Dissenting Opinion - HOYT, J. [8 Wash. and that is as to the right of the prosecution to introduce evidence as to the good character of the deceased by way of rebuttal, when the good character of the defendant has been testified to by witnesses introduced on his behalf. I am aware that the weight of authority is with the position taken by the majority, but I cannot yield my assent to the doctrine announced by them. Under the rules which obtain as to the trial of criminal actions in modern times some of the old fictions in relation to the rights of the defendant must be discarded, or the failure of justice will be such as to bring disgrace upon the administration of the law. At the time most of these technical rules were established the defendant was practically at the mercy of the court, and it was right that he should be protected in every way possible; but at this time the defendant goes to trial under entirely different circumstances, and there is no reason why the rules relating to such trials should not be substantially the same as those obtaining in civil cases, excepting that to avoid the possibility of an innocent man being convicted the guilt of a defendant should be made to appear beyond a reasonable doubt before a verdict should be rendered against him. When, as in the case at bar, the killing by the defendant is admitted, and the plea of self-defense interposed, the jury should be put in possession of every fact surrounding the transaction, and if the character of the defendant is allowed to go before them as a part thereof, fairness and reason require that they should also be informed as to the character of the deceased. The important and frequently the only question which they have to decide in such a case is, as to which of the parties was the aggressor in the affray. If in fact the defendant was the aggressor, he should under ordinary circumstances be found guilty at least of manslaughter, and if the deceased party was the aggressor, the jury would generally be justified in acquitting the defendant. Feb. 1894.] Opinion of the Court-DUNBAR, C. J. The important question to be determined is, as to which of the two persons engaged in the affray was the aggressor. And if the jury are to be aided by having the good character of one of the parties to such affray put in evidence, fairness to the public requires that they should be further aided by being informed as to the good character of the other party. And as evidence of the good character of the defendant is admitted without proof of any knowledge in regard thereto by the deceased party, no such proof should be required to make competent like evidence as to his good character. In my opinion the judgment should be affirmed. SCOTT, J., concurs. [No. 1126. Decided February 23, 1894.] SARAH A. ROBINSON, Appellant, v. ANNIE C. HALLER et al., Respondents. ACTION BY NON-RESIDENT-SECURITY FOR COSTS. Where an action is instituted against several defendants by a non-resident plaintiff, he cannot, under Code Proc., § 844, be compelled to furnish a separate bond for costs to each defendant appearing and claiming such bond. Appeal from Superior Court, King County. H. R. Clise (George H. King, of counsel), for appellant. Burke, Shepard & Woods, for respondents. The opinion of the court was delivered by DUNBAR, C. J.-This is an action by a non-resident plaintiff claiming title to an undivided half interest in a tract of Opinion of the Court-DUNBAR, C. J. [8 Wash. land in the city of Seattle, against thirty-five defendants, eighteen of whom appeared separately, each filing a motion for security for costs, which several motions the court granted, requiring a separate bond running to each defendant. The plaintiff filed one bond in the sum of $200. Upon the refusal to file a bond in favor of each separate defendant, on motion of the defendants, the court dismissed the action. So that the question to be decided is, can a non-resident plaintiff, where the action is against several defendants, be compelled to furnish a separate bond for costs to each defendant appearing and claiming such bond? We think the action of the court in requiring these additional bonds and dismissing the action for non-compliance with said order is plainly erroneous. Sec. 844 of the Code of Procedure, which is the only law authorizing security for costs in case of a non-resident plaintiff, provides that, when a plaintiff in an action resides out of the county, or is a foreign corporation, security for the costs and charges which may be awarded against such plaintiff may be required by the defendant. When required, all proceedings in the action shall be stayed until a bond executed by two or more persons be filed with the clerk, conditioned that they will pay such costs and charges as may be awarded against the plaintiff by judgment or in the progress of the action, not exceeding the sum of $200. We think a fair construction of this statute will lead to the conclusion that but one bond is contemplated in any one action, without regard to the number of defendants in that action. It is urged by the respondents that in cases where there are numerous defendants, the costs would in all probability aggregate a sum far in excess of $200; and that, therefore, a single bond would not be a sufficient protection. But to meet this contingency the same section of the statute provides that a new or additional bond may be ordered by the court or judge upon proof that the original Feb. 1894.] Opinion of the Court-DUNBAR, C. J. bond is insufficient security, and proceedings in the action stayed until such new or additional bond be executed and filed. It seems to us that there is hardly room for construction of this statute. Notwithstanding the number of defendants it is but one action, and it is not the policy of the law to make a requirement so oppressive as to virtually exclude the bringing of actions of this kind, which might easily be the result in this case. It might as well be concluded that appeal bonds, which are required by the statute, should be given to each respondent in the action, because a judgment in the appellate court might be reversed as to some of the respondents and affirmed as to others. The same logic would also authorize a separate attorney's fee. Such was evidently not the intention of the statute. It is further urged by the respondents that, even if the court below erred in requiring the plaintiff to file a separate bond in favor of each defendant moving, the judgment of the court can be sustained because the bond given was not the bond required by statute, but a mere undertaking lacking the technical form and requisites of a bond. But if such is the case, the respondents should have moved against the bond in the manner required by the statute. An investigation of the whole record leads us to the conclusion that the judgment must be reversed for the errors alleged, and it is so ordered. STILES, SCOTT, ANDERS and HOYT, JJ., concur. 8 312 12 63 12 249 8 312 [No. 1145. Decided February 23, 1894.] JAMES DIGNAN, Respondent, v. WILLIAM H. MOORE AND f37 304 f38 37 305 46 MORTGAGES DEED ABSOLUTE ON ITS FACE-OPTION TO GRANTOR A deed absolute on its face will not be construed as a mortgage, although a separate writing in the nature of an option contract was executed at the same time by the grantee agreeing to reconvey upon certain conditions, when it appears that the grantee declined to make a loan upon the property, and that, upon the importunity of the grantors, he agreed to purchase their equity of redemption, which they were about to lose under an incumbrance already upon the property, and further, that the parties were dealing upon equal terms and the consideration was not grossly inadequate. Appeal from Superior Court, King County. Action by James Dignan against William H. and Ellen A. Moore to quiet title to block 6 of Lake Dell Addition to the city of Seattle. On August 8, 1891, the defendant William H. Moore applied to the plaintiff for a loan of money on the property. The plaintiff refused to loan on the property because it was incumbered. Afterward Mr. Moore offered to take $1,500 for his equity in the property, provided he was given a six months' option for its purchase. Plaintiff said he would submit his proposition to his counsel, Mr. Winsor, "and if Mr. Winsor says the title is all right and I can give you an option for six months in writing so that afterwards you cannot claim it is a mortgage, I will buy your property.' That the two parties laid the proposition before Mr. Winsor, who said: "Yes, I can draw up that kind of an agreement, provided Mr. Moore won't perjure himself six months later.” Mr. Moore answered: "I understand, and I will deed you this property absolutely, taking an option, and if I don't buy in six months the property is yours." Thereupon the |