Suit by F. S. Lewis, a taxpayer, against e city of Port Angeles, to enjoin the ise of electric lighting bonds. efendant. Plaintiff appeals. W. R. Gay, for appellant. or respondent.

STILES, J.

Judgment for Affirmed. Geo. C. Hatch,

The only objection made to he issuance of the proposed bonds being hat the ordinance adopting the system of electric lighting for the respondent city re-ited that it was passed in pursuance of the act of March 26, 1890, as amended by the act of March 9, 1891, when in fact, if passed at all, it must have been passed in pursuance of the act of February 10, 1893, the judgment is affirmed. The recital in the ordinance was surplusage, and the act of 1893 was, under the decision in Seymour v. City of Tacoma, 33 Pac. 1059, (decided June 2, 1893,) a mere re-enactment of the former acts, with an immaterial amendment covering the purchase of the existing light or water plants.

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

STATE v. SMITH.

SAME v. TUTTLE.

(Supreme Court of Washington. Oct. 20, 1893.) CRIMINAL LAW-APPEAL-AFFIRMANCE.

A judgment sustaining a demurrer to an indictment on the ground that it fails to state facts constituting a crime will be affirmed on appeal where the assistant attorney general, appearing in behalf of the state, concedes on the argument that the demurrer was properly sustained, and declines to prosecute the appeal.

Appeal from superior court, Klickitat county; Solomon Smith, Judge.

Samuel H. Smith and A. G. Tuttle were each indicted for willful neglect of official duty as officers of election. Demurrers to the indictments were sustained, and the prosecutions dismissed. The state appeals. Affirmed.

W. B. Presby, Pros. Atty., for the State.

ANDERS, J. The defendants in these cases -which involve the same question of law, and were submitted together-were separate ly indicted for willful neglect of official duty as officers of election. The defendant Smith was a judge, and the defendant Tuttle an inspector, of election in Luna precinct, Klickitat county, at a general election there held on the 8th day of November, 1892. The particular malfeasance alleged in the indictments was that the defendants unlawfully and willfully neglected to indorse the initials of their respective names upon divers and numerous official ballots which they delivered to electors who voted at said election, contrary to the provisions of section 384, 1 Hill's Code. In each case a demurrer was interposed to the

indictment on the ground of failure to state facts sufficient to constitute a crime. The court sustained the demurrers, and dismissed the actions, whereupon the state, by the prosecuting attorney of said county, appealed. Neither of the defendants entered an appearance in this court. When the causes were called for trial the learned assistant attorney general, who appeared in behalf of the state, conceding that the demurrers were properly sustained, declined to prosecute the appeals. This leaves nothing for this court to do but to affirm the judgment of the court below, which is accordingly done.

DUNBAR, C. J., and HOYT, STILES, and SCOTT, JJ., concur.

DAVIS v. HINCHLIFFE, Sheriff, et al. (Supreme Court of Washington. Oct. 20, 1893.) EQUITY-PLEADING-ISSUES RAISED.

1. In an action to restrain a chattel mortgagee from foreclosing his mortgage, where the complaint proceeds on the theory that the mortgagee had accepted a deed of the mortgagor's land in full satisfaction of his debt, and had promised to discharge the mortgage, the mortgagor is not entitled to an accounting by the mortgagee as to the value of the land, or the proceeds realized by him from its sale, since this is not within the issues presented by his complaint.

2. Though, in equity cases, if evidence is introduced, without objection, entitling a party to relief, the decision will be based on it, without regard to the pleadings, which are treated as amended, yet it is the duty of the court to exclude testimony which is wholly irrelevant, when objection is made.

Appeal from superior court, Spokane county; James Z. Moore, Judge.

Action by Pauline J. Davis against E. H. Hinchliffe, sheriff, and the Aultman-Taylor Company, to restrain defendants from fore closing a chattel mortgage on plaintiff's property. From a judgment for defendants, plaintiff appeals. Affirmed.

Jones, Belt & Quinn, for appellant. Kinnaird & Happy, for respondents.

STILES, J. The husband of appellant had executed a chattel mortgage upon the machine in question to the Aultman-Taylor Company in 1888, when it was located at his place of residence, in Rice county, Minn.; and at a later date, in order to obtain consent of the mortgagee to its removal to this state, he and appellant gave additional security for the debt covered by the chattel mortgage, in the shape of a second mortgage on a farm in Minnesota. While the first mortgage on the farm was being foreclosed, in April, 1889, an agent of the mortgagee called upon Davis, in this state, and made an arrangement whereby the legal title to the farm was conveyed to the mortgagee, in form, but subject to a memorandum contract, from which the actual arrangement appears to have been that the mortgagee

should make all reasonable effort, for the period of six months, to sell the equity in the land for enough to pay off the chattel mortgage indebtedness, upon which the notes and chattel mortgage were to be surrendered, but, upon failure to so sell, the chattel mortgage was to remain in full force. Appellant brought this action, alleging that the conveyance of the land, in which she joined, was intended to be, and was represented to her to be, in satisfaction of the chattel mortgage debt, and that she had thereafter become the owner of the machine by purchase from her husband for a valuable consideration. Respondent Hinchliffe was the sheriff of Spokane county, in whose hands the chattel mortgage was placed for foreclosure by notice, and this suit was brought to restrain a proposed sale. The evidence showed that the deed and accompanying contract were forwarded to the Aultman-Taylor Company, at Mansfield, Ohio, the home of the corporation. The deed was delivered in Spokane county April 11, 1889, and it was claimed for the respondent company that the whole transaction was repudiated by it as soon as it became aware of its terms; it being at liberty to do so, because its agent had no authority to enter into any such engagement, or do anything but collect money. May 11, 1889, another agent, having general powers, induced Davis to indorse a cancellation upon the special contract, but retained the contract in his possession, and caused the deed, which he claimed to have offered to return, to be recorded in Rice county, Minn., in June following. Subsequently, the land was bought in by the Aultman-Taylor Company at the foreclosure sale under the first mortgage, and a resale was made of it to third parties. Whether the deed of Davis and wife, which was on record, assisted in the final disposition of the full title, is not clear, and is not material.

Appellant maintains, upon the case pre sented, that she should have had judgment, under the rule that a purchaser of the equity in mortgaged land, who takes subject to the mortgage, cannot recover against the mortgagors the debt for which the land was pledged. Investment Co. v. Nordin, (Minn.) 52 N. W. 899; Dickason v. Williams, 129 Mass. 184; Tice v. Annin, 2 Johns. Ch. 127. But, whether we concede the special contract to have been set aside or not, it remains that the title was not, in this case, conveyed subject to any mortgage, either first or second. The deed contained nothing upon the subject; and, if the recording of the deed after Davis had written his cancellation of the special contract were to be taken as sufficient to keep the arrangement in force, the terms of the latter instrument were not such as to sustain the appellant's claim that the chattel mortgage was to be forthwith canceled. Under proper pleadings, it may be that she would be entitled to

have the company account for the proceeds of the land, or its just value, before her property could be sold; but her action was not brought to accomplish any such pr pose, and, although it was of an equitable nature, the court below did not err in rejecting testimony which was irrelevant to the issues on trial. In equity cases, if evidence is introduced, without objection, which would entitle a party to relief, the decision will be based upon it, without regard to the pleadings, which are treated as amended But in equity cases, no less than in ae tions at law, it is the duty of the court to exclude testimony which is wholly irrele vant to the pleadings, when objection is made. Thus the action complained of, viz that the court rejected offers to show the value of the land, and the sum for which it was sold, was not error, because, under the pleadings, no question involving those mat ters could arise. If the land had been conveyed in consideration of a promised dis charge of the chattel mortgage, it would have made no difference to the appellat what the land was worth, or what it sold for. To have made those questions relevant, the complaint must have been amended so as to completely alter the theory of the case. Judgment affirmed.

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

CADEAU et al. v. ELLIOTT et al. (Supreme Court of Washington. Oct. 24, 1893) BOUNDARIES-CONFLICT BETWEEN FIELD NOTES AND MONUMENTS.

While the corners of a survey as actual ly established and marked on the ground by the United States government surveyors control the designation of such corners in the plats or field notes, yet the presumption is that the corners have been established at the places indicated by such field notes; and the proof that the actual establishment was different must be clear and convincing, where the actual location as claimed does not accord with the section lines in adjoining sections, and will establish the claim in an irregular shape.

Appeal from superior court, Wahkiakum county; Edward F. Hunter, Judge.

Action by Pacific and Rosette Cadeau against R. C. A. and Chloris Elliott to es tablish a boundary line between the north and south halves of the Laban Stillwell donation land claim, owned by plaintiffs and defendants, respectively. From a judgment for defendants, plaintiffs appeal. Affirmed.

J. Bruce Polwarth and John H. Smith, for appellants. Thos. N. Strong, for respondents.

DUNBAR, C. J. This was an action brought by plaintiffs to establish a boundary line between the north and south halves of the Laban Stillwell donation claim, in War

kiakum county, owned by plaintiffs and deendants, respectively. There are really no questions of law to be decided in this case, for the proposition contended for by appelants, viz. that the true corner is where the United States surveyor established it, notwithstanding its location may not be such as designated in the plat or field notes, is elementary, and in fact is conceded by the respondents; and it is also undoubtedly true that, though neither course, distance, or computed contents agree with the monument, yet the monument must prevail. But this presumes the fact that the monument or actually established corner is definitely ascertained. If any credit at all is to be given the plats and field notes, the presumption inust attach that the corners have been established at the places indicated by such field notes; so that the burden is upon him who disputes their correctness. But where,

as in this case, the establishment of the corner as claimed by the appellants does not accord with the field notes of the government surveyor, and does not accord with the cection lines in adjoining sections, and will establish the claim in an irregular shape, the proof of such actual establishment must be clear and convincing. We have examined all the testimony in the case, including the report of the commissioner, and the testimony of appellant's witnesses submitted in court after the filing of the report, and from such testimony are unable to conclude that appellants have established the fact that the stake which they claim to be a monument was a monument made by the government surveyor; and, under all the circumstances as shown by the testimony, we are inclined to adopt the view of the commissioner that the crab apple stake which was testified to was placed there, and the bearing or witness trees were marked, by some subsequent surveyor. sequently we will not disturb the judgment of the court below on questions of fact. We think, however, that this case falls plainly under the provisions of chapter 8, Code Proc., and that an equitable apportionment of the costs in this case would have been an equal division, and, as the proposition is now before us for adjustment, the judgment of this court will be that the judgment of the lower court will be modified to the extent of taxing the costs equally between the appellants and the respondents, and, as so modified, it will be

Con

'Hill's Code, § 670, provides as follows: "The proceedings [to establish boundaries] shall be conducted as other civil actions, and the court, on final decree, shall apportion the costs of the proceedings equitably, and the costs so apportioned shall be a lien upon the said lands, severally, as against any transfer or encumbrance made of or attaching to said lands, from the time of the filing of the complaint; provided, a notice of lis pendens is filed in the auditor's office of the proper county, in accordance with law."

BELL V. WAUDBY et al. (Supreme Court of Washington. Oct. 24, 1893.)

APPEAL-JUDGMENT FOR COSTS-CORRECTION.

When the supreme court has entered judgment and allowed plaintiff his costs in both courts against all the defendants as prima facie parties to the record, the supreme court will vacate the judgment as to persons who, though entitled defendants, have never been served with process or appeared, and will recall its remittitur, and correct its judgment accordingly. Motion by certain defendants to vacate as to them the judgment for costs entered unModer the opinion reported in 31 Pac. 18. tion granted.

HOYT, J. By this proceeding petitioners sought to have modified the judgment heretofore entered in the cause. In the original opinion the court directed that the plaintiff should recover the costs of both courts, and as it prima facie appeared from the record that the defendants, including the petitioners, had appeared in the action, the judgment for costs in accordance with said opinion went against all of such defendants. In the petition filed herein it is alleged that none of these petitioners were served with process in said action, and that none of them had ever appeared in said action in person, or authorized any attorney to appear for them. The allegations of the petition, and the mode of its verification, are not as satisfactory as they might be, but, in the absence of any denial on the part of the plaintiff, who appeared in answer to such petition, and in view of the fact that a careful examination of the record in the light of the allegations of the petition tends strongly to confirm such allegations, we think it is made sufficiently to appear that in fact such petitioners were never served with process, and never appeared in any way in said action. Such facts being established, it is evident that the judgment, so far as it purported to be against them, was absolutely void, and could be attacked by them in any proper manner; and, in our opinion, this proceeding was one of the ways in which it could be thus attacked. It was suggested at the argument on the part of the plaintiff that the attack should be made in the superior court, but, as the judgment was entered here, and the records remitted to the superior court only for the purpose of haying such judgment carried into effect, we think that this is the court which must modify such judgment, if it is to be modified. It follows that the remittitur heretofore set down must be recalled, and the judgment

heretofore entered so modified as not to be in form against the petitioners herein, and the cause then again remanded to the superior court as before

whether or not the sureties, as such, had proper notice of the motion for this second judgment, but it is not necessary for us coW to decide that question, for, even if they did have proper notice, only such a judgment

SEARS et al. v. SEATTLE CONSOLIDAT.

ED ST. RY. CO.

(Supreme Court of Washington. Nov. 18, 1893.) APPEAL-JUDGMENT ON BOND-CORRECTION. 1. The supreme court will not set aside a judgment entered on a supersedeas bond merely because the sureties, as such, were not properly notified of the motion for judgment thereon, no ground for substantial relief being shown.

2. Judgment cannot be entered against the sureties on a supersedeas bond for a larger sum than the penalty named therein, though such penalty was smaller than the statute required to effect the supersedeas.

3. The supreme court, having inadvertently

entered too large a judgment against the sureties on the supersedeas bond, has jurisdiction to recall its remittitur, and correct the judgment. Bell v. Waudby, (Wash.) 34 Pac. 917, followed.

Motion by sureties on supersedeas bond to .correct judgment entered against them on said bond. Motion granted.

For principal report of the case, see 33 Pac. 389, 1081.

HOYT, J. The question of jurisdiction raised by the respondents has been substantially decided adversely to their contention in an opinion just filed in the case of Bell v. Waudby, 34 Pac. 917, and upon the authority of that case we must overrule such plea, and decide the motion on its merits. At the time the first judgment was rendered in this court on motion of the respondents it was so rendered upon the transcript of the bond, which was then a part of the record, and, of course, was rendered against the appellant and the sureties named in such bond. The fact that the motion for such judgment recited others as sureties, in addition to those thus named, could in no manner authorize this court to enter a judgment against persons not shown by the transcript to be sureties. It follows that such judgment was regularly entered, so far as the action of this court and its clerk was concerned. Subsequently, on motion of respondent, and upon the suggestion that the transcript did not contain all of the record, and the bringing here of a certified copy of another bond, which, though a part of the record in the court below, had not before been brought here, such judgment was set aside, and a new judgment against the appellant and the sureties named in said second bond duly entered. This second judgment is the one which it is now sought by the suretles named therein to have set aside for various reasons assigned in their motion, which is supported by the affidavits of several of the sureties. There is some question as to

terms of the bond, which was its foundation, authorized; and, if they did not have such notice, there is nothing in the showing wid would justify this court in setting aside such judgment, if in fact it was authorized by the terms of the bond. To state it differendy: Such showing does not, in any way, attack the regularity or binding force of such bond, and for that reason the court is not called upon to grant any relief, even against a judgment irregularly entered, so long as it conforms to the terms and conditions thereof. The pris ciple that courts will not set aside a już ment, however irregularly entered, unless the party moving therefor shows prima facle the right to substantial relief in the event of sui

judgment being set aside, is well established Courts will never set aside judgments of this class when, so far as the showing of the moving party is concerned, its only duty af er doing so will be to enter another judgment equally as burdensome as the one set asid It follows from what we have said that the relief granted upon motion of the sureties must be confined to the excess of the judg ment, if any, beyond that authorized by the terms of the bond. If in fact it was met burdensome upon these sureties than the bond authorized, we have no doubt of or duty to correct it upon our own motion. even if our attention was called to the fact The motion for judgment against such sure ties must be held to have included there the bond, and the judgment rendered by the court could only properly be rendered in 16cordance with the terms thereof; and, if such bond showed upon its face that judgm only in a certain amount was authorized thereby, the judgment actually rendered the court must be held to have been only that amount, and anything beyond must be held to have been inadvertently included in said judgment.

This brings us to a consideration of the question as to what judgment was authe ized by this bond. It was given to supersede a judgment in the sum of $15,000 besides costs. It was, however, in the penal sum of only $16,000, instead of in the sum, required by the statute, of at least double the amount of the judgment. It is doubtful whether not such a bond, even though approved by the court, did in fact supersede such jude ment; but that question is not now before us. It was given by the principal for that purpose, and it cannot take advantage of any imperfections appearing therein, nor caur de sureties, in so far as they are bound by the terms thereof. We are, however, unable to agree with the contention of the respondens that the sureties in this regard stand in the same situation as the principal; for while t

s doubtless true that when enough appears In such a bond to show the object for which it was given, they, as well as the principal, will be estopped from denying that such was the object. Beyond that we cannot go, and hold that a surety who signs a penal bond in a certain definite amount, which in no manner upon its face discloses anything which must increase such amount, is thereby estopped from asking that his liability shall be limited to the amount named. A surety may well look only to the penal sum in which he acknowledges himself indebted, and in which amount, upon the failure of compliance with the conditions of the bond, he agrees to be held liable. He is not called upon to investigate records or facts outside of the face of the bond, but is justified in relying upon the terms thereof. Applying these rules to the case at bar, we are unable to find anything in the conditions of this bond which in any manner establishes a liability on the part of the sureties named therein beyond the $16,000, in which sum they acknowledged themselves indebted. The conditions having been violated, the bond in that amount is in full force as against them, but there is nothing to show in any manner why they should be held liable for a greater amount. It follows that the judgment rendered on said bond should have been limited to the $16,000 named therein, and that when this court granted the motion of respondents for judgment thereon the judgment which it really rendered was one against the principal and sureties for $16,000, and no more; and that, so far as the judgment entry was for a greater amount, it was simply an inadvertent entry. Such judgment must therefore be set aside, and a new one entered against the appellant and the sureties named in said bond, as of the same date, for the said sum of $16,000. Let this be done, and the cause then again remitted to the lower court for the carrying into execution of the judgment so entered.

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

HOLM v. PRATER.

(Supreme Court of Washington. Oct. 24, 1893.) SCHOOL LANDS-APPRAISEMENT OF IMPROVEMENT.

Act March 28, 1890, (Laws 1889-90, p. 438,) § 3, which makes it the duty of the county commissioners to inspect and appraise all school lands which may be sold or leased within five years from the date of the act, contemplates but one appraisement within the five years; and where the county commissioners have also appraised the value of improvements made thereon by an occupant, as required by section 7, the occupant is not entitled to another appraisement on the sale of the land within the five years, though the proviso to section 7 requires the purchaser to pay the owner of the improvements the appraised value thereof "at the time of sale," within 30 days from the date thereof.

Appeal from superior court, Kittitass county; Carroll G. Graves, Judge.

Action by Nels Nelson Holm against W. C. Prater for the possession of land, and for damages and mesne profits. From a judgment for defendant, plaintiff appeals. Affirmed.

The land formed a part of the state's school land, and plaintiff claimed as lessee from the state, while defendant claimed as purchaser.

Act March 28, 1890, § 3, which is section 2142 of Hill's Code, provides as follows: "It is hereby made the duty of the county commissioners of each county in the state, as soon as may be practicable after this chapter becomes a law, to personally inspect each and every section of land (or so much thereof as may be sold or leased within five years) in their respective counties, granted to the state for the support of the common schools, to note the character of the same, whether chiefly valuable for timber, stone, mineral, or agricultural purposes, or as grazing land, and any other fact or facts necessary to an understanding of its character and value, and prospective value, and whether the same be wholly or partially (and if partially, to what extent) in or within two miles of the corporate limits of any incorporated city, town, or village, and also to appraise, according to their best judgment, each quarter-section of such land at its true and full market value." Section 7 of this act, which is section 2147 of Hill's Code, provides as follows: "The appraisers shall also appraise all improvements found upon school lands, and shall also appraise all damages and waste to the premises by cutting timber, or the removal of timber, stone, or other materials from the premises by the person claiming the improvements, or by his consent, and the balance, after deducting damages and waste, appraised as afore said, shall be set down as the value of the improvements upon the lands so appraised; provided, that this section shall not be construed to affect the right of the state to the value of such lands appraised; provided further, if the purchaser be not the owner of the improvements, he shall pay to the said owner in cash the appraised value thereof at the time of sale, within thirty days from the day of sale."

Ralph Kauffman, for appellant. H. J. Snively, for respondent.

HOYT, J. Only one question is presented by this appeal which it is necessary for us to decide: Is an occupant of school lands, which have been regularly appraised by the board of county commissioners within two years from the date of the sale thereof, by virtue of the provisions of an act entitled "An act to provide for the sale and leasing of school lands, and declaring an emergency," approved March 28, 1890, whose improve