ferring the collection of the several notes until after the time for the payment of the one last due had accrued, he lost the right to sue upon the several obligations, and could maintain an action only for the whole consideration for which he agreed to convey the land. By lapse of time, the obligation to make the deed, and the obligation to pay the purchase price of the land, have become dependent and mutual. The defendant has no longer a right to pay the notes separately, and the plaintiff has no right to enforce such separate payment. There is now but a single cause of action existing in favor of either party. The defendant, in order to obtain his deed, must first pay the entire purchase price; and the plaintiff, in order to recover, must show such a performance of the agreement on his part as would entitle him to the whole of the unpaid consideration. In this case the plaintiff undertook to collect the purchase price of the premises he covenanted to convey, without averring or proving that he had first performed his own obligation, by making and tendering a conveyance. This the court would not permit him to do, and Its ruling was in accordance both with reason and the well-settled principles of law. McCroskey v. Ladd, 31 Pac. 558; Beecher v. Conradt, 13 N. Y. 108; Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362; Bohall v. Diller, 41 Cal. 532. Nor do the learned counsel for appellant question the general rule of law which we have stated, but they insist that the facts in evidence show that the case at bar falls within a recognized exception that a vendor in such cases is excused from making a tender, where it would be a vain and useless act. But a sufficient answer to this contention is that the plaintiff alleged no fact in his complaint showing either an inability on his part to make a tender, or that a tender, if made, would have been a vain or useless act. The plaintiff brought an action at law simply to recover the amount evidenced by defendant's notes, completely ignoring his own obligations under his contract, and he must now abide the consequences.

Other questions are presented in the record, which it is not necessary to discuss, as, in our view of the law, he could in no event recover, upon the state of facts presented by the record. The judgment of the lower court is affirmed.

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

(7 Wash. 615)

HOLM v. GILCHRIST et al. (Supreme Court of Washington. Nov. 22, 1893.)

RECORD ON APPEAL-EQUITY CASE.

Under 2 Hill's Code, § 1423, the trial judge must certify that the statement of facts on appeal in an equity case contains "all the

material facts." Clark-Harris Co. v. Douthitt, 30 Pac. 744, 4 Wash. 465, followed.

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

Bill in equity by Charles H. Holm against Charles Gilchrist, J. V. Holton, O. B. Genty, and the Stanley Land & Improvement Company to set aside certain deeds. Bill dismissed. Complainant appeals. Appeal dismissed.

Fulton Bros., for appellant. Arthur, Lindsay & King, for respondents.

STILES, J. This was an equity case, and upon the 4th day of January, 1893, the judge who tried the cause made a certificate to a statement of facts on appeal, stating that it contained all the testimony and objections and exceptions to the acceptance and rejection of testimony. This is precisely the state of facts passed upon in Clark-Harris Co. v. Douthitt, 4 Wash. 465, 30 Pac. 744. The motion to strike out must therefore prevail, and the appeal be dismissed.

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

(7 Wash. 302) MICHIGAN MANUF'G CO. v. SAUNDERS. (Supreme Court of Washington. Nov. 22,

JUDGES

1893.)

· AUTHORITY AND DUTIES CERTIFYING STATEMENT OF FACTS ON APPEAL.

Act Jan. 21, 1893, authorizing judges whose term of office expired on the second Monday of January to settle and certify statements of facts, did not authorize such a judge to transfer the matter to his successor in office, instead of settling and certifying such facts himself.

Appeal from superior court, Pierce county; W. H. Pritchard, Judge.

Action by the Michigan Manufacturing Company against A. R. Saunders to foreclose a mechanic's lien. From a judgment

for plaintiff. and an order denying a new trial defendant appealed. Plaintiff moves to strike statement of facts from record. Granted, and cause dismissed.

Delamater & Miller, for appellant. A. R. Titlow, for respondent.

STILES, J. We are of the opinion that the act of January 21, 1893, authorizing judges whose terms of office expired on the second Monday of January to settle and certify statements of facts, did not authorize such a judge, instead of settling and certifying the facts himself, to transfer the matter to his successor in office. Therefore the motion to strike appellant's statement is granted, and the cause dismissed, since it is an equitable action.

DUNBAR, C. J., and HOYT and ANDERS, JJ., concur. SCOTT, J., concurs in the result.

(7 Wash. 306)

STATE ex rel. CAMPBELL v. SUPERIOR COURT OF KING COUNTY et al. (Supreme Court of Washington. Nov. 22, 1893.)

ACTION TO ENFORCE TRUST-VENUE.

1. A bill in equity, the substantial object of which is to enforce a trust and compel an accounting on the part of the alleged trustee, is a transitory action, even though a portion of the relief sought would, if granted, take effect upon real or personal property; and hence its venue, under Code Proc. § 161, is in the county in which the alleged trustee resides.

2. The fact that in an equity action, the substantial object of which is to enforce a trust, there are joined as defendants parties against whom other relief is sought, but who are not necessary parties to a determination of the trust question, will not defeat the alleged trustee's right to have the action tried in the county in which he resides.

Proceedings by the state at the relation of John A. Campbell against the superior court of King county and J. W. Langley, judge of said court, for a writ of prohibition. Writ granted.

Struve, Allen, Hughes & McMicken, for petitioner. Burke, Shepard & Woods, for respondents.

HOYT, J. A somewhat careful examination of the voluminous complaint filed in the action, which it is claimed on the part of the relator he is entitled to have transferred to the county of Kitsap for trial, satisfies us that the substantial object of such suit is to enforce a trust, and compel an accounting on the part of the relator in favor of the plaintiffs in said suit; and, such being the fact, we are of the opinion that the contention of the respondents, that by reason of the fact that a portion of the relief sought as a result of the enforcement of such trust and an accounting thereunder will take effect upon real or personal property the case is made a local one within the meaning of our statute as to the place of trial, cannot be sustained. That the enforcement of trusts and an accounting thereunder may be brought wherever the trustee can be found is well established by the authorities, and we have had no case cited to us by the respondents which satisfies us that the fact that full relief can only be obtained by the enforcement of rights against specific personal or real property so changes the nature of such actions as to make them local, while on the part of the relator many cases have been cited which seem to us fully to establish the contrary doctrine. See Massie v. Watts, 6 Cranch, 148; Briggs v. French, 1 Sumn. 504; Bell v. Fludd, (S. C.) 5 S. E. 810; Le Breton v. Superior Court, 66 Cal. 27, 4 Pac. 777. It follows that the action which the superior court of King county is about to proceed in is a transitory one, and that the application of the relator to have it removed for trial to the county of his residence should have been granted, unless the fact that the defendant Maurice McMicken,

and perhaps one of the defendant corporations, were residents of the county of King, is sufficient to deprive the relator of his right to thus have the case tried in his own county. Under the allegations of the complaint in the action neither of these defendants seems to be a necessary party. They may be proper parties to the action, so far as some remote questions of relief are concerned, but they are in no sense necessary to a proper determination of the suit as against the principal defendant, the relator herein. Such being the case, the plaintiffs should not be allowed to deprive the substantial defendant of his right to have the case determined at home by so joining these unnecessary defendants. This action, then, should be tried as a purely transitory one, and, for the purposes of this application, as being waged alone against the relator; and under the rule established by this court in the case of State v. Superior Court of King Co., 5 Wash. 518, 32 Pac. 457, 771, the alternative writ of prohibition must be made permanent.

STILES, SCOTT, and ANDERS, JJ., con

cur.

DUNBAR, C. J., (concurring specially.) I have uniformly dissented to the majority opinions in all cases of this class, believing that under the constitution this court had no jurisdiction, and therefore no authority, to issue the writ, as it was neither in aid of its appellate nor revisory jurisdiction; but, as the other members of the court have as uniformly, and in so many cases, held to the contrary, it seems to me to have become the established law of this state that the court will take jurisdiction in this kind of a case, so that I do not feel justified in dissenting further; and as I agree with the majority that this action is a transitory one, I concur in the result.

(7 Wash. 308)

STATE v. LEE DOON. (Supreme Court of Washington. Nov. 24, 1893.) CRIMINAL LAW-INDORSEMENT OF WITNESSES ON INDICTMENT-CONDUCT OF TRIAL.

1. Under Code Proc. § 1230, providing that the prosecuting attorney shall indorse on the information names of the witnesses known to him at the filing thereof, and, at such time before the trial as the court may prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him, the name of a witness not known to the prosecuting attorney at the time of filing the information may be indorsed thereon during the impaneling of the jury, before it is sworn and accepted.

2. On a criminal trial the jury may, by consent of parties, be permitted to view the place of the alleged crime without defendant's presence, as such view is no part of the trial, and as defendant's constitutional right to be present at the trial is not thereby violated.

3. It is no ground for excluding a witness for defendant that, without defendant's fault, he disobeyed an order for the exclusion of witnesses during the trial.

Appeal from superior court, Whitman county; E. H. Sullivan, Judge.

Lee Doon was convicted of assault with intent to murder, and appeals. Reversed.

R. W. Hargrave, John Pattison, and A. M. Craven for appellant. J. N. Pickrell, Pros. Atty., (Chadwick & Fullerton, of counsel,) for the State.

DUNBAR, C. J. Appellant was tried and convicted on the charge of an assault with intent to commit murder. The assignments of error are, (the arrangement is our own:) First, that the court erred in allowing respondent to indorse the name of Charles Harmon as a witness on the information after the trial began; second, the court erred in allowing the jury to view the premises where the alleged affray took place, without the presence of appellant; third, the court erred in not allowing appellant's witness Lee Chu to be sworn and to testify in said cause.

As to the first assignment, section 1230 of the Code of Procedure provides that the prosecuting attorney shall subscribe his name to the information, "and indorse thereon the names of the witnesses known to him at the time of filing the same, and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him." It is conceded that the superior court of Whitman county, where this action was tried, has not formulated a rule prescribing the time when the names of the witnesses not known to the prosecuting attorney at the time of filing the information should be indorsed upon the same, and we do not think the court violated his discretion in allowing the indorsement to be made at the time it was made in this case. The record shows that the motion was made and allowed during the impaneling of the jury, before the jury was sworn or accepted; and, even conceding that the statute is mandatory, the trial of the case, as contemplated by the statute, was not yet commenced. The impaneling of the jury is a necessary step in the preparation for a trial and organization of the forum, but is not, we think, in the sense it is used in the statute, a part of the trial of the case. The appellant certainly could not allege jeopardy in that case if the case had been dismissed for any cause before the jury had obtained jurisdiction of the case, or had even been accepted. If he could not, then he cannot claim that his trial had begun. 1 Bish. Crim. Law, (7th Ed.) § 1014.

As to the second assignment of errors, the record shows that the defendant, by his counsel, requested the court to allow the jury to inspect the premises where the difficulty leading to defendant's arrest occurred, and the court granted the request, and allowed the jury to go, under the usual admonitions,

and under the supervision of a bailiff. The defendant did not ask to be allowed to accompany the jury, and did not do so. The contention of the appellant is that a view of the premises is a part of the trial, and that it is the defendant's constitutional right to be present at the time. We do not think the view is any part of the trial. The trial can be but in one place at a time, and that place is where the judge presides and the evidence is produced. The jury does not view the premises for the purpose of obtaining evidence. No evidence is allowed to be offered there to the jury, under any rules or any circumstances. They simply view the premises for the purpose of enabling them to make an intelligent application of the testimony presented at the trial. There is some conflict of authority on this proposition, but we think the weight of authority and better reasoning is with the respondent. Among the best recent cases sustaining this view, we cite: State v. Adams, 20 Kan. 311; Shular v. State, 105 Ind. 289, 4 N. E. 870.

The third assignment, namely, that the court erred in not allowing appellant's witness to testify, is, in our judgment, more serious, and involves a substantial right of the defendant,-a right which goes to the life of the defense, namely, a right to have witnesses examined in his behalf. It appears from the record that the court had made an order for the exclusion of the witnesses during the progress of the trial. Lee Chu had been subpoenaed on the part of the defendant, and appeared in the court room at the opening of court on the third day of the trial. He had no knowledge of the order of the court made for the exclusion of witnesses during the progress of the trial, and remained in the court room during part of the examination of the defendant, and, when called as a witness, responded from his seat. The state objected to his being allowed to testify, for the reason that he had disobeyed the order of the court, which objection was sustained. On this question, also, there is some conflict of opinion, some of the old authorities holding that under such circumstances the witness should be excluded; but this rigid rule is not now sustained by any of the modern appellate courts, excepting in special cases under the revenue laws. where collusion is the main obstacle with which the government has to contend. The courts are, however, divided on the question as to whether it is a matter that can be left to the discretion of the trial court, or whether the exclusion of the witness, under any circumstances, is reversible error; but an investigation of the authorities convinces us that the great weight of modern authority is to the effect that the judge has no right to deprive a deféndant of the right to have his witnesses examined on his behalf on account of the mistake of the witnesses. This rule, we believe, is founded on sensible and equitable principles,

and does not leave the rights of a defendant dependent upon either the caution or carelessness of the witnesses, or subject them to the collusion of an unfriendly witness with his enemies. The punishment of a witness for violation of the court's order will practically secure the enforcement of the order without depriving the defendant, who is in no way in fault, of the means to obtain his rights. As was said by the supreme court of Maryland in Parker v. State, 67 Md. 329, 10 Atl. 219: "If the evidence of the witness would show the innocence of a prisoner on trial for his life, then the discretion of the judge amounts to a discretion to take the prisoner's life or to spare it. The wise, just, and merciful provisions of our criminal law do not place human life on any such uncertain tenure. A man's life and liberty are protected by fixed rules prescribed by the law of the land, and are not enjoyed at the discretionary forbearance of any tribunal. All suggestions of this kind are alien to the spirit and genius of our jurisprudence." "The better opinion now is that the violation of the rule by a witness, although it will subject him to punishment for contempt of court, will not deprive the party, whose witness he is, of the benefit of his testimony, where the party himself is without fault, and that the court cannot lawfully refuse to permit the examination of the witness, although it will be a matter for observation to the jury upon his evidence." 1 Thomp. Trials, 281, and numerous cases cited which fully sustain the text. And in a footnote the author adds: "It was formerly held in Indiana to be a matter of discretion for the court trying the cause, whether the testimony of a witness who had willfully disobeyed the order of the court to remain out of the court room until called should be rejected for that reason, and that this discretion would not be reviewed on appeal unless it appeared that it had been abused. * But in later cases the same court have adopted this as the true rule: 'Where a party is without fault, and the witness disobeys an order directing a separation of witnesses, the party shall not be denied the right of having the witness testify, but the conduct of the witness may go to the jury upon the question of his credibility,' "-citing Davis v. Byrd, 94 Ind. 525, and Burk v. Andes, 98 Ind. 59, where the doctrine above enunciated is vigorously pronounced. In fact, the modern authorities sustaining this view are so numerous that, inasmuch as it appeals to our sense of justice and propriety, we have no hesitation in following them, and deciding that, where a party is without fault, it is not within the power of the judge to deprive him of the evidence of his witnesses. Of course, the fact that the witness heard the other witnesses testify, against the order of the court, may be commented upon as affecting his credibility, but, subject to this disadvantage, he must be allowed to testify. v.34P.no.14-70

1. In an action for breach of contract, the answer denied the breach alleged, and affirmatively alleged that defendants continued to perform the work provided for by the contract until directed by plaintiffs to desist from so doing. Held, that such defenses were not necessarily inconsistent, and that the court properly refused to strike out the answer for alleged inconsistency in the defense.

2. The admission of evidence, though of slight significance, is not error, if it be pertinent to the issues on trial.

3. It is not error to refuse instructions embraced in those given by the court of its own motion.

4. A judgment not entered within the time provided by law is not for that reason void. Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by C. D. Brown and another against J. N. Porter and another. There was judgment for defendants, and plaintiffs appeal. Affirmed

Austin E. Griffiths, for appellants. Geo. J. Moody, for respondents.

ANDERS, J. The plaintiffs, by this action, seek to recover damages from the defendants for an alleged breach of a written and sealed contract entered into between the plaintiffs and the defendants, wherein the former agreed to give and grant to the latter all the useful and salable wood and timber on a certain described 10 acres of land in Chehalis county, and to provide access thereto, and, in consideration whereof, the latter agreed to clear the land in a specified manner, and leave it fit for seeding purposes, between June 1, 1890, and September 1, 1891, and to do a reasonable portion thereof in the summer of 1890. To secure the faithful performance of the contract, the respective parties acknowledged themselves bound, each to the other, in a certain penal sum, as fixed and liquidated damages. The complaint alleged the making of the contract, due performance by plaintiffs, Rehearing pending.

1