ata see Be 5 aN ES eed, pas er Ws <0 ESN AEE Y <2 vere me italia GALLAGHER LAW LIBRARY JB-20 UNIVERSITY OF WASHINGTON SEATTLE, WA 98105 (206) 543-4086 KFW45.1 HORAN, 1868- INDEX-DIGEST OF THE WASHINGTON REPORTS EMBRACING ALL THE DECISIONS OF THE SUPREME COURT OF WASHINGTON FOUND IN TERRITORI SRA NEE SG SF GE I RIES SEE SEEN Die BASEMENT,’ é % ; ‘ : 3 € ; ‘ i fs : = § oy 4 83587 PSE ORG ETE PRIN _ INDEX-DIGEST~ OF ‘THE WASHINGTON REPORTS. EMBRACING ALL THE DECISIONS OF THE SUPREME COURT OF WASHINGTON FOUND IN THE TERRITORIAL REPORTS — AND IN THE DIATE: REPORTS FROM VOLUME ONE TO VOLUME NINE INCLUSIVE ‘ BY gai E. HORAN, EVERELE THE EVERETT NEWS 1895 i f ; i L { \ iy 1 Entered according to Act of Congress in the year eighteen hundred and ninety-five BY JAMES W. CONNELLA In the office of the Librarian of Congress at Washington D. C. ’ S3O8 / PREP At ae The title of this book is the best description of its character; it is simply an Index-Digest. The design does not contemplate a full digest of each decision, but rather a statement of the rule of law enunciated, accompanied by as brief a statement of the facts as a proper understanding of the rule ‘requires. This necessitated, to a large extent, the separation of the facts and details from the law of the case, thus leaving considerable to the judg- ment of the compiler. It is hoped that the digested statements are so com- prehensive as to give a sufficiently clear indication of the scope of the decisions. Under the head of ‘‘ Statutes Construed or Explained ”’ are arranged those sections which have been construed, not merely cited by the court, and the construction of which are not stated in the digest of cases. A number of cases in the Territorial Reports relating to the practice upon appeals to the Supreme Court have been omitted, for the reason that sub- sequent legislation upon this subject have rendered them of little value. Whenever one was found, however, which in the judgment of the compiler was applicable to our present practice, it was digested. The work was not originally intended for publication, but simply as an aid to the compiler in his own practice. However, as the reports of our decisions increased in number, and the need for such a work thus became more urgent, it was decided to submit it to the public in the hope that it would be of some value in lessening the labors of the practicing lawyer. May, 1895. _ 5 ae | \ i i { i 3 Siiscteneenteatecennsetnaes 1 yore sntsrseig ot: Pomapapcsman ct: mE sees ss sachin sil natin 9a iu i : i ig 43 5 i iq 4 ay i ‘4 i Const. =. sOisjs Bae OD: 3 eds W. Wie. ABBREVIATIONS . Constitution of Washington. . Code of Procedure—Hill’s. General Statutes—Hill’s. . Penal Code—Hill’s. . Washington Reports. . Washington Territory Reports. 4 ; INDEX-DIGEST OF Hb WASHINGTON REPORTS. ABATEMENT. ‘ See Nutsance. ABSCONDING DEBTOR. See Arrest in Civil Actions; Exemptions. Who is an absconding debtor? Burrichter v Cline, 3 W., 135. ACCESSION. See Conversion. ACCORD AND SATISFACTION. Issuance of warrants by city not a compliance with promise to pay sum of money. Rogers v Spokane, 9 W., 168., What constitutes for breach of covenant of warranty. Reichel v Jeffrey, 9 ; We 288. 3 ACCOUNT. See L[nterest. Failure to object to within reasonable time creates presumption of correct- ness and shifts burden of proof. Baxter v Waite, 2 W. T., 228. Promise to pay interest on stated account no consideration for agreement to extend time of payment. Stickler v Giles, 9 W., 147. ~ ACCOUNTING. Action for, between partners, tried by court. Hamar v Peterson, 9 W., 152. Failure to award technical accounting harmless error when court finds amount due that is warranted by the evidence. Neis v Farquharson, 9 W., 508. ines aps snannsit te ACKNOWLEDGMENT — ACTIONS ACKNOWLEDGMENT. See Deeds; Notary Public. Act of 1867, curing defective acknowledgments, constitutional. Skellinger v Smith, 1 W. T., 370. By county auditor, without seal, if defective, cured by act Nov. 10, 1873. Kenyon v Knipe, 2 W. T., 422. Notary’s official character not shown, cured by act Nov. 10, 1873. Carson v Railsback, 3 W. T., 168. Authority of notary de facto, to take, cannot be questioned collaterally. Bullene v Garrison, 1 W. T., 588. Form of, prescribed by Sec. 1437 G. S., not exclusive. Kley v Greiger, 4 W., 484. Deed of ignorant Indian ; certificate failing to show that officer made known contents of deed to grantor, is not proof of grantor’s knowledge of con- tents of deed. Jackson v Tatebo, 3 W., 456. ACTIONS. See Appropriate Titles; Administration of Estates; Attachment, Contracts; Eminent Domain; Municipal Corporations.. Mere voluntary payment of another’s debt creates no cause of action in favor of party paying. Williams v Miller, 1 W. 7T., 88. Act of territorial legislature, abolishing distinction between, void. Stevens We Baker ot) Wi 1S 3arb: Cannot be maintained to recover money paid on judgment, obtained after a trial. Kellogg v Maddocks, 1 W. T., 407. Maintainable in equity, by creditor, against one collecting money from debtor without authority, when debtor shown to be insolvent. McCoy v Ayers, 2 Wray ao7 3 Plaintiff in possession cannot maintain action to try title to realty under Sec. 529 C. P. Smith v Wingard, 3 W. T., 291. May maintain equitable action to determine adverse claims, under Sec. 544 isd Ds Upon rescission of contract to convey land, vendee may recover value of wheat delivered vendor, upon complaint for goods sold and delivered. Ankeny v Clark, 1 W., 549. Vendee cannot recover payments made upon rescinded contract to convey land, as for money had and received. Distler v Dabney, 3 W., 200; Clark v Sherman, 5 W., 681. Action for money had and received, cannot be maintained for breach of con- tract, though contract invalid. Dietz vy Winehill, 6 W.., Tog. May be maintained to recover money expended in payment of labor bills upon defendant’s building, at request of, and upon defendant’s promise to refund. Dibble v DeMattos, 8 W., 542. Principal collecting proceeds of sales, agent cannot maintain, for recovery of commissions. Park v Mighell, 3 W., TE Unskillful workmanship, good defense to action by architect for value of plans. Niver v Nash, 7 W., 558. ACTIONS — ADMINISTRATION OF ESTATES a Person employing contractor to grade street, liable for damage to residence lot, caused by work done with his knowledge. Koch v Investment Co., 9 W., 405. Evidence of engineer who had not seen place that damage was due to rain- storm, incompetent. 0. ADJOINING OWNERS. See Fences; Party Wail. ADMINISTRATION OF ESTATES. See Attorney at Law; Escheat; Mortgages, Partnership; Wills. Non-resident administrator not recognized by laws of territory. Barlow v Coggan, 1 W. T., 258. Property vested in non-resident administrator, liable to attachment. Jd. Administrator takes charge of decedent’s entire estate. Ward v Moorey, I W. TT. 104, Administrator required to perfect title of decedent to pre-emption claim, in behalf of heirs. Burch v McDonald, 2 W. Te 8S, Unauthorized sale of personalty by executor, may be ratified by court, or by any one interested, to extent of interest. Brewster v Baxter, 2 WT... 138. Failure to verify petition constituting foundation for proceedings, not ground for collateral attack. McCoy v Ayers, 2 W. ‘Ty, 20%: Lease from heir to administrator, void at option of former. Gardella v Meeker, 3: W: T., 378. 3 Conveyance of land by heir, avoids such lease. /é. Holder of rejected claim against decedent’s estate must bring action, cannot appeal from order of rejection. Wilkens v Wilkens, 1 Woy Sai Administrator’s claim disallowed, he must resign and bring suit. 70. Failure to present claim secured by mortgage, no bar to foreclosure, but pre- vents collection of deficiency. Scammon vy Ward, 1 W., 179; Reed v Miller, r W., 426. Application for redemption under Sec. 1035 C. P., or for sale under Sec. 1037 C. P., must be made within time limited for presentation of claims. Scammon v Ward, 1 W., 179. In case of non-resident decedent, court in which application for administra- tion first made, has exclusive jurisdiction. T erritory v Klee, 1 W., 183. Lands of intestate dying without heirs, vest immediately in the state, with- out aid of probate court. © /é. Probate court no jurisdiction to try title to real estate, as between represent- atives of estate and an adverse claimant. Stewart v Lohr, 1 W., 341. Objections to confirmation of sale of decedent’s real estate, can be made only by parties interested in estate. Terry v Clothier, 1 Ww, 89s, Probate court has jurisdiction to grant administration of estate of non-resi- dent. Hanford v Davis, 1 W., 476. Real estate may be sold to pay expenses of administration and taxes. /é. Interest of decedent in community property liable for separate debt, after separate estate exhausted. Columbia Bank v Embree, 2 W.., 33%. sind semen nnan sane tly 1 nina ean iN enh i ean rain snc tenn aehs nea 4 ADMINISTRATION OF ESTATES Under Chapter x1m, Title x11, C. P., conveyance not to be made until time for appeal expires. Sander v Yesler’s Estate, 2 W., 429. Upon death of husband or wife, entire community estate subject to adminis- tration for payment of community debts. Ryan v Ferguson, 3 W., 356. Community property mortgaged by decedent and wife, may be sold to pay mortgage. /d. Personal notice of such sale to widow, unnecessary. /0. Deed under such sale, conveying interest of decedent at time of death con- veys equitable title. 70. Action to foreclose logger’s lien, against representative of decedent, cannot be maintained without first presenting claim against estate. Casey v Ault,'4 W., 167. Devisee of land cannot maintain ejectment for, pending administration. Dunn v Peterson, 4 W., 170. After appeal from order appointing widow administrator, where marriage of appointee to decedent is denied, lower court cannot allow alleged widow maintenance out of estate. State v Lichtenberg, 4 W., 231. Adjudication by probate court essential to pass title to realty from decedent to heirs. Balch v Smith, 4 W., 497. Lawyer acting as administrator, not entitled to additional fees for legal ser- vices, though contracted for with him. Kuhn’s Appeal, 4 W., 534. Leave of court unnecessary before suit upon bond of administrator. Bartels v Gove, 4 W., 632. Action upon administrator’s bond not subject to limitation of Sec. 117 CUP. £8; Widow cannot maintain action for her half of community contract, pending administration of husband’s estate. Lawrence v B. B. R. R. Co., 4 W., 664. Trustees named in will drawn in compliance with Sec. 955 C. P., may settle estate without intervention of court. Newport v Newport. 5 W., 114. Absence of party for seven years, with no evidence that he is still living, watrants administration of estate. Scott v McNeal, 5 W., 309. Ejectment cannot be maintaitied by such party, after return, against inno- cent purchaser under decree of court. 0. Right of person to claim in lands of decedent, not barred by filing claim against estate for money used in purchase of the lands, when such claim was rejected. Reese v Murnan, 5 W., 373. Action to determine rights in lands of decedent, properly brought in county where lands situate. Jd. Action of husband’s executors, in completing administration of wife’s estate, undertaken by husband as her executor, irregular but not void. Jz ve Hill’s Estate, 6 W., 285. Administration of community property after lapse of eight years from death of wife, leaving husband and child surviving, presumed unnecessary. Hill v Young, 7 W., 33. Failure to include lands in inventory, does not bar right to administer such lands. Ackerson v Orchard, 7 W., 377. Insufficiency of petition for sale of real estate, does not affect jurisdiction of court to order sale. J0. ADMINISTRATION OF ESTATES — ADVANCEMENT 5 Lands of decedent may be sold to pay expenses of administration and sup- port of family, though no debts. 6. Sale by an administrator will not be disturbed, when. /é. Court once acquiring jurisdiction, may proceed to final distribution. Jn re Wilbur’s Estate, 8 W., 35. Heir cannot maintain suit to quiet title, until final distribution. Hazelton v Bogardus, 8 W., 102. Unless complaint shows no necessity for administration. Tucker v Brown, 9 Ws 357, Approval of administrator’s final account, does not determine administra- tion. Hazelton v Bogardus, 8 W., ro2. Where description of land in petition and order of sale, so indefinite that it cannot be located, sale not validated by Sec. 3066, G. S. Z0. Residuary legacy may be sold to pay mortgage under Sec. 1035, C. P. /” re Clement’s Estate, 8 W., 323. Moneys collected upon decedent’s insurance policy, payable to children, no part of estate. /nz re Hill’s Heirs, 8 W., 330. Claim for equitable relief or unliquidated damages need not be presented before suit brought. Neis v Farquharson, 9 W., 508. Failure to present claim, cannot be urged for first time in appellate court. Jd. ADMIRALTY. Marine torts, committed on tide waters, within boundaries of county, within Federal jurisdiction. Smith v U. S. 1 W. T., 262. No lien for material men, or for supplies or repairs, in case of domestic ves- sel, in home port, or where one or more owners reside, except common law lien. Price v Frankel, x W. Ty 34. Ijien given by local law, will be enforced by court of United States, sitting in admiralty. Jd. Extent of Master’s power to bind vessel. Gove v Moses, 1 W. 7.., 8. Iien may be had and foreclosed upon steamer for price of materials used in its construction. Washington Iron Works Co. v Jensen, 3 W., 584. Equity, proper channel for enforcement of. /0. Receiver may be appointed pending foreclosure of. Zé. ADMISSION. See Evidence. ADULTERY. See Criminal Law and Practice; Divorce. ADVANCEMENT. What constitutes an advancement. Girault v Hotaling Co., 7 W., 90. ee ee Agent not entitled to commissions as for a sale upon mere option. 6 ADVERSE POSSESSION — AGENCY ADVERSE POSSESSION. See Statute of Limitations. Particular complaint sufficiently alleges, and particular facts held to show. Bellingham B. L. Co. v Dibble, 4 W., 764. Possession may be adverse to claimant, though held in subordination to title of U.S. Moore v Brownfield, 7 W., 23. Actual, uninterrupted and notorious possession, under claim of right, with- out color of title, constitutes. 0. Must continue for ten years subsequent to statute of 1881. Tacoma B. A. v Clark, 8 W., 289. Possession of donation claim, under deed executed before expiration of required residence thereon, gives no color of title. Bullene v Garrison, IW. T., 588. AGENCY. See Actions; Contracts; Fire Insurance. Wharfinger to whom ship delivers goods, with instructions not to pass to consignee, until payment of freight, is agent of ship. Williams v Steamship, 1 W. T., 95. Agent upon parol authority, no power to bind principal upon contract to convey land. Carstens v McReavy, I W., 359. When agency ‘not limited as to time, authority of agent may be revoked at any time. Knox v Parker, 2 W., 34. Particular complaint for recovery of commissions on sale of real estate held insufficient. Penter v Staight, 1 W., 365. Tug boat employed to perform certain task cannot substitute other tug. Bleecker v Satsop R. R. Co., 3 W., 77. Evidence held insufficient to establish relation of principal and agent, be- tween lessor and lessee of sawmill. Harper v Sinclair, 7 W., 372. General soliciting agent of insurance company cannot bind principal by con- tract with another for performance of similar duties. Stinson v Sachs, ©; Ws 39E- Agency cannot be established by declarations of alleged agent. Am. Lbr. Co., 8 W., 661. Statement of principal to third party admissible to show authority of agent. McDonald v Freed, 3 W., 468. Agent liable to principal, for loss caused by failure of agent to conform to law in discharge of duty. Crawford v Cockran) 2 WT, 117. Negotiations for sale pending by agent at time of revocation of authority, consumated by owner, agent entitled to commissions. Knox v Parker, 2 MW. oa Real estate broker with mere authority to sell, who signs principal’s name to contract for sale of land, not liable for resulting damages. McReavy v Eshelman, 4 W., 757. Comegys v Dwyer v Raborn, 6 W., 213. | | AGENCY — ANIMALS , 7 Agent secretly acting as agent for buyer and seller not entitled to commis- sions from seller. Shepherd vy Hill, 6 W., 605. In action for recovery of commissions for sale of defendant’s real estate, plaintiffs employment by purchasers may be shown under general issue. Dillon v Folsom, 5 W., 439. Declarations of agent, after transaction, unless part of res geste, not bind- ing upon principal. Weideman v Tacoma R. & Mi Ce. 7 'W., 517. Principal may, without endorsement, sue upon note taken in agent’s name, Stinson v Sachs, 8 W., 391. Evidence of agent’s authority admissible in corroboration of agent’s testi- mony as to terms of contract. Western Mill Co. v Blanchard, 1 W., 230. Factor has special property in, and lien upon, consigned goods for indebt- edness due from consignor. Lockett v Baxter, eh ge Wa Agent may be compelled by principal ta account for profits of transaction, though fraud not charged. Neis v Farquharson, 9g, 508. Leaving note in hands of bank cashier with conditional authority to cancel constitutes such cashier an agent, and his declarations relating thereto are admissible in evidence. Warburton v Ralph, 9 W., 537. ALTERATION. See Bonds; Nevcotiatiable Lustruments. I 4 ALIMONY. See Divorce. AMENDMENT. See Criminal Law and Practice. Court may reject amendment to complaint, substituting entirely new parties plaintiff Liebmann v McGraw, 3 W., 520. Refusal of trial court to allow third amendment to complaint, where plaintiff does not present proposed amended pleading, not an abuse of discretion. Balch v Smith, 4 W., 497. Permission to amend pleading at trial within discretion of court. Hulbert v Brackett, 8 W., 438. Sheriff may be compelled to amend defective return, but not to alter return regular on its face. Washington Mill Co. v. Kinnear, 1 W. 5 OSs Constable’s return cannot be amended after appeal taken. Knoff v Co- operative Colony, 1 W., 57. ANIMALS. 2 3 See Dogs; Municipal Corporations. } { ‘ i) i 8 APPEALS AND APPELLATE PROCEDURE, 1 APPEALS AND APPELLATE PROCEDURE. See Certiorart; Condemnation Proceedings; Costs; Divorce; Eminent CO Ke) LQ. Au de 12, eH 14. STON Or ee oh Domain ; Exceptions ; Judgment; Virdict. . RIGHT OF APPEAL, . NOTICE OF APPEAL, BOND. . STATEMENT OF FACTS. . BILL, OF EXCEPTIONS. . TRANSCRIPT. ~ RECORD. BRIEFS. . RULE OF DECISION. GENERALLY. IN EQUITABLE ACTIONS. IN CRIMINAL, ACTIONS. FROM JUSTICE’S COURT. FROM CoUNTY COMMISSIONERS. CARGO AiPPHAT, Jurisdiction of, after expiration of time limitation, cannot be conferred, even by consent. Stark v Jenkins, 1 W. T., 421; Cogswell v Hogan, 1 W., 4. Party estopped from appealing who has accepted fruits of judgment. Lyons v Bain 1 W. T., 482. Appellants not deprived of right of appeal by stipulation dividing fund in controversy, but showing intention not to abandon appeal. Seattle v Liberman, 9 W., 276. Dismissal of, upon appellant’s motion, for failure to file bond within time no bar to second appeal taken in time. Tacoma Lbr. & M. Co. v Wolff, 5 W., 264. May be had from portion of judgment against appellant. Healy v Seward, 5 W., 319. Will not lie from judgment not disposing of all issues. Johnson v Light- house, Nes 82, Before entry of final judgment, will be dismissed. Bartlett v Reichenecker, 5 W., 369. Death of defendant after judgment will not necessitate filing of claim against estate before appeal may be taken. Strong v Eldridge, 8 W., 595. Vendor of premises, pending foreclosure of mechanic’s lien thereon, may appeal from decree of foreclosure, when, by terms of his conveyance, he has interest in result of action. Tacoma Lbr. Co. v Wolff, 5 W., 264. Will not lie from judgment forfeiting bail when amount below $200. State v Fisher, 4 W., 382. APPEALS AND APPELLATE PROCEDURE, 1 9 When value of goods'and damages claimed exceed $200, appeal will lie. Freeburger v Caldwell, 5 W., 769. Will not lie when amount controversy less than $200. Lotz v Mason Co., 6 W., 166. Where two causes of action are united in complaint, one for $200, the other for $500, and demurrer sustained to latter cause, there being no amend- ment reducing demand below $700, Supreme Court has jurisdiction. Penter v Staight, 1 W., 365. Amount sued for basis of jurisdiction. Bleeker vy Satsop R. R. Co., 3 W., 77. Jurisdiction as to amount in controversy, must be based on finding of lower court. Herrin v Pugh, 9 W., 637. Action under Sec. 1694 G. S. not of equitable cognizance. ‘Tom the Cook v Sayward, 5 W., 383. Amount reduced by erroneous ruling of Justice of the Peace to below $200, no appeal lies. Gabriel v. S. & M Ry? WW ae Order overruling motion for new trial not appealable. Wassissimi’ v ‘Terri- tory, 7 WT. : Judgment rendered in lower court, in compliance with mandate from apel- late, not reviewable on appeal. Waterman v Lemon. 3. W. Ty 45, y 7 ) d Any non-compliance with mandate, corrigible by further mandate from ap- pellate court. /6. Order vacating judgment, not appealable. Lilienthal v Wright, 1° W.,:8. Gower v Gower, I W., 16. Greene v Williams, 6 W., 260. Order refusing temporary injunction, not appealable. Mahncke v Tacoma, | I W., 18. Johnstone v Eisenbeis, 1 W., 259. Will not lie from voluntary judgment of dismissal. Mahncke v Tacoma, I W., 18; Liebman v McGraw, 3 W., 520. Order sustaining demurrer not appealable. Tripp v Magnus, 1 W., 22 Pot- vin v McCorvey, I W., 389. Order striking out portion of answer, not appealable. McElwain vy Huston, tL We aa: Order discharging attachment, not appealable. Wintd v Banniza, 2 W., 147. Order of arrest in civil action, not appealable. Cline v Harmon, 2 W., 155. Order vacating decree, entered on publication of process, not appealable. Sander-Boman Co. v Yesler’s Estate, 2 W.., 429. Order changing place of trial, not appealable. Bogle v Co-operative Colony, 4 .N8., to Will not lie from judgment by default, entered by consent. Port v Parfit, 4 W., 369. Order setting aside award of arbitrators, not appealable. Tacoma Ry. Co. v Cummings, 5 W., 206. Order substituting assignees in assignment proceeding, not appealable. State v Parker, 6 W., 411. Order removing receiver, not appealable. State v Superior Court, 7 W., 74. Order dismissing suit for want of prosecution, not appealable. Pacific Sup- ply Co. v Brand, 7 W., 357. 10 APPEALS AND APPELLATE PROCEDURE, 1, 2 Order awarding custody and fixing allowance for support of child, pending divorce action, not appealable. ‘Tierney v Tierney, 1 W. T., 569. Refusal to vacate judgment, not reviewable on writ of error. Hancock v Stewart, 1 W.. T., 323. Will not be entertained from judgment, irregularly entered by default, unless motion to set aside, made in court below. Belles v Carroll, 6 Ws RS 1K Order dissolving attachment, appealable. Suffern v Chisholm, 1 W. T., 487. Will lie from judgment entered by default. Baker v Prewett, 3 W. T., 474. Order denying petition to vacate judgment, appealable. N. P. R. R. Co. v Blacks 3 W../.:227. May be had from judgment rendered on Sunday. Fox v Nachtsheim, 3 W., 684. Order distributing funds in hands of receiver appealable. State v Superior OQourt,.3>W.,2696: Order refusing to vacate judgment, appealable. Myers v Landrum, 4 W., 762. Order denying application to sue receiver, appealable. Meeker v Sprague, SEW. OAD. Order of distribution of funds in hands of assignee for benefit of creditors, appealable. J/z re Frasch, 5 W., 344. Order requiring guardian to pay moneys over to ward, appealable. /” re Hill’s Heirs, 7 W., 421. Lies by mortgagee, from order directing receiver of railway company to sell mortgaged property for satisfaction of claims of other intervening pre- ferred creditors. Radebaugh v T. & P. R. R. Co., 8 W., 570. 2. NOTICE OF APPEAL. Notice of writ of error insufficient, where addressed to attorney for opposite party. Driver v McAllister, 1 W. T., 368. Omission of words “‘to the Supreme Court’ in notice, immaterial, McCon- nel v Kaufman, 4 W., 229. Recital in notice of appeal from final judgment, that it is also from interloc- utory order, is surplusage. State v Hunter, 4 W., 637. From order refusing to vacate, not effective as notice of appeal from judg- ment. Myers v Landrum, 4 W., 762. Appeal will be dismissed for failure to file original notice within reasonable time after service. /z re Eyres Estate, 6 W., 132. Oral, in open court, sufficient. Town of Elma v Carney, 4 W., 418. Oral, must be given at time of rendition of judgment. Cusick v Beyers, 5 W:, 98. Oral, at rendition of judgment, sufficient. Moore v Brownfield, 7 W., 23. Seattle v Liberman, 9 W,, 276. Service of, upon clerk of district court, essential to jurisdiction. Blinn v Crosby,.2°W. <1-; 109: Return of service of, upon clerk of court, may be filed after judgment ren- dered, upon assumption of due service. /6. Before final judgment, ineffectual. Marsh v Degeler, 3 W., 71. APPEALS AND APPELLATE PROCEDURE, 2, 4 il Will not be dismissed for failure of clerk, to enter notice in journal of lower court. Dahl v Tibbals, 5 W., 259. By one defendant, must be served on co-defendants, | ties. Jones v Sander, 2 W., Say: Must be served on co-defendants, not joining in appeal. Bank, 3 W., 188. Must be served on all parties who have appeared in the action. National Bank v Central Hotel Co, 4 W., 642. Johnson yv Lighthouse, 8 W., eS Parties whose rights in suit have been decided and claims paid, need not be served with. Doyle v McLeod, 4 W., 733, That attorney for appellant is also attorney for his co-defendant, no excuse for failure to serve notice upon such defendant. ‘Traders Bank v Bokien, | 5 W., 777. Before final judgment against all defendants appearing, ineffectual. v Schlumpf, 6 W., 25. To parties not appearing, unnecessary. S. & M. Ry. Co. v Johnson, Pe Oe, Premature service of, no bar to second service. Spokane Falls vy Browne, 3 W., 84. Not perfected after notice, second notice may be given, if time has not expired. State v Seavey, 7 W., 562. Second notice cannot be filed pending dismissal of appeal. Reichenbach vy Lewis, 5 W., 577. May be given subsequent to settlement of statement. Littlejohn v Miller, 5 W., 399. Of garnishee’s appeal, to principal defendant, or other garnishees, unneces- sary. Dittenhoefer v Clothing Co., 4 W., 519. May be served on succeeding day, when time expires on Sunday. Falls v Browne, 3 W., 84. May be served by mail. Horr v Aberdeen Packing Co., 7 W., 354. Appeal not dismissed for failure to give within prescribed time, where record fails to show service of notice of entry of order appealed from. ture Corporation v Warren, 9 W., 312. Service and filing must be made as to all respondents within time limited. Watson v Pugh, 9 W., 665. who are prevailing par- Cadwell v National Dwyer Spokane Deben- 3. BOND. ‘“Town’”’ not required to file. Town of Elma v Carney, 4 W., 418. For stay, covers costs upon appeal. Ewing v Van Wagenen, 6 W., 309. Supersedeas bond, sufficient without appeal bond. State y Seavey, 7 W., 562. When not in conformity with statute, construed as a common law bond. Hanna v Savage, 8 W., 432. In form of undertaking, sufficient. Wilson v Morrell 5 W., 654. When sureties limit liability to sum less than judgment, not construed as a joint and several bond, for full amount of judgment. Hanna v Savage, 8 W., 432. Supreme court has jurisdiction to enter judgment against appellant and suretiesupon stay bond. 0. : ———— 12 APPEALS AND APPELLATE PROCEDURE, 3, 4 Supreme court alone has power to pass upon sufficiency of stay bond. State v Armstrong, 5 W., 123. Burden of showing sufficiency of sureties upon bond, on appellant. Kirby v Collins, 5 W., 682. Determination of superior court astoamount of, prima facie conclusive. Jb. Failure to give sufficient bond, may be remedied by filing new bond. 0. Insufficiency of, no ground for dismissal of appeal. S. & M. Ry. Co. v Johnson, 7 W., 97. Appeal not dismissed for defective bond, until defect adjudged and oppor- tunity given toaménd. Miller v Vermurie, 7 W., 386. Objection to affidavit of sureties upon, must be made in court below. Mc- Hachern v Brackett, 8 W., 652. Warburton v Ralph, 9 W., 537. Judgment upon, against sureties, irregularly entered, will not be modified when no showing of invalidity of bond is made. Sears v Seattle, etc. St. Ry. Co., 7 W., 286. Filing of, before service of notice, not ground for dismissal. Runyan v Rus- sell, 3 W., 665. Appeal dismissed where signed by but one of several parties joining in. State v Fisher, 4 W.. 382. Appeal will not be dismissed for failure to file, in time, when stipulation of parties on file recites perfecting of appeal. Pearson v Ashley, 5 W., 169. Where bond filed upon day notice is given, no error that bond bears ante- rior date. Dahl v Tibbals, 5 W.,, 259. ' On appeal from judgment directing writ of mandamus, lower court should allow spersedeas and fix bond therefor. State v Superior Court, 2 W., 9. Trial court has no right to consider sufficiency of stay bond after appeal taken. State v Superior Court, 3 W., 697. Sureties liable only for face amount of, when. Sears v S. & M. Ry. Co., 7 Wins DOO: Appellant need not sign. Dahl v Tibbals, 5 W., 259. Parties joining in appeal after original notice, must file additional bond. Stans v Baitey, 9 W., 115. May be filed before taking of the appeal. Debenture Corporation v Warren, OAV es 212° Appeal dismissed for want of jurisdiction, no judgment against sureties upon. Tom the Cook v Sayward, 5 W., 383. 4. STATEMENT OF FACTS. Clerk of superior court, no authority to determine or certify. Howard v Ross, 3 W., 292. In case divided for hearing, judge originally assuming jurisdiction, exclusive authority to settle. Hill v Young, 7 W., 33. Ex-judge cannot be compelled by mandamus to settle statement of facts under Chapter 111, laws 1893. State v Allyn, 7 W.., 285. Supplemental statement at instance of respondent, irregular when. Juve Hill’s Heirs, 7 W., 421. APPEALS AND APPELLATE PROCEDURE, 4 13 Original statement may be sent to Supreme Court. Wilson v Morrell, 5 W., 654. Not settled within time limited, will be stricken from record. Enos v Wil- Cn 3 WW aa, Notice of settlement fixing Sunday, insufficient. Cadwell v National Bank, 3 W., 188. Appearance at settlement waives all defects of notice. Boyer v Boyer, 4 W., 80. McGlauflin v Merriam, 7°W., I11. Participation in settlement of statement, does not estop party from moving to dismiss, for want of jurisdictional process. Marsh v Degeler, 3 W., 71. No amendments proposed, parties need uot attend at settlement. Cogswell v West St. Ry. Co., 5 W., 46. May be settled after date fixed by notice, when no amendments proposed. Sadler v Niesz, 5 W., 182. Time for settlement commences to run, upon judgment rendered in pursu- ance of decision made by judge at chambers, after notice thereof to defeated party. Kennedy v Derrickson, 5 W., 289. Record must show notice of settlement duly given. State v Hinchey, 5 W., 326. Judge no authority to settle after expiration of time limited. 0. Naming ‘‘court house”’ in notice as place of settlement, sufficiently definite. Littlejohn v Miller, 5 W., 399. : Time for filing of, commences to run from entry of written judgment. Bowen v Hughes, 5 W., 442. Not from date of verdict. Wadhams v Page, 6 W., 103. Notice of settlement within thirty days after filing of judgment sufficient. McGlauflin v Merriam, 7 W., It. Notice of settlement need not be served upon receiver appointed in an action. Tompson v Huron Lbr. Co., 5 W., 527. Omission of clerk to send up, immaterial where mistake corrected as soon as discovered. Fox v Utter, 6 W., 299. Handing statement to bailiff to be carried to clerk, not a filing. McQuillan v Seattle, 7 W., 331. Where only questions raised, are controlled by, the striking thereof works a dismissal. Jd. Will be stricken where Seaoondent not present at settlement, and no copy of notice in record. Ward v Tucker, 7 W., 399. Service of notice of settlement by mail, insufficient, when both parties reside in same place. Bowen v Cain, 7 W., 469. Received by clerk on thirtieth day after rendition of judgment and filed on following day, not stricken. Bank v Willey, 7 W., 535. Notice of settlement mailed in proper time, sufficient, irrespective of time of receipt. 0d. Notice of settlement failing to designate place of, statement will be stricken. American Asphalt Co. v Gribble, 8 W., 255. Notice of settlement given prior to senate of judgment, but eae date subsequent to judgment, euicieat Phillips v Port Townsend Lodge, 8 W., 529. | 1 { 14 APPEALS AND APPELLATE PROCEDURE, 4 Instruction requested, not contained in, will be disregarded. Cunningham v Seattle Hlec. Ry., 3 W., 471. Documents offered in evidence must be included in. Chapin v Bokee, 4 W., I. Depositions not considered, unless contained in. Likens v Cain, 4 W., 307. Stenographer’s report of trial, sufficient statement.. Cogswell v West St. Ry., 5 W., 46. Must be made part of record, in proceedings under Chapter Iv, Title xxrv, G. S. Smith v State, 5 W., 273. When will not be stricken, for failing to contain all the facts. Parker v Esch, 5 W., 296. Upon appeal from refusal to vacate judgment, affidavits filed, should be in- cluded in. Whidby Land, etc., Co. v Nye, 5 W., 301. Stipulated facts must be settled by. Fife v Olson, 5 W., 789. Stenographer’s minutes of testimony before referee, attached to report, suffi- cient statement. Bash v Culver Gold Mining Co., 7 W., 122. Omission of evidence in statement, cannot be supplied by other proof. State v Hinchey, 5 W., 326. When will not be stricken, though showing interlineations. Medcalfe v Bush, 4 W., 386. Will not be stricken because mingled with transcript. Dittenhoefer v Cloth- ing Co., 4 W., 519. Mere exception to ruling of court excluding material fact from, insufficient. Howe v Kenyon, 4 W., 677. When statement will not be stricken. Ward v Huggins, 7 W., 617. Certificate of trial judge to, held insufficient. State v Carey, 4 W., 424; Schlaechter v Miller, 4 W., 463; Clark-Harris Co. v Douthitt, 4 W., 465 ; Small v Geddis, 4 W., 518. Certificate that all material facts appear in, conclusive that all evidence sent up. McReavy v Eshelman, 4 W., 757. Particular certificate held sufficient. Miller v Savings Bank, 5 W., 200. No statement or bill of exceptions necessary upon appeal from order vacat- ing judgment. S. & M. Ry. Co. v Johnson, 7 W., 97. Judge cannot be compelled to correct statement, settled upon due notice and without objection. State v Arthur, 7 W., 358. Statement settled and filed may be returned to trial court for attachment of certificate, without notice to respondent. Littlejohn vy Miller, 5 W., 399. Example of insufficient statement in equity case. Case v Ham, 9 W., 54. What additional matter may be incorporated after service upon respondent. Savings Loan Co. v Jones, 9 W., 434. Court cannot alter statement, and amend certificate, after statement once set- tled and certified. Warburton v Ralph, 9 W., 537. Court cannot extend time to serve proposed amendments to statement. Jd. Matter eliminated by trial court, will not be inserted on motion of appel- lant, after statement filed. /b. _ Appeal law of 1893 gives court no authority to settle statement, after lapse of period allowed by prior law. Oliver v Lewis, 9 W, 572. Trial judge cannot be compelled to certify to statement as containing all the material facts, when in truth it does not. State v Parker, 9 W., 653. APPEALS AND APPELLATE PROCEDURE, 6; 6, * 15 5. BILL OF 'EXCHPTIONS. Limited to actions at law and special proceedings. Stenger v Roeder, 3 W., AI2. Need not contain journal entries of judgment. ‘Tullis v Shannon, 3 W., 716. When will not be stricken. State v Payne, 6 W., 563. None necessary upon appeal from order vacating judgment. 5S. & M. Ry. v Johnson, 7 W., 97. | Nor when only error assigned, is judgment of dismissal of complaint. Long v Billings, 7 W., 267. : Exception to refusal of court to grant new trial, for insufficiency of evidence, when appearing in record, need not be assigned in bill. Shotwell v Dodge, 8 W., 337. Errors assigned in, unauthenticated and unattached to transcript, not con- sidered. Stinson v Sachs, 8 W., 391. Recording only what occurred upon motion for new trial, will not be con- sidered. Waite v Stroud, 9 W., 333. o. TRANSCRIPT. Two days late in reaching supreme court, not ground for dismissal of appeal. Dittenhcefer v Clothinig Co., 4 W., 519. When failure to file, will be excused. Bast v Hysom, 5 W., 88. State v Wilson, 7 W., 502. Cannot be withdrawn for correction, when. Clark-Harris Co. v Douthitt, 5 W., 96. - Clerk of superior court may be compelled by mandamus to transmit. State v Armstrong, 5 W., 123. Sec. 1419 C. P. relating to failure to file, liberally construed. Smith v Arthur, 5 W., 356. | When appeal will be dismissed for failure to file transcript and brief. ‘Tus- tin v McFarland. 4 W., 103. Appellant. entitled to recover only amount actually paid for. Tingley v Bellingham; etc., Co., 5 W., 644. 70> RECORD. Affidavits used upon motion for new trial, are part of. Anderson v State, 2 W., 193. Need not show grounds for motion to strike answer. ‘Tullis v Shannon, 3 W., 716. Parties to appeal charged with notice of contents of. Boyer v Boyer, 4 W., 80. Must show that notice of settlement of statement of facts was duly given. State v Hinchey, 5 W., 326. In proceedings to appropriate private way of necessity, same as in ordinary civil action. Long v Billings, 7 W., 267. Findings of fact in action at law, must be includedin. State v Rohde, 8 W.., 262. Appeal not dismissed for want of findings, upon motion of prevailing party. Greer v Squire, 9 W., 359. 16 APPEALS AND APPELLATE PROCEDURE, 8, 9 8. BRIEFS. Orderly statement of errors in, sufficient. McReavy v Eshelman, 4 W., 757. Cost of printing testimony in, cannot be recovered. Bellingham B. L. Co. v Dibble, 6 W., 165. Amount allowed for printing, discretionary. State v Freiderich, 3 W., 418. Expense of printing argument not allowed. 7/0. Will not be stricken because not filed in time, where no substantial right prejudiced. /z re Hill’s Heirs, 7 W., 421. Extension of time to file, granted for sufficient cause shown. Skagit Ry. Co. vy Golesi W330, ? Motion to strike for improper allusions to trial judge, must point out objec- tionable language. Littlejohn v Miller, 5 W., 399. Questions not raised in, not considered. State v Rohde, 8 W., 362. Failure to file, not excused by showing continuous engagement of counsel in other matters. Shepherd v Shepherd, 4 W., 615. Type-written brief will be stricken from the record. State v Oleson, 9 W., 186. Appeal not dismissed because appellant’s brief fails to name all defendants as respondents. Warburton v Ralph, 9 W., 537. 9. RULE OF DECISION. Evidence not disclosed by record will be presumed sufficient to support judgment. Nesqually Mill Co. v Taylor, 1 W. T., 1. If judgment be correct, reasons given by court below are irrelevant. Dillon v Spokane County, 3 W. T., 498. If proof of doubtful interpretation, or evidence to support, verdict will stand. Gove v Moses, 1 W. T., 8. Erroneous ruling, if without prejudice, not sufficient cause for reversal. Brown v Forest, 1 W. T., 202. Refusal to grant new trial, discretionary. Page v Rodney, 2 W..T., 461. Where sufficient to support judgment, pleadings cannot be attacked on appeal for first time. U.S. v Small, 3 W. T., 478. Weight of testimony not considered, where sufficient evidence to sustain verdict. Lybarger v State, 2 W., 552. Booth v Columbia Ry. Co; 6 W., 531. : Judgment will not be opened unless wrongful and oppressive. N. P. R. R. v Black, 3 W, 327. Verdict will not be disturbed when testimony conflicting. Graves v Griffith Realty Co., 3 W., 742; Seattle Gas Co. v Seattle, 6 W., ror: Moore v Brownfield, 7 W., 23; West Coast Imp. Co. v Winsor, 8 W, 490; State v Manville, 8 W.. 523; Klepsch v McDonald, 8 W, 162. Verdict on trial of claim of third party to attached property, will be set aside, when. Medcalfe v Bush, 4 W, 386. When evidence sufficient to sustain, verdict will not be disturbed. Puget Sound R. R. Co. v Ingersoll, 4 W, 675; Brasen v Seattle Bey COs ATW. 754; Burden v Cropp, 7 W, 198. APPEALS AND APPELLATE PROCEDURE, 94, 16 17 Decision upon application to sue receiver, discretionary. Meeker v Sprague, 5 W, 242. Admission of irrelevant testimony, not prejudicial to appellant, no ground for reversal. Woo Dan v Seattle Elec. Ry. Co., 5 W, 466 ; Crane v Dex- ter Horton Co., 5 W, 479. Leading questions upon immaterial matters, harmless error.: Pilling v Morse, 5 W., 797. Judgment of lower court not disturbed, upon mere preponderance of testi- mony. Dougan v Abbott, 7 W., 370. Refusal of referee to grant adjournment of hearing, cannot be urged in error for first time on appeal. ‘facoma Grocery Co. vy Draham, 8 W., 263. Reason for granting non-suit immaterial, if any ground for motion sufficient. Brennan v Front St. Ry. Co., 8 W., 363. After appeal from affirmance of order granting new trial, because appellant refused to remit portion of verdict, appellant not entitled to such condition, in judgment of affirmance. Kohler v Fairhaven Ry. Co., 8 W., 452. Error as to right of argument cannot be urged on appeal, after waiver at trial. State v Ackles, 8 W., 462. Upon appeal from order incident to receiver’s suit, appellate court will not inquire into regularity of receiver’s appointment. Radebaugh v T. & P. Ry. Co.) & W,; S70. Dismissal directed where evidence entitled defendant to instruction for a verdict. Bernhard v Reeves, 6 W, 424. Findings will not be set aside, when there is any evidence to sustain. Bul- lene v Garrison, 1 W. T., 588; Baker v McAllister, 2 W. T., 48; Drown v Ingels, 3 W., 424. Unless clearly unfounded, findings will not be disturbed. Reynolds v Dex- ter Horton Co., 2 W., 185." In absence of evidence, referee’s findings presumed warranted. Ferry v King County, 2 W., 337. Findings not disturbed because of conflicting testimony. Fischer v Quigley, 8 W., 327; Hamar v Peterson, 9 W., 152. Court will not review findings of fact in cause tried by court, unless excep- tions thereto are made. Rice v Stevens, 9 W., 208. Court will not consider exceptions to findings and decree when evidence not in the record. Blackwell._v Mclean, 9 W., 301. Upon reversal, court may grant respondent leave to amend complaint to correspond with the facts. Greer v Squire, 9 W., 359. Upon dismissal of appeal, court will, upon its own motion, enter judgment - against appellant and sureties. Allen v Catlin, 9 W., 603. 10. GENERALLY. Appeal not prosecuted, judgment of affirmance will be rendered against appellant and sureties upon production of short record. O’Hare v Wil- got WV. Ss ., wer Will be Seatased for failure to perfect within time limited, unless reasonable excuse shown. Murphy v Ross, 2 W., 327. 18 APPEALS AND APPELLATE PROCEDURE, 10 Errors will not be reviewed except upon exception duly taken. Blumberg v McNear, 1 W. T., 141; Brown v Forrest, 1 W. T., 202; Smith v U. S., Ee Wek 262. Judgment affirmed as to one appellee, he is entitled to costs, from appellant but not sureties. Willey v Morrow, 1 W. T., 475. Rules of trial court not considered, unless part of record. W. W. P. & P. 6. ¥ Budd. 2: WW. *E. aaG, General exceptions, to instructions not numbered, will be disregarded. Cun- ningham v Seattle E. Ry. Co., 3 W., 471. Appellant failing to prosecute, respondent entitled to judgment of affirmance, with interest and costs, as damages, where record does not show appeal taken for delay. S. & M. Ry. Co. v Joergenson, 3 W., 622. Supreme court may modify judgment as to attorney’s fees. Boyer v Boyer, 4 W., 80. Assignee of judgment debtor cannot compel substitution after appeal taken. Hood v California Wine Co., 4 W., 88. Objection that complaint does not state sufficient facts, cannot be made for the first time at the oral argument on appeal. Francioliv Brue, 4 W., 124. Appellant may dismiss appeal at any time. ‘Tacoma L. & M. Co. v Wolff, 4 W., 260. Errors not raised in trial court, not considered on appeal. Bethel v Robin- son, 4 W., 446: Attorney’s fees not allowed on dismissal of equity case, in addition to allow- ance made in lower court. Wheeler v Lager, 3 W., 732. No motion for new trial necessary in case of non-suit. Burns v Commence- ment Bay L. Co., 4 W., 558. Applicant for re-hearing cannot make oral argument. ‘T hompson vy Huron Lbr. Co., 4 W., 600. Where both parties to appeal concede action prematurely brought, cause will be dismissed without prejudice. Tacoma vy Dougan, 4 W., 796. Appeal to determine priority of proceeds of mortgage foreclosure, not barred by issuance of execution at instance of appellant. Miller v Savings Bank, 5 W., 200. Motion for new trial in lower court, unnecessary. Kennedy vy Derrickson, 5 W., 289. Sufficiency of findings may be questioned for first time in supreme court, where appellant given no opportunity to do so in lower court. Zé. Costs may be awarded respondent, upon denial of motion to dismiss based upon short record, Smith v Arthur, 5 W., 356. Upon remand, superior court may take steps necessary to carry out judgment of supreme court. Spinning v Drake, 7 W. 1. Cases will not be heard out of regular order except where grave public con- siderations justify. Olympia v Moore, 7 W., 236. That court rendered judgment immediately upon filing of findings, and erred in rendering judgment for costs, cannot be raised for first time on appeal. Main v Johnson, 7 W., 321. - Appellant from judgment of ouster entitled to stay. State v Sachs, 3 W., 96. APPEALS AND APPELLATE PROCEDURE, 10, 11 19 Rehearing will not be granted upon amended record. Lybarger v State, 2 Wg R52. Motion to modify judgment of affirmance in supreme court, so as to permit amendment of complaint denied, when. Wagner v Law, 3 W., 500. Petitioner for re-hearing cannot move to reinstate cause. Clark v Doughitt, 5 W., 96. Law changing procedure applicable to pending appeals. Wintermute v Car- ner, 8 W., 585. Motion for new trial unnecessary when grounds of error were involved in disposition of case below. ‘Tullis v Shannon, 3 W., 716. Appeal will be dismissed when record fails to show any judgment. Reich- enbach v Sage, 8 W., 250. Failure of one appellant to perfect, will not affect rights of appellant who has perfected. Kelley v Kitsap County, 5 W., 521. Judgment for costs in supreme éourt against defendants not served nor appearing in action, void. Bell vy Waudby, 7 W., 203. Upon appeal from order denying defendant’s motion for judgment upon special verdict, court will only review pleadings and findings. ‘Tingley v Fairhaven Land Co., 9 W., 34. Supreme court will retain jurisdiction of case, dismissed by appellant with view to second appeal, so as to protect respondent’s rights in case second appeal not prosecuted. Agassiz v Kelleher, 9 W., 656. Oral stipulation, out of court, as to time of filing briefs, not recognized as binding. Livesley v Pier, 9 W., 658. tr. IN EQUITABLE ACTIONS. Appeal may be maintained from judgment on pleadings, though no excep- tion taken. Travis v Ward, 2 W., 30. Original exhibits should be sent up on appeal. State v Allyn, 2 W., 470. When statement stricken, findings and conclusions not passed upon. Enos v Wilcox, 3 W., 44. Appeal brings to superior court for trial dé novo. Cadwell v National Bank, 3 W., 188. Judgment will not be reviewed, when testimony not a part of record. Sten- ger v Roeder, 3 W., 412. Cadwell v National Bank, 3 W., 188. Appeal lies though amount involved less than $200. Fox v Nachtsheim, 3 W., 684. Statement must contain all testimony. Wheeler v Lager, 3 W., 732; McKin- non v Kingston L. Co., 4 W.,535; McCarty v Hayden, 4 W., 537. Certificate that statement contains all the material facts, sufficient. Tomp- son v Huron Lbr. Co., 5 W., 527. 4 Particular certificate to statement held sufficient. Doyle v McLeod, 4 W., 732. Facts must be settled and brought up, though constitutionality of statute only question raised. Smith v State, 5 W., 273. When determined on pleadings, statement not required. Ewing v Van Wagnen, 6 W., 39. Statement settled before judgment rendered, will be stricken. Bartlett v Reichenecker, 6 W., 168. 20 APPEALS AND APPELLATE PROCEDURE, It, 12, 13 Findings by trial court not binding upon supreme court. Yesler v Hoch- stettler, 4 W., 349. 12. IN CRIMINAL CASES: Record need not show that copy of indictment was served upon prisoner, Ty tel vy Ter.) iW. 1.53435. Verdict of ‘“‘not guilty’? under instruction of court for insufficiency of indict- ment, not appealable by state. Territory v Hui, 3 W. T,, 396. Accused person required to advance necessary fees to perfect appeal. Stowe Vantate; 2.Wyo ko4: In capital cases, court will disregard lack of exceptions to error patent upon the. secord.. (Hreidrich ver, 2) W358: Person convicted, entitled to transcript at public expense, on showing him- self without means. State v Fenimore, 2 W., 370. Statement may be settled, though appellant makes application to Federal Court for writ of Aabeas corpus. State vy Humason, 4 W., 413. State cannot appeal, when information dismissed because court has no juris- diction over person of defendant. State vy Kemp, 5 W., 212. Inability of convicted defendant to pay for statement, no excuse for failure to give notice of settlement thereof. State v Picani, 5 W., 343. Appeal by state dismissed, when attorney general concedes that judgment appealed from is correct. State v Smith, 7 W. 194. Appeal by state, will lie from judgment of superior court, reversing upon certiorari, a conviction before justice of the peace. State v White, 8 W., 230. 13. FROM JUSTICE’S COURT. Immaterial discrepancies between original notice of appeal, and copy, will not defeat. McKilver v Manchester, 1 W. I. 257. When records destroyed by fire, appellant may supply. Mullen v Mullen, Ww. ‘T.) 163; ; Perfected when notice filed with justice and copy served. Seattle, etc., Co., v Lewis, 1 W. T., 488. Appeal from judgment exceeding $100, treated as transfer of cause under Art. 27, Sec. 5, Constitution. Moore v Perrott, 2 W., 1. Sureties on appeal bond, concluded by judgment of appellate court. Cline v Mitchell, 1 W., 24. Sureties are proper parties to writ of error. 6. Decision of superior court, upon motion to dismiss appeal for failure to file transcript, discretionary. State v Campbell, 5 W., 517, Particular notice of appeal from, held sufficient. State v Superior Court, 7 Wi 223. Failure to file transcript within prescribed time, may be excused by trial court. State v Superior Court, 9 W., 307. Prohibition will not lie to control action of superior court, in the matter of filing of transcript, after expiration of prescribed time. J0. APPEALS AND APPELLATE PRO., 14—ASSIGNABILITY 21 14. FROM COUNTY COMMISSIONERS. See School Lands. Appeal from decision of, may be made within three months. Baum v . Sweeny, 5 W., 712. But see Chap. 121, Laws 1893. APPEARANCE. See Jurisdiction, Courts and Judges. ARBITRATION. Award substantially complying with law, sufficient. Batchelder v Wallace, 1 W. T., 108. : Decision of majority sufficient. 6. Presumed that all arbitrators acted, where all are sworn and majority sign award. 6. After vacating award, court may proceed to determine controversy. Tacoma Ry. etc., Co. v Cummings, 5 W., 206. ARREST IN: CIVIL AC TINS. See Appeals and Appellate Procedure. Judginent must carry forward provisional arrest. Burrichter v Cline, 3 W.; 338. Semble, that section 229 and 230-C. P. unconstitutional. Jd. ARSON. See Criminal Law and Practice. ASSAULT AND BATTERY. See Criminal Law_and Practice. Particular evidence held sufficient to justify verdict for damages. Hannan v Gross, 5 W., 703. Evidence of condition of assaulted person, day after injury, admissible. Z0. When plaintiff recovers less than ten dollars, his costs connot exceed amount received. Meade v French, 4 W., It. ASSIGNABILITY. Assignee of insolvent debtor cannot maintain action for injury to business credit of assignor, for alleged malicious attachment, levied prior to assignment. Slauson v Schwabacher, 4 W., 783. Assignment of interest of joint creditor in entire contract for payment of money, may be made, unless debtor objects. Grippen v Benham, 5 W., 589. Assignment by all joint creditors to one party, not subject to debtor’s objec- tion. JO. eg J ASSSIGNMENT — ATTACHMENT ASSIGNMENT. See Equitable Assignment. ASSIGNMENT FOR BENEFIT OF CREDITORS See Assignability ; Attachment. Corporation may make common law deed of assignment for benefit of cred- itors. Nyman v Berry, 3 W., 734. Secured creditor entitled to sro rata share in assets, only upon balance due after exhausting security. /u re Frasch, 5 W., 344. Assignee may recover possession of goods fraudulently transferred. Mans- field v Bank, 5 W., 665. Confession of judgment by debtor in failing circumstances, contemplating assignment, ineffectual as against assignee of debtor’s property. Hyman v Barmon, 6 W., 516. Disposal of entire property, by debtor in failing circumstances, to creditor, does not operate as an. Furth v Snell, 6 W., 542. Mechanic’s lien cannot be enforced against property in hands of an assignee for benefit of creditors. Quinby v Slipper, 7 W., 475. Property in hands of assignee cannot be attached. Hamilton v Adams, 5 Wale 333. When attached, assignee should bring suit to recover in the matter of assign- ment, instead of intervening in attachment suit. Sabin v Adams, 5 W., 768. ATTACHMENT. See Appeals and Appellate Procedure; Assigninent for Benefit of Creditor; Assignability; Chattel Mortgages; Claim of Third Person to Goods Levied Upon; Judicial Sales; Receiver; Sheriff: Defective affidavit for, not ground for interference with final judgment. Nesqually Mill Co. v Taylor, 1 W. T., 1. Property vested in non-resident administrator, liable to. Barlor v Coggan, LW. Ls; aS: Appearance upon application to dissolve, may be special. Rodolph v Mayer, TOW hed, Actual levy by deputy, superior to subsequent levy by sheriff, though latter’s writ first received. Arms Co. v Strong, 3 W. T., 61. Where property not in personal possession of sheriff, actual levy must be made, to acquire lien under writ. Jd. Traversal of affidavit for, must be direct and positive. Hansen v Doherty, 1 W., 461. Oral testimony inadmissible to support motion to discharge, based upon affi- davit. Jd. Motion to discharge triable by court. Windt v Banniza, 2 W., 147. Plaintiff may oppose motion to discharge by affidavits or oral testimony. Jd. Motion to discharge on ground of insufficiency of affidavit, should point out explicitly, nature of insufficiency. Jd. May be dissolved on motion of one of several defendants. 6. ATTACHMENT . 23 Action in attachment upon claim not due, complaint and evidence must show fraud, to authorize judgment. Cox v Dawson, 2 W., 381; Hanson v Tompkins, 2 W., 508. Seizure of property under, merely creates lien. Dixon v Barnett, 3 W., 645. Attachment debtor may sell, and title will become absolute upon discharge of attachment. 0. , If in such case, after sale but before release, sheriff levies other writ, he can- not be held for value of property, without demand first made. 70. Attaching creditor, although attachment dissolved by assignment of debtor, may in action to foreclose chattel mortgage, intervene and contest valid- ity thereof. Ephriam v Kelleher, 4 W., 243. Vendee in bill of sale, taken as security, cannot recover possession of goods from sheriff holding same under attachment against vendor. Seiben- baum v Delanty, 4 W., 596. Confession of judgment, by defendant in attachment suit, does not waive attachment lien. Schloss v State Bank, 4 W., 726. Will not be set aside at suit of third party, when. Alexander v Hemrich, A W.. 727. | Sheriff’s right of possession ceases upon dissolution of. Anderson v Land, 5 W., 493. : When refusal of trial court to dissolve, will be held harmless error. Turpin v Whitney, 6 W., 61. Parties serving labor claim notice, have not cause of action against plaintiff who dismisses attachment proceedings, takes chattel mortgage upon property and forecloses same. Wells v Columbia Bank, 6 W., 621. Right of possession under, paramount to that of receiver, subsequently appointed. State v Superior Court, 7 W., 77. Property held by a debtor as mortgagee under bill of sale absolute on its face, not subject to. Voorhies v Hennessy, 7 W., 243. When unverified affidavit for, foundation of proceedings, judgment not exempt from collateral attack. Tacoma Grocery Co. v Draham, 8 W., 203. Preferential assignment by insolvent corporation, not grounds for. Hol- brook v Peters & Miller, Co., 8 W., 344. Judgment against sheriff and attaching creditor under Sec. 491 C. P. bars other action against sheriff, creditors and sureties upon indemnity bond. Dawson v Baum, 3 W. T., 464. Sureties on indemnity bond, not liable for torts of officer, unless such act contemplated or advised by them, or unless they assisted in or directed He dd, Malice cannot be presumed against such sureties. /0. Sureties upon official bond of sheriff, liable for wrongful attachment of exempt property. Mace v Gaddis, 3 W. T., 125. Judgment against sureties upon forthcoming bond in attachment proceed- ings, authorized without notice tothem. Park v Mighell, 3 W., 737. In action upon bond for wrongful attachment, damages recoverable for injury to joint and individual property. Sloan y Langert, 6 W., 26. 3 : Ba, ATTACHMENT— ATTORNEY AND CLIENT Exemplary damages recoverable for malicious attachment. 7/6. What evidence admissible to rebut presumption of malice in issuance of attachment. -/0. Correctness of dissolution of, may be questioned in action upon bond. /6. Sureties upon bond for, cannot require obligee to bring suit against non- resident principal, having no property in the state.\ Seattle Crockery Co. v Haley, 6 W., 302. Complaint in action upon bond for, failing to allege that sureties joined in the execution of the bond, insufficient. /6. Sureties upon bond for, liable though no demand made of, or suit brought against principal. Jd. Principal and sureties upon bond for, estopped from denying corporate exist- ence of obligee. 0. Reasonable cause for attachment must exist, in order to avoid liability upon bond. /0. Credible information of facts, warranting belief in existence of reasonable cause, merely shows absence of malice. 0. Want of reasonable cause may be shown, by proof of conduct of business attached. 0. Malicious motives of agent causing attachment, chargeable to principal, although principal without knowledge of. /0. Unless agent had no authority to attach, and act was repudiated by princi- Dale LO; Injury to credit, not an element of damages, in action for malicious attach- tment; 7/0. Complaint in action upon attachment bond should allege execution of bond by defendants. Church v Campbell, 7 W., 547. Plaintiff must allege and prove non-payment of damages sustained. 0. Sale of property wrongfully attached by sheriff, at private sale, by direction of plaintiff, no bar to recovery by sheriff upon indemnity bond, where property held at instance of plaintiff and sheriff compelled to pay judg- ment against him for value thereof. Barnett v O’Loughlin, 8 W., 260. Expenses incurred by sheriff in caring for such property, proper charge against plaintiff. 0. Not dissolved by subsequent assignment of debtor for benefit of creditors. Bierer v Blurock, 9 W., 63. ATTORNEY AND CLIENT. See Attorney at Law. Professional confidence not divested by expiration of employment. Nickels v-Oriitin, 1 Wi. Ty 337A, Contracts for attorney’s fees construed. Isham v Parker, 3 W., 755. , Howe v Kenyon, 4 W., 677. What degree of care and skill due from attorney to client. © Isham v Parker, 3 W., 755. Client may intervene in foreclosure suit brought by his attorney, upon note taken by latter in settlement of former’s claim. Parker v Esch, 5 W. , 296, ATTORNEY AND CLIENT—ATTORNEY AT LAW yas! Burden of proving contract for services, contingent upon amount recovered, upon attorney. /0. Knowledge of creditor’s attorney, of debtor’s intention to assign, binding upon creditor. Hyman v Barmon, 6 W., 516. Attorney for railway company, in condemnation proceedings, cannot bind latter for payment of damages, to person not party to suit. Haynes v Tacoma, 6. RCo. 2 AN: Sex. Where evidence conflicting, as to whether deed, given by client to attorney, a mortgage, judgment in attorney’s favor will not be disturbed. Wallace v Town, 8 W., 244. ATTORNEY AT LAW. See Administration of Estates; Appeal and Appellate Procedure; Attorney : and Chent; Evidence; Negligence ; Instructions. May discontinue a suit by virtue of his general power as attorney of record. Simpson v Brown, 1 W. T., 248. Issue cannot be joined were both parties are represented by same attorney. Clarke Co. v Commissioners, 1 W. T., 250. Mandamus will not lie against city to compel payment of attorney’s lien upon judgment recovered against city. Chambers v Territory, 3 W. EB. ; Superior court no authority to order attorney to purge himself of contempt. State v Sachs, 2 W., 373. Supreme court will, by mandamus, compel the vacation of such order. /d. May be required by court to defend pauper criminals, without compensa- tion. Presby v Klickitat Co., 5 W., 329. Semble, that attorney’s fee in foreclosure of mechanic’s lien must be proved. Cowie v Ahrenstedt, 1 W., 416. Reasonableness of fees, in foreclosure suit, when denied, must be proven. Dexter Horton & Co. v Long, 2 W., 435. Attorney’s fees not allowed on dismissal of appeal, in addition to allowance made in lower court. Wheeler v Lager, 3 W., 732. Judgment ror attorney’s fees upon dismissal of ejectment suit, erroneous. Mason v McLean, 6 W., 31. 2,000 attorney fee in suit to foreclose mechanic’s lien, held excessive. Huttig Bros. Mfg. Co. v Denny Hotel Co., 6 W., 122. Mortgage providing for attorney’s fee to be paid out of proceeds of sale, tender before judgment in foreclosure proceedings need not include. Lamimon v Austin, 6 W., 199. In action upon promissory note, attorney’s fee assessed by court and added to verdict, not error. Yakima Bank v Knipe, 6 W., 348. When attorney’s fee left entirely to discretion of trial court, judgment there- for not disturbed, though no showing made as to, reasonableness of. Proulx v Stetson etc., Mill Co., 6 W., 478. Agreement in note for attorney’s fee, amount not stated, means reasonable fee, Cloud v Rivord, 6 W., 555. 26 ATTORNEY AT LAW—BONDS $100 attorney’s fee, in action upon note amounting to $1,000, not unreason- able. Main v Johnson, 7 W., 321. Error to award attorney’s fee to mortgagee, upon sale under Sec. 1037, C. P. In re Clement’s Estate, 8 W., 323. Attorney’s fee, governed by stipulation in the mortgage, irrespective of agreement in accompanying note. Potwin v Blasher, 9 W., 460. ATTORNEY’S FEES. See Attorney at Law. ATTORNEY GENERAL. Proper party to institute suits, involving disposition of State revenue. Jones Vv Reeds W..57: BAIL. See Bonds. BAILMENT. See Damages. ’ BANKS. National bank may take assignment of note and mortgage upon real estate for money loaned mortgagee. First National Bank v Andrews, 7 W., 261. Bank collecting draft, appropriating proceeds and sending its own draft to correspondent, is a debtor of, and not a trustee for such correspond- ent. Bowman v First National Bank, 9 W., 614. Pils OY. PARTICULARS. See Practice. BOARD OF EDUCATION. Meinber of, is an executive officer. State v Womack, 4 W., 19. Has power to reconsider resolution adopting text books. Jd. BOARD OF HARBOR LINE COMMISSIONERS. Has jurisdiction over bay navigable at high tide. State v Commissioners, 4 W., 6. BOARD OF HEALTH. May remove health officer at pleasure. State v Seavey, 7 W., 562. BONDS. See Administration of Estates; Appeals and Appellate Procedure ; Attach- ment ; Elections ; Municipal Corporations ; Replevin. Signers of building contract as sureties, not liable for material furnished contractor, Stetson & Post Mill Co. v McDonald, 5 W., 496. BONDS , vas Sureties upon bond of defendant in unlawful detainer, not discharged by postponement of proceedings under agreement between defendant and obligee. Hall & Paulson Co. v Schmidt, 7 W., 606. Bond to city of third class to insure construction of street railway, void. Aberdeen v Honey, 8 W., 251. Penal sum inserted in official bond after execution, avoids it. Walla Walla Co. v. Pitig, tN Tig sh: Contract of sureties on bond, strictly construed. 0. No defense in action upon bail bond, that conditions more onerous than statute permits. Ainsworth v Territory, 3 W. T., 270. Signature of judge, to journal entry declaring forfeiture, unnecessary. /0. Territory proper authority to accept and enforce. Jd. Sureties on official bond of sheriff, liable for wrongful attachment of iia 2 property. Mace v Gaddis, 3 W. T., 125. Sureties on official bond, not easluwced by alteration of, after execution, when. King Co. v Ferry, 5 W., 536. When term of office extended by legislature, sureties on bond, not liable for official acts during extended term. Jd. In action upon official bond, bond may be introduced in evidence without explanation of apparent material alteration. Fairhaven v Cowgill, 8 W., 686. Evidence of alteration in, admissible under general denial. 0. Substitutiou of sureties after execution, discharges other sureties. 0. Attempt by sureties to hold money of principal on deposit in bank, not a ratification of such altered bond. 0. Law requiring bond of contractor on public work, constitutional. Pacific Mfg. Co. v School District, 6 W., 121. County engaged in construction of iaeat ditch not required to take bond from contractor. Wallace v Skagit Co., 8 W., 457. Action may be maintained against school district for materials furnished in erection of school house, where bond not taken from contractor. Maxon v School District, 5 W., 142. To maintain such action, contractor’s indebtedness to plaintiff need not be established by judgment. /0. In such case contractor need not bea party. Jd. Bond of contractor upon public work, not void because board of school directors named as obligee. IThrig v Scott, 5 W,, 584. Furnisher of material and labor by virtue of sub-contract, entitled to benefit of contractor’s bond upon public work. Jd. City not required to take bond from street grading contractor, for protection of laborers and material men. Clough v Spokane, 7 W., 279. Material man has no right of action, against sureties upon bond given to city for benefit of material men by street grading contractor. Sears v Williams, 9 W., 428. Neglect of sureties to justify upon bond of contractor upon public work, mere irregularity. Wadsworth v School District, 7 W., 485. Not inoperative because payable to school district. 0. 28 BONDS — CERTIORARI Need not be upon file prior to furnishing of materials to contractor. /0. Action upon bond of contractor upon public work, not barred by procure- ment of personal judgment against contractor. . Fischer v Quigley, 8 W.y 327; BOUNDARIES. See Deeds. How ascertained. Packscher v Fuller, 6 W., 534. When field notes and monuments conflict, latter prevail. Cadeau v Elliott, 7 W., 205. Burden of showing such conflict, is upon party alleging. Jd. True corner of government subdivision, is as actually established, notwith- standing a different location is made by the plat or field notes. Greer " v Squire, 9 W., 359. Directions of boundary lines, construed as conforming to variations in near- est lines of government survey, when such shown to be the custom of surveyors. .Tacoma Bld’g Ass’n v Clark, 8 W., 289. Where description in conveyance will be made certain, by assuming a differ- ent controlling point from that stated, will be so construed. Edson v Knox, 8 W:, 642. BRIBERY. See Criminal Law and Practice. BURGLARY. See Criminal Law and Practice. CANCELLATION OF DEED. See Equity. CENCUS. Taken by an assessor not a ‘“‘state cencus.’? Rohde v Seavey, 4 W., 91. Salary of justice of the peace not based upon such cencus. Jd. CERTIORARI. See Municipal Corporations. Return by clerk, to writ directed to judge, insufficient. W., 496. Briefs upon, to supreme court must be filed within time limited in ordinary appeals. State v Moore, 5 W., 205. Will not lie to review refusal of superior court to vacate a judgment. v Gilbert, 5 W., 534. State v Sachs, 3 Lewis Will not lie to review action of superior court in granting new trial. State v Superior Court, 6 W., 201. Jurisdiction of supreme court as to, not dependent upon amount in con- troversy. State v Superior Court, 6 W., 352. But see, State v Superior Court; 3 W.., 371. da Wien ee A mee a Lek sHs CERTIORARI —CHATTEL MORTGAGES : 29 Will lie to review judgment rendered without proper service of summons. State v Superior Court, 6 W., 352. Writ of, may be quashed on motion, before compliance therewith. Spooner -v Seattle, 6 W., 370. In absence of statutory limitation, application for, must be made within reasonable time. 0. Will not lie to review action of school superintendent in establishing new school district. Gregory v Dixon, 7 W., 27. Improvidently issued may be dismissed without a hearing. 0. 7 Criminal action may be removed from justice’s to superior court by. State v White, 8 W., 230. Upon certiorari of criminal case from justice, when only error is in taxation of costs, judgment should be affirmed and costs retaxed. /0. Superior court cannot, upon writ of certiorari, set aside order of justice vacating a judgment, and affirm such judgment. McEneaney v Dart, 9 W., 682. CHALLENGES. See Jury. CHATTEL MORTGAGES. See Attachment ; Mor tgages; Receiver; Sales of Chattels. Unrecorded, subsequent to attachment, even though attaching creditor had actual notice of. Baxter v Smith, 2 W. T., 97. Of stock in trade, mortgagor retaining possession and disposing of sick for his own use, with knowledge of mortgagee, void as tocreditors. Wine- burgh v Schaer, 2 W T., 328. Attaching creditor of mortgagor may enjoin foreclosure of fraudulent mort- gage. Meacham Arms Co. v Swarts, 2 W. I oy ed. Mortgagee may intervene in attachment suit against the mortgagor, to establish priority of his mortgage. Langert v Brown, 3 W. T., 102 Upon stock in trade, in possession of mortgagor and sold by him at retail, proceeds to be applied in payment of mortgage debt, is valid. Lan- gert v Brown, 3 W. T., 102 Mere security under which no title can pass except by foreclosure and sale. Byrd v Forbes, 3 W. T., 318. Interest of mortgagor subject to attachment. /0. Floating mortgage on stock in trade, void as to creditors. 0. Proceeds from sale of stock must be applied in payment of mortgage. Jd. Provision of Sec. 1659 G. S. as to notice of levy to mortgagee mandatory, but failure to give does not affect validity of sale. 0. Particular complaint against fraudulent vendee of mortgagor, held insuffi- cient. Smith v Ellis, 3 W. T., 328. Mortgagee cannot maintain replevin, under mortgage, to secure possession of mortgaged property. Silsby v Aldrich, 1 W., 117; Kerron vN. P. L. & MM. Co., 1 W., 241. ~ SS = =; 30 CHATTEL MORTGAGES Mortgagee may take possession of mortgaged property and sell at private sale, if instrument so provides, subject to strict accounting for proceeds. Sheehan v Levy, 1 W., 149. In such case mortgagee entitled to undisturbed possession. 0. Sheriff attaching, selling and scattering goods, liable to mortgagee for amount of latter’s debt, not exceeding value of goods taken. /6. Bratton v Langert, 3 W., 227. Bona fide mortgagee in possession cannot be deprived of possession until his debt be paid. Marsh v Wade, 1 W., 538. Word ‘‘mortgage’’ includes words purporting to grant, sell, convey, etc. /0. Actual notice of existence of chattel mortgage binding upon subsequent pur- chaser or mortgagee. Darland v Levins, 1 W., 582. Debtor in failing circumstances may mortgage his entire property to secure bona fide debts to a portion of his creditors. Turner v Iowa Bank, 2 W., 192. Burden is upon person denying validity of chattel mortgage, prima facie valid. Warren v His Creditors, 3 W., 48. Given to secure dona fide debt, in ordinary course of business, binding on all parties. 0. Absolute in form, valid, though for contingent liability. 0. Mortgagee charged with sales made, under power to sell for his benefit. 0. An indemnity mortgage upon stock of goods, is valid as to creditors, when. Ephriam v Kelleher, 4 W., 243. Upon stock of goods, mortgagor remaining in possession, under oral agree- ment to apply proceeds of sale upon mortgage debt, prima facie valid as to all parties. Benham v Ham, 5 W., 128. Mortgagee cannot under Sec. 491 ef seg. C. P. recover mortgaged property levied upon. Sayward v Nunan, 6 W., 87. Where doubtful whether, or conditional sale, will be treated as mortgage. /d. Securing three notes to different persons, foreclosure and sale of mortgaged property by holder of one note, sufficient to pass title to purchaser. Bank v Woolery, 6 W., 215. All mortgagees share fro vata in proceeds. Jd. Mortgagee cannot maintain conversion against purchaser from mortgagor. Binian v Baker, 6 W., 50. When prior to subsequent attaching creditor, though not recorded. Bank v Carter, 6 W., 494. Parol evidence admissible to prove absolute bill of sale a chattel mortgage. Voorhies vy Hennessy, 7 W., 243. Legal title to property does not vest in mortgagee by reason of possession, "after maturity of debt. 7. That bill of sale absolute on face was intended as a, must be proved by fair preponderance of evidence. 0. Defective record immaterial, when mortgagee takes possession of property. Vincent v Snoqualmie Mill Co., 7 W., 566. Affidavit of good faith in past tense sufficient. Jd. When bill of sale will not be held to be. Hammer v O’Loughlin, 8 W., 393. CHAPEL MORTGAGES—CLAIM OF THIRD PERSON 31 Absence of affidavit of good faith upon, will not affect rights of mortgagee in possession. Reed v Bank, 8 W., 539. Mortgage upon realty and rolling stock of railroad, must be executed and recorded as a chattel mortgage to bind rolling stock. Radebaugh v T. &P. RoR Cee; SW ae Mortgagee in possession for breach, may retain same, as against assignee of mortgagor for benefit of creditors, pending a legal determination of assignee’s rights. Sanders v Main,9 W., 46. | CHANGE OF VENUE. See Venue. Under practice act of 1869, right to, matter of judicial discretion. McAllis- ter v Territory, I W. T., 360. Matter of, in criminal case, discretionary with trial court. Edwards v State, 2 W:, 26t. Will be made for partiality of judge. Barnett v Ashmore, 5 W., 163. Defendant may have to county of his residence, though served in county where suit is brought. Kennedy v Derrickson, 5 W., 289. Prohibition will lie to prevent court from proceeding with trial in improper county. State v Superior Court, 5 W., 518. Demand for bill of particulars at time of demand for, avoids necessity of answering or demurring. 0. Residence of proper, but not necessary parties to action, will not deprive principal defendant of right to. State v Superior Court, 7 W., 306. Affidavit of merits sufficient, if it shows that defendant entitled to file answer which will raise issues for trial. State v Superior Court, 9 W., 668. Application of all defendants served, will not be defeated, because of subse- quent service upon one defendant who does not join in application. Jd. Failure of applicant to appear at time of hearing of motion, not grounds for denial of. 0. When construction of complaint doubtful as to whether action is for fore- closure of loggers lien or for damages, court may deny motion for change of venue, if by amendment, complaint will state good cause of action for foreclosure, properly triable in county where brought. State v Superior Court, 9 W., 673. Motion for, because of convenience of witnesses, addressed to discretion of trial court. 0d. CITIZENSHIP. In certain state, presumed from continuous residence therein for a number of years. Weber v Yancy, 7 W., 84. CLAIM OF ‘THIRD PERSON TO GOODS LEVIED UPON. No answer necessary to affidavit of claimant. Chapin v Bokee, 4 W., 1. When verdict of jury will be set aside on trial of. Medcalfe v Bush, 4 W., 386. 32 CLAIM OF THIRD PERSON—COMMUNITY PROPERTY Upon trial of, plaintiff cannot interpose counter claim. Myers v Landrum, 4 W., 762. Wife need not plead evidence of ownership, in claiming title to property levied upon for husband’s debt. Freeburger v Gazzam, 5 W., 772. Upon trial of, proper judgment against unsuccessful claimant, is amount of creditor’s claim, not exceeding value of property. Sayward vy Nunan, 6 Wis, 87. Failure of sheriff to file claim, will not divest court of jurisdiction to “try title thereto. State v Superior Court, 6 W., 417; Peterson v Wright, 9 W., 202. Mortgagee cannot, by this proceeding, recover mortgaged property levied upon. Sayward v Nunan, 6 W., 87. Claimant bound by value as stated in his affidavit. Peterson vy Woolery, 9 Mk 200, “ That attaching creditor was a bona fide one, need not be shown, until setacic:: 3/0, CLOUD ON TITLE. When property not in possession of any one, action to remove may be main- tained. Lemon v Waterman, 2 W. T., 485. Delivery and record of sheriff’s deed of wife’s separate property under an execution against husband, no cloud. Jd. Record of dis pendens affecting certain real estate against persons having no interest therein, no cloud. Kley v Geiger, 4 W., 484. COMMUNITY DEBT. See Husband and Wife. Every debt created by husband during existence of marriage, is prima facie. Calhoun v Leary, 6 W., 17. Promissory note given by husband alone, presumed given for a community debt. Bierer v Blurock, 9 W., 63. COMMUNITY PROPERTY. See Administration of Estates; Husband and Wife; Landlord and Tenant; Recetver,; Rescission. Property acquired by wife during coverture, prima facie. Temon y Water- man, 2W), Ps ABs. The fact that a promissory note is, will not affect title of dona fide indorsee for value before maturity, without notice. Castor v Peterson, 2 W., 204. Lands acquired after marriage presumed to be. Yesler v Hochstettler, 4 W., 349. Confusion of separate with community estate, changes character of former, when. 0. Lands purchased by wife with proceeds of mortgage upon her separate prop- erty, become. Jd. COMMUNITY PROPERTY , 833 Money saved by wife, from funds given her by husband for household expenses, is. Abbott v Wetherby, 6 W., 507. Liable for debts incurred in business prosecuted by husband for benefit of community. O. I. Co. vs. Sagmeister, 4 W., 710. Husband’s interest in, not subject to sale under execution for his individual debt. Stockand v Bartlett, 4 W., 730. Conveyance of, by husband, holder of legal title, not void but voidable. Sadler v Niesz, 5 W., 182. Particular facts, held to create an estoppel against community, in favor of innocent purchaser of, from husband alone. /d. Wife estopped from claiming interest in, as against purchaser from husband, when. Nuhn v Miller, 5 W., 405. | Community and wife estopped from asserting right in equitable interest in lands, purchased doxa fide from husband, with knowledge of agree- - ment between husband and wife, that lands acquired by each should be separate property. Calhoun v Leary. 6 W., 17. Sale of land, under judgment for debt created by husband during existence of marriage, divests title of community. /0. Fraudulent conveyance from husband to wife of, not a transfer by one joint debtor to another. Ewing v Van Wagenen, 6 W., 39. Husband’s power to dispose of, though acquired under act of 1869, ceased after death of wife. Hill v Young, 7 W., 33. Not liable for commissions upon unauthorized contract of husband for sale of. McGlauflin v Merriam, 7 W., IIT. Wife may be estopped, to deny interest in contract for sale of, executed by husband alone. Konnerup v Frandsen, 8 W., 551. A contract for lease of community lands, must ta executed by husband and wife. Hoover v Chambers, 3 W. T., 26. Vendee in contract for sale of community real property, executed by husband alone, cannot maintain action thereon against husband for its breach. Holyoke v Jackson, 3 W. T., 235. Wife may vacate sale of community lands, under judgment against husband for his individual debt. Andrews v Andrews, 3 W. T., 286. In such an action the burden is upon the wife to show that judgment was not rendered for a community debt. Jd. Not liable for tort of husband, while acting in the capacity of constable. Brotton v Langert, 1 W., 73. When husband and wife rae together, deed of former alone, will pass no interest in community realty. Adams v Black, 6 W., 528. Lane acquired by husband under Timber Act his detitirate property. Gard- ner v Port B. M. Co., 8 W., Divorced wife has no claims i en. acquired by husband under Donation Act. Maynard v Hill, 2 W. T., 321. Land purchased with the earnings of parties to a common law marriage, is not community property. Stans v Baitey, 9 W., 115. It is regarded as belonging to the one in whom the title stands. / b. Husband may assign community property for benefit of community creditors. Thygesen v Neufelder, 9 W., 455. | ' Hel. if i} | It ae aa | | aa : i} | | aa aa ii | i | | | le] i ha ti + | ay y Li | ee ne eT ee eee eee ~~» =e emai en ene en saa a tome ee ene pe=ne-=ene>- Sena ese esses. Sh ASA ASRS = tsenercesubac irene irtoignelaieoecinemnivSit-ae z a 84 COMMUNITY PROPERTY — CONDITIONAL SALE Particular facts held sufficient to sustain finding that certain real estate is not the separate property of wife. Curry v Catlin, 9 W., 495. Levy upon community property under execution upon judgment against husband will not be enjoined. /0. CONDEMNATION PROCEEDINGS. See Costs; Eminent Domain. Appropriator may show proposed plan of appropriation on question of dam- age. O. Rc & N.-Co. v Owsley, 3 W. ‘I.; 38. Appeal in, must be prosecuted, within thirty days after entry of judgment. S. & M. M. Ry. Co. v O'Meara, 4 W., 17. Appropriator has right to open and close. B. B. etc. R. R. Co. v Strand. 4 W., 311; S. &M. Ry. Co. vMurphine, 4 W., 448; S. & M. Ry. Co. v Gil- christ, 4 W., 509. Burden of proof rests on appropriator. B. B. etc. R. R. Co. v Strand, 4 Wet3it, View of premises by jury in, discretionary with trial court. 0. Prospective right to tide lands, not an element of damage. /é. Measure of damage is value of land at time of appropriation, benefits from improvement not considered. N. P. R. R. Co. v Coleman, 3 W., 228. Measure of damages, for appropriation of leasehold interest, stated. S. & M. Ry. Co. v Scheike, 3 W., 625. What items of damage may be shown. S. & M. Ry. Co. v Murphine, 4 W., 448. S. & M. Ry. Co. v Gilchrist, 4 W., 509. Witness unacquainted with market value of lands in vicinity, incompetent to testify as to value of landstaken. S. & M. Ry. Co. v Gilchrist, 4 W., 509. Proof of sale of similar property, at or near time of appropriation, compe- tent evidence as to value of land taken. 0. As to what witness testified in another proceeding as to value of similar land, immaterial. 0d. Witness may state opinion as to depreciation in value of land, on account of appropriation. /0. Danger from fire may be considered, as an element of damage, when. 0. Evidence of recent increase in value of lands, immaterial. Jd. Failure to make prepayment for land taken, will not invalidate proceedings. Lewis v Seattle, 5 W., 741. Benefits may be offset, against value of land taken for municipal pur- poses. Jd. Rule of damages for appropriation of right of way, by railroad, stated. Enoch v Spokane Falls etc., Ry. Co., 6 W., 393. CONDITIONAL SALE. See Contracts ; Chattel Mortgages. Valid as against attaching creditors of vendee. Dodd v Bowles, 3 W. T., 383. In absence of fraud, valid against third persons. DeSaint Germain vy Wind 2 We aso: CONDITIONAL SALE— CONSTITUTIONAL LAW 35 Agreement in form a lease, construed to be. 0. i Complaint alleging, sufficient, in action to recover purchase price. Singer Mfg. Co. v Hatley, 3 W. T., 198. Instrument described as lease of chattels, held conditional sale. Quinn v Parke & Lacy Mch’y Co., 5 W., 276. Acceptance of payment under contract of, after default, no waiver of terms of contract. 6. Failure to take immediate possession of chattels after default, no waiver of vendor’s right to possession. Jd. Vendee in possession under contract of, has insurable interest. /0d. Compliance with conditions presumed, in favor of one claiming under ven- dee, in absence of rebutting allegation or proof. Brunswick v Mill Co., Ws, 22. When master liable for unskillful treatment of injured employee by physi- cian employed by former. Richardson v Carbon Hill Coal Co., 6 W., 52. Yard boss not fellow servant with laborer. Zintek v Stimson Mill Co., 6 W., 178; Zintek v Stimson Mill Co., 9 W., 395. Master liable for death of laborer, caused by negligence of yard boss. Jo. Fire boss in mine, not a vice principal. Morgan v Carbon Hill Coal Co., 6 W., 577. Servant assumes risk, in “staking off’’ cars. Watts v Hart, 7 W., 178. Engineer and fireman of locomotive are fellow servants of common laborer engaged in same work. /6. Substitute employed by servant, is a fellow servant of those who occupy that relation to his employer. Anderson v Guineau, 9 W., 304. 4. CONTRIBUTORY NEGLIGENCE. Circumstances of injury at railway crossing, show. N.P.R. R. Co. v Holmes 3 W.T., 202. When failure to stop, look and listen, at railway crossing, constitutes. /. Failure to stop, look and listen, at railway crossing, not, when train could not thus be seen or heard. Ladouceur v N. P. R. R. Co., 4 W., 38. Person injured by collision with railroad train at crossing, not guilty of, if he looks and listens but cannot see or hear train. BR. Rh Oe. 8 Ww wee Facts held not to show, where plaintiff’s property destroyed by fire negli- gently set by defendant. Tacoma etc., Co. v Tacoma, 1 W., 12; Box vy Kelso, 5 W., 360. Servant injured by timber thrown from mill window, held not guilty of. Sayward v Carlson, I W., 29. Ladouceur v N. P. Burden of proving, is on defendant. N. P. R. R. Co. v O’Brien, 1 W., 599 ; Spurrier v Front St. etc., Co., 3 W., 659. Is a matter of defense. N. P. R. R. Co. v Hess, 2 W., 383. Particular facts showing, by child, injured while riding upon locomotive. O. R. & N.Co. v Hetey, 2 W.. 400. Occupation of seat upon dummy car of cable railway, is not. Hawkins v Front St. etc., Co., 3 W., 592. 108 © NEGLIGENCE, 4—NEGOTIABLE INSTRUMENTS Instruction imposing greater degree of care upon party injured than upon one committing the injury, erroneous. Spurrier v Front St. etc., Co., 3 W., 659. Not negligence per se for passenger to stand upon front platform of trail car. Muldoon v Seattle etc., Ry. Co., 7 W., 528. Servant injured by machinery, guilty of, when.- Lewis v Simpson, 3 W., 641. Obedience to conductor’s direction, as to boarding train, not. Irish v N. P. Re Ri Co.4 W489, Plaintiff injured while walking railroad track, held guilty of. Lewis v Puget Sound etc., R. R. Co., 4 W., 188. Riding upon foot-board of street car not, when. Cogswell v West St. etc., Co.,°5 W., 46. Attempting to board front platform of electric car, while running at ordi- nary rate of speed, is. Woo Dan v Seattle etc., Co., 5 W., 466. Employee, injured while riding upon locomotive, held guilty of. Richard- son v Carbon Hill Coal Co., 6 W., 52. Driving across track of electric railway, in front of rapidly approaching car, is. Christenson v Union Trunk Line, 6 W., 75. Action of person injured by gas explosion in mine, held to be. Morgan v Carbon Hill Coal-Co., 6 W., 577. Servant injured while pushing car from power house, held guilty of. Jen- nings v Tacoma etc., Co., 7 W., 275. When shown by plaintiff’s case, defendant entitled to non-suit. Brennan v Front St. Ry. Co.,-3° W.5 3363: Servant injured by sheave wheels of cable railway, held guilty of. 0. Playing upon track of street railway not negligence fer se in a child. Mitchell v Tacoma Ry. & Motor Co., 9 W., 120. Instructions as to, reviewed. Jd. Plaintiff injured while riding upon hand car, by collision with train, held guilty of. Cooney v Great Northern Ry. Co,, 9 W., 292. Plaintiff’s intestate killed by explosion of blast, facts held to show. © Graetz v McKenzie, 9 W., 696. s. DAMAGES. Verdict for $1,000 held not excessive. Spurrier v Front St. etc., Co., 3 W., 659. Verdict for $15,000 held not excessive. Sears v Seattle etc., Co., 6 W., 227. Verdict for $7,000 held excessive. Cogswell v West St. etc., Co., 5 W., 46. NEGOTIABLE INSTRUMENTS. See Attorney at Law ; Corporations ; Evidence; Parties ; Statute of Frauds. On death of one maker, presentment should be made to survivor. Barlow v Coggan, 1 W. T., 258. One of two makers, may show by extrinsic evidence that he signed as . surety. Harmon v Hale, 1 W. T., 423. NEGOTIABLE INSTRUMENTS 109 Forbearance to sue after written request by surety so to do, discharges surety. Jd. Good faith required of holder, or surety discharged. 0. Action cannot be maintained upon note given for void assignment of con- tract ‘Turnbull v Farnsworth, 1 W. T., 445. Note for payment of certain sum, in wheat at fixed price, may be paid in money or wheat at election of maker. Cock v Blalock, 1 W. T., 561. Settlement of pre-existing debt, from maker to endorsee, sufficient consider- ation for contract of endorsement. Wilkie v Chandon, 1 W., 355. When protest waived in California, unnecessary to prove demand in suit in this state. Jd. In such case, interrogatory to jury, as to demand, improper. 0. Assignee of note for purpose of suit, is real party in interest. McDaniel v Pressler, 3 W./ 636. Payee of note assigned as collateral security, cannot maintain action thereon. Davis v Erickson, 3 W., 654. Evidence of payment in particular case, held insufficient. Bank v Beamer, 4 W., 489. Where payor’s name signed by wife, particular facts held to sufficiently es- tablish execution by payor. Bell v Waudby, 4 W., 743. Burden of proof upon payor, to establish want of consideration. McKenzie v Oregon Imp. Co., 5 W., 409. Proof of illegal consideration for, inadmissible under allegation of no con- sideration. Lyts v Keevey, 5 W., 606. Facts showing illegality of consideration, must be pleaded. 0. Assignee of fraudulent transferee, will be considered bona fide holder, when. Hansen v Hoffman, 5 W.. 792. Alteration of time of payment of, after delivery, no bar to recovery on, in absence of fraud. Wolferman v Bell, 6 W., 84. Although alteration apparent, may be offered in evidence in suit thereon. Yakima Bank v Knipe, 6 W., 348. Possession of note, with blank indorsement, przma facie proof of endorsee’s title. 0. Atterney’s fee assessed by court and added to verdict, not error. 0. Provision for attorney’s fee, does not affect negotiability. Bank v Anglin, 6 W., 403. Material alteration by stranger to contract, will not affect validity of. Mur- ray v Peterson, 6 W., 418. Maturity of, is definite time set for payment. Cloud v Rivord, 6 W., 555. Agreement in, for attorney’s fee, amount not stated, means reasonable fee. 0. Possession by maker, after circulation, though before maturity, presumptive evidence of payment. Bank v Harris, 7 W., 139. In such case cannot be pledged by maker, so as to bind surety. 0. Payment by principal discharges surety, though principal and holder do not treat transaction as payment. /0. Taking new note, extending time of payment, without knowledge of sure- ties, discharges them. 0. 110 NEGOTIABLE INSTRUMENTS —NEW TRIAL Endorser of, may be joined in action against maker. Main v Johnson, 7 Wei. Judgment by default against makers, does not affect issue joined with endorser. 0. Transfer of collateral security, payment fro /anto of debt secured. Gilliam v Davis, 7 W., 332. 5 In action by guarantor against maker, defense that guaranty was voluntary, held not proven. Austin v Hamilton, 7 W., 382. Plaintiff in such action, not entitled to attorney’s fee provided by note. J. Particular instrument held absolute obligation to pay, and not conditional guaranty. Hanna v Savage, 7 W., 414. Good in hands of purchaser for value, before maturity, though given with- out consideration. Stewart v Gould, 8 W., 367. An extension of time, granted one of two principals, will discharge sureties, i] if not assented to by them. Warburton v Ralph, 9 W., 537. Signer of note, apparently as joint maker, but alleging he signed as surety, holder may show he dealt with him as principal. J6. Surety upon note requesting additional time on his own account, not estop- ped from claiming a discharge, because of agreement between holder and principal extending time of payment. Jd. NEW TRIAL, See Appeals and Appellate Procedure; Criminal Law and Practice. Will not be granted for newly-discovered evidence, unless it is apparent that the evidence would alter verdict. Leschi v Ter., 1 W. T., 14; McKilver v Manchester, 1 W. T., 256. Upon ground of newly-discovered evidence, should be granted when evidence material, and could not have been discovered with reasonable diligence. State v Stowe, 3 W., 206. Where alibi sought to be proven, rule as to cumulative evidence not applica- ble, in motion for. Jd, * When testimony upon trial exclusively of Indians in Indian language, rule as to cumulative testimony does not apply, when newly-discovered evi- dence that of white man. State v John Port Townsend, 7 W., 462. Defendant entitled to, for newly-discovered evidence, when misled by state- ments of prosecuting attorney. 6. Granting or refusing, discretionary. Smith v U. S., 1 W. T., 262; Kohler v Fairhaven, etc., Ry. Co., 8 W., 452. May be granted as to some defendants, and denied as to others. 2 parte Lowman, 2 W., 427. May be granted when evidence insufficient to justify verdict. Pederson v Seattle etc., Co., 6 W., 202. Trial court has discretionary right to make order overruling motion for, con- ditional upon plaintiff ’s remission of excess in verdict. Winter v Shoudy, OWE 52. NEW TRIAL—OATH 111 Where evidence indefinite and unsatisfactory, trial court has discretionary right to award, unless plaintiff will remit portion of excessive verdict. Rigney v Tacoma lL. & W. Co., 9 W., 245. Action of trial court in granting, not disturbed, if by any theory its action can be sustained. Trumbull v Jackman, 9 W., 524. NOTARY PORE. See Acknowledgment. Authority of, de facta, to take acknowledgement, cannot be questioned col- laterally. Bullene v Garrison, 1 W. T., 588. Notary must affix seal to certifiicate upon lien notice. Gates v Brown, I W., 470. NOTICE. See Attorney and Client; Deeds ; Possession ; Recording Acts. NOVATION. See Corporations ; Partnership. NUISANCE. See Intoxicating Liquors ; Municipal Corporations. City may abate nuisance in street, by bill in equity. Moore v Walla Walla, 2 W. T., 184. . Disorderly house ; complaint must locate, describe as disorderly and annoy- ing to plaintiff. N. P. R. R. Co. v Whalen, 3 W. T., 452. Order of abatement will not apply to person, nota party to proceeding. Cof- fer v Ter., 1 W., 325. Fence in public road, may be abated by any one injuriously affected. John- son v Maxwell, 2 W., 482. Injunction will not lie to prevent destruction of fence upon highway. 0. Street railway constructed without authority, cannot be abated as a, when no general law of city declares such to be a nuisance. Spokane etc., Co. v Spokane, 6 W., 521. Information charging keeping of disorderly house, should allege what. State v Brown, 7 W., Io. Maintenance of powder magazine; evidence of conduct of, admissible. State v Paggett, 3 W., 579. Upon conviction of employee of powder company for maintaining powder house, judgment ordering abatement, erroneous. /0. AD County auditor authorized to administer. Garneau v Port Blakely Mill Co., 8 'W., 467. Deputy county clerk may administer, and authenticate in his own name. State v Devine, 6 W., 587. Or in the name of his principal. State v Rosener, 8 W., 42. 112 OFFICE — PARTIES OFFICE. Retired officer of U. S. army ineligible to office in territory. Hill v Ter., 2 Wi: 1s; 147. Repeal of statute disqualifying person from holding office, after election to, will not make person eligible. 0. Failure to qualify within fifteen days after election to office of county audi- tor, does not work forfeiture of office. State v Ruff, 4 W., 234. Terms of county officers commence upon second Monday in January. Mce- Murray v Hollis, 5 W., 458. OFFICER. See Mandamus ; Quo Warranto. Change in boundaries of road district, leaving residence of overseer with- out, does not disqualify overseer. State v Nelson, 7 W., 114. Fees may be reduced during term of office. State v Grimes, 7 W., 445. What constitutes non-feasance by member of Seattle board of public works. State v Van Brocklin, 8 W., 557. OPIUM SMOKING. See Criminal Law and Practice. PARENT AND CHILD. See Divorce. Parents, though not fitted to have, are entitled to custody of their children, as against corporation having no legal right thereto. Lovell v House of the Good Shepherd, 9 W., 419. Agreement by mother to leave child in care of corporation for definite period, does not estop her from recovering its custody before the expiration of such period. 0. PAROL EVIDENCE. See Chattel Mortgages; Contracts; Deeds ; Evidence ; Mortgages. PARTIES. See Agency; Death by Wrongful Act; Foreclosure of Mortgage ; Husband and Wife; Intoxicating Liquors ; Mechanic’s Lien; ‘fartnership. Objection of non-joinier must be taken at proper stage. Gove v Moses, I Wish csste Attorney general proper party to institue suits, involving disposition of state revenue. Jones v Reed, 3 W., 57. Objection as to parties, must be taken by answer or demurrer, Ralph v Lomer, 3 W., 401. PARTIES — PARTITION £13 Right of action upon joint lease, in case of death of one joint lessor, is in survivor. 0. Assignee of promissory note for purpose of suit, is real party in interest. McDaniel v Pressler, 3 W., 636. Payee in note, assigned as collateral security, cannot maintain action thereon. Davis v Erickson, 3 W., 654. Court can only dismiss for defect of parties, after refusal of plaintiff to com- ply with order to bring in necessary parties. Harrington v Miller, 4 W., 808. Action may be prosecuted to judgment in name of plaintiff, though entire interest transferred. Box v Kelso, 5 W., 360. Joint lessees must both join in action for breach. Dietz v Winehill, 6 W., 109. : Defendant estopped from questioning interest of party plaintiff, joined after answer of defendant averring his interest. Shepard v Hill, 6 W., 605. Endorser of promissory note, may be joined in action against maker. Main v Johnson, 7 W., 321. Private taxpayer cannot maintain action to enjoin removal of county seat. Parmeter v Bourne, 8 W., 45. County officer may maintain suit to enjoin removal of county seat. Rickey v Williams, 8 W., 479. : Wife necessary party plaintiff, in action for wrongful appropriation of com- munity realty. Parke v Seattle, 8 W., 78. Order substituting administrator upon defendant’s death, not erroneous, be- cause made without notice to administrator. Strong v Eldridge, 8 W.., 595: PARTITION. Parol partition, followed by long continued possession in severalty, will not be disturbed. Brazee v Schofield, 2 W. T., 209. Upon partition, mortgage upon one co-tenant’s undivided interest attaches to such tenant’s assigned share. Port v Parfit, 4 W., 369. May be brought by tenant in common, against those in possession under ad- verse claim of title. Hill v Young, 7 W., 33. Sale of land in, may be ordered, though complaint fails to allege necessity therefor. 0. Money paid at plaintiff’s request in defending title, proper setoff in action for partition. Blackwell v McLean, 9 W., 301. Defendant in partition may set off value of necessary improvements, that enhance value of land. Jd. Designation of person to sell land as “‘trustee’’ instead of ‘‘referee” will not invalidate decree. 0. A decree authorizing public or private sale is irregular. /0. es Sse 114 PARTNERSHIP PARTNERSHIP. See Exemptions ; Receiver. Surviving partner may reimburse himself from estate of deceased partner in his custody, for firm debts paid by him. Barlow v Coggan, 1 W. T., 128. Survivor entitled (in absence of statute) to exclusive control of firm prop- erty ; must sue and be sued on all firm demands. /é. Creditor must exhaust firm assets, before resorting to estate of deceased part- ner. 6. Claim against estate of deceased partner need not be presented before suit brought against survivor. /é. One partner cannot sue another for recovery of unsettled partnership ac- count. Stevens v Baker, 1 W. T., 316. Sheriff not liable to judgment creditor of partnership, for sale of partner- ship property under prior attachment thereon for individual debt of one partner. Haas v Gaddis, 1 W., 89. Evidence held insufficient to establish relation. Cowie v Ahrenstedt, 1 W., A416. Assumption of debts by one partner, upon dissolution, not binding upon creditor who does not assent. Wadhams v Page, 1 W., 420. Mere silence of creditor or delay in making demand, not evidence of such assent. 0. Partner alleging creditor agreed to hold other partner, has burden of proof. Lb. Tentative proposals of, to take effect at future date, accepted, does not con- stitute. Pencil vy Home Ins. Co., 3 W., 485. Purchase of lands by partner in his own name, with joint fund, creates re- sulting trust in favor of partnership. Case v Seger, 4 W., 492. Retiring partner in building contract, liable for materials furnished partner- ship before his withdrawal. Stetson & Post Mill Co. vy McDonald, 5 W., 496. Creditor not consenting, not bound by dissolution agreement as to past debts. Wadhams v Page, 6 W., 103. Incoming partner in absence of express agreement, not liable for pre-exist- ing debts of. Wolff v Madden, 6 W., 514. Not established by proof of joint ownership. Miller v Vermurie, 7 W., 386. Evidence held sufficient to establish. Soules vy Mclean, 7 W., 451. One partner may confess judgment, in action upon contract against partner- ship. Bank v Willey, 7 W., 535. Particular agreement held not to create. Z.C. Miles Co. v Gordon, 8 W., 442. Receiver of, should reduce assets to his possession for benefit of. Capecci v Alladio, 8W., 637. Partner cannot, while partnership affairs unsettled, acquire lease of premises where business couducted. 7/0. PARTNERSHIP — PHYSICIAN 115 Judgment wherein defendants are described by their partnership name, not void, when action against them as individuals composing the partner- ship. Olson v Veazie, 9 W., 481. PARTY WALA. Evidence of architect as to value of, admissible, in action to recover cost of one-half. Prefontaine v McMicken, 8 W., 694. Testimony of architect that one-half had not been paid, prziza facie evidence to establish non-payment. Jd. Want of ownership by defendants of land charged with, matter of defense. Lb. PASSENGER. One from whom conductor neglects to collect fare, is. Cogswell v West hs Cte... 0. Rows, Abe PATENT. See Public Lands. PAUPERS. County liable for maintenance of, when county commissioners adjudicate them to be such, and authorize their keeping. King County v Collins, L Wis ls, 470. PAYMENTS. Court may make application of counter demands, if not restrained by plead- ings. Calhoun vy Gilliland, 2 W. T., 174. PERJURY. See Criminal Law and Practice. PERSONAL INJURIES. See Negligence. PHYSICIAN. See Criminal Law and Practice. Territorial statute relating to practice of medicine, constitutional. Fox v Tet 2 Ww. Tn 207 Act to regulate practice of medicine and surgery, (Laws 1889-90, p. 114), constitutional. State v Carey, 4 W., 424, 116 PLATS — PLEADINGS FLATS. See Deeds. Space in, will not be considered street, where intention of owner to reserve same is manifest. Robinson v Coffin, 2 W. T., 251. Purchaser of lots according to recorded plat, bound by boundaries as they appear on plat. Kenyon v Knipe, 2 W., 394. Representations made prior to recording of, will not create a dedication by estoppel, when deed refers to plat as recorded. Kelly v West Seattle ClC30 COS 4 Wj. 1045 By acceptance of deed according to recorded plat, grantee waives benefits of statements made by grantor prior to such recording. /0. Dedicatory grant to public by deed to non-existent municipality, construed, Meeker v Puyallup, 5 W., 759. PLEADINGS. Amendment ; Chattel Mortgages; Contracts; Conversion ; Corporation ; County Roads; Equity ; Fire Insurance; Fraud ; Fraudulent Con- veyances ; Malicious Prosecution ; Practice ; Res Adjudicata ; Specific Performance ; Statute of Limita- tions; Variance. Complaint in form of common count, for goods’sold and delivered, suffi- cient. Renton v St. Louis, 1 W. T., 216. Refusal to permit amendments of, on appeal from justice court, held error. Newberg v Farmer, 1 W. T., 183. Denial in manner and form, admits allegation. Seattle v Buzby, 2 W. T., 25. Count of indebitatus assumpsit, will support proof of implied asswmpsit. Seattle & W. W. R. R. Co. v Ah Kow, 2 W. T., 36. Objection that complaint fails to state cause of action may be raised for first time in supreme court. Macintosh v Renton, 2 W. T., 121. That complaint fails to state sufficient facts, cannot be urged for first time, upon the oral argument in supreme court. Francioli v Brue, 4 W., 124. ‘‘Rach and every of four separate causes of action set forth in the complaint, did not accrue within six years,’’ is a negative pregnant. Gammon v Dyke,-2: W.. T., 266. General denial, followed by qualified admission, requires proof by plaintiff, upon qualifications in admission. Breemer v Burgess, 2 W. T., 290. Supplemental bill may be filed, in creditor’s action, based on attachment, when judgment in attachment suit is rendered. Meacham Arms Co. v Swarts, 2 W. T., 412. Denial of contract alleged, sufficient, without setting out contract admitted to have been made. Puget Sound Iron Co. v Worthington, 2 W. T., 472. Construed most favorably to pleader. Chambers v Hoover, 3 W. T., 107. Pleadings may be amended to conform to proof. Carson v Railsback, 3 W. Tes: Complaint alleging conditional sale, sufficient in action for recovery of pur- chase price. Singer Mfg. Co. v Hatley, 3 W. T., 198. PLEADINGS 117 Power of court to allow amendments to pleadings, discretionary. Silsby v Frost, 3 W. T., 388. Objection to sufficiency of complaint, not waived by failure to demur. Lyen v Bond, 3 W. T., 407, , Denial of precise amount due tenders no issue. Dillon v Spokane County, = W. Ts 408. Where evidence is introduced without objection, showing affirmative defense not pleaded, court may order pleading amended or disregard such fail- ure to plead. Galliher v Cadwell, 3-W. T., 501. ~ Where pleadings present triable issues of fact, it is improper to sustain de- murrer to reply. Davis v Oldakers, 3 W. T., 593. All reasonable intendments will be taken in favor of pleadings to support judgment. King v Ilwaco etc., Co., 1 W., 127. Where answer tenders no issue and states no defense, plaintiff entitled to judgment on the pleadings. Jd. Defendant’s original answer conclusive admission of facts alleged therein, where no showing of mistake is made. O. R. & N. Co. v Dacres, 1 W., 195. Demurrer for improper joinder of actions, and that complaint does not state cause of action, calls for decision on both grounds. Penter v Staight, 1 W., 365. Answer denying ‘‘ generally each and every allegation” is good as a general denial. /d. Denial of recording of lien notice, on information and belief, sufficient. Cowie v Ahrenstedt, 1 W., 416. Omission to reply, not misleading defendant nor affecting his substantial rights, may be cured at any stage. Ankeny v Clark, 1 W., 549. Are liberally construed to sustain judgment. Johnson v Leonhard, 1 W., 564. If any part of complaint is good, it will stand on generaldemurrer. McCart- ney v Glassford, 1 W., 579. Refusal of court to permit amendment to answer setting up another defense, after plaintiff has rested, not an abuse of discretion. Skagit Ry. Co. v Cole, 2 W., 57. Filing of substituted answer, no waiver of exception to order striking out af- firmative defense in original answer. Schulte v Littlejohn, 2 W., 129. Testimony as to affirmative matter in answer, inadmissible where no reply made. Johnson v Maxwell, 2 W., 482. Where answer, though defective, tenders issue, judgment upon pleadings is error. Rourk v Miller, 3 W., 73. ) In action to recover payment upon contract for services and materials, con- strued. 6. Objection that complaint fails to allege corporate character of defendant, waived by defendant’s plea of counterclaim, as though it was in fact a corporation. Frost v Ainslie Lbr. Co., 3 W., 241. General denial does not admit corporate existence of plaintiff, when that is a necessary allegation of complaint. Town of Denver v Spokane, 7 We, 220. ee si i siete AE aS: ~ . —s pa ne AO A A CE ET A TT A LT TT TT EET AS i ee eS TSR | i} | i ii | ah! i ie il i ij Pa Re i j i! ya i eee | | | fail | a | + rt ri { | } | He | j | } ; | eh hal ' ce We | ii RL ia i 4 i 1 t Hi | { f j ae ie i 118 PLEADINGS General denial does not put plaintiff to proof of allegation in complaint, of corporate existence of defendant. Garneau v Port Blakely Mill Co., 8 W., 467. Insufficient denial admits allegation. Frost v Ainslee Lbr. Co., 3 W., 241. Answer raising material issues, not demurrable. Bennett v Tacoma L. & W. CO, a Wis, 327: Answer pleading partial defense as complete defense, demurrable. McDan- iel v Pressler, 3 W., 636. Refusal of court to permit filing of supplemental pleadings, held not an abuse of discretion. Davis v Erickson, 3 W., 654. Particular pleadings, raising issue of ownership of note, reviewed. Tullis v Shannon, 3 W., 716. Plaintiff entitled to judgment, where answer tenders no issue, although reply may have been filed. Port v Parfit, 4 W., 369. In action to recover real estate, allegation that plaintiff ’s ancestor died seiz- ed and possessed of premises, sufficient allegation of plaintiff’s posses- sion. Balch v Smith, 4 W., 497. Complaint by assignee of account need not allege written assignment, even though proof of such necessary at trial. Rice v Yakima etc., Co., 4 WS OAs Filing of amended complaint, waives error of court in ruling upon original complaint. Bell v Waudby, 4 W., 743, Claim for relief cannot be enlarged by reply. 0. Facts showing illegality of consideration for note. must be pleaded. Lytsv Keevey, 5 W., 606. Answer that “does not deny or admit’’ allegations of complaint, insuffi- cient. Lake v Steinbach, 5 W., 659. Denial of conclusion, insufficient. /0. Complaint may be amended to conform to proof. Richardson v Carbon Hill Coal Co., 6 W., 52. Admission in plaintiff’s pleading, that extension of time until a period after commencement of action had been granted defendant, entitles latter to judgment of dismissal. Rockford Shoe Co. v Jacob, 6 W., 421. Insufficiency of reply in equity case, immaterial, when allegations of answer unsubstantiated. Hill v Young, 7 W., 33. When supplemental complaint, properly allowed. Kleeb v Barb, 7 W., 41. If answer as a whole, shows what allegations of complaint admitted and denied, sufficient. Town of Denver v Spokane, 7 W., 226. Counterclaim for unliquidated damages proper, when arising out of same transaction. Niver v Nash. 7 W., 558. Pleadings in action upon contract for county printing, construed. Rathbun v Thurston County, 8 W., 238. Pendency of other suit cannot be raised by demurrer, unless such facts shown by complaint. Lowman v West, 8 W., 355. Demurrer will not lie to single paragraph of complaint, unless purporting to state complete cause of action. /0. Example of negative pregnant. National Bank v Meerwaldt, 8 W., 630. Ta. PLEADINGS — PRACTICE 119 Denial upon tmformation and belief, sufficient when matter denied, without actual knowledge of pleader. 0. Allegation in answer, amounting simply to a denial of allegation of com- plaint, calls for no reply. Raymond v Morrison, 9 W., 156. That complaint fails to state sufficient facts, can only be raised by demurrer or by objection to admission of evidence. Wilkeson C. & C. Co. v Driver, Wis 40d: , Demurrer for misjoinder of causes of action will not lie, if one cause of action, as stated, is insufficient. Times Pub. Co. v Everett, 9 W., 518. Under plea of general denial, defendant may show that contract alleged to be joint, was in fact a several one. Trumbull v Jackman, 9 W., 524. A direct allegation of a fact “upon information and belief,’ proper. War- burton v Ralph, 9 W., 537. PORCH (COURT. See Courts and Judges. POSSESSION. See Statute of Frauds; Adverse Possession. Of real property, open, notorious and exclusive, is notice to world of title of one in possession. Skellinger v Smith, 1 W. T., 370. PRACTICE. See Amendment , Attachment ; Certiorart ; Continuance; Courts and Judges ; Equity; Exceptions; Instructions; Judgment; Juror; Jury and Jury Trial; Pleadings; Trial. In territorial court, same as in Federal court. Stevens v Baker, 1 W. T., 316. Motion to strike a motion will not beallowed. Mannv Young,1 W. T., 454, Amendment to complaint, waives exception to order sustaining demurrer. Wood v Mastick, 2 W. T., 64. Supplemental bill may be filed, in creditor’s action based on attachment, when judgment in attachment suit is rendered. Meacham Arms Co. v Swarts, 2 W. ‘T., 412: Filing of substituted answer, no waiver of exception to order striking out affimative defense in original answer. Schulte v Littlejohn, 2 W., 129, Bill of particulars of public accounts will not be ordered. Ferry v King County, 2 W., 337. Plaintiff in equitable suit may dismiss at any time before final decree, on payment of costs. Somerville v Johnson, 3 W., 140; Waite v Wingate, 4 W.;, 324. Error to render judgment against party before default entered. Dexter v Sparkman, 2 W., 165. Party in court must take notice of all orders in the case. Williams v Miller, t WwW. Ti oe. 9 120 PRACTICE In equitable suit, evidence which trial court has doubt as to admissibility of, should be admitted. Scully v Book, 3 W., 182. In equitable action, objection to materiality or competency of testimony must be made in trial court, but exception to ruling thereon, unneces- sary. 0. Stipulation as to facts, may be set aside on motion, where both parties to, acted under mistake. Levy v Sheehan, 3 W., 420. Submission of special interrogatories to jury, discretionary with trial court. Pencil v Home Ins. Co., 3 W., 485. Error in refusing non-suit in equity case, cured by subsequent admission of proper testimony, establishing prima facie case. Cattell v Fergusson, 3 W., 541; Scoland v Scoland, 4 W., 118. Refusal of court to permit filing of supplemental pleadings, held not an abuse of discretion. Davis v Erickson, 3 W., 654. Error in refusing defendant’s motion to dismiss, cured by defendant’s pro- ceeding with case. Scoland v Scoland, 4 W., 118. But see Morgan v Carbon Hill Coal Co., 6 W., 577. Refusal to render judgment for failure to reply, not ground for reversal where record fails to show rule of court limiting time for reply. Waite v Wingate, 4 W., 324. Plaintiff’s failure to answer defendant’s interrogatories, will not warrant judgment upon affirmative defense, without proof, where no default taken for plaintiff’s failure to reply. 70. Refusal to submit issues of fact in equity case to jury, not error. Dearborn Foundry Co. v Augustine, 5 W., 67. Failure to answer will not be excused, when party shows no excuse, though answer set up meritorious defense. Haynes v Schwartz, 5 W., 433. Refusal of court to grant default, for failure to answer, presumed correct in absence of contrary showing. Mason v McLean, 6 W., 31. Plaintiff need not reply while his demurrer to answer undetermined. Ewing v Van Wagenen, 6 W., 39. Judgment against defendant by default will -be vacated, where defendant misled by statements of plaintiff’s attorney as to time for answering. Bast v Hysom, 6 W., 170. Suit commenced as equitable action, may be tried as action at law, when de- fendant not deprived of fair trial. Surber v Kittenger, 6 W., 240. Proceeding with defense, not a waiver of motion for non-suit. Morgan v Carbon Hill Coal Co., 6 W., 577. When supplemental complaint properly allowed. Kleeb v Barb, 7 W., 41. Filing by plaintiff of motion to dismiss, no waiver of exception to ruling upon demurrer to complaint. Lowman v West, 7 W., 407. Prejudicial error to deny plaintiff’s motion to dismiss, and grant defendant’s motion for dismissal. /é, Plaintiff entitled to judgment upon pleadings, where answer fails to deny the material allegations of complaint. Hanna v Savage, 7 W., 414. When complaint and answer invoke equity powers, error to try as action at law. Distler v Dabney, 7 W., 431. 2 peat nate ae nec te * PRACTICE — PROFITS 121 Motion to modify, proper mode of attacking void judgment of supreme court. Bell v Waudby, 7 W., 203. Judgment of supreme court in equity case, cannot be modified by lower court. State v Superior Court, 7 W., 234. Failure of lower court to comply with directions of appellate court is error. Tacoma Bldg. Assn. v Clark, 8 W., 289. Superior court cannot modify judgment of appellate court. State v Superior Court, 8 W., 591. Trial court may permit filing of reply, upon same day defendant moves for judgment for failure to reply. Stinson v Sachs, 8 W., 391. When refusal to vacate judgment, will be considered an abuse of discretion. Bank v Warren, 8 W., 477. Practice of granting judgment upon pleadings at time case is set for trial, criticised. National Bank v Meerwaldt, 8 W., 630. Trial court may strike answer, filed after demurrer thereto has been sus- tained, and give judgment upon pleadings. Noyes v Loughead, 9 W., 325: Trial court has discretionary right to allow answer upon the merits, after de- cision against defendant upon plea in abatement. State v Superior Court, 9 W., 366. Certiorari will not lie to review such action. 0. Refusal of further cross-examination, upon subject once gone into, not revers- ible error. Koch v Investment Co., 9 W., 105. Entering upon defense, no waiver of error in refusing to grant motion for non-suit, but plaintiff entitled to benefit of any evidence adduced by de- fendant. Matson v Port Townsend etc., R. R. Co., 9 W., 449. PRACTICING MEDICINE WITHOUT LICENSE. See Criminal Law and Practice. PREFERENCE. Voluntary, by insolvent corporation, void. Thompson v Huron Lbr. Co., 4 W., 600. Attempted preference of, no bar to payment of doza fide claim. TJ6. Chattel mortgage given ten days before assignment, does not create a pref- erence, so as to render mortgage and assignment void. Beham vy Ham, 5 W., 128. Mortgage by corporation, financially embarrassed, to a creditor, when not an illegal preference. Leslie v Wilshire. 6 W., 282. PRINCIPAL AND SURETY. See Negotiable Instruments. PROFITS. When term used in complaint without explanation, it will be construed in its mercantile sense. Chilberg v Jones, 3 W., 530. 122 PROHIBITION PROHIBITION. Writ of, will not issue after determination of proceeding. State v Superior Court, 2 W., 9. Objection to jurisdiction must be raised in court sought tobe restrained. Jd. Harris v Brooker, 8 W., 138. Will only be granted when case is clear and applicant is without other rem- edy. Harbor Line Com. v State, 2 W., 530. Will lie to prevent court from enforcing payment of improper charge against county. State v Superior Court, 4 W., 30. In such proceedings, prosecuting attorney is proper relator. 6, Will lie to prevent court proceeding in action without jurisdiction of sub- ject matter or person of defendant. North Yakima v Superior Court, 4 W., 655. Will not lie to prevent expenditure by county commissioners for hire of court room, etc. State v Hunter, 4 W., 712. Will lie to prevent court from proceeding with trial in improper county. State v Superior Court, 5 W., 518. Costs in, where writ is granted upon application of defendant, taxed to plain- tiff. 0. Will lie to prevent enforcement of judgment, while appeal pending. State v Superior Court, 6 W., 112. f Will not lie to restrain court from issuing injunction in excess of jurisdic- tion. State v Jones, 2 W., 662. Will issue to lower court, threatening to interfere with appeal.. State v Superior Court, 3 W., 696. Will not lie to prevent execution of void order. State v Superior court, 3 WingOzs Will not lie to restrain superior court from permitting amendments to plead- ing, on appeal from justice’s court. State v Superior Court, 3 W., 705. Will not. lie simply because of no remedy by appeal. Lb. Will lie at instance of attaching creditor, to prevent receiver of debtor’s property, from taking possession of property attached. State v Superior COnnh. 7 Wisk 77. But not as to property not attached. Jd. Petition must show some threatened injury, for which there is no other adequate remedy. Harris v Brooker, 8 W., 138. Writ of, to prevent-enforcement of void judgment for contempt, made per- petual though return disavows intention toenforce. State v Langhorne, 8 W., 447. Lies to prevent superior court from interfering with judgment of supreme court. State v Superior Court, 8 W., 591. Will not lie to control action of superior court, in the matter of filing of transcript on appeal from justice’s court after expiration of prescribed time. State v Superior Court, 9 W., 307. PROSECUTING ATTORNEY —PUBLIC LANDS 123 PROSECUTING ATTORNEY. See County Attorney. i] Ruling of superior court that certain person is proper prosecuting officer, will not be reviewed. State vy Humason, 5 W., 499. Is a county officer. State v Whitney, 9 W., RTE E Vacancy, to be filled by appointment of county commissioners, J. PUBLIC LANDS. See Administration of Estates ; Community Property; Equity: Univer- sity Grant; School Lands; Tide Lands. Party in actual possession of, whether surveyed or not, will be protected by state courts in his possession, and against waste or irreparable injury, by injunction. Colwell v Smith, 1 W. T., 93. Possession of lands under pre-emption laws, saleable property. Burch v v McDaniel, 2 W. T., 58. Issuance of patent, brings lands so conveyed within jurisdiction of courts. Shockley v Brown, 1 W. T., 464. Complaint to establish title under donation act, must show compliance with all requirements of. Jd. That land claimed is not within one mile of military post or reservation, matter of defense. Jd. Possession of donation claim under deed executed before expiration of required residence thereon, gives no color of title. Bullene vy Garrison, IW. T., 588. Entry by city, of lands under townsite act, vests title in it immediately, in trust. Eakin v McCraith, 2 W. T., 112. ; Contract for sale of Soldier’s Additional Scrip, void. Mackintosh y Renton, 2Wea 18h Money paid for purchase of, cannot be recovered on ground of failure of consideration. Macintosh v Renton, 3 W. T., 431. Courts will not entertain action concerning title to, while in litigation before interior department. Hays v Parker, 2 W. T., 198. Donation act analyzed. Brazee v Schofield, 2 W. T., 209. Divorced wife has no claim to lands acquired by husband under “ donation act.””> Maynard v Hill, 2 W. T., 321. Equity will not review decision of secretary of the interior unless for fraud or mistake. Sparks v Brown, 2 W. T., 426. Title obtained through fraud, can, after issuance of patent, be attacted only by United States, in a direct proceeding. Carson vy Railsback, 3 W. +., $05: Applicant to purchase, under Timber Act, no right to log timber thereon, prior to proof and payment therefor. U.S. v Kelly, 3 W. T., gar. Knowledge of government officers that applicants were cutting timber, does not estop government from recovering value of timber, even after issuance of a patent to applicant. /0. t H i | 4 | tt i 4 | WT if We. i Ha 1} Hy i 124 PUBLIC LANDS Applicant for homestead must show good faith, and dona fide intention to improve and make his home upon the land. Galliher v Cadwell, 3 W. dus 501. Entry is void, ad initio, if made for purpose of speculation or to strip tim- ber from land. | /d. An adjudication by the land department, after due notice, that lands are sub- ject to entry under timber act, is ves adjudicata as to all parties failing to contest. Jo. Entry perfected without notice of adverse claim, entryman cannot be charged as trustee of title for benefit of other claimant, without tender of purchase price and value of improvements. 0. Semble, that such adverse claimant, permitting improvements and sales to be made, would be estopped from asserting rights. /0. Settler under homestead act may mortgage lands, after receipt of certificate of entry, but before issuance of patent. Boggan v Reid, 1 W., 514. Entry upon enclosed lands, held by another under certificate from a railroad company, is trespass. Laurendeau v Fugelli, 1 W., 559. Subsequent filing of declaratory statement by trespasser, of no effect. Lau- rendeau v Fugelli, 5 W., 559. A contract, between one who has entered all the coal lands he is entitled to, and another, whereby the latter is to enter and obtain title to more coal lands and convey to former, is contrary to public policy. Johnson v Leonhard, 1 W., 564. Grant of Sec. 1, Organic act of Oregon, to religious societies, is limited to land actually occupied as mission station, not exceeding 640 acres. Cath- olic Bishop v Gibbon, 1 W., 592. Holder of final receipt may maintain ejectment. Pierce v Frace, 2 W., 81. Commissioner of general land office has power to cancel entry for cause, at any time before patent issues. Jd. Porterfield warrants may be located on land occupied under invalid entry. McSorley v Hill, 2 W., 638. Porterfield warrants are assignable. Jd. Divorce, after settlement under donation act, reduces right of husband to that of single man. Jd. Rights acquired under construction of statute by executive department or government, will not be disturbed, unless construction clearly erro- neous. Jd. Entryman has right to relinquish interest in entry. Keane v Brygger, 3 W., 338. Person not occupant of lot in townsite at date of entry, can only obtain title thereto, from source wherein vested by grant. Newhouse v Simino, 3 W., 648. Sec. 8, laws 1887-88, page 218, relating to trial of title between adverse claimants to lots in townsite, is void. Jo. One who quarries stone upon, becomes owner of such stone. Johnston v Harrington, 5 W., 73. Patent unnecessary to pass title to qualified claimant under donation act, who has conformed with requirements of act. Roeder v Fouts, 5 W., 135. A PUBLIC LANDS—QUIETING TITLE | PY Claimant, may enjoin removal of trees standing thereon. Arment v Hensel, 5 We, Es: Exterior lines of donation claim run without reference to section lines. State v Tide Land Appraisers, 5 W., 425. Homestead acquired from U. S. exempt, as to debts contracted prior to its acquisition. Jean v Dee, 5 W., 580. Purchaser of such lands at execution sale upon judgment for debt of patentee antedating patent, may be ejected by grantee of patentee. Jean v Dee, 5 W., 580. | The declaimer by the state (Const., Art. 17, Sec. 2) is substantially a grant to the patentees from U. S. of tide, swamp and overflow lands. Scurry v Jones, 4 W., 468. Chiefly valuable for stone, with no mineral deposits, not locatable as mining claim. Wheeler v Smith, 5 W., 704. Entryman entitled to patent for lands within limits of incorporated town, when. Alger v Hill, 6 W., 358. Homestead claimant cannot recover for improvements made after notice of cancellation of entry. Smith v Arthur, 7 W., 60. Allegation of ownership of mining claim, sustained by proof of right to oc- cupy under mining laws of U.S. Donahue v Johnson, 9 W., 187. PUBLICATION. See Service of Process. PUBLIC POLICY. See Public Lands. Pretended litigation against. Connoly v Cunningham, 2 W. T., 242. PUGET SOUND. Is an arm of the sea. Smith v U. S., 1 W. T., 262. QUIETING TITLE. Particular complaint in action for, reviewed. Lewis v Lichty, 3 W., 213. Plaintiff must be in possession, or lands must be unoccupied. Spithill v Jones, 3 W., 290. Fact that land was at one time unoccupied, furnishes no presumption as to its continued unoccupancy. 0. Action may be maintained, though plaintiff has but equitable title. Jackson v Tatebo, 3 W., 456. Particular complaint to compel specific performance of contract to convey land, and to quiet title thereto, held insufficient. Sayward v Gardner, 5 W., 247. Action held not maintainable, under particular facts. Littlejohn v Miller, 5 W., 399. Heir cannot maintain, until final distribution. Hazelton v Bogardus, 8 W., 102. " nena a haa a ee a = =" = a — —T — . = z = — ssc i a sctamacitaiinbs = — ee a cn a eo . —— : ee : ~ SeePages SSS ese rare a ae = a — Se nl i ea wat nee 113, Sub. 1, Burns v Conner, I W., 6. 115, Sub. 4, Wagner v Law, 3 W., 500. 119, Baum v.Sweeny, 5 W., 712. 120, Wagner v Law, 3 W., 500. ‘< 138-9, Hedrick v Ilwaco, R. & N. Co., 4 W., 4or. 139, Atrops v Costello, 8 W., 149. 146, Main v Johnson, 7 W., 321. 156, Thompson v Huron Lbr. Co., 4 W., 600. 158, Sub. 2, North Yakima v Superior Court, 4 W., 655. “Gt ee 161-2, Kennedy v Derrickson, 5 W., 289. 162, State v Superior Court, 5 W., 518. ‘< 229-30, Burrichter v Cline, 3 W., 135. : ‘¢. gis Parke vy Mionheil a 4, vay, ‘¢ 319, Hansen v Doherty, 1 W., 461. ‘¢ 337, Meeker v Gilbert, 3 W. T., 360. ‘S$ 364, Doetor Jack v Fer; 2 ws 4), Far, 374, Meeker v Johnson, 3 W., 247. ‘« 499, Bard v Kieeb, 1 W...4970. : ‘< 412, Spokane Falls v Curry, 2 W., 541. 424-34, Tacoma Ry. Co. v Cummings, 5 W., 206. 480, Lemon v Waterman, 2 W. T., 485. ‘< 481, McMillan v Mau, I W., 26. ‘“¢ 484, Philbrick v Andrews, 8 W., 7. ‘¢ 490, Mikkleson v Parker, 3 W. T., 527. AgI-5, State v Superior Court, 5 W;, 639. 491, Freeburger v Gazzam, 5 W., 772. «516, Sub. 1, Scott v Patterson, 1 W., 487. «522-8, Klosterman v Mason County, 8 W., 281. «529, Smith v Wingard, 3 W. T., 291. ‘¢ 544, Lemon v Waterman, 2 W. T., 485. “544, Smith v Wingard, 3 W. T., 291. “ 554, Lowman v West, 8 W. 355. ‘<< 651, 8S. & M. Ry. Co, v State, 7 W., tae. ‘“ 679, State v Van Brocklin, 8 W., 557. “403, Graetz v McKenzie, 3 W., 194. << FOR, Tae Be Bl Dee Meee Ellison, 3 W., 225. ‘ ‘© 703, Dahl v Tibbals. 5 W., 259. «446, State v Superior Court, 2 W., 9. ‘“< 764, Sub. 2, Burdick v Burdick, 7 W., 533. ‘© 764, Sub. 8, Hickman v Hickman, 1 W., 257. ‘« 466, Burdick v Burdick, 7 W., 533. «771, Webster v Webster, 2 W., 417 STATUTES CONSTRUED OR EXPLAINED, 2 771, Fields v Fields, 2 W., 441 792, O. R. & N. Co. v Dacres, 1 W., 195. 824, Thurston County v Scammell, 7 W., 94. 825, Meade v French, 4 W., I1. 827, Baxter v Scoland, 2 W. T.. 86. 827, Thurston County v Scammell, 7 W., 94. 835, Baxter v Scoland, 2 W. T., 86. 844, Robinson v Haller, 8 W., 309. 852, Territory v Klee, 1 W., 183. 955, Newport v Newport, 5 W., 114. 956, Hanford v Davies, 1 W., 476. 981, Strong v Eldridge, 8 W., 595. 984, Wilkins vy Wilkins, 1 W., 87, 984, Strong v Eldridge, 8 W., 595. 096.5776, G88. 2 7b. 1035-37, Scammon v Ward, I W., 179. 1035-37, Reed v Miller, 1 W., 426. 1035-37, /z ve Clement’s Estate, 8 W., 323. 1117-27, Christ Church v Beach, 7 W., 65. 1154, Jz ve Wetmore’s Guardianship, 6 W., 271. 1185, Bradshaw v Ter., 3 W. T., 265. 1189, State v Duncan, 7 W., 336. 1230, State v Doon, 7 W., 308. 1243, State v Ackles, 8 W., 462. 1307, Linbeck v State, 1 W., 336. 1307, State v Myers, 8 W., 177. 1320, State v Ackles, 8 W., 462. 1363, State v Humason, 5 W.., 499. 1369, 7x re Murphy, 7 W., 257. 1393-7, Whidby Land Co. v Nye, 5 W., 301. 1402, Ter. v Hui, 3 W. T., 396. 1402, State v Kemp, 5 W., 212. 1408, Dahl v Tibbals, 5 W., 2509. 1408, Ewing v Van Wagenen, 6 W., 39. 1419, Smith v Arthur, 5 W., 356. 1421, State v Armstrong, 5 W., 123. 1422, American Asphalt Co. v Gribble, 8 W., 255. 1429, State v Friedrich, 4 W., 204. 1467, McCoy v Bell, 1 W., 504. 1472, Bellingham Bay R. R. Co. v Strand, 1 W., 1 1517, Nelson v Campbell, 1 W., 261. 1529, Knoff v Co-operative Colony, 1 W., 57. 1621, State v White, 8 W., 230. 1638, Cline v Mitchell, 1 W., 24. 1646, Smith v Taylor, 2 W., 422. 1649, Sub. 1, Columbia etc., R. R. Co. v Hawthorne, 3 W., T., 353. 1681, Sayward v Gardner, 5 W., 247. 22 JO STATUTES CONSTRUED OR EXPLAINED, 3, 4 153 3. PENAL CODE. &G Sec. ¥, Leonard v Ter.; 2 W: T., 38%. x a, 10. 3, State v Ackles, 8 W., 462. 23, State v John Port Townsend, 7 W.. 462. 40, McClaine v Ter., 1 W., 345. 46, State v Sufferin, 6 W., 107. 47, Linbeck v State, 1 W., 336. 47, State v Anderson, 5 W., 350. 55, lerry v State, 1 W., 277. 55, state v Weydeman, 3 W., 399. 118, State v Padgett, 8 W., 579. 140-3, Foster v Ter., 1 W., 411. 217, Ah Lim v Ter., 1 W., 156. | 4. STATUTES CITED BY VEARS. Laws, 1877, Sec. 346, p. 72, Philbrick v Andrews, 8 W., 7. Code, 1881, Sec. 26, Tacoma Co. v Clark, 8 W., 289. 1881, Sec. 1940, Washington Iron Works Co. v Jensen, 3 W., 584. Laws, 1883, p. 51, O. R. & N. Co. v Smalley, 1 W., 206. 1886, p. 31, Thornton v Ter., 3 W. T., 482. 1887-88, Sec. 8, p. 218, Newhouse v Simino, 3 W., 648. 1888, p. 221, Town v Smith, 7 W., 195. 1889-90, p.-131, /z ve Cambell, 1 W., 287. 1889-90, p. 138, Cole v Whatcom, 3 W., 7. 1889-90, p. 225, Yesler v Seattle, 1 W., 308. 1889-90, p. 227, Com’rs v Davies, 1 W., 290. 1889-90, Sec. 30, p. 394, School District v Com’rs, 3 W., 154. 1893, Secs. 9, 11, Chap. 60, State v Arthur, 7 W., 358. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 1893, Chap. 71, State v Carson, 6 W., 250. 71, Wingate v Ketner, 8 W., 94. 71, State v Abrahams, 6 W., 372. 79, Hunt v Fawcett, 8 W., 396. 80, Pullman v Hungate, 8 W., 5109. 96, Germond v Tacoma, 6 W., 365. "100, Bierer v Blurock, 9 W., 63. 101, State v Burke, 8 W., 412. 119, Sec. 11, State v Moore, 7 W., 173. 124, State v Abrahams, 6 W., 372. 125, State v Grimes, 7 W., IgI. 130, Sec. 2, State v Gordon, 8 W., 488. 130, Sec. 2, Kelly v Ryan, 8 W., 536. 128, State v Burke, 8 W., 412. 154 i mae name em STATE CONSTITUTION CONSTRUED STATE CONSTITUTION CONSTRUED. I, Sec. 16, N. P. R. R. Co. v Coleman, 3 W., 228. T, ce 16, Enoch v Spokane etc., Ry. Co., 6 W., 393. 22, Stowe v State, 2 W., 124. 22, State v White, 8 W., 230. 25, State v Grimes, 7 W., 445. 4, Penter v Staight, 1 W., 365. 4, In ve Rafferty, 1 W., 382. 4, State v Smith, 6 W., 496. 4, State v Superior Court, 9 W., 369. 4, Herrin v Pugh, 9 W., 637. 8, State v Twichell, 9 W., 530. Sew Ai 7, Smalley v Snell, 6 W., 161. 5, Moore v. Perrott; 2 W., 1. 6, Smalley v Snell, 6 W., 161. ES a ee etree rom oD ‘ CASES REVIEWED 155 CASES REVIEWED. Alger v Hill, 2 W., 344, explained, Alger v Hill, 6 W., 358. Balch v Smith, 4 W.. 497, approved, Lawrence v Bellingham Bay Co., 4 W., 664. Balch v Smith, 4 W., 497, qualified, Hill vy Young, 7 W., 33. Balch v Smith, 4 W., 497, followed, Hazelton v Bogardus, 8 W., 102 Balch v Smith, 4 W., 497, distinguished, Tucker v Brown, 9 W., 357. Baxter v Seattle, 3 W. » 352, distinguished, Spokane St. Ry. Co., v Spokane, 6 W., 521. Bell v Waudler, 7 W., 203, distinguished, Wolferman v Bell, 8 W., 140. Benham v Ham, 5 W., 128, distinguished, Mansfield v National Bank, 5 W., 665. Benham v Ham, 5 W., 128, applied, Hyman v Barmon, 6 W., 516. Bower v Bower, 5 W., 225, followed, /z ve Barker’s Estate, 5 W., 390. Boyer v Fowler, 1 W. T., 101, commented upon, Meigs v Keach, 1 W. T., 306. Brotton v Langert, 1 W., 73, distinguished, Sadler v Niesz, 5 W., 182. Brown v Winehill, 4 W., 98, followed, Tingley v Bellingham Bay Co,, 5 W., 644. Burch v Taylor, 1 W., 245, distinguished, Elderkin v Peterson, $8 W., 674. Byrd v Forbes, 3 W. T., 318, modified, Marsh v Wade, 1 W., 538. Byrd v Forbes, 3 W. T., 318, distinguished, Ephriam v Kelleher, 4 W., 243. Carstens v McReavy, 1 W., 359, followed, Scully v Book, 3 W., 182. Clark v Sherman, 5 W., 681, distinguished, Dibble v De Mattos, 8 W., 542. Colcord v Leddy, 4 W., 791, followed, Grippen v Benham, 5 W., 589. Cowie v Ahrenstedt, 1 W. , 416, distinguished, Proulx v Stetson & Post Mill Co., 6. W., 475 Dacres v.O. R. & N. Co., 1 W., 195, overruled, O. R. & N: Co. v Smalley, 1 W., 206. Dearborn Foundry Co. v Augustine, 5 W., 67, followed, Fire Engine Co. v Mt. Vernon, 9 W., 142; Rathbone v Frost, 9 W., 162. Denny Hotel Co. v Schram, 6 W., 134, followed, Denny Hotel Co. v Gilmore, 6 W., 152. Denny Hotel Co. v Schram, 6 W., 134, distinguished, Cole v Satsop R. R. Co., 9 W., 487. De Saint Germain v Wind, 3 W. T., 189, followed, Quinn v Parke en. (o., a W., 276. | Dexter Horton & Co. v Sparkman, 2 W., 165, distinguished, Whittier v Stet- son & Post Mill Co., 6 W., 190; Proulx v Stetson & Post Mill Co., 6 W., 478. Dexter Horton & Co. v Wiley, 2 W., 171, distinguished, Whittier v Stetson & Post Mill Co., 6 W., 190. Dittenhoefer v Coeur d’Alene Clothing Co., 4 W., 519, affirmed, Neufelder v German Ins. Co., 6 W., 336. Distler v Dabney, 3 W., 200, distinguished, Dibble v De Mattos, 8 W., 542. Dodd v Bowles, 3 W. . , 383, followed, Quinn v Parke, etc., Co., 5 W., 276, 156 CASES REVIEWED Drown v Ingels, 3 W., 424, compared, Cunningham v Duncan, 4 W., 506. Dunn v Peterson, 4 W., 170, followed, Hazelton v Bogardus, 8 W., Io2. Ebey v Engle, 1 W. T., 72, overruled, Bagley v Carpenter, 2 W. T., 19. Ephriam v Keleher, 4 W., 243, distinguished, Thompson vy Huron Lbr. Co., 4 W., 600. Ephriam v Kelleher, 4 W., 243, followed, Benham v Hay 5, W..,: £28. Eisenbeis v Wakeman, 3 W., 534, approved, Whittier v Puget Sound Loan Co., 4 W., 666. Hisenbeis v Wakeman, distinguished, Littell v Miller, 8 W., 566. Gates v Brown, 1 W., 470, followed, Fairhaven Land Co. v Jordan, 5 W., 729. Harland v Ter., 3 W. T., 131, overruled, Marston vy Humes, 3 Ws, 267. Hanson v Doherty, 1 W., 461, modified, Winit v Banniza, 2 W.., 147. Hall & Paulson Furniture Co. v Wilbur, 4 W., 844, followed, Collins v Hall, 5 W., 366; Clancy v Reis, 5 W., 371. Hamilton-Brown Shoe Co. v Adams, 5 W., 333, compared, Mansfield v First National Bank, 5 W., 665. Hamilton-Brown Shoe Co. vy Adams, 5 W., 333, distinguished, Sanders v Main, 9 W., 46. Healy v Steward, 5 W., 319, distinguished, Bash v Culver Gold Mining Co., NW, 122, Hildebrandt v Savage, 4 W., 524, distinguished, Littell v Miller, 8 W., 566. Hunt v Stearns, 5 W., 167, followed, Grippen v Benham, 5 W., 589. Huttig Mfg. Co. v Denny Hotel Co., 6 W., 122, distinguished, Fire Engine Co. v Mt. Vernon, 9 W., 142. Ihrig v Scott, 5 W., 584, approved, Wadsworth v School District, 7 W., 485. Johnston v Harrington, 5 W., 73, distinguished, Wheeler v Smith, 5 W., 704. Jones v Jenkins, 3 W., 17, distinguished, Tingley v Fairhaven Land Con'6 Wi. 34: Jewett v Darlington, 1 W. T., 601, overruled, Fairhaven Land Co. v Jordan, 5 W., 729; Garneau v Port Blakely Mill Co., 8 W., 467. Keane v Brygger, 3 W., 338, followed, Brygger v Schweitzer, 5 W., 564. Kellogg v Littell, etc., Co., 1 W., 407, followed, Front Street Ry. Co. v John- SO 2 «55S. Kellogg v Littell, etc., Co., 1 W., 407, distinguished, Hildebrandt v Savage, A W.; 524. ° Kilroy v Mitchell, 2 W., 407, followed, Wintermute v Carner, 8 W., 585. Lake v Steinbach, 5 W., 659, followed, Weber v Yancy, 7 W., 84. Langert v Ross, 1 W., 250, followed, National Bank vy Hughson, 5 W., roo. Linkeck v State, 1 W., 336, followed, State v Myers, 8 W., 177. 7 : i = CASES REVIEWED £7 Mansfield v National Bank, 5 W., 665, distinguished, Sanders v Main, 9 W., 46. Mansfield v National Bank, 5 W., 665, Thygesen v Neufelder, 9 W., 455. McLeod v Ellis, 2 W., 117, followed, State v Superior Court, 5 W., 639. Meacham Arms Co. v Swarts, 2 W. T., 412, followed, Benham v Ham, 5 Wey 128: Meeker v Johnson, 3 W., 247, followed, Quinn v Parke etc., Co., 5 W., 276. Metcalfe v Seattle, 1 W., 297, distinguished, Seymour v Tacoma, 6 W., 138. Miller v Washington Bank, 5 W., 200, distinguished, National Bank v Andrews, 7 W., 261. Morgan v Bell, 3 W., 554, distinguished, Cunningham v Duncan, 4 W., 506 ; Konnerup v Frandsen, 8 W., 551. Morse v O’Connell, 7 W., 117, distinguished, West Coast Imp. Co. v Winsor, 8 W., 490. N. P. & P. S.R. R. Co. v Coleman, 3 W., 228, overruled, Enoch v Spokane Falls etc., Ry. Co., 6 W., 393. N. P. R. R. Co. v O’Brien, 1 W., 599, followed, Cogswell v West St. Ry. Co., 5 W., 46. North Yakima v Superior Court, 4 W., 655, followed, State v Superior Court, 5 W., 518. : Nyman v Berry, 3 W., 734, distinguished, Thompson v Huron Lbr. Co., 4 W., 600. O. R. & N. Co. v Dacres, 1 W., 195, overruled, O. R. & N. Co. v Smalley, 1 W., 206. Parmeter v Bourne, 8 W., 45, distinguished, Rickey v Williams, 8 W., 479. /n re Permstick, 3 W., 672, followed, Town of Ilwaco v Miller, 8 W., 449. Pierce v Kennedy, 2 W., 324, distinguished, West Coast Imp. Co. v Winsor, 8 W., 490. Rosencrantz v Ter., 2 W. T., 267, overruled, Harland v Ter., 3 W. T., 131. Sabin v Adams, 5 W., 768, distinguished, Sanders v Main, 9 W., 46. Sadler v Neisz, 5 W., 182, followed, Nuhn v Miller, 5 W., 405. Sadler v Neisz, 5 W., 182, explained, Adams v Black, 6 W., 528. Seattle v Doran, 5 W., 482, distinguished, Seattle v Smith, 8 W., 387. Seattle Crockery Co. v Haley, 6 W., 302, followed, Church v Campbell, 7 W., 547. Seymour v Tacoma, 6 W., 427, distinguished, McBryde v Montesano, 7 W., 69. Seymour v Tacomia, 6 W., 138, followed, Graves v Seattle, 8 W., 248. Silsby v Aldridge, 1 W., 117, followed, Voorhies v Hennessy, 7 W., 243. Skagit Ry. & Lbr. Co. v Cole, 1 W., 330, distinguished, Tingley v Belling- ham Bay Co., 5 W., 644; Moorman v S. & M. Ry. Co., 8 W., 98. Spokane Falls v Curry, 2 W., 541, distinguished, Munch v McLaren, 9 W., 676. Spokane T. & D. Co. v Hoeffer, 2 W., 45, distinguished, Willson v N. P. R. R. Co., 5 W., 621, Sloan v Langert, 6 W., 26; Seattle Crockery Co. v Haley, 6 W., 302. 158 CASES REVIEWED State ex rel v Carson, 6 W., 250, distinguished, Spokane County v Allen, 9 W., 2239. State ex vel v Cummings, 5 W., 518, followed, State v Superior Court, 7 W., 306. , State ex rel v Lichtenberg, 4 W., 407, followed, Coleman v Columbia etc., R. R. Co., 8 W., 227. State ex rel v Milligan, 3 W., 144, distinguished, Times Pub. Co. v Everett, 9 W., 518. State ex rel v Superior Court, 3 W., 696, followed, iz re Frasch, 5 W., 344. State ex rel v Superior Court, 2 W., 9, followed, Harris v Brooker, 8 W., 138. State ex rel v Superior Court, 7 W., 77, followed. State ex rel v Superior Court, 8 W., 210. State v Anderson, 5 W., 350, followed, State v Munson, 7 AW... 230, State v John Port Townsend, 7 W., 462, followed, State v Regan, 8 W., 506. Tacoma Lbr. Co. v Wolff, 7 W., 478, followed, Littell v Miller, 8 W., 566. Ter. v Klee, 1 W., 183, distinguished, Hanford v Davies, 1 W., 476. Thompson v Caton, 3 W. T., 31, followed, Benham v Ham, 5 W., 128. Thompson v Huron Lbr. Co., 4 W., 600, distinguished, Vincent v Snoqual- mie Mill Co., 7 W., 566; Klosterman v Mason Courty ete; RR. Co.;8 W., 281. : Thompson v Huron Lbr. Co., 4 W., 600, distinguished, Brooks v Skookum Mfg. Co., 9 W., 80. Town of Denver v Spokane, 7 W., 226, distinguished, Pullman v Hungate, 8 W., 519. Town of Elma v Carney, 4 W., 418, compared, Seattle v Smith, 8 W., 387. Town of Elma v Carney, 4 W., 418, explained, Town of Elma v Carney, 9 W., 466. Vail v Tillman, 2 W., 476, followed, National Bank v Hughson, 5 W., 100. Vendome Turkish Bath Co. v Schuttler, 2 W., 457, distinguished, Hilde- brandt v Savage, 4 W., 524. Walla Walla County v Ping, 1 W. T., 343, criticised, King County v Ferry, 5 W., 536. Warren v His Creditors, 3 W., 48, followed, Benham v Ham, 5 W., 128. Warren v Quade, 3 W., 750, followed, Heald v Hodder, 5 W., 677; Fair- haven Land Co. v Jordan, 5 W., 729. Washington, etc., Co. v Jensen, 3 W., 584, approved, Hildebrandt v Savage, 4 W., 524. Week v Fremont Mill Co., 3 W., 629, followed, Schulz v Johnson, 3 W., 629. Wilkes v Hunt, 4 W., 100, criticised, Wilkes v Davis, 8 W., 112. Wilson v Seattle, 2 W., 584, modified, Seattle v Doran, 7 W., 403. Wilson v Seattle, 2 W., 543, distinguished, Spokane v Browne, 8 W., 317. Wineburgh v Schaer, 2 W. T., 328, distinguished, Ephriam v Kelleher, 4 W., 243. Wolferman v Bell, 6 W., 84, affirmed, Yakima Bank v Knipe, 6 W., 348. Yakima Bank v Knipe, 6 W:, 348, approved, Fairhaven v Cowgill, 8 W., 686. TABLE OF TLes Abatement Absconding Dabtiot Accession ; Accord and Suitambtion Account Accounting Acknowledgment Actions . , Adjoining Outliers’ Administration of Estates Aduiralty . Admission Adultery Advancement Adverse Possession Agency Alteration . Alimony Amendment . Animals Appeals and Appelinte Prewnduke 1. Right of Appeal 2. Notice of Appeal 2. see. 4. Statement of waste 5. Billof Exceptions . 6. Transcript 7. Kecord *. 8. Briefs . 9. Rule of Hongan 1o. Generally ; 11. In Equitable Abitinwn:. 12. In Criminal Cases . 13. From Justice’s Court 14. From County Commissioners Appearance . band rt Se Se SS CN GN GR Oa: CO rk a eS A RS? it ee Zt pe Arbitration toe Arrest in Civil Actions . Arson . Assault and Batteey | Assignability Assignment . PG ea Assignment for Benefit of Cred- itors Attachment . Attorney and Client Attorney at Law . Attorney’s Fees . Attorney Bail Bailment Banks ae Bill of Particulars . Board of Education . Board of Harbor siouers . Board of Health Bonds Boundaries General . Line ra Bribery Burglary Cancellation of Youd. Cases Reviewed Census Certiorari . Challenges Chattel Mavtadnis Change of Venue . Citizenship Claim of Third reread ‘6 ube: Levied Upon Cloud on Title . PAGE recrnaonad etans attn orga she it 160 TABLE OF TITLES PAGE Community Debt res 32 | Ejectment Community Property 32 | Elections Condemnation Proceedings . 34 | Embezzlement Conditional Sale . 34 | Eminent Domain Conspiracy sae 35 | Equity ee Constitutional Law . 35 | Equitable Assignment . Contempt . 36 | Escheat . Continuance . 36 Escrow . Contracts 36 | Estoppel Conversion Evidence Conveyances | Exceptions Corporations . | Execution ae tne. cs Costs Executors and Administrators . County Exemptions . County Auditor Extradition County Attorney . Factors . County Commissioners . County Printing . County Roads . County Seat . County Treasurer County Warrants | Findings Courts and Judges . Fine ae 1. Supreme Court 46 | Fire Insurance 2. Superior Court 46 Fireman 3. Justice’s Court 46 | Fixtures ES a ee ee ee 4. Police Court 47 Forcible Entry and Unlawful De- Covenants . 47 tainer . ea, Creditor’s Bill ._. gant 47 Foreclosure of Mortgage . Criminal Law and Practice . 48 | Foreign Judgments I. General Principals . 48 Forgery . 2. Offenses Pos ee Sy rare hises 3. Indictment, Information and Fraud Te es Complaint 54 Fraudulent Conveyances . Damages 57. Gaming . Dedication By a ie 58 Garnishment Death by Wrongful Act. 58 Guardian Ad Litem Deeds 58 | Guardian and Ward Depositions . 60 Habeas Corpus Descent . 60 Harbor Lines Demand 60 Highways. Disorderly House . 60 | Homestead Divorce . 60 Homicide . et Dogs . 61 Husband and Wire Donation Act . 61 | Indictment Dower 62 | Indians . Drainage 62 | Information . Easement . 62 Injunction BEEKARTEEREESSCSES | False Imprisonment | False Representation . Fees Fences | Fellow Servant ifs ahaa aah eae Sa eae sr ee SR ag Nee Ge a NNNDNADADAMUNN J ~sI ™~ ON ny ~sJ Insanity Insolvency Pocrnedtiens Instructions . Insurance . Interest . Intervention Intoxicating Liquors . Irrigation Joint Ijability Judge . Judgment . Judicial Sales Jurat Jurisdiction Jurors . Jury and oe T bat Justice of the Peace Landlord and Tenant Larceny . Law of the ocd. Lease . Legislative power Levy Libel License Liens limitation of ona: Logger’s Lien . Logs and Logging . Malicious Prosecution . Mandamus Marriage Master and etait Measure of Damages . Mechanic’s Lien . 1. Right to 2. Notice or Claim . 3. Foreclosure . 4. Generally . Mental Incapacity . Militia Mining Bureau . Misnomer . Mistake . Money Had and Radio - Mortgages . i Gernpeutiiue . Generally . TABLE OF TITLES PAGE 77 77 78 79 | 79 | 79 79 4 86 iS) wr I Ans . Charter . Incorporation . ) Generally . . Public Improv sheet: . Special Assessments . 10. 1%: 12; rs. Id. Officers LAabilities Actions By and Kabat Franchises Power of Taxation . Murder . oF. Pes pene Negligence UR ye 4. 5- . Negotiable Tuctrteredls Generally . Evidence . . Master and Servant . Contributory Negligence . Damages . New Trial . Notary Public . Notice Novation Nuisance Oath Office . Officer Opium Siiniieie Parent and Child . Parol Evidence Parties Partition Partnership Party Wall Passenger . Patent Paupers . Payments . Perjury . _ Personal eceaiea | Physician | Plats | Pleadings | Police Court . _ Possession . ) Particular Cities . . Ordinances . Indebtedness . . Bonds . Contracts . 162 TABLE OF TITLES PAGE PAGE Practice . ay seek pene : 19 ee es 135 Practicing Medicine Without Li- State Land Commission . . . . 135 cense ea ORI a oe) ee Preference . a aes . 121 | Statutes Construed or Explained . 149 Principal and Sedes ; OE od 1. General Statutes 149 Profits Poe 2. Code of Procedure . 151 Prohibition aes 722 3. Penal Code. : 22 SS Prosecuting Attorney . te? 4. Statutes Cited by Years. . 153 Public Lands . 123 | Statute of Frauds + E36 Publication *125 | Statute of Limitations . 2937 Public Policy . 125 | State Warrant’. . 138 Puget Sound . . 125 Stenographer’s Minutes : YRS Quieting Title . . 125 | Street Railways 138 Quo Warranto . . 126 | Streets 138 Railroads pw E anTION Ve ae Rape . 127 | Summons 139 Ratification Bin oy ee Real Estate Agents . 127 | Pupertor Judges; < . . ESS Receiver ; 127 | Supplementary Bice dinws 4A 5ER9 Recording Acts pm | Menem 80 ees ee age Reteree: aT eS ok oar ee ale Regents of Aerial piece “Veen ty NRCS Se ee Y 139 Registration of Deeds . SAW Tt Reiter oh ea 141 Registration of Voters . S139.) Tage ands a EAE Release pap |< Nite Ob Bets oo: ak, 2 tA2 Removal of Canes j .129 | Transaction With Dewees: ex Replevin 129 San iar) See ee ae Rescission . . 130 | TORE Pe ee ee Res Adjudicata . BRR PENS a i iy ev eee Residence . % TR 2 MMS 8 GG a a Va eae ee Resisting Officer . neyicg! ume Jutinence: 780 SS the Return : Saba Paneteny sed tad Riparian Rights OES) js cimvetony Greet rg Roads . ye i tobe nla wi setae 222-2 Ss ad Sales ot Chattels . ig) ) Tipe ana Ceepation: 20.35 22 ad School Fund AS? (ope a eee School Lands . 032 <| .Waisanee: 4. 7. eG ae ae ae Schools and Schaar Tistrices 133 | Vendor and V hice Cte eh aa Seduction . Ree NI a a Ree ee Service of poe ; bee Verdier vg. 2 Behe. Me mae Sheriff 133 View of Pacinos Seyi nines Ag Sidewalks . RG ONE Cs SR eee Sodomy . ; ion eer: Cures us ae Special Eacidlasion apa + May OF Necessity. 20.05 oe ay Special Verdict 134 | Weights and Measures. . . . . 147 Specific Performance . Egan) Walis: Wie atc ete pee State Capitol Commission . NR BEEF ae a SO State Constitution Construed . ee eee east, anata 2 : r —~ eee = :