was sold turn upon the way it was charged upon the books of plaintiffs, and whether it was so charged by mistake,</p>

<p>ARSON —INFORMATION — SITUS AND OWNERSHIP OF HOUSE BURNED — EVIDENCE.</p> <p>An information sufficiently alleges the place of the commission of the crime of arson when it charges that the defendants, on a day named, “in the county of Spokane, State of Washington, did then and there unlawfully, willfully and maliciously set fire to and burn a certain store house building, the property of another,” etc.</p> <p>Where the information alleges ownership of the building burned in one Kingman, the ownership is sufficiently proven when the only evidence on the subject is in response to the question, “Do you know who the owner of the building and premises was or is? ” To which the witness answered, “Yes, sir, Mr. C. E. Kingman.”</p>

<p>APPEAL —ORDER APPOINTING RECEIVER — BANKING CORPORATIONS — FRAUDULENT TRANSACTIONS.</p> <p>On an appeal from an order appointing a receiver, the appellate court is authorized to examine fully into the matter, and determine from the law and facts of the case whether the discretion reposed in the trial court has been abused.</p> <p>The transfer of notes held by one bank to another bank as collateral security for a loan cannot be regarded as such a fraud as to justify the appointment of a receiver for the bank securing the notes, when the banks were each represented in the transaction by their own officers, although the transaction was conducted by the same person as agent for the two corporations; nor is such transfer rendered fraudulent by the fact that other and prior transactions between the banks were of an illegal character. (Dunbar, C. J., dissents.)</p>

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

<p>RES JUDICATA — QUESTIONS DECIDED.</p> <p>The plea of res judicata applies, as a general doctrine, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have'brought forward at the time.</p> <p>Where chattels levied upon as the property of a judgment creditor have been claimed by a third party as owner under a bill of sale, and, in the trial of title thereto, it has been determined that such bill of sale was in effect a chattel mortgage, and judgment is rendered against the claimant, a subsequent action by such claimant to foreclose his lien as mortgagee is subject to the plea of res judicata. (Hoyt and Anders, JJ., dissent.)</p>

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

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS — RIGHT OF POSSESSION TO MORTGAGED PERSONALTY.</p> <p>Where a mortgagee of chattels has taken possession thereof for alleged breach of the condition providing for payment, he is entitled to retain possession as against a subsequent assignment by the mortgagor for the benefit of creditors, until it is determined by legal proceedings that the assignee has a superior right thereto.</p>

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

<p>NEW TRIAL — REMISSION OF EXCESSIVE VERDICT — DISCRETION OF COURT.</p> <p>The overruling of a motion, for a new trial on condition that the plaintiff will remit that portion of the verdict which is in excess of the amount for which judgment was prayed in the complaint, is a matter within the discretion of the trial court.</p>

<p>APPEAL — STATEMENT OF FACTS.</p> <p>Where the testimony taken in an equity cause is sent up with the transcript on appeal, but had not been served on the respondents and is without any certificate showing it is all the testimony taken in the cause, it will be stricken from the record, although in the statement of facts filed there is the allegation that the entire record in the case, the testimony taken therein, and the exhibits therein filed, are hereby expressly referred to and made a part of this statement.</p>

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

<p>ASSIGNMENT FOE BENEFIT OF CREDITORS— EFFECT UPON ATTACHMENT LIEN — COMMUNITY DEBTS.</p> <p>Under the insolvency act of March 10, 1893 (Laws 1893, p. 247), the lien of an attachment is not discharged by the subsequent filing of an assignment by the attachment debtor for the benefit of his creditors.</p> <p>The presumption arising from the execution of a promissory note by the husband alone is that it was given for a community debt.</p>

<p>FOREIGN JUDGMENT — ACTION ON —PLEADING —WEIGHT OF TESTIMONY.</p> <p>In an action on a judgment recovered in a sister state, want of jurisdiction may be shown by the defendant, even to the extent of contradicting express recitals in the judgment record of such sister state.</p> <p>In such an action, where the complaint alleges that the judgment was rendered upon complaint and summons duly and personally served upon the defendant, an answer sufficiently alleges want of jurisdiction when it denies “that said or any valid judgment was duly rendered against him in favor of plaintiff in said amount, or in any amount whatsoever, upon summons, complaint or otherwise, and denies that said complaint or summons, or any complaint or summons, was personally or in any manner served on him, or that he had any notice thereof, or that he ever appeared in such action or authorized any one to appear for him.” (Hoyt, J., dissents.)</p> <p>In such an action, the verdict of the jury in favor of defendant will not be disturbed, although the only evidence supporting the verdict is the uncontradicted testimony of the defendant denying the verity of the record.</p>

<p>REFORMATION OF DEED — ACTION FOR — COSTS.</p> <p>Reformation of a deed will be denied where it is not clearly shown that the parties to the contract intended to convey a particular piece of land other than the one described in the deed.</p> <p>Where an action for the reformation of a deed is brought without prior demand upon the defendant for a correction, and the defendant has at all times disclaimed title to the disputed parcel, the costs of the action, upon a decree of reformation, should be assessed against the plaintiff.</p>

<p>ACTION TO SET ASIDE JUDGMENT.</p> <p>An independent action or proceeding will not lie for the purpose of setting aside a judgment rendered in a former suit between the same parties, when the action is based upon error of the court in setting aside a verdict in such suit.</p>

<p>INSOLVENT CORPORATION — PREFERENCES.</p> <p>Where a corporation is conducting a profitable business it is not chargeable with insolvency from the fact that its indebtedness is in excess of its assets; and a bona fide chattel mortgage given under such circumstances is not invalid on the ground of being a preference by an insolvent corporation.</p>

<p>constitutional law — appropriation op land por county ROAD — COMPENSATION.</p> <p>The act of March 9, 1893 (Laws, p. 237), providing for the location of county roads anff award of damages therefor, is unconstitutional as to resident owners of lands appropriated, for the reason that it does not provide for personal service upon them of notice of the proceeding, and for the further reason that it provides for the awarding of compensation upon the report of the viewers, without the submission of the question to a jury. (Hoyt. J., dissents.)</p> <p>The issuance of a warrant upon a county treasurer in payment of an award of damages for lands appropriated by the county is a sufficient compliance with the constitutional provision requiring the making of just compensation in such cases, when there are funds in the treasury out of which such warrant can be paid.</p>

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

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

<p>SHERIFFS — COMMISSIONS UPON EXECUTION SALES.</p> <p>Under §3017, Gen. Stat., a sheriff is not entitled to commissions upon the sale of mortgaged premises under decree of foreclosure, where the property is bid in by the plaintiff for the amount of the mortgage debt, and no moneys pass through the sheriff’s hands. (Dunbar, O.J., and Anders, J., dissent.)</p>

<p>REINCORPORATION OP ILLEGAL TOWNS — VALIDATION OP CONTRACTS — ISSUANCE OP IRREGULAR WARRANTS — REMEDY.</p> <p>Under the act of March 9, 1893, legalizing the reincorporation of towns theretofore illegally incorporated, and validating the contracts of such towns, a contract to pay the bondsmen of a contractor for finishing the grading of a street, which the contractor had failed to complete under a contract providing for payment at the expense of abutting property owners, is a binding obligation on the town.</p> <p>Where a claim against a town has been allowed, and irregular warrants issued therefor, which the treasurer refuses to pay, the claimant is not entitled to an action against the town upon the original contract, but must first move the ministerial officers, by request or mandamus, to the issuance of proper warrants.</p>

<p>APPEAL BOND — COMMON LAW MARRIAGE — COMMUNITY PROPERTY.</p> <p>Parties joining in an appeal subsequent to the original notice, as permitted, under Laws 1898, p.121, §5,"must file an appeal bond in addition to that filed by the parties first appealing.</p> <p>The fact that a man and woman cohabited together in the State of California, without assuming the marriage relation, does not constitute a common law marriage, according to the laws of California, and consequently would not be of sufficient validity to be operative in this state after their removal here, although conducting themselves before the public and between themselves as man and wife.</p> <p>There being no common law marriage in this state, land acquired with the earnings of a man and woman who live together and hold themselves out to the world as man and wife, is not community property; and, if no trust relation be established, the land must be regarded as belonging to the one in whose name the legal title stands.</p>

<p>STREET RAILWAYS — ACCIDENT AT CROSSING — NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE — INSTRUCTIONS — IMPROPER ARGUMENT.</p> <p>In an action against a motor company for negligently running over a child of tender years on or near a crossing, defendant is not entitled to a non-suit on the ground of the insufficiency of the evidence when there is evidence showing that the gripman did not keep such a lookout as the circumstances demanded, nor give any warning of approach, and that, after discovering the child on the track, the car might have been stopped sooner, if the brakes had been in proper condition.</p> <p>In an action for damages against a motor company, where one of the issues is that plaintiff was guilty of contributory negligence in suddenly running in front of the car while it was in motion, it is misleading to charge the jury that “ all persons have a right to be on and pass along the street, and one is not a trespasser because he happens to be on the line or track of a street car.”</p> <p>In such an action instructions are erroneous which ignore the question of the contributory negligence of plaintiff, while they emphasize the fact that plaintiff was a child of tender years, and not chargeable with the same care as adults, but that defendant was chargeable with a greater degree of care toward children, and what would not be negligence toward an adult might be in the case of a child of tender years.</p> <p>Where one of the parties to an action asks the court for instructions on the whole case, and the court charges as requested, the errors of incompleteness therein are imputable to the party requesting the instructions, and a failure of his opponent to ask for more specific instructions is not a waiver of the error.</p> <p>In an action to recover for injuries received through the alleged negligence of defendant, it is error to refuse defendant’s request for a charge to the jury that, if it appeared from the evidence that the injury to the plaintiff may have been the result of either mere accident or of negligence on the part of defendant, no recovery could be had.</p> <p>In such an action instructions were properly refused which requested the court to charge that certain facts would be no evidence of negligence or that other facts would be evidence of contributory negligence, as it is generally a question to be determined by the jury whether certain facts do or do not constitute negligence.</p> <p>It is not negligence per se to be upon a railway track at a place other than that where pedestrians usually cross the street; nor does the fact that injimy was received while engaged in playing on the street constitute negligence per tie.</p> <p>Where a party to an action employs the usual means to procure the attendance of an important witness, but fails, the adverse party has no right to comment on his absence to the prejudice of the party failing to call him.</p>

<p>ACTION FOB MONEY DUE — NECESSITY EOE DEMAND.</p> <p>Where money is owing to plaintiff from the defendants, demand before suit for the amount due is unnecessary.</p>

<p>RESCISSION — SUFFICIENCY OF EVIDENCE.</p> <p>Where a written contract for the conditional sale of certain machinery is made, payments for which are to be made in installments one and five months from date, the fact that on the same day, subsequent to such contract, another agreement is made whereby the seller accepts an order on a third party providing for payment of the machinery within sixty days, out of moneys due from such third party to the purchaser, is not sufficient, in the absence of direct proof of rescission of the contract of conditional sale, to establish that the ñrst contract was thereby abrogated, and the delivery of the chattels an absolute instead of a conditional one. (Dunbar, C. J., dissents.)</p>

<p>FOREIGN CORPORATIONS — YARIDITY OF CONTRACTS — ACTION AGAINST MUNICIPAL CORPORATIONS — PLEADING.</p> <p>Where a penalty is attached to the violation of a statute requiring foreign corporations doing business in this state to first file copies of their charters and the appointment of an agent, etc., and there is no provision in the statute imposing the penalty that the contracts of such corporations not complying with the law shall be void, a party contracting with such corporation is estopped from pleading its want of compliance with the statute.</p> <p>A complaint against a municipal corporation to recover the balance of purchase price of a fire engine, the suit being based upon a note, states a cause of action when it alleges that there was a contract of purchase between plaintiff and defendant city, that the note was given as part purchase price of the engine; that it was issued under and by authority of the council of said defendant city; that plaintiff is now the owner and holder of said note; that certain payments have been made by the issuance of warrants upon the treasury of said city, and that there is now due and owing the sum of $1,460, which claim has been duly presented to the council of defendant city, and that defendant through its council has refused to pay the same. (Stiles, J., dissents.)</p>

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

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

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

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

<p>ACCORD AND SATISFACTION — FAILURE OF PERFORMANCE.</p> <p>In an action against a city for the recovery of damages for injuries received through the city’s negligence, an answer alleging that plaintiff agreed -to accept a certain sum from the defendant in full discharge and satisfaction of his claim, which sum defendant agreed to pay, and that thereafter .the city council of defendant directed the issuance of warrants payable from its treasury for said sum, which were ready for delivery to plaintiff, is not sufficient as a plea of accord and satisfaction, since it appears from the answer itself that it was not the city’s promise to pay that was to be received in satisfaction, but the payment of the sum agreed upon, and that this sum had neither been paid nor tendered at the time of the accord.</p>

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

<p>APPEALS — PORM OF BRIEPS.</p> <p>Where appellant rests the prosecution of an appeal upon a typewritten brief, contrary to the provisions of rule 8 of the supreme court, the brief will be struck from the record on motion, and the judgment affirmed.</p>

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

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

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

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

<p>CONTINUANCE — CRIMINAL LAW — COMPETENCY OE JUROR — INTRODUCTION OE EVIDENCE.</p> <p>The granting of a continuance being largely discretionary with the trial court, a judgment will not be reversed because of the refusal of a continuance for the purpose of procuring evidence of certain facts, when it is not made to appear that the same evidence could not be procured from other witnesses.</p> <p>Where, upon the examination of a juror upon a criminal prosecution, it appears that the juror has formed an opinion as to the guilt of the accused from newspaper accounts of the crime, and that it would take strong evidence to change his opinion, but that he could lay aside his impressions and try the case wholly upon the evidence, he is subject to challenge.</p> <p>Where there is an attempt to sustain the testimony of a witness by showing that he had made statements out of court similar to the allegations of an affidavit he had filed in the case, the proper method is for the sustaining witness to testify what the statements were, and the correspondence between the statements and affidavit should not be shown by the witness, but left to the jury to make the comparison.</p>

<p>BURGLARY —SUFFICIENCY OF INFORMATION — REPEAL OF STATUTE — CONTINUANCE.</p> <p>An information for burglary, which charges the unlawful and. burglarious entry of a dwelling house with intent to commit a felony therein, is sufficient. (Linbeck v. State, 1 Wash. 336, and State v. Anderson, 5 Wash. 350, followed.)</p> <p>Sec. 828, Code 1881, providing that where a person shall have unlawfully entered a building as described in §827, he shall be deemed to have made such entry or breaking with intent to commit a misdemeanor or felony, unless such entry or breaking shall be explained, cannot be interpreted as a proviso to §827, which defines the crime of burglary; and, consequently, the amendment of §827, by enlarging its scope so as to include additional structures as subject to burglary, will not work a repeal of §828.</p> <p>The refusal of the court to grant a continuance in a criminal prosecution, on account of the absence of witnesses, is not an abuse of discretion, when the only showing therefor is the general allegation that defendant could prove an alibi by said witnesses, and that said witnesses were in the jurisdiction of the court, but their whereabouts could not be ascertained by defendant, although his counsel had made unceasing efforts to ascertain their location.</p>

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

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

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

<p>TRIAL BY COURT —RECEPTION OE IMMATERIAL EVIDENCE.</p> <p>Where it appears from the findings of fact made in an action tried by the court without a jury that, although incompetent and immaterial testimony had been admitted in evidence, the findings of the court against defendant were not based thereon, the error is not prejudicial.</p> <p>A partnership note executed by one of two partners without authority will bind the other partner, when by his acts the latter has ratified the giving of the note.</p>

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

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

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

<p>ACCORD AND SATISFACTION — WHAT CONSTITUTES.</p> <p>An agreement between grantor and a grantee, subsequent to the conveyance, whereby the former places a certain sum of money in the hands of a third person to be forfeited to the grantee in full satisfaction of any damage he may sustain through the failure of a tenant to deliver up the premises conveyed upon demand, constitutes an accord and satisfaction for the breach of a covenant of warranty.</p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS —STRICT PERFORMANCE OF CHARTER PROVISIONS — ILLEGAL PROCEEDINGS — RATIFICATION —LIABILITY OF CITY.</p> <p>Although the charter of the city of Tacoma provides in § 53 that the city shall have power “ by ordinance and not otherwise ” to provide for making local improvements, yet such improvements may be ordered by resolution of the city council, as the specific provisions of the charter on the subject of street improvements, contained in article 13, provide for that method, and must be held as governing the general provisions of §53.</p> <p>A resolution by the city council of the city of Tacoma declaring its intention to improve a certain street within prescribed limits by grading and sidewalking, is not sufficient, under the requirements of §185 of the Tacoma charter, to authorize the improvement of such street at the cost of abutting owners.</p> <p>The failure to file a diagram of a proposed street improvement in the office of the board of public works, as required by §136 of the Tacoma charter, renders the proceedings for such improvement defective and illegal.</p> <p>The notice of a proposed street improvement, published by direction of the board of public works, under the provisions of the charter of the city of Tacoma, should set forth the exact character of the improvement, the cost thereof, and a description of the property to be affected thereby.</p> <p>The passage of an ordinance ordering a public improvement, after the work has been done, is ineffectual as a ratification of an improvement which has been illegally ordered, and completed without compliance with charter provisions.</p> <p>Where street improvements are made by a city without compliance with the plain provisions of the charter, which are conditions precedent to the exercise of the power, the city cannot reimburse itself for its outlay by assessing the property benefited.</p>

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

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — STRICT PERFORMANCE OF CHARTER PROVISIONS.</p> <p>Where a street improvement ordered by a city council upon petition merely called for the paving of a 54-foot roadway with bituminous rock upon a six-inch concrete foundation, the assessment therefor against abutting property will be set aside, when the board of public works has caused to be included in the improvement sidewalks and curbing, the cost of which has been included in the assessment.</p> <p>The board of public works of the city of Tacoma has no authority when awarding a contract for the pavement of a street, to exact a bond guaranteeing the pavement for five years.</p>

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

<p>MASTER AND SERVANT — INJURY TO EMPLOYE —EVIDENCE —NON-SUIT.</p> <p>The plaintiff in an action for damages for injuries received through defendant’s negligence should be non-suited when the evidence shows that plaintiff was a section hand working for defendant, that he with others had been ordered to repair to a certain railroad crossing at three o’clock in the morning to unload rails from a train that would arrive there, that they were proceeding there at the appointed time upon a hand car, and could see the headlight of the engine to the train when a mile and a half from the crossing, that the train started up without sounding a bell or whistle, and, coming down grade noiselessly at the rate of three or four miles an hour, collided with the hand car, resulting in plaiutiff’s injury. (Dunbar, C. J., and Scott, J., dissent.)</p>

<p>APPEAL — TRIAL BY COURT — EXCEPTIONS TO FINDINGS.</p> <p>Where an action has been tried by a court without a jury, and findings of fact made by the court, the party aggrieved must except to the findings, under Laws 1893, p. 112, §§2, 3, 7, and id. p. 130, § 1, in order to raise any question thereon upon appeal.</p>

<p>APPEAL — RECORD — PARTITION — SET- OFF — DECREE.</p> <p>Where the evidence is not contained in the record on appeal, the appellate court will not consider general exceptions to the findings of fact and the decree.</p> <p>In an action for partition of lands, defendants may set off moneys paid out at request of plaintiffs in defending the title to the lands.</p> <p>The defendant in partition proceedings is entitled to set off the value of necessary improvements made by him upon the land, provided the claim for improvements is confined to their value as. part of the land, without regard to their cost.</p> <p>A decree in partition proceedings is not erroneous because it designates the person appointed to take charge of the lands and sell same as a “trustee” instead of “referee,” as required by Code Proc., §584.</p> <p>Under § 608, Code Proc., providing that lands incapable of partition shall be sold at public auction to the highest bidder, in the manner required for the sale of real estate on execution, a decree authorizing such sale to be made at public or private sale is irregular.</p>

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

<p>PROHIBITION, WRIT OF — MATTERS WITHIN DISCRETION OF COURT.</p> <p>A motion for the dismissal of an appeal from a justice of the peace for a failure to file the transcript within the time allowed, is a matter addressed to the discretion of the superior court, and a writ of prohibition will not lie for the purpose of controlling the exercise of the court’s discretion in the matter.</p>

<p>RECEIVERS — APPOINTMENT PENDING LITIGATION — PLEADING.</p> <p>In an action for the dissolution of a partnership, for an accounting, and for the appointment of a receiver, it is error to appoint a receiver pending the litigation, when the complaint does not allege that defendants are insolvent, and the answer contains a direct allegation that they are solvent and able to respond in damages.</p>

<p>MUNICIPAL CORPORATIONS — CONSTRUCTION OE WATERWORKS — ORDINANCES — NOTICE OE ELECTION.</p> <p>Where the matter of constructing waterworks by a town must be ordered submitted to the electors thereof by ordinance, such ordinance is invalid when it provides that it shall only take effect and be in force “after adoption by the-qualified electors of the town” at such election.</p> <p>Under a statute requiring a waterworks proposition to be submitted at a special election, notice of which must be given to the newspaper doing the city printing, the ordinance for the submission of the proposition should, in the absence of an official newspaper, specify the paper in which publication should be made; and the act of the town clerk in printing a notice in a paper upon his own authority does not amount to notice.</p>

<p>APPEAL —TIME OF TAKING —FILING BOND — SALE ON FORECLOSURE — POSSESSION OF PREMISES — WRIT OF ASSISTANCE.</p> <p>Under Laws 1898, p. 119, an appeal will not be dismissed for failure to give notice thereof within the prescribed time, when the record does not show that the respondent ever served notice in writing upon the appellant of the entry of the order complained of.</p> <p>Under the appeal act of 1893 an appeal bond may be filed before the date of the taking of the appeal.</p> <p>Where the purchaser at a mortgage sale is entitled to possession of the premises during the period of redemption, the plaintiff in the foreclosure proceedings is the proper party, upon the refusal of the mortgagor to surrender the premises, to proceed by petition for a writ of assistance.</p> <p>Under § 519, Code Proc., the purchaser upon foreclosure sale is entitled to the possession, or rental, where there is a tenant, of the property from the day of sale.</p> <p>Sec. 519, Code Proc. (Code 1881, §378), was not repealed by implication by the enactment of §513, Code Proc. (Laws 1885-86, p.116).</p>

<p>MECHANICS’ LIENS — ASSIGNMENT OF CLAIM — EFFECT UPON LIEN — STIPULATION AS TO PRIORITIES.</p> <p>The assignment by a contractor engaged in the construction of a building of his claim against the owners thereof, will not deprive him of the right to claim a lien upon the premises, when such assignment has been given merely as security for indebtedness to the assignee. '.</p> <p>In a suit to enforce a material man’s lien against certain premises, several claimants were decreed as having co-ordinate rights of lien subject to a certain mortgage. In a subsequent suit to foreclose the mortgage,-one of the lien claimants, whose rights had been adjudicated in the former suit, introduced in evidence a stipulation between itself and the mortgagee showing that such claimant’s lien was entitled to priority. Held, That the amount of such claim would be deducted from the sum due under the mortgage and placed oh the same footing with regard to.priority of payment as the other lien claims, and the mortgagee subrogated to the rights of the claimant holding the stipulation.</p>

<p>PRACTICE IN CIVIL CASES — STRIKING ANSWER — LANDLORD AND TENANT — TENANCY — ACTION UPON INDEMNITY BOND FOR RENT — PLEADING.</p> <p>The action of the trial court in striking an answer from the files and giving judgment on the pleadings, for the reason that the answer had been once ruled as demurrable and had been again filed after the sustaining of a demurrer to an amended answer, will not be disturbed, although such procedure may not be strictly regular.</p> <p>In an action for breach of the covenant in a bond to pay rental for certain premises as provided in a lease between the plaintiff and the principal in the bond, the lease and bond reciting that the tenancy should be for a term of five years commencing upon the completion of the building, about the loth of March, 1890, an answer does not state sufficient facts to constitute a defense when it alleges that the place rented was not completed and delivered within said 15th day of March, and counterclaiming damages upon such alleged breach of contract.</p> <p>A lease of a building in course of construction, for a term of five years after its completion on or about a certain date, the dates for the beginning and ending of the lease being left unfilled, must be presumed as a lease for the term of five years dating from the completion of the building.</p>

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

<p>EVIDENCE — REFRESHING MEMORY — READING FROM MEMORANDUM.</p> <p>In an action to recover the value of a trunk and its contents, which had been stored with a warehouseman, it is inadmissible for the plaintiff, in testifying to the contents of the trunk and their value, to read from a memorandum describing its contents, which had been prepared by her seven months subsequent to the deposit of the trunk in the warehouse.</p>

<p>BILL OF EXCEPTIONS — SUFFICIENCY.</p> <p>Where a bill of exceptions does not make a record of what actually happened upon the trial of the cause, but of what occurred on the hearing of the motion for a new trial, it is not entitled to consideration by the appellate court.</p>

<p>STATUTES — AMENDMENT — REPEAL BY IMPLICATION — CONSTITUTIONAL LAW- - RIGHT TO SPEEDY TRIAL.</p> <p>The amendment of § 772, Code 1881 (§ 1369, Code Proc.), did not operate to work an amendment or repeal of § 777, Code 1881 (§ 1374, Code Proc.), although the latter section was dependent in its subject matter upon the provisions of § 772. 0</p> <p>The amendment of one section of a code will not work an amendment or repeal of another independent section, although the latter may, by its terms, be in the nature of a proviso to the section amended.</p> <p>Section 1374, Code Proc., providing that the discharge of an accused person for want of a speedy trial shall not be a bar to a further prosecution does not violate the constitutional guaranty to the accused in criminal prosecutions of a speedy public trial.</p>

<p>MURDER — SUFFICIENCY OF INFORMATION —CIRCUMSTANTIAL EVIDENCE— CORPUS DELICTI.</p> <p>An information charging murder in the first degree is sufficient when it charges that the accused, on a certain day, in a certain county and state, “purposely and of his deliberate and premeditated malice, unlawfully and feloniously killed [the deceased], by then and there purposely and of his deliberate and premeditated malice, shooting and cutting and mortally wounding the said [deceased] with a gun and with a knife, which the said [accused person] then and there held iu his hands.”</p> <p>When there is nothing in the record showing the absence of the conditions which must exist in order to warrant the prosecution of .a public offense by information, the accused cannot complain of the overruling of his motion in arrest'of judgment, made on the ground of the insufficiency of the information in that regard.</p> <p>In a prosecution for murder the corpus delicti is sufficiently proven when it is shown that the charred corpse of a man, with throat cut and bullet holes through head and abdomen, was found among the burned ruins of a barn, that from certain physical peculiarities of teeth and hair, and also from the shape of the head and face, neighbors and friends recognized the corpse as being that of the owner of the premises, with whose murder the accused was charged.</p> <p>A conviction of the crime of murder, based upon circumstantial evidence, will not be set aside when all the facts and circumstances appearing in evidence warrant the conclusion that the accused was guilty of the crime charged.</p>

<p>COUNTIES — USE OF ABSTRACT BOOKS BY ASSESSOR — LIABILITY OF COUNTY.</p> <p>A county cannot be rendered liable for the use made of a set of abstract books by its assessor in making the county assessment, although the books may have been of great assistance in the work.</p>

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

<p>MERGER — JUDGMENT OF FORECLOSURE WITHOUT PERSONAL SERVICE-ACTION FOR BALANCE OF MORTGAGE DEBT — EVIDENCE.</p> <p>A judgment of foreclosure of a real estate mortgage, made without personal service upon the mortgagor, will not operate as a merger of the original cause of action when the full amount of the indebtedness secured is not realized from a sale of the mortgaged premises, and a personal action may be maintained to recover the balance due.</p> <p>In an action to recover a balance due over and above the amount realized from the foreclosure sale of mortgaged premises, evidence of the value of the land is immaterial, in the absence of an allegation of fraud by reason of which the land had been sold for less than its value.</p>

<p>ACTION BY HEIR — NECESSITY FOR PRIOR ADMINISTRATION.</p> <p>Where the complaint in an action by an heir sets up facts showing that there is no necessity for an administration of his ancestor’s estate, the complaint will not be held insufficient on the ground that plaintiff is suing as heir, when there has been no distribution of the estate of his ancestor. (Balch v. Smith, 4 Wash. 497, and Hill v. Young, 7 Wash. 33, distinguished.)</p>

<p>TRIAL —FINDINGS OF FACT —PUBLIC SURVEY — QUARTER SECTION CORNERS — QUESTION OF LOCATION — APPEAL — REMAND WITH RIGHT TO AMEND PLEADINGS.</p> <p>Although there should be findings of fact made by the court to sustain a judgment, yet an appeal will not be dismissed for want thereof upon motion of the prevailing party, in whose interest such findings should have been made.</p> <p>The true corner of a government quarter section of land is where the United States surveyor established it, notwithstanding its location may not be such as is designated in the plat or field notes.</p> <p>Where, upon the review of an equitable cause upon appeal, it appears from the evidence that respondent, who was plaintiff below, might be entitled to relief upon another theory of the case than the one upon which it was tried, the appellate court will, upon a reversal of the judgment, grant leave to the respondent to amend its complaint in accordance with the facts proven.</p>

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

<p>JUSTICES OF THE PEACE —JURISDICTION —AMOUNT IN CONTROVERSY — APPEAL — EFFECT OF WANT OF JURISDICTION IN LOWER COURT.</p> <p>A justice of the peace has no jurisdiction of an action for the recovery of a sum due, and interest thereon, arising out of a contract for the payment of money, when the total amount of the claim is brought in excess of the sum of one hundred dollars, by the addition of the interest thereon.</p> <p>Where a justice of the peace has no jurisdiction of the subject matter of an action brought before him, the superior court cannot acquire jurisdiction thereof by appeal from the justice.</p> <p>(Dunbar, C. J., dissents on the ground that the supreme court has no jurisdiction.)</p>

<p>EVIDENCE —CUSTOM —MISCONDUCT OE JUROR.</p> <p>Where a definite contract has been made, and the controversy is not as to the meaning of the terms used by the parties, but as to what precise terms had in fact been used, evidence of custom is not admissible.</p> <p>Semble-. That a new trial should be granted when it is shown that the successful litigant and one of the jurymen, during the progress of the trial, had been promenading the street, conversing together, and playing at cards and drinking together in a saloon.</p>

<p>PROSECUTING ATTORNEYS — VACANCY IN OFFICE — HOW FILLED.</p> <p>The prosecuting attorney of a county being a county officer, under the constitution and laws of this state, a vacancy in the office should be filled by appointment of the county commissioners and not by the governor.</p>

<p>COUNTY COMMISSIONERS — EXTRA SERVICES — ALLOWANCE FOR — INJUNCTION — APPEAL.</p> <p>The claim of a county commissioner for services and expenses n attending a session of the state board of equalization in the interests of his county, to prevent an increase in the county valuation by the state board, must be presented to the superior court for allowance by petition, under Laws 1893, p. 176, § 3, and the allowance of such claim by the board of county commissioners is illegal and unauthorized.</p> <p>The claim of a member of the board of county commissioners for compensation for extra services, when allowed, cannot be ordered paid out of the salary fund.</p> <p>An appeal from a judgment denying an application for an injunction to prevent a county treasurer from paying a warrant, is not subject to dismissal because of the act of the treasurer in making payment subsequent to the appeal.</p>

<p>EVIDENCE —PROOF OF RECORD — NEGOTIABLE INSTRUMENTS — FRAUD OF PAYEE —RIGHTS OF INNOCENT PURCHASER.</p> <p>The original mortgage filed, for record, with the certificate of the auditor under his hand and seal stating the time of filing and the volume and page where the instrument is recorded, is competent evidence of the record.</p> <p>Although a promissory note and mortgage securing the same have been diverted by the payee from the purpose designed by the maker at the time of their execution, no consideration having passed to the makers, and have been endorsed and assigned by the payee before maturity to a bona fide purchaser for a valuable consideration, such purchaser has priority over the maker and subsequent mortagees who take with notice of the record of the prior mortgage.</p>

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

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

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

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

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

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

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

<p>TIDE LANDS —RIGHT OE PURCHASE — WHEN LIMITATION BEGINS TO RUN — IMPROVEMENTS BY LESSEE.</p> <p>Under §2172, Gen. Stat., giving shore owners and improvers the preference right to purchase appraised tide lands for .sixty days following the “filing of the final appraisal” thereof, the sixty days begins to run from the date the plat and record thereof by the local board of tide land appraisers is formally received by the state board of equalization, and directed by that body to be placed on file.</p> <p>Although certain tide lands may be necessary for lumber yard and log booming purposes in connection with a saw mill business conducted on contiguous tide land, yet the use of such tide lands by a lessee of the saw mill will not constitute him an improver within the contemplation of the act of March 26,1890 (Gen. Stat., §2172).</p>

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

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

<p>BOND TO CITY FOR BENEFIT OF MATERIALMEN — ACTION ON BY THIRD PARTY.</p> <p>Inasmuch as the provisions of §2415, Gen. Stat., requiring a corporation making public improvements to take a bond from contractors for the protection of materialmen and laborers, are not applicable to street grading contracts, the fact that such a bond has been voluntarily given by a contractor will not estop his sureties from denying their liability to parties furnishing the contractor with materials for such contract, when such materialmen are not parties to the instrument, and at the time of its execution were not interested in the subject matter thereof, although, as between the city and the obligors thereon, the bond may be a valid one. (Dunbar, C. J., dissents.)</p>

<p>APPEAL — STATEMENT OP PACTS — MECHANICS’ LIENS — NOTICE — STATEMENT OP CONTRACT — KNOWLEDGE OP OWNER.</p> <p>The fact that additional matter has been incorporated in a statement of facts on appeal after its service upon respondent is not ground for striking the statement when a portion of such additional matter consists of the pleadings, journal entries and referee’s report, which, by the law in force at the time, the clerk was required to make a part of the record, and the balance is made up of the evidence in a cause consolidated for trial with the one to which respondent was a party, and has no effect upon, or application to, the rights of the respondent. (Hovt, J., dissents).</p> <p>A lien notice is invalid on the ground that it contains no sufficient statement of the terms and conditions of the contract or of the material furnished when it states that “the claimant agreed to furnish the lumber material to be used in the construction, erection and completion” of a certain building, while the contract was made after the building had been partly constructed, and was in fact for the lumber to be used in the completion of the building, and not for all the lumber employed in its construction.</p> <p>A lien notice which claims both for materials furnished and labor performed, but does not segregate the two, nor describe the kind of materials, is defective, as not sufficiently describing the terms and conditions of the contract.</p> <p>The fact that a contract for materials to be used in the construction of a building has been made with the owner, instead of with a contractor, will not thereby excuse a lien claimant from fully stating the terms and conditions of the contract in the lien notice filed by him, on the ground that the owner has knowledge of the terms.</p>

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

<p>EJECTMENT — PLEADING — ACTION BY TENANT IN COMMON.</p> <p>Under § 533, Code Proc., requiring the defendant in ejectment proceedings to plead the estate or license whereby he holds possession, an answer of general denial will create no issue; and where plaintiff, in such an action, pleads and proves any legal right to the premises, he thereby establishes a prima facie case against defendant.</p> <p>A tenant in common is, as against every person but his co-tenant, entitled to every part of the common land, and may recover the possession of all such land in an action of ejectment brought against a stranger to the common title.</p>

<p>railroad company — right-of-way—title—injury to trespasser — EVIDENCE — NEGLIGENCE — NON-SUIT.</p> <p>Under an agreement between a landowner and a railroad company whereby a strip of land for right-of-way was to be conveyed to the railroad company in consideration of the payment of one dollar and of the expenses incident to the execution of the deed, if the company should construct and operate its road thereon within a period of two years, the substantial part of the consideration is the construction and operation of the road, and where the company, has performed that part of the agreement, the equitable title passes to the company, although the stipulated dollar and expenses may not have been paid.</p> <p>The finding of a jury that a child was not upon the right-of-way of a railroad, when injured by a log falling from a car, must be set aside when the testimony of the child showed that he was in a certain creek at the time of the injury, and the testimony of a competent engineer who had made accurate measurements of the locality, showed that the place of the accident, including the creek in which the plaintiff was when injured, were within the railroad right-of-way.</p> <p>The fact that a railroad company makes a practice of stopping its trains for passengers, whenever signalled, does not amount to a license for the occupancy of its right-of-way by those who are neither passengers, nor connected with the operation of the road.</p> <p>Where a child of tender years is injured through the negligence of a railroad company’s servants while trespassing without the knowledge of the company upon its right-of-way, the company cannot be held liable unless the negligence on its part is so gross as to amount to wantonness.</p> <p>The fact that a defendant goes into his defense of an action after the denial of his motion for a non-suit, to which he was entitled at the time the motion was interposed, operates as a waiver thereof merely to the extent of allowing the plaintiff to benefit by any evidence introduced by the defendant, or by himself in rebuttal, and, where the plaintiff’s case is not strengthened by such proofs, the motion for a non-suit should be granted, when urged later.</p>

<p>ASSIGNMENT FOR BENEFIT OF CREDITORS — COMMUNITY BEAUTY-ASSIGNMENT BY HUSBAND ALONE.</p> <p>An assignment by a husband of all his property for the benefit of creditors, under Laws 1889-90, p. 88, operates as a transfer of community property, real and personal, to the assignee in trust for the payment of the community debts. (Scott, J., dissents.)</p> <p>An assignment of community real estate for the benefit of creditors by a husband alone is not such a conveyance or incumbrance of the property as will violate the statute (Gen. Stat., §1400), invalidating the conveyance or incumbrance of community real estate unless husband and wife join in the making thereof. ( Scott, J., dissents.)</p>

<p>FORECLOSURE OF MORTGAGE SECURING PURCHASE MONEY — DEFENSES — BREACH OF COVENANT OF SEIZIN —COSTS— ATTORNEY’S FEES — TRIAL — FINDINGS OF FACT.</p> <p>In an action to foreclose a purchase money mortgage, given for land which the grantor covenanted to own in fee simple, but to which he had neither the legal nor the equitable title, the mortgagor may set off his expenses and outlay in defending and compromising a suit in ejectment in which the plaintiff has shown a good cause of action, as a constructive eviction is thereby established.</p> <p>Where costs in an action depend on facts not ascertained from the record of the case, the cost bill should itemize the charge.</p> <p>Costs on execution, being accruing costs which the sheriff adds as they are made, have no place in a cost bill.</p> <p>A note and mortgage securing the same constitute but one transaction, and where the mortgage provides for an attorney’s fee equal to five per cent, of the amount due, it is error to allow a fee in excess of such percentage, although the note itself may provide that, in case of suit thereon, the maker would pay “such sum as the court may adjudge reasonable as attorney’s fees.”</p> <p>The findings of fact made by the court upon the trial of a cause, either legal or equitable, should cover all the issues, and not merely such as may be sufficient to support the judgment.</p>

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

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

<p>JUDGMENT AGAINST PARTNERS — DESIGNATION OF PARTIES —ACTION ON JUDGMENT —INTEREST.</p> <p>A judgment in which the parties, against whom it is rendered, are described by their partnership name is not void for that reason, when the action has been waged against them as individuals composing the partnership, and the parties have been designated by their individual names in the pleadings and papers in the case, including the caption to the judgment entry itself.</p> <p>The fact that a joint judgment has been obtained upon a joint and several claim will not preclude an action upon the judgment against any one of the judgment debtors.</p> <p>In an action upon a judgment of a court of another state, interest thereon may be recovered, although the judgment itself does not by its terms purport to bear interest, and there is no proof of a statute of such state authorizing the collection of interest on judgments rendered in that state.</p>

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

<p>STOCK AND STOCKHOLDERS — ENFORCEMENT OF SUBSCRIPTIONS BY RECEIVER — DEFENSES.</p> <p>Subscribers to the stock of a corporation cannot escape liability as against creditors thereof on the ground that a portion of the stock was illegally subscribed for by another corporation, when the other stockholders have all taken with knowledge of that fact, and have paid a portion of their subscriptions for the purpose of enabling the corporation to commence business and incur indebtedness.</p> <p>Although stock in a coi’poration has been subscribed for by an individual “ as trustee,” an action to recover on the subscription may be maintained against- the real parties in interest, when the complaint alleges that such trustee made the subscription as the agent of the defendants, who were subscribers to the stock, at their request and for the benefit of each of them in proportion to his individual subscription.</p> <p>Where a receiver has been appointed for an insolvent corporation in a proceeding prosecuted by creditors, the receiver has the rights of the creditors at whose instance he was appointed, and may maintain an action to enforce subscriptions to stock, although the corporation itself might not be authorized to sue on the subscriptions.</p>

Action by Lizzie M. Curry and husband to enjoin an execution issued on a judgment obtained by Jerome Catlin against the husband, John M. Curry, rendered upon a note executed by said John M. Curry in his individual capacity to said Catlin. The complaint alleges that the land levied upon is the separate property of Lizzie M. Curry and was her separate property at the time the judgment was rendered, and that said execution is not a lien on said land.

<p>LIABILITY OP MASTER POR INJURIES TO SERVANT — RISKS OP EMPLOYMENT.</p> <p>A person employed to work about dangerous machinery assumes the risk of all apparent danger, and cannot recover for injuries received although his employer has not instructed him as to his duties around the machinery and the danger of his employment.</p>

<p>LOGGERS’ LIEN — DESTRUCTION OF LOGS — ACTION FOR DAMAGES — PLEADING — PARTIES — CO UNTERCLAIM.</p> <p>In au action for damages under §1694, Gen. Stat., which gives to holders of liens on logs a right of action against any person injuring or destroying the logs, the complaint states a cause of action when it alleges that the plaintiffs performed work on a certain boom of logs for which they filed their lien notices within the statutory time; that the logs were sold to defendant, who, knowing the logs were subject to liens, sawed them into lumber without the consent of plaintiffs, whereby plaintiffs were damaged to the amount of their liens remaining unpaid. (Hoyt, J. dissents.)</p> <p>A prior adjudication as to the validity of plaintiffs’ liens is not necessary as a basis for an action for damages for the destruction of logs upon which they have filed liens, but the two matters are properly determinable in the action for damages.</p> <p>Where a number of loggers have participated in cutting and rafting a boom of logs, upon which they have filed liens, their joinder as plaintiffs in an action for damages for the destruction of the logs is proper.</p> <p>Under Laws 1893, p. 434, §20, damages may be awarded for the destruction of logs in the action to enforce a lien thereon, or they may be recovered in a separate action.</p> <p>In an action for damages for the destruction of certain logs, brought by a lien holder thereon, the defendant cannot set up as a counterclaim that the logs had been sold to defendant, and that in a former case plaintiff had secured a foreclosure of his lien, and a sale of a portion of the logs which had not been destroyed by defendant.</p>

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

<p>MUNICIPAL CORPORATION — CONTRACTS — AWARD TO HIGHEST BIDDER— INJUNCTION BY COMPETITOR AND TAXPAYER — PLEADING — MANDAMUS.</p> <p>Although the complaint in an action may be an attempt to improperly join a cause of action for mandamus and one for injunction, yet a demurrer for misjoinder will not lie, provided the complaint, which is not separated into separate counts or causes of action, but is a continuous statement of facts, states a good cause of action for the injunction and shows no grounds for relief by mandamus.</p> <p>A municipal corporation cannot be compelled by mandamus to enter into a contract with one who shows himself to have been the lowest bidder in response to a call for bids for doing the city advertising.</p> <p>Where, through fraud or manifest error not within the discretion confided to the agents of a municipal corporation, they are proceeding to make a contract which will illegally cast upon taxpayers a substantially larger burden of expense than is necessary, the courts will interfere by injunction for the purpose of restricting their action within legal bounds.</p> <p>Although, under a statute requiring a contract for city advertising to be let to the lowest bidder, there may be some discretion of a judicial character reposed in the city council for determining what is the lowest and best bid, yet, in order to prevent interference by injunction, the city council should judicially find the facts which in its judgment render the apparently lowest bid not the lowest and best in fact.</p> <p>The fact that the plaintiff, in an action to enjoin the letting of a contract for the city printing, has ulterior motives in prosecuting the suit, beyond his direct interest in the controversy as a taxpayer, will not necessarily disqualify him as plaintiff.</p>

<p>NEW TRIAL —DISCRETION OF COURT — JOINT ACTION AGAINST SEVERAL DEFENDANTS — PLEADING AND PROOF.</p> <p>The action of the lower court in granting a new trial will not be reversed on appeal if there is any theory upon which such action can be sustained.</p> <p>Where a verdict has been rendered against defendants sued jointly to recover a fee for legal services, the action of the lower court in granting defendants a new trial is not an abuse of discretion, when the evidence tends to show that plaintiff had been separately, and not jointly, employed by the several defendants, although the defense set up was merely one of general denial.</p>

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

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

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

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

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

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

<p>RECEIVERS — APPOINTMENT—PLEADING—RIGHTS OE DEPENDANT.</p> <p>A complaint in an action by a judgment creditor asking for the appointment of a receiver for an insolvent corporation is not open to the objection that it fails to allege that the judgment debtor has no other property out of which the plaintiff could satisfy his judgment, when it states that the defendant is in failing circumstances, and that it has more judgments already rendered against it than it can pay.</p> <p>Where, subsequent to the purchase by one corporation of a line of railway from another, judgments are rendered against the vendor without notice to the purchaser, the purchaser has the right to litigate their validity on the ground of fraud; and, under such circumstances, the appointment of a receiver for the purchasing corporation, at the instance of a judgment creditor of the vendor, is unwarranted.</p> <p>Where the application for the appointment of a receiver is made by a plaintiff before the defendant has filed his answer, the defendant has a right to be heard upon his affidavit by way of defense to the application.</p>

<p>MORTGAGES —EQUITABLE LIEN —PAROL RELINQUISHMENT — AGENCY — ATTORNEY AND CLIENT.</p> <p>Although a mortgagee has taken a mortgage upon a certain lot of land with actual knowledge of the fact that the lot had been omitted by mistake from the mortgage given to a prior mortgagee, yet the second mortagee is entitled to priority, upon showing that his mortgage was given upon the understanding that the first mortgagee should relinquish his equitable claim, upon the performance of certain conditions, and that these conditions had been fully performed; under such .circumstances, no record relinquishment of the rights of the first mortgagee is necessary.</p> <p>Where a person authorizes an attorney to act for him in reference to a certain mortgage and see that it is all straight, and that whatever he does in the matter will be all right, such attorney becomes an agent, although he serves without compensation, and his acts in reference to the mortgage are binding on his principal.</p>

<p>MECHANICS’ LIENS — REQUISITES OF NOTICE — MATERIALS FURNISHED CONTRACTOR — OWNER OF PREMISES —DESCRIPTION OF PREMISES — COMMUNITY PROPERTY — PARTIES.</p> <p>A claim of lien which sets out that “ S is the name of the owner and reputed owner of said premises, and caused said building or structure to be built and erected. That B is the name of the contractor, who, as such contractor, made and entered into a contract with C, under and by which the hardware was to be furnished for said building,” sufficiently states the relations of principal and agent between owner and contractor.</p> <p>A claim of lien which alleges the name of the owner and reputed owner of the premises at the time of the filing of the notice is a sufficient compliance with the requirements of § 1667, Gen. Stat., which provides that the claimant shall file “ a claim containing a statement of his demand, . . . with the name of the owner, or reputed owner, if known.”</p> <p>A notice of lien sufficiently describes the property to be affected when it alleges that the lien is claimed “upon that certain building or structure now upon those certain lots and parcels of land [description]. That S is the name of the owner and reputed owner of said premises and caused said building or structure to be built and erected.”</p> <p>Where it does not appear upon the face of the lien notice that the claim is against community property or that the wife has an interest in the premises, the failure to make the wife a party to the notice is not a fatal defect, although she must be made a party to the foreclosure proceedings.</p>

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

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

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

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

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

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

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

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

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

<p>INSURANCE — AUTHORITY OE AGENT — LIMITATION BY POLICY — CONDITIONS IN POLICY — BREACH —INSTRUCTIONS.</p> <p>Although a policy of fire insurance may recite that it is void, “if the interest of the assured be other than unconditional and sole ownership,” yet, where no questions were asked by the company’s agent of the assured, prior to the issuance of the policy, relating to his title to the property, and no references as to the title were made by him, the company is estopped from denying the ownership of the assured therein.</p> <p>Where a solicitor for an insurance company is in fact and in law the agent of the company, the principal cannot be relieved of responsibility for the knowledge and acts of such agent by a recital in the policy of insurance that he shall be deemed the agent of the assured.</p> <p>Where a condition in an insurance policy upon a mill, requiring the assured to constantly keep a watchman upon the premises when the mill is not in operation, is not by the terms of the contract expressly made a warranty on the part of the assured, the failure to keep a watchman will not prevent the assured from recovering for a loss by fire, unless such fire was due to the failure to keep such watchman.</p> <p>An instruction to a jury in a civil case, charging that they “should be satisfied by a olear preponderance of proof” before they can find certain facts is not misleading, when the court has just charged the jury that “it is not required in a civil action to establish the facts beyond a reasonable doubt as in a criminal case, but a fair preponderance of proofs is all that is required.”</p>

<p>APPELLATE JURISDICTION — AMOUNT IN CONTROVERSY.</p> <p>The allegation of the pleader that the value of the property in controversy is a sum in excess of $200, is not sufficient to give the supreme court jurisdiction on appeal, but before the appellate court will assume jurisdiction there must be a finding as to value by the lower court.</p>

Actions by the City of New Whatcom against the Bellingham Bay Improvement Company (five in number), M. L. Stangroom and wife, E. R. Morgan and wife, and E. F. G. Carlyon and others, for the foreclosure of street improvement assessments. Judgment for defendants, and the plaintiff appeals. The actions were consolidated for hearing on appeal, and one opinion rendered in the eight causes.

<p>CONTRACT FOR SALE OF LAND —CONSTRUCTION —DIVISIBILITY — SPECIFIC PERFORMANCE.</p> <p>A contract for the sale of real estate for a stipulated sum in case payment be made within three years, which further provides that the vendor will give a deed at any time when demanded for parcels thereof in excess of twenty acres, provided payments have been made therefor at the rate of $40 per acre, is a divisible contract, and specific performance of a part only of such contract may be enforced by the purchaser, although he is in default under the conditions for the purchase of the entire tract. (Hoyt and Stiles, JJ., dissent.)</p>

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

<p>APPEAL —DISMISSAL BY APPELLANT — RIGHTS OP RESPONDENT.</p> <p>Although an appellant has a right under Laws 1893, p. 119, to dismiss his appeal with a view to a second appeal, such dismissal will not be granted him without prejudice, but the supreme court will retain jurisdiction for the purpose of affirming the judgment in respondent’s favor, in case the appellant fails to prosecute a second appeal within the time limited by law.</p>

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

<p>ORDERS — ACTION ON — EVIDENCE — STATUTE OF FRAUDS.</p> <p>Under a contract whereby B is authorized to draw orders on G for the pay of all persons performing labor or furnishing materials or provisions, in connection with the work of getting out a certain number of railroad ties for G, a third person, not a party to the contract, who has agreed with G to purchase such drafts or orders on G’s promise to accept and pay the same, may maintain an action on such promise and introduce in evidence the terms of the original contract.</p> <p>Where defendant has contracted with plaintiffs that if they will pay certain orders drawn on him he will accept and pay the same, the contract is an original undertaking founded upon a good consideration, and is binding without being in writing.</p>

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

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

Original Application for Prohibition. The affidavit of merits filed in this case states, among other things: “That affiant has fully and fairly stated the facts of his defense of the case to his counsel, for his advice, and that he informed affiant that affiant and his co-defendants had a good and valid defense upon the merits of said action, and to all of it, with the exception of eighty dollars, all of which affiant verily believes to be true. ’ ’

<p>LOGS AND LOGGING — FORECLOSURE OP LIEN —CONSTRUCTION OP COMPLAINT — CHANGE OP VENUE — CONVENIENCE OP WITNESSES.</p> <p>Where it sufficiently appears from the allegations of a complaint that the action is intended as one for the foreclosure of loggers’ liens, although some of the allegations give it the character of an action for damages for the eloignment of logs, the court is warranted in denying a motion for a change of venue based on the ground that as an action for damages it has not been brought in the proper county, if, by amendment, the complaint could be made adequate in the foreclosure proceedings without changing the nature of the action.</p> <p>A motion for a change of venue on the ground that the convenience of witnesses and the ends of justice would be forwarded by the change is addressed to the discretion of the court, and where such discretion has not been abused, the order of the court denying the motion will not be disturbed.</p>

<p>VALIDITY OE JUDGMENT — COLLATERAL ATTACK.</p> <p>Although the form of a deficiency judgment in foreclosure proceedings may be objectionable, yet where it clearly appears therefrom that it was the intent of the court to have the mortgaged property first sold, and, if the proceeds were not sufficient to pay the amount due, that execution over should be had for the remainder, a collateral attack on the ground of want of form will not be sustained.</p> <p>The failure to serve defendants with a copy of the complaint in foreclosure proceedings does not render the decree therein void, but at most it is only erroneous, and cannot be attacked on that ground in a collateral proceeding.</p>

<p>INTOXICATING LIQUORS — SALE WITHOUT LICENSE — PROSECUTION.</p> <p>Sec. 133, Penal Code, authorizing prosecutions by the state against those guilty of selling intoxicating liquors is not impliedly repealed as to municipal corporations by the act of 1890, giving to cities of the third class the power to license and regulate the sale of intoxicating liquors and to provide for the collection of the license-tax thereon by suit or otherwise.</p>

<p>CERTIORARI TO JUSTICE — JUDGMENT ON MERITS IN SUPERIOR COURT.</p> <p>Under §§1635, 1638, Code Proc., the superior court may, upon the trial of certiorari proceedings from a justice’s court, either provide for atrial upon the merits in the superior court or remand the cause for such purpose to the justice’s court; but where the judgment rendered by the justice has been vacated by him the superior court cannot, upon certiorari, set aside the order vacating the judgment and affirm the judgment originally rendered by the justice, so as to cut off the other party from a trial upon the merits.</p>

<p>SALE — ACTION EOR PRICE — EVIDENCE — NON-SUIT.</p> <p>In an action to recover the value of goods alleged to have been sold defendants, and at their request delivered to a third person, evidence showing an arrangement between defendants and such third person, whereby defendants were to “look after” his business, receiving the proceeds thereof and disbursing same, with the right to apply any surplus to the payment of such third person’s indebtedness to defendants, is incompetent and immaterial.</p> <p>In an action against a corporation and its general manager jointly to recover the value of goods sold defendants, and delivered at their request to a third person, the corporation is entitled to a non-suit when the evidence fails to show its connection with the transactions sued upon, and there is no showing that the general manager was authorized to act in the matter, which was extrinsic to the general business of the corporation, and the accounts had in fact been charged on the books to such third person, and not to the corporation.</p>

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

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

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

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

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

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