To

upon in its changed form. By permission of the court, an amended complaint was filed, which described the note as originally executed, and demand was made for judgment in the amount of the note, and for an attorney's fee of 5 per cent. of that amount. this complaint the defendants answered, alleging the change in the note, and denying that it was their contract. The language of the answer concerning the change in the note is as follows: "Said promissory note was, without the authority, knowledge, or consent of the defendants, or either of them, altered in this," (here follows description of the alteration.) To this affirmative defense, plaintiff replied as follows: "Plaintiff admits that the promissory note on which said action was brought was changed as in said answer stated, but avers that said promissory note was not changed by him or by his authority, but that said change and alteration was made without his authority, knowledge, or consent;" also alleged that, when the first complaint was filed, he had no knowledge or information that the note had been altered or changed, and averred that he had no knowledge or information as to when or by whom said note was altered and changed. The defendants moved for judgment on the pleadings, which motion the court overruled. The case went to trial, and a verdict was rendered, and judgment entered for the plaintiff in accordance with his prayer.

There is no question in this case of any presumption as to whether the alteration was made before or after delivery, for it is admitted that it was made after delivery; nor do we understand that the rule is contended for by the appellants that a material alteration made in a written instrument, whether by a party or a stranger, avoids the instrument. At all events, the whole trend of modern authority is opposed to this rule; for, while there is no doubt that a willful and material alteration of a written instrument made by one of the parties to it, and without the authority of the other party, de feats any right he would otherwise have under it, the rule that an alteration, although material, cannot invalidate a written instrument when made by a stranger to the contract, is just as thoroughly established. See 1 Amer. & Eng. Enc. Law, p. 505, and cases cited. And this, in our opinion, is a just rule; for while it is true that a party who has the custody of a written instrument should be held to a reasonably strict care of it, and care should be taken to prevent him from declaring on an altered instrument, and then simply curing it if the fraud be discovered, yet more abuses, in our judgment, would occur if, by the spoliation of an instrument by a stranger, the party entitled to it should thereby be deprived of his relief. So that, we take it, the material and practical question in this case is, does the reply of the plaintiff allege the spoliation? We think it dces. At all events, his reply is as definite

as the affirmative allegations of the answer, and about as definite as it could have been made without knowledge of the manner in which the alteration was made. The answer does not specifically charge the plaintiff with making the alteration, and there is no more presumption from the allegation that he did it than that a stranger did. Presumptions of fact sometimes follow undisputed allegations, but the allegation itself must be definite. The reply does deny specifically that the change was made by plaintiff, or by his authority, and states affirmatively that it was made without his knowledge or consent, and fully excuses a more definite allegation by alleging that he has no knowledge or information as to when or by whom said note was altered and changed. If this allegation were true, it is all that he could plead, and the least liberality of construction would hold it equivalent to pleading a spoliation of the instrument. We find no error in the record, and the judgment is therefore affirmed.

ANDERS, HOYT, and SCOTT, JJ., concur.

(7 Wash. 642)

WEBSTER v. SEATTLE TRUST CO. et al. (Supreme Court of Washington. June 3, 1893.) WILLS-PROBATE-RES JUDICATA.

was

A will giving testator's property to his widow for life, then to revert to his heirs at law, was admitted to probate, the wid ow serving as executrix without bond, as required by the will, showing that the will was not lost sight of. Afterwards, on her petition as executrix, an order of distribution made, under the statute of descents, to her and two children, born after the will was made, the court finding that, by failure to mention such children, testator died "intestate." under the statute. Afterwards sale and partition of the land was made, on the widow's petition, in her capacity as executrix. Held, that as testator did not die intestate as to the widow, and as the order of distribution has not been reversed, the courts are bound by the order of distribution, and it was error for a court in a collateral proceeding to hold that the widow took anything but the estate allowed her by the will.

Appeal from superior court, King county; James W. Langley, Judge.

Action by Mary E. Webster against the Seattle Trust Company and others for spe cific performance of a contract to purchase land. From a judgment for plaintiff, defendants appeal. Reversed.

Greene & Turner, for appellant Seattle Trust Co. A. W. Hastie, for James R. Hayden, guardian ad litem of other appellants. Preston, Carr & Preston and W. R. Bell, for respondent.

STILES, J. Henry A. Webster died in 1883, leaving a will made in 1876. At the date of the will he was a married man, and had one child, a minor, who died before his father. Two other children were born after

'Rehearing pending.

the date of the will, and survived their father, and they and the widow were the heirs at law of the decedent's estate. The will contained but one disposing clause, aside from a direction for the payment of debts, which was as follows: "I give, bequeath, and devise all my estate, real and personal, of which I may die seised and possessed, to my wife, Mary Elizabeth Webster, now living at Port Townsend, Washington territory, during her lifetime. What remains of the same at her death shall revert to my heirs at law." Probate of the will was had in 1883, in Jefferson county; and thereafter, in the year 1884, upon petition of the widow and executrix, the probate court ordered a distribution of the estate, in accordance with the statutes of descent, viz. one-half of the community property and one-third of the separate property to the widow, and one-fourth of the community and one-third of the separate property to each of the children. In arriv ing at this result, the court found that "whereas, the failure to mention the minor heirs in said will, they having been born after said will, [Henry A. Webster] did, in accordance with section 1325 of Code of 1881, die intestate."

This case arises upon an action brought by the widow in 1892 to compel specific performance of a contract made by her with the appellant the Seattle Trust Company for the sale of lot 4, section 27, township 25 N., range 4 E., in King county, wherein she covenanted for the conveyance of an unincumbered fee-simple title. This tract was included in the inventory of property administered upon in Jefferson county, and was there found to be the separate property of the deceased. In the record of the case there is an exemplified copy of the record in the probate court of Jefferson county, including certain orders which we have not yet mentioned, but which are not to be lost sight of. Subsequent to the order of distribution, and in September, 1884, an order of the probate court appears, which recites that it has been satisfactorily shown to the court that the real estate of the decedent, which included numerous tracts of land in each of nine counties in the territory, is incapable of fair and actual partition or division among the heirs at law. Therefore, upon the petition of the executrix, and upon the consent of the guardian of the children, an order of sale of the whole of this property at public auction is made. Pursuant to this order, appears a return of sale of the tract in question to James R. Hayden, a confirmation of the sale, and an executrix's deed to the purchaser, December 11, 1884. On December 16, 1884, Hayden and wife quitclaimed the tract to Mrs. Webster, the respondent.

The course of proceeding taken in this case, both in the superior court and here, by both parties, seems to be to ignore all of the recorded acts of the probate court of Jefferson county subsequent to the probate of the will.

The complaint alleges that notwithstanding the children of Webster were in effect named in the will, and were provided for therein, and that the will was a valid and operative will in all respects upon the whole estate of the decedent, "the said probate court, without formal adjudication, however, did treat the said will as absolutely void, and did proceed to administer the said estate in all respects as if the said decedent had died intestate." The proof upon this point is silent, excepting through the production of the record, and the finding of the superior court is merely that, after the proof of the will, the probate court did "treat the will as void," and proceed to administer the estate as though Webster had died intestate. Nothing at all is made of the sale by the executrix to Hayden, or of his conveyance to Mrs. Webster. In short, there are two questions presented here, both of which are based upon the will itself, from which alone it is assumed the title is to flow: (1) Did Webster die intestate as to his children? (2) Has Mrs. Webster any power of sale under the will, and, if she has, does it cover only her life estate, or can she alienate the fee?

It is somewhat embarrassing to feel compelled to go outside of the case presented by counsel, but we are unable to understand, as at present advised, why the order of distribution of the probate court, made nearly 10 years ago, and not appealed from, should not now stand, and why all courts are not estopped to construe the will upon the first point above stated. That court had full jurisdiction to determine the matter of distribution, both upon questions of law and fact, and it is not shown that anything was wanting to its exercise of its power at the time of its action. Both the subject-matter and the persons were before it, and it rendered its judgment, not informally, as the complaint here alleges, but with as much formality as is displayed in any part of the voluminous proceedings in this record. The exact phrase used, viz. that Webster died "intestate," was not quite correct, inasmuch as the statute limited the intestacy, if any, to the children, and the will for all other purposes remained. But Mrs. Webster was duly appointed execu trix, not administratrix, and, as required by the will, she served without bond, showing that the will was not lost sight of. From this order of distribution an appeal lay to the district and the supreme court of the territory and the supreme court of the United States; but the record does not show this adjudication to have ever been reversed. On the contrary, the very next proceeding is an application upon the part of Mrs. Webster, in her capacity of executrix, for a sale of the real estate, because it could not be fairly partitioned, showing that she was accepting and availing herself of the judgment of the probate court. Unless, therefore, there be some other undisclosed feature of the case, we think the court below was in error in ruling

that Mrs. Webster took anything but the estate allowed her by the will in one-third of the realty. Concerning the sale made by the probate court, we shall express no opinion. It was apparently not presented to the court below, as it has not been here. If it was a valid sale, then, of course, the judgment of the superior court was right, although the reasons were not, and the appellant must take the title. If, on the other hand, the sale was tainted by illegality, the right to have performance of the contract may fail. In the present condition of the case, we do not feel justified in making any disposition of it upon the basis of the executrix's deed. Reversed, and complaint dismissed.

By this termination of the case we do not intend to preclude any right the respondent may have to tender a deed based upon her deed from Hayden.

DUNBAR, C. J., and SCOTT and ANDERS, JJ., concur.

cause, the court instructed the jury to return a verdict for the plaintiff for the amount prayed for.

The view we take of the insufficiency of the notice given to the bank renders unnecessary an examination of the question of want of consideration; for, conceding that the note was fraudulently obtained, we think that the testimony very clearly shows that Ouimette, the president of the bank, did not have such notice as would bind the bank. It is doubtless true that, under certain circumstances, notice to the president of a bank is notice to the bank; but we think that no case can be found where notice given under the circumstances testified to in this case is held binding on the bank. The testimony of appellant concerning this notice was as follows: "We were at the office of the North Pacific Insurance Co., of which company we were both directors and stockholders, and at that time the matter came up, and I told Mr. Ouimette that this note was procured from me by fraud and mis

(6 Wash. 491)

WASHINGTON NAT. BANK v. PIERCE. (Supreme Court of Washington. June 7, 1893.) NOTES-BONA FIDE PURCHASERS-NOTICE TO PRESIDENT OF BANK.

1. The fact that the maker of a note told the president of a bank, at the office of a company of which they were both directors, that a certain note had been obtained from him by fraud, will not be held notice to the bank, where it afterwards discounts the note.

2. The fact that when a bank discounted a note, payable a year after date, it had but a month or more to run, has no bearing on the question of bona fides of the purchase.

Appeal from superior court, Pierce county; Frank Allyn, Judge.

Action by the Washington National Bank against Eben Pierce on a note. Judgment for plaintiff. Defendant appeals. Affirmed. Stevens, Seymour & Sharpstein, for appellant. Frank D. Nash, for respondent.

DUNBAR, C. J. Defendant made his promissory note, in writing, wherein he promised to pay, to the order of one Cromwell, $1,500, one year after date, with interest at 10 per cent. until paid. Before the note became due, the plaintiff, a bank, purchased the same from Cromwell, at a discount. After demand and refusal to pay, the bank brought this action to collect the note from defendant, appellant herein. The defendant, for answer, alleged fraud on the part of Cromwell in procuring the note, want of consideration, false representations, etc., and alleged that, prior to the time said note came into the possession of plaintiff, plaintiff well knew, had full knowledge and due notice, that the said note was obtained by fraud, and was given without consideration, and that the defendant intended to resist the payment of the same. Upon the trial of the

I would not pay it." But the communication was not made to Ouimette as the president of the bank; it was not made at the bank, or with any reference to the bank's business. The business of another company was being discussed at the time, which was in no way connected with the bank, and, so far as the testimony shows, Ouimette made no response to the remark, and probably cared nothing about it, as it was a matter that did not interest him. Surely, there is nothing in the law that will charge him with the duty of remembering as president of the bank such a remark, made under such circumstances and in such a place, and of communicating such a remark to the cashier of the bank, whose duty it is to conduct transactions of this kind for the bank.

Appellant places considerable stress on the fact that the note, which was due in one year from its execution, was not purchased by the bank until it lacked only one month of being due, and that the court erred in sustaining the objection to the question, "Is it customary in that business to discount paper that has run nearly the entire timelong-time paper, like this-without some inquiry?" We think the question was entirely irrelevant from any standpoint. The note had not matured, and that was all the inquiry the bank was bound to make. The presumption of the bona fides of the transaction was just the same one month before it became due as it was eleven months before it became due. The law fixes the time when the presumption ceases, which is a fixed and definite time. We have examined the other errors alleged, and think they are untenable. The judgment is therefore affirmed.

SCOTT, STILES, ANDERS, and HOYT, JJ., concur.

(5 Wash. 778) DOWNS et ux. v. SEATTLE & M. RY. CO. (Supreme Court of Washington. May 20, 1893.)

EMINENT DOMAIN-ACTION BY LANDOWNER.

When, pending trespass by the landowner, the company institutes condemnation proceedings, and pays the damages assessed, it is error to refuse to dismiss the trespass case on the ground that the condemnation did not include the same damages, since the condemnation damages must have been considered as accruing at the time of entry, and interest allowed since then. Per Stiles and Hoyt, JJ., dissenting.

For majority opinion, see 32 Pac. Rep. 745.

STILES, J., (dissenting.) There is no possible gainsaying the fact that the result of the court's decision is to require the appellant to pay twice for the same thing. The allegation of the complaint is that the railroad company's agents entered upon respondent's land, and constructed ditches and grades for a distance of half a mile, and cut down and destroyed timber, and tore away 100 rods of fence. The proof showed that all of the alleged damage was done within the limits of the right of way which was lawfully appropriated and paid for long before the judgment in this case was entered, and the charge of the court to the jury carefully and explicitly limited the recovery to the actual damage done. The opinion of the court says that the record in the condemnation proceeding which was instituted and completed between the time of the verdict and the entry of judgment in this case is not here, and therefore we cannot know whether the same items of damage were covered in both cases; but we have the showing made by affidavit, on a motion to dismiss, heard months before this judgment, that the condemnation had been had, and that $630 had been paid, as the result of it, for the taking of the land in the right of way, and for injuriously affecting the remainder of the tract; and that such a proceeding was had is not denied. It is true that the opposing affidavits of the respondent say that the condemnation proceeding did not "include any present damages by reason of any unlawful or tortious acts of the defendant," whatever that may mean; but we are bound to know, as a matter of law, at least, in the absence of some clear showing to the contrary, that the court, in the second case, must have considered the taking as having occurred when the entry was made, and the damages as having accrued then; so that the verdict would include interest from that time. This paid for the land at the time of the actual appropriation, before any act of interference or spoliation was committed, with all the trees and fences, and the right to destroy them, and dig up the soil, as the building of the road required. Having paid for the right to do these things, to be required to

pay again for having done them is to have to pay twice for the same thing,- -an injustice which a court ought not to permit on so technical a ground. The proper proceeding in such cases, viz. where there is a question between the parties as to whether the right of way has not been granted or the trespass waived, was followed in Biles v. Railroad Co., (Wash.; decided Jan. 13, 1893.) 32 Pac. Rep. 211, where, in an action of ejectment against the railroad company, the court found for the plaintiff, and assessed his damages, and then stayed proceedings for a time sufficient to enable condemnation proceedings to be taken and concluded. In this case the judgment ought to be reversed, and the cause dismissed, upon payment of the costs in the superior court; and, that not having been the disposition of the matter, I dissent.

HOYT, J. I concur in the above.

(6 Wash. 376) CITY OF SPOKANE v. WILLIAMS. (Supreme Court of Washington. May 23, 1893.)

VAGRANCY-ORDINANCE OF CITY OF SPOKANEAMENDMENT OF CHARTER-EFFECT.

The ordinance of the city of Spokane relating to vagrancy, enacted under the original charter of such city, did not cease to exist on the taking effect (February 1, 1886) of Sess. Laws 1885-86, p. 300, amending such charter, since, by section 93 of such amendatory act, all valid ordinances of such city are continued in force until they are repealed.

Appeal from superior court, Spokane county; R. B. Blake, Judge.

Frank Williams was convicted of violating an ordinance of the city of Spokane relating to vagrancy, and he appeals. Affirmed.

James L. Crotty and Hyde, Glass & Reagan, for appellant. P. Q. Rothrock, City Atty., for respondent.

DUNBAR, C. J. The appellant was convicted of violating an ordinance of the city of Spokane concerning vagrancy, and urges here that the city ordinance is unauthorized and void, because the city was only authorized by the legislature to punish vagrants, and not to define the crime of "vagrancy." The discussion of this question is not in point here, for in this case the complaint, which was brought under the provisions of the ordinance, states facts sufficient to constitute a crime under the general law defining "vagrancy." The contention that the ordinance in question ceased to exist upon the 1st day of February, 1886, because the act' by which the charter was amended went into effect on that day, is fully answered by section 93 of the amendatory act, which provides that "all valid ordinances of the city of Spokane Falls when this act takes effect, and until the sme are repealed, and all rights vested and lia

1 Sess. Laws Wash. T. 1885-86. p. 300.

bilities incurred when this act takes effect, shall not thereby be lost, impaired, or discharged." The testimony objected to, we think, was admissible. Finding no error, the judgment is affirmed.

ANDERS, HOYT, STILES, and SCOTT, JJ., concur.

3 Wash. 496)

STATE ex rel. STEARNS v. SMITH, (Supreme Court of Washington. June 14, 1893.)

MANDAMUS-JURISDICTION OF SUPREME COURT.

An ex-treasurer of the board of regents of the agricultural college is not a "state officer," within the meaning of Const. art. 4, § 4, giving the supreme court original jurisdiction in mandamus as to all state officers, the term as used in the constitution only applying to the superior officers of the state. Dunbar, C. J., dissenting.

Petition by the state on the relation of John W. Stearns, for a writ of mandamus to Andrew H. Smith, as ex-treasurer of the board of regents of the Agricultural College. An alternative writ was granted, and respondent demurred thereto. Demurrer sustained, and writ discharged.

Jas. A. Haight, Asst. Atty. Gen., for relator. Calkins & Shackleford, for respondent.

a

STILES, J. Under showing of an emergency, the relator in this proceeding obtained from this court an alternative writ of mandamus, requiring respondent, as extreasurer of the board of regents of the Agricultural College, to turn over certain moneys alleged to be in his possession to his successor in office, the relator. The respondent has demurred to the alternative writ, on the ground that this court has no jurisdiction of the proceeding, and we find, upon a more careful examination of the constitution of the state, that he is right. Section 4, art. 4, of the constitution confers upon this court original jurisdiction in mandamus as to all "state" officers, and the only question to be determined upon the demurrer is as to whether the respondent is a "state officer," within the meaning of the section mentioned. As a general rule, the term "state officer" is only applied to those superior executive officers who constitute the heads of the ex&cutive departments of a state. The constitution does not in terms say who the state officers shall be, but it is noticeable that the third or executive article, which is devoted Entirely to these superior officers of the state, loses with section 25, wherein it is first provided that no person, excepting a citizen of the United States and a qualified elector of this state, shall be eligible to hold any state office, and also that the compensation for state officers shall not be increased or diminished during the term for which they have

If

been elected. As used in this connection, the framers of the constitution evidently had in mind only the officers for which article 3 provided. Again, in article 5, "Of Impeachment," the second section provides that the governor and other "state" and judicial officers, except judges and justices of courts not of record, shall be liable to impeachment; and the third section provides that all officers not liable to impeachment shall be subject to removal for malfeasance in office in such manner as may be provided by law. "state officers" should be taken to include all officers who have to do with the state's business, officers of all grades would be subject to removal by impeachment only, and there would be no use of section 3. But it is a matter of general, as well as legal, knowledge, that impeachments do not lie against any but the superior officers of a state, and that it is usually limited to the executive and to the judiciary, and this was the intention in this article. There has been much conflict of opinion among courts as to whether mandamus would lie in any case against the superior executive officers of a state, but there never has been any question but that the writ runs against the greater number of officials who, while they are doubtless officers, and may be said to be in a sense state officers, in that they transact business of a state, are always subject to control by the courts through the writ of mandamus. With these obvious meanings of the term "state officer" in every other place where it is used in the constitution, why should we give it a different meaning when our own jurisdiction is concerned? The purpose of the constitution in setting up à supreme court was to provide a court for appeals; but it was deemed that cases might arise where the judicial power should be exercised against one of the chief governmental officers of the state in matters of such public importance that the cases should be at once passed upon by the supreme court, and therefore this power of mandamus and quo warranto was conferred. But it was never intended that this court should be a general resort in proceedings to set in motion the hundreds of minor officers with whom citizens or other officers may have business. In this case the matter can be better prosecuted in one of the superior courts than here, and it should have been commenced there. The demurrer is sustained, and the writ discharged.

HOYT, SCOTT, and ANDERS, JJ., concur.

DUNBAR, C. J., (dissenting.) I am unable to agree with the majority opinion in this case. If I read the opinion correctly, the court decides that this class of officers are state officers, but not state officers in the sense in which the term is used in section 4, art. 4, of the state constitution. I do not