reach of the applicant, and insure him speedy relief when he was entitled to such, and not to give him a multiplicity of trials. It is true that in some of the states the practice is different, but such practice does not commend itself to our judgment, and we cannot follow it. When one trial has been accorded the petitioner, he has secured all the rights which the law has guarantied him. The petition will therefore be denied. SCOTT and HOYT, JJ., concur.

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

(7 Wash. 237)

In re GRAHAM.

(Supreme Court of Washington. Nov. 8, 1893.) HABEAS CORPUS - ORIGINAL JURISDICTION OF SUPREME COURT.

The supreme court, though it has original jurisdiction in habeas corpus, will not entertain a petition, where a like petition has be fore been presented to a judge of the superior court, and refused.

Petition of Charles W. Graham for a writ of habeas corpus. Writ denied.

Winsor, Bush & Morris, for petitioner.

DUNBAR, C. J. It appears that a petition had been presented to one of the judges of the superior court of King county, and had been refused, whereupon application has been made to this court. While it is true that the constitution invested the supreme court with original jurisdiction of habeas corpus, it does not follow that it must take original jurisdiction in cases that have been commenced in the superior court, or before a judge thereof. It is true that this is a writ of high personal privilege, and involves personal liberty,-a right which the law most jealously guards; but a citizen's right to liberty is involved in many cases. This question, like all other questions involving his right to liberty, he has a right to have adjudicated by a competent tribunal; and that adjudication, like any other, is presumed to be right until the contrary is made to appear on appeal. It is an adjudication by a competent tribunal, not an adjudication by every competent tribunal, to which the petitioner is entitled. It does not seem to us that it accords with the orderly administration of the law to allow this application to be made to every superior judge and every justice of the supreme court in the state, which would be the practical result, in many instances, of sustaining petitioner's contention. This, we believe, is not the obJect of the law. The object in giving every Judge in e state original jurisdiction, no

(7 Wash. 243)

VOORHIES v. HENNESSY, Constable, et al. (Supreme Court of Washington. Nov. 9, 1893.) REPLEVIN-EVIDENCE-INSTRUCTIONS-Judgment -TIME OF ENTRY-MORTGAGEE'S INTEREST-LIABILITY TO ATTACHMENT.

1. In an action for property seized on execution, parol evidence that a bill of sale to the execution debtor by plaintiff was intended as a mortgage is admissible.

2. The fact that a levying officer did not know a bill of sale to the execution debtor was intended as a mortgage does not render the levy effective.

3. Possession by a chattel mortgagee after the maturity of his debt does not vest in him a legal title which is subject to attachment.

4. In such case, it was error to charge that if the jury found, "by a fair preponderance of the evidence," that the bill of sale was intended only as security, the verdict should be for plaintiff, since such fact should be shown by clear, positive, and convincing evidence.

5. It is no ground for the reversal of a judgment that it was not entered until 10 days after an order was made, denying a motion for a new trial.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action of claim and delivery by N. Voorhies against Bruce Hennessy, constable, Frank E. Jones, C. E. Burrows, A. P. Stockwell, Milton Dwinnell, Frederick Toklas, G. Kaufman, H. E. Ruffe, and Ed. Benn, to recover possession of four oxen, yokes, and chains. From a judgment for plaintiff, defendants Hennessy, Jones, Burrows, Stockwell, and Dwinnell appeal. Reversed.

Ben Sheeks, Hogan & McGerry, and Geo. J. Moody, for appellants. N. W. Bush, for respondent.

STILES, J. Appellant Hennessy, as constable, had levied upon certain personal property claimed by respondent, under certain attachments and executions issued at the suit of other appellants in actions brought by them against one Dunbar. The property consisted of four oxen, with yokes and chains, which had been the property of respondent, and, while owned by him, hired to Gray & Emerson. Some weeks before the levy, respondent gave Dunbar an absolute bill of sale of the property, and directed Gray & Emerson to pay the subsequently accruing hire to him. Upon the levy, respondent sued

for possession, and sought to establish that the actual transaction with Dunbar was a chattel mortgage to secure the payment of $375 due from himself to Dunbar upon an account for goods. The consideration for the property mentioned in the bill of sale was $300, and it was claimed that the hire of the cattle, etc., was to be applied on the unsecured portion of the debt due Dunbar. Judgment was entered on the verdict of a jury for respondent.

1. The first objection made is that the court allowed Voorhies and Dunbar to testify as to their intent in connection with the bill of sale. But there probably never was a case where it was sought to show that a deed or bill of sale, absolute on its face, was in fact intended as a mortgage, where parol testimony was not admitted. Jones, Mortg. § 321. By such a proceeding the writing is not varied or contradicted.

2. Whether the officer had or had not notice of the true relation of Dunbar to the property seized could make no difference. If it really belonged to respondent, he had no right to interfere with it. The creditors of Dunbar were not purchasers for value, and could lose nothing, however the title turned out to be. Burke v. Johnson, 37 Kan. 337, 15 Pac. 204; Drake, Attachm. § 197.

3. If Dunbar was a mortgagee in possession after the maturity of his debt, appellants are in error when they assume that such a state of facts amounted to a forfeiture, so that the legal title to the property vested in him. Such is perhaps the general rule. Jones, Chat. Mortg. 566. But it does not prevail in this state. Silsby v. Aldridge, 1 Wash. 117, 23 Pac. 836.

4. That the judgment was not entered on the same day on which the motion for a new trial was overruled, but 10 days later, did not in any wise prejudice appellants, and constitutes no ground for error.

5. The assignment by Dunbar to the Weatherwax Lumber Company of the debt owing the former by respondent having been shown to be in writing, no further proof concerning the transaction should have been received until the writing was produced or accounted for. It was therefore error to allow several witnesses to testify concerning it. The assignment carried with it the right to the security, and it was a material matter, as tending to show the acts of the parties to the bill of sale; respondent claiming that he was called upon to agree to the transaction, and that he did agree.

6. The court charged the jury as follows: “If you find, by a fair preponderance of the evidence, that said bill of sale was intended only as security for an indebtedness then owing from plaintiff to Dunbar, then your verdict should be for plaintiff." Were the testimony of the two parties to the bill of sale standing alone, without circumstances which leave it open to question whether the theory of the bill of sale was not an after

thought, as appellants stoutly contend, wa might be able to uphold the judgment entered, for want of prejudice growing out of this charge. But, as the case stands, we cannot say that no injury was inflicted upon the appellants by it. In such cases the solemnity of a writing is not to be overcome by a mere preponderance of evidence. The writing itself stands as the clearly and deliberately ascertained intention of the parties, which must be enforced, unless it is shown by clear, posi tive, and convincing evidence that the mutual intention was something else, and that it was with such different intention, understood by both parties, that the instrument was deliv ered and accepted. This is the rule in equity, where cases of this kind are most frequently heard, and, when submitted to a jury, the same rule applies. Jones, Mortg. § 335; Purington v. Akhurst, 74 Ill. 490; Sewell v. Price, 32 Ala. 97; Cadman v. Peter, 118 U. S. 73, 6 Sup. Ct. 957; McCormick v. Herndon, (Wis.) 31 N. W. 303, and note; Perot v. Cooper, (Colo. Sup.) 28 Pac. 391. The judgment is reversed, and the case remanded for a new trial.

(Supreme Court of Washington. Nov. 9, 1893.) BURGLARY-CORPUS DELICTI-EVIDENCE-CONFES

SIONS-INFORMATION-SUFFICIENCY.

1. Under Code Proc. § 1308, which provides that confessions made by inducement, with all the circumstances, may be given in evidence, except when made under the influence of fear produced by threats, it is proper to admit evidence of inculpatory declarations made by defendant to the officers having him in custody, if no threats were made, and the declarations were free and voluntary.

2. Where, in such case, all that was done or said to defendant, or by him, was stated in detail in the evidence, it was harmless error to permit the county attorney to ask, and the witnesses to answer, the question, "Did you make any threats to him?" even if such question was leading, and called for an expression of opinion.

3. In a burglary case it appeared that one evening a storekeeper had in his safe in the store certain money; that when he and his clerks left for the night, no one was there, and the doors were locked and windows closed; that neither of them returned until the next morning; that the storekeeper had not authorized any one to enter the store during the night, and it could not be entered except through the doors or windows; and that in the morning the money was gone from the safe, and apparently a window had been raised during the night. Held, that the corpus delicti was established.

4. The fact that the money recovered from defendant was not exhibited in court was no ground for excluding testimony concerning it.

5. An information for burglary need not show on its face that the conditions existed which the law requires in order that a public offense be prosecuted by information. State

v. Anderson, 31 Pac, 969, 5 Wash. 350, followed.

Appeal from superior court, county; M. J. Gordon, Judge.

Thurston

ample proof of the commission of the crime charged. The facts, as disclosed by the evi

Skillman & Agnew and J. R. Mitchell, for appellant. Milo A. Root, for the State.

ANDERS, J. The defendant was tried and convicted of the crime of burglary, alleged in the information to have been committed on the night of the 15th day of February, 1893, by feloniously and burglariously breaking and entering the store of one M. O'Connor, in the city of Olympia, county of Thurston, and state of Washington, with intent then and there feloniously to take, steal, and carry away certain money, the property of said O'Connor, and then being in said store. From the judgment entered on the verdict of the jury the defendant appeals, and asks a reversal thereof on account of errors which he alleges the court committed on the trial.

At the trial the court permitted certain inculpatory declarations made by the defendant to the officers having him in custody, after his arrest for the offense with which he was charged, and for which he was subsequently tried. The point made by the learned counsel for appellant is that these declarations were in the nature of confessions, and were made under the influence of fear produced by threats, and were therefore admitted in evidence in violation of the provisions of Code Proc. § 1308.1 But we think the position of counsel is not tenable for the reasons (1) that no direct confession of guilt was made by the defendant; and (2) that the court was clearly justified, by the evidence before it, in concluding that no threats were made, and that what the defendant then said was not caused by duress or fear, but were his own free and voluntary declarations. Nor do we think the defendant was at all prejudiced by the court permitting the county attorney to ask, and the witnesses to answer, the question, "Did you make any threats to him?" Even conceding, as claimed on behalf of the appellant, that the question was leading, and calied for the expression of an opinion merely on the part of the witnesses so interrogated, yet, as all that was done or said to the appellant, or by him, was subsequently stated in detail, no injury could possibly have resulted to the appellant by reason of the ruling of the court.

It is contended that the corpus delicti was not proven; in other words, that the crime of burglary was not shown to have been committed. But in our judgment there was

1 Code Proc. § 1308, provides as follows: "The confessions of a defendant made under inducement, with all the circumstances, may be given as evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony."

ed a store in Olympia. In that store he had a safe, in which there were about eighty dollars when he left the store on the evening in question, consisting of gold and silver coin, and currency or "greenbacks;" the latter being a ten, a five, and a one dollar bill. He and the two young ladies who were his clerks left the store at about 8 o'clock in the evening, and neither of them returned until the next morning between 7 and 8 o'clock. No one was there when O'Connor left, and the doors were locked and the windows closed when they went away. There was no way by which a person could enter the store, except through the doors or windows. The owner of the store had not authorized any one to enter it during the night. The money was gone from the safe in the morning, and, from appearances, the back window of the store had been raised dur

ing the night. These facts show that some one had broken and entered the building with intent to commit larceny therein, and therefore was guilty of burglary, (Pen. Code, § 46;) and the next question for the jury to determine was whether the appellant was the guilty party. The jury answered the question affirmatively, and we think their verdict was fully warranted by the proof disclosed by the record. We have no doubt that the money appellant had tied up in a handkerchief, and secreted at his mother's house, and which he produced and gave to the chief of police, was the same money which was taken from M. O'Connor's safe only a night or two previously. The amount given to the officer was about the sum that had been stolen, and corresponded with it in kind and denomination. What he said and did when he found he was accused of this offense, coupled with the extremely improbable explanation of how he obtained the money which he produced and turned over to the chief of police, showed his guilt beyond any reasonable doubt whatever. The fact that the money recovered was not exhibited in court was no ground for rejecting the testimony offered concerning it. It was for the jury to say from the testimony whether or not it was O'Connor's money, and this they were able to do without seeing it.

It is objected that the information fails to state facts sufficient to constitute a public offense, and, in support of this position, it is urged that it does not clearly appear upon the fact of the information that the conditions existed which the law provides must exist in order that a public offense may be prosecuted by information. All that need be said in answer to this proposition is that this court took a contrary view in State v. Anderson, 5 Wash. 350, 31 Pac. 969, where we held that these conditions need not be alleged.

The facts constituting the crime charged are clearly set forth, and that is all the statute requires. Judgment affirmed.

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

DUNBAR, C. J., did not sit in the case.

(7 Wash. 279)

CLOUGH et al. v. CITY OF SPOKANE. (Supreme Court of Washington. Nov. 15, 1893.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS -BOND TO PAY LABORERS.

Under 1 Gen. St. § 2415, (Laws 1887-88, p. 15,) requiring municipal corporations contracting with any person "to do any work of any character which, if performed for an individual, a right of lien would exist under the law, or make any improvement for" such municipality, to take a bond conditioned for the payment of laborers, mechanics, and material men, a city contracting with a person to grade a street is not required to take a bond, as it is only required to do so where the work to be done is such that, if done for an individual, a lien would attach in favor of laborers and others, and no lien would attach, under Gen. St. § 1663, for labor performed on a street for an individual. Dunbar, C. J., and Scott, J., dissenting.

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

Action by Charles F. Clough and Jay P. Graves, copartners as Clough & Graves, against the city of Spokane. From a judgment for defendant, plaintiffs appeal. Affirmed.

Turner, Graves & McKinstry, for appellants. James Dawson, Corp. Counsel, and Jones, Belt & Quinn, for respondent.

ered. The checks and the accounts represented thereby were assigned to the plaintiffs, and, not having been paid by said contractors, this action was brought against the city to recover the aggregate amount thereof. It is alleged in the complaint that the pretended bond given by the contractors to the city, a copy of which is set out, was invalid, because it was not such a bond as the statute requires; and that, even had it been such, the sureties therein mentioned were discharged by reason of the action of the defendant and said Patchen Bros. in altering their said contract in a material part thereof (by extending time of performance) after its execution, without the consent of said sureties, and that the said sureties refused to pay anything, on account of said bond, to the plaintiffs. To the complaint the defendant interposed a demurrer, which was sustained by the court, and, plaintiffs electing to stand upon their complaint as filed, judgment was rendered against them.

The appellants, assuming that the law above mentioned is applicable to this case, earnestly urge that the respondent city is liable in this action, for the reasons (1) that the bond set out in the complaint is not such as required by the statute; and (2) that, if it is, the sureties are released by reason of the change of the contract between it and Patchen Bros. alleged in the complaint. These propositions are ably and forcibly argued by counsel for appellants in their brief; but if the position of the respondent that the statute in question has no application to such cases as this, and that the city was not compelled or required to take any bond at all for its protection, be tenable, then it becomes immaterial, so far as this case is concerned, whether or not the bond is obnoxious to the objections urged against it; for, in that event, the judgment of the lower court must be affirmed. We will therefore first direct our attention to this vital question. The section of the statute (2415) which requires municipal corporations to take bonds from contractors who undertake to do work or make improvements for such corporations, reads as follows: "Whenever the board of county commissioners of any county of this state, or the mayor and common council of any incorporated city or town, or the tribunal transacting the business of any municipal corporation shall contract with any person or persons to do any work of any character which, if performed for an individual, a right of lien would exist under the law, or make any improvement for such county, incorporated city or town or other municipal corporation, such board of county commissioners or mayor and common council of any incorporated town or city, or tribunal transacting the business of any other municipal corporation, shall take from the person with whom such contract is made, a good and

sufficient bond with two or more sureties, who shall justify as bail upon arrest, which bond shall be conditioned that such person shall pay all laborers, mechanics and material men, and persons who shall supply such contractor with provisions or goods of any kind, all just debts due to such persons or to any person to whom any part of such work is given, incurred in carrying on such work; which bond shall be filed by such board or mayor and common council or other tribunal, in the office of the county auditor in the county where such work is to be performed or improvement made." It be seen from an inspection of this section that the liability of the city depends upon the question whether the legislature intended to require municipal corporations to take bonds for the benefit of laborers, mechanics, and material men from contractors who agree to make improvements for them, in cases where no lien would exist under the law if such persons had performed labor or furnished material to an individual making such improvements. It is insisted by the learned counsel for the appellants that the language used by the legislature is so plain and unambiguous that it admits of no other than a literal interpretation, and, so interpreted, required the city, in this instance, to take such a bond as the statute prescribes; and that, having failed to do so, an original liability arose from it to the laborers by force of section 2416. On the other hand, it is contended that the object and purpose of the legislature in enacting the statute was to place persons performing labor inuring to the benefit of public corporations on the same footing, as far as possible, with those performing like services for individuals, and that this object and purpose is fairly expressed by the language employed. And we are inclined to adopt this view, for it is evident that the lawmakers had in mind the general lien law, and undertook to enact a new and equally liberal statute in favor of those persons who could not claim the benefit of existing laws by reason of the public character of the structures or improvements upon which they might perform labor or for which they might furnish material. There can be no doubt that the legislature have unmistakably declared that municipalities shall take bonds whenever they shall contract with any person or persons to do any work of any character, "which, if performed for an individual, a right of lien would exist under the law;" but it is strongly urged on behalf of appellants that when they "make any improvement" a bond should be taken, whether a lien would or would not exist under the law, if the labor performed thereon were done for an individual. In other words, the contention is that the clause, "or make any improvement," is not qualified or limited by the clause, "which,

if performed for an individual, a right of lien would exist under the law," but refers to a distinct class of employment for which municipalities must, at their peril, take such a bond as the statute prescribes. We think, however, that it sufficiently appears from a consideration of the object and purpose of the enactment, the evil to be remedied, and the language used, that the framers of the law intended to require bonds only in cases where a lien would attach under the law if the labor were performed or the material furnished for an individual; and, as one could have a lien under the law (section 1663, Gen. St.) for labor performed upon a street for an individual, it follows that section 2415 is not applicable to a street-grading contract, and that no bond from the contractors was necessary. The judgment of the lower court is affirmed.

HOYT and STILES, JJ., concur.

no

DUNBAR, C. J. I agree with the construction of the statute contended for by appellants, and therefore dissent.

(Nov. 24, 1893.)

SCOTT, J., (dissenting.) The construction of the statute aforesaid is attended with some degree of difficulty. Under the one adopted, the words, "or make any improvement" would seem to serve no purpose. On the other hand, if these words were to be given force, the prior clause would probably be useless, as it would be hard to conceive of any work performed for an individual for which a right of lien exists which would not come under the designation of "improvement;" consequently one or the other of said clauses is apparently useless. But even under the construction adopted by the majority, I think work of the character of that in question should be held to be within its provisions. The statute (section 1664, Gen. St.) provides that, "any person who, at the request of the owner of any lot in any incorporated city or town, grades, fills in, or otherwise improves the same or the street in front of or adjoining the same, has a lien upon such lot for his work done and materials furnished." Now, under such circumstances a right of lien does exist for work performed in grading a street. It is true the lien does not attach upon the street,-it would be impracticable for the law to give this, but it provides where such grading is done at the instance of an adjoining owner, that the lien shall obtain upon his adjoining land. The law went as far as it could go in the way of giving a lien, and as there may be a lien in such cases for work performed in the grading of a street, the substituted right should obtain in all cases where the work is performed under a contract with the municipal authorities, and where the law provides in effect that the bond shall take the place of the property. There cer