that she suffered great pain from the injury, etc. If pain and suffering cannot be proven by the person who suffers, it would be a hard matter to establish it. This kind of testimony is almost universally offered in cases of this kind, and we are unable to find a case where an ob jection to it has ever been sustained.

Neither can this case be reversed for the reason that the verdict was excessive. If the testimony of the plaintiff as to her injuries is true, this court cannot say that a verdict for $1.000 is excessive, or is the result of passion or prejudice.

So far as the question of negligence of the defendant is concerned, there was conflicting testimony. The testimony went to the jury under proper instructions. That was one of the questions of fact which the jury had to decide. They have decided it against the defendant, and this court would not be warranted in disturbing their verdict. Judgment is affirmed, and costs for respondent.

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

HOYT, J., being disqualified, did not sit in the case.

ACCOUNTING-PLEADING-ANSWER-EVIDENCE -PRESUMPTIONS.

1. In an action for an accounting against R. & S. and L., it appeared that plaintiff contracted to sell and deliver logs to R. & S., who agreed to saw them, sell the lumber, and out of the proceeds first pay the expense of driving the logs, then pay L., who held a mortgage on the logs, and, after paying plaintiff the remainder of the price, retain the balance as their compensation. The complaint alleged that R. & S. were the agents of plaintiff, and that they and L. refused to account for any portion of the lumber, or the proceeds thereof. The contract was not set out, nor was there any allegation showing a delivery of the logs by plaintiff, or that he had, in any manner, complied with his contract. It was not alleged that any logs had been sawed, or any money realized from sales of lumber, or that L. had in his possession any of plaintiff's property. Held, that the complaint did not state a cause of action.

2. Where R. & S. answered, setting up the contract, and alleged that plaintiff failed to deliver more than one-tenth of the logs, which they marketed for $176.65, out of which they had paid $23.87 for expenses of driving, and the balance of $152.78 to L., on account of his debt, this was in itself an accounting, and, there being no reply, they were entitled to a dismissal.

3. L. answered, admitting foreclosure of the mortgage, and a sale of the remaining ninetenths of the logs to pay the balance of his debt. It appeared that, of the one-tenth part of the logs delivered to R. & S., 60 per cent. was of the value of $4 per thousand feet, and that the other 40 per cent. was worth $3 per thousand; and that R. & S. purchased the balance of logs from L. at the sale under the mortgage. The court entered judgment for plaintiff on the pleadings for the value of the logs so sold under the mortgage, on the presumption that 60 per cent, of them were $4 logs, and 40 per cent. $3 logs. Held, that

there was no basis whatever for such presumption.

4. It was immaterial that R. & S. filed their bond on appeal before the notice of appeal was given.

Appeal from superior court, Lewis county; EDWARD F. HUNTER, Judge.

Action by C. B. Runyan against E. Russell and E. J. Russell for an accounting. Judgment for plaintiff. Defendants appeal. Reversed, and action dismissed.

Reynolds & Stewart, for appellants E. Russell & Son. N. C. Richards, for appellant J. S. Long. Van Fossen & Ramage, for respondent.

STILES, J. That the bond of the appellants Russell & Son was filed before the notice of appeal was given is not, in our judgment, good ground for dismissal. Our statute fully protects the respondent in case the bond is defective, or the sureties insufficient, and that is all that he can reasonably demand. The motion to dismiss is therefore denied.

The plaintiff below, on the 7th day of February, 1890, assuming to be the owner of about 400,000 feet of good, merchantable logs, part of which lay in the Chehalis river, and the remainder in the east branch of that river, and all of which be had theretofore mortgaged to defendant Long to secure the payment of $337.65, then past due, executed to defendants Russell a contract to sell and deliver the logs to them, at their boom in or near Chehalis, on or before April 1, 1891. Russell & Son, on their part, undertook, with all reasonable and convenient dispatch, to saw the logs into lumber, and sell the lumber in the market, and out of the proceeds, as fast as realized, to pay Runyan $4 per thousand feet for smooth logs, and $3 for rough ones, according to the "Spaulding rule" and the measurement of a scaler to be employed by Runyan. The first money received by Russell & Son for lumber was to be devoted by them to the payment of the drivers to be employed by Runyan in delivering the logs; and the second money was to be paid to Long, until $337.65, with interest at 1 per cent. per month from June 1, 1889, had been so paid to him. Both of these items were to be charged as cash paid to Runyan on account of the purchase money of the logs. There were clauses in the contract in this language: "It is expressly understood and agreed that no property, interest, or right in the said logs or lumber specified in this contract, otherwise than as holders of an agreement to purchase as herein set forth, is to pass to the parties of the second part [Russell & Son] until the same has been paid for, as provided for in this contract;" and, "this agreement is not to be of any binding force or effect as to the parties of the second part until assented to in writing by the said J. S. Long." Long, in consideration of $1 paid by Russell & Son, assented to the agreement made between them and Runyan, and agreed to hold them responsible to him only as set forth therein, but limited his assent in these words: "But this assent is not to interfere with the or any rights between the party of

the first part and said J. S. Long." On the 26th day of February, 1891, Runyan filed his complaint against the Russells and Long, alleging the partnership of the Russells, his own indebtedness to Long, his ownership of the logs and their value, and his construction of the legal effect of his contract with the Russells, viz., that they were his agents to manufacture the logs into lumber, market the lumber, and distribute the proceeds, they retain ing the balance after paying the expenses, Long's debt, and the agreed price of the logs, as their compensation for sawing and marketing. The contract was not set out, nor was there any allegation showing a delivery of the logs by him, or any other compliance with the contract as it existed, or that the logs had been sawed, or any money realized from sales of lumber. In these matters it fell short of being a sufficient complaint against any of the defendants, and especially Long. But the fifth paragraph was relied upon to complete the statement of a cause of action. We quote: "(5) That the said Russell & Sou, and the said J. S. Long, contriving to defraud plaintiff, have neglected and refused, and still do neglect and refuse, to account to plaintiff for any portion of said logs or lumber, or the proceeds thereof, but the defendants have wrongfully converted the same to their own use. The prayer was that the defendants account, and that plaintiff have general, equitable relief. Both sides treated the case as an equitable action, although the conversion is evidently intended to be the basis of recovery. No fact constituting legal fraud is pleaded, since, conceding Russell & Son to have been mere agents, it is not charged that they ever had either logs or money upon which a demand to account could have been predicated. Long certainly stood in no relation, as disclosed by the complaint, war. ranting the plaintiff in calling him to an account, for he is not alleged to have had any of plaintiff's property in his possession.

Russell & Son answered separately, setting up the contract, and alleging Runyan's failure to deliver to them any but a small portion (about one-tenth) of the logs, which they had marketed for $176.65, out of which they had paid $23.87 for expense of driving, and the balance, $152.78, to Long on account of his debt. This was in itself an accounting, and as there was no reply to their answer Russell & Son were entitled to be dismissed.

Long's answer also set out the contract and his assent thereto, and alleged his debt, and that it was secured by a recorded chattel mortgage on the logs. He further showed that he had, as he claimed, lawfully foreclosed his chattel mortgage in September, 1890, and sold the logs for $281, the unpaid portion of his debt, and the costs. Plaintiff replied to Long's answer, admitting a pretended foreclosure sale of his logs, but denying that any lawful proceeding had been taken for that purpose. Other matters in the reply were wholly immaterial, and not responsive to any new matter raised by the answer.

In this state of the pleadings the cause

was tried. Plaintiff introduced no testimony, under an intimation from the court that his case was admitted by the pleadings. Thereupon Russell & Son moved to dismiss as to them, which motion was denied. Defendants thereupon sought to show that no logs but those admitted by the answer of Russell & Son were delivered; that the logs sold by Long under his foreclosure were not merchantable logs, but were water-soaked and rotten, so that they were worth but little, of which Runyan had notice; that for the reason that the logs were of such inferior quality they notified him that these logs could not be received under the contract; and that, therefore, Long sold them to save his debt; all of which was refused by the court. But at this point a fact appeared which was not hinted at in the pleadings on either side, viz., that the defendants Russell & Son were the purchasers at Long's foreclosure sale. It simply seemed to be assumed by court and counsel to be true, without any testimony on the subject. The defendants offered to show other facts, few of which were relevant to the case under the pleadings, but some of which may have been pertinent to it as tried; but all of them were ruled out. And the court thereupon rendered judgment for plaintiff upon the pleadings, to do which it made the following conclusive presumptions against the defendants: (1) That 352,258 feet of logs were sold by Long; (2) that a part of them, exactly proportioned to the number of $4 logs delivered by Runyan, were of that class; (3) that another part, exactly proportioned to the number of $3 logs delivered, were of that class. Viewing this case from the stand-point of equity, where the respondent himself placed it, we should say that none of these presumptions should have been indulged in. Under the contract he was to get a certain sum per thousand feet of good, merchantable logs, as they should turn out to be smooth or rough, and out of this price the expenses of delivery and Long's debt were to be first paid. Russell & Son alone were responsible for the price, and then only when Runyan should have delivered them, and they were merchantable, and had been sawed up and sold. Long, at the most, could only be held to keep hands off until April 1, 1891, or to pay such damages as he might occasion by selling under his mortgage at an earlier date. No action for an accounting could lie against him under any circumstances, and any damages a court might give for his premature sale would be limited to the actual injury suffered, not by the plaintiff's loss of rotten or worthless logs, but by his loss of such logs as Russell & Son were to convert into lumber. There was nothing either in his chattel mortgage or in his assent to the contract which bound him to a certain number of feet, or to value of the logs; and especially there was no basis whatever for presuming against him that, because about 60 per cent. of the logs admitted by Russell & Son to have been sawed were of the first class, and 40 per cent. of the second class, therefore the remaining nine-tenths of the lot

were of the two classes in precisely the same proportions. As to the liability of Russell & Son, assuming them to have been agents as claimed, and therefore subject to account, there is no ground in the case presented for a judgment against them. Respondent made no reply to the accounting they furnished in their answer, and their allegation that they had received no logs other than those therein accounted for. But if we admit it to be in the case that they were the purchasers at Long's sale, it would be difficult to find a reason why they might not be the successful bidders as well as another. Unless Long assented to the contract they were not to be bound by it; and if, disregarding his assent, he sold, what principle could make them responsible? Possibly, if some fraudulent collusion were made to appear between them and Long, whereby the sale was brought about, or if the sale were void, and not merely irregular, a court of equity would consider the logs coming into their hands as there under the contract, and not by the purchase. But in that contingency it must somewhere appear that the conditions contract have transpired, viz., that the logs were merchantable, that they have been sawed, and that the lumber has been marketed, or that Russell & Son have not acted with reasonable diligence. It is true that in his reply to Long's answer the plaintiff says that the logs have been reduced to lumber; but he does not say that they had been so reduced when the action was commenced, or that any of the lumber had been, sold; besides which, a plaintiff cannot be allowed to make his case by his reply, and this allegation was not made as against Russell & Son at all. The judgment will be reversed, and the action dismissed as to both defendants.

the

ANDERS, C. J., and DUNBAR and HOYT, JJ., concur. SCOTT, J., did not sit at the hearing of this cause.

(3 Wash. St. 672)

PERMSTICK V. SHERIFF OF PIERCE COUNTY. (Supreme Court of Washington. Feb. 3, 1892.) LIABILITY FOR COSTS-MALICIOUS PROSECUTION

-HABEAS CORPUS.

1. Code 1881, § 2103, provides that where any person shall be brought before a court, justice of the peace, or other committing magistrate, charged with the commission of a crime or misdemeanor, and the court, justice of the peace, or other magistrate trying the charge shall decide the complaint was frivolous or malicious, the "judgment or verdict" shall designate who is the complainant, and may adjudge that such complainant pay the costs; and that thereupon judgment shall be entered against such complainant, who shall be committed until such costs be paid or discharged by due process of law. Held, that the statute applies only to examinations before committing magistrates, and a judgment against a complainant was void which was entered on the verdict of a jury finding the complaint in a criminal case to be malicious, and naming the complainant.

2. The fact that the complainant against whom such void judgment was entered did not appeal, does not estop him from maintaining habeas corpus proceedings. In re Rafferty, 25 Pac. Rep. 465, 1 Wash. St. 382, distinguished.

Habeas corpus proceedings by Leonard Permstick against the sheriff of Pierce county. Writ allowed, and petitioner discharged.

A. J. Hanlon, for petitioner.

the jail of Pierce county under a commitSTILES, J. The petitioner is confined in ment of the superior court, which recites that in the case of State v. Locke petitiouer was the complaining witness; that the jury trying Locke had returned the following as their verdict, viz.: "We, the jury in the above-entitled cause, do find and we further find that the complaining the defendant, George Locke, not guilty; witness in the cause is Leonard Permstick, and that the complaint was malicious, and without probable cause;" and that thereupon a judgment was entered upon the verdict that the petitioner pay the costs of the trial, $275.85, and stand committed to the jail of the county until payjudgment was void, and that petitioner ment. We are of the opinion that this is entitled to his discharge. The judgment is justified by reference to section 2103,1 Code 1881; but an inspection of that section does not bear out the claim asserted under it. The provision there made is applicable only to cases of examinations before committing magistrates. A charge," a "complaint," and an “examination" are spoken of, which do not apply, in the sense intended, to an indictment or an information, and the proceedings thereunder. It is true that a "judgment or verdict" are mentioned, in which it shall be designated who is the complainant; but in the same clause it is prescribed that the "court, justice of the peace, or other magistrate" shall decide whether the complaint was frivolous or malicious. None of these magistrates find verdicts, and we must suppose the use of the term to have been an inadvertence. Perhaps a better reason, however, why section 2103 should not be sustained in this case is that section 966 was evidently intended by the legislature to cover all criminal cases triable by jury, and two things are at once observed as markedly prominent in that section: (1) That the court, upon failure of the prosecution, is to be satisfied from all the circumstances that the action of the complainant was malicious, or without probable cause; (2) that imprisonment until the costs are paid is not a part of the judgment there

18 2103. When any person shall be brought before a court, justice of the peace, or other committing magistrate of any district, county, city, or town in this territory having jurisdiction of the alleged offense, charged with the commission of a crime or misdemeanor, and such complaint, upon examination, shall appear to be unfounded,

no

costs shall be payable by such acquitted party, but the same shall be chargeable to the county, city, or town for or in which the said complaint is triable; but if the court, justice of the peace, or other magistrate trying said charge shall decide the complaint was frivolous or malicious, the judgment or verdict shall also desig nate who is the complainant, and may adjudge that said complainant pay the costs. In such cases a judgment shall thereupon be entered for the costs against said complainant, who shall stand committed until such costs be paid or discharged by due process of law.

permitted. The jury in all criminal cases are in the box for but one purpose, viz., to say whether or not the accused is guilty; and in this state that fact is emphasized by a statute (section 1103) which prescribes a form of verdict covering but the one alternative which they must decide. We do not find it necessary to pass upon two constitutional questions raised here, viz., whether the petitioner had due process of law, and whether he is imprisoned for debt. They will be interesting when occasion arises requiring their discussion. The petitioner is not estopped to maintain this proceeding by the fact that he might have appealed from the judgment against him. The writ of habeas corpus is allowable in cases where the court which rendered the judgment under which the person is held was not a court of competent jurisdiction, or the party may ap peal if he sees fit. It was suggested that the case In re Rafferty, 1 Wash. St. 382, 25 Pac. Rep. 465, had some bearing upon this point. But it is not so. In the Rafferty Case it was sought to have this court inquire into and pass upon the question whether the superior court had jurisdiction of the petitioner's person; that is, whether its proceedings were regular, nothing of which was disclosed by the judgment or could be inquired into on habeas corpus. So, in the Lybarger Case, 2 Wash. St. 131, 25 Pac. Rep. 1075, we were asked to pass upon the question whether the procedure by information was a lawful mode of obtaining a conviction, and we there stated the limit of the rule thus: "When the officer returns as his authority for holding a prisoner a commitment which shows upon its face that such person is committed by a court of general jurisdic tion in pursuance of its final judgment for a crime triable by such court, we think he has brought himself within the provision of our statute, and that the courts are, by the terms thereof, precluded from inquiring further into the cause of detention." As applied to that case, enough was said; but in this one the qualification that the cause was triable by the court must be extended to cover the condition that the court's judgment was one which, under the law, it had jurisdiction to render. In this case the commitment shows on its face that the prisoner is detained for a cause not recognized by the law as ground for a judgment of imprisonment, and therefore not within the possible jurisdiction of any court. The case of People v. Liscomb, 60 N. Y. 559, clearly and at length discusses both the question of the right to habeas corpus in addition to that of appeal and that of the competency of courts in such cases. Let the writ issue, and the petitioner be discharged.

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

(3 Wash. St. 747)

FOWLER V. FAIRCHILD, County Treasurer. (Supreme Court of Washington. Feb. 23, 1892.)

DELINQUENT TAXES-COLLECTION-FEES.

Act March 9, 1891, providing for the assessment and collection of taxes, is prospective only in its operation; and section 94, providing

for a fee of 25 cents for the registration of an assessment on which taxes remain unpaid, does not relate to delinquent taxes for the year 1890.

Appeal from superior court, Pierce county: F. CAMPBELL, Judge.

Proceeding by Mary Fowler for a writ of mandate to James C. Fairchild, as treasurer of Pierce county, to compel him to receive delinquent taxes. From a peremptory mandamus requiring him to receive the amount tendered, defendant appeals. Affirmed.

W. H. Snell, Pros. Atty., for appellant. Stanton Warburton, for respondent.

STILES, J. The respondent was the owner of certain real estate in Pierce county subject to taxation in the year 1890. Taxes for that year became delinquent March 1, 1891, by the act of January 20th of that year, (Acts, p. 1;) and in the month of June following she tendered to appellant, who was treasurer of the county, the exact sum for which her property was taxed, including penalties and interest. But the appellant, assuming to exercise authority under section 94 of the act of 1891, (page 316,) demanded the sum of 25 cents additional for each separate parcel of respondent's land, amounting to over $400 in all, and refused to receive the sum offered, or to issue a receipt, until the registration fees should be paid. At the suit of the respondent, the superior court, by a peremptory mandamus, required the appellant to receive the amount tendered to him, holding that in respect to this matter of the registration fee the act of 1891 was not applicable to assessments levied for the year 1890. The court also ordered the cause to be certified to this court for review, upon this question and some others. We have examined the act of 18911 carefully from its title to its close, and find no evidence of intention on the part of the legislature to make any of the provisions therein which add to the burdens of the tax-payers of the state, of which there are several, apply otherwise than prospectively. It is the general rule that such provisions in a new revenue act do not operate retrospectively, unless there is very clear language in them to such an effect. Smith v. Humphrey, 20 Mich. 398. We might argue the point by lengthy reference to particular items of internal evidence in the act which could be used to sustain the view that this was not intended to be anything more than an ordinary newly-enacted revenue law; but the real intention of the legislature is so clearly shown by its act called "An act to cure defective titles to real estate," passed only three days before the general act, (page 166,) that there is no room for doubt. An examination of the old law and the new one shows this difference in the matter of the collection of delinquent taxes: Under the act of 1890, on the 1st day of April the treasurer was required to return his tax-list of the year previous to the auditor, (section 99,) and the first mention of subsequent authority in him to collect the delinquent taxes is found in section 111, after judgment, and

1 Act March 9, 1891.

upon the certificate of the auditor. Under the Code and the amendments, the system was substantially the same,-the auditor was the head of it. But under the act of 1891 the treasurer has become the head of the entire system of collecting taxes, both before and after delinquency. He does not return his lists to the auditor, but makes his settlements for collections, and delivers a copy or duplicate of his register of delinquent property. It would thus happen that, under the old laws, the treasurer would have no books or data of any kind in his office, possession, or official knowledge from which he could make up such a register as is contemplated in section 94. The legislature, aware of that fact, saw fit, in its endeavor to bring all the unpaid and disputed tax matters in the state into harmony and order, by setting the county commissioners at work, under the act of March 6th, to get to. gether all unpaid, lost, or strayed taxes into rolls, which were then to be filed in the treasurer's office, and the collection proceeded with "as may by law be provided for the collection of taxes on real estate becoming delinquent on the roll of 1891, " viz., by the law approved three days later. This covers the taxes assessed in 1890 to a demonstration, and, as there is no charge of any fee for this kind of registration, it follows that the respondent could not be charged one, and her tender to the treasurer was good.

The other questions certified become unnecessary to the decision of the case, under the ruling made upon the first one, and we must decline to answer them for the one reason, if for no other, viz., that this matter was laid before us somewhat in haste, and under a special assignment, for the express purpose of obtaining a decision before March 1st, and some of the points submitted would require more careful and exhaustive study than we could have time to devote to them in that short period. The judgment is affirmed.

ANDERS, C. J., and HOYT, SCOTT, and DUNBAR, JJ., concur. (22 Or. 160)

STATE V. DAY.

(Supreme Court of Oregon. March 22, 1892.) ASSAULT-EVIDENCE-DECLARATIONS OF PROSECUTING WITNESS.

On a trial for an assault, the complaining witness appeared to be afraid to testify. The deputy district attorney who conducted the examination in the police court testified for defendant as to certain facts at that examination, and

on

cross-examination was asked whether the complaining witness appealed to law for protection; to which he answered: "Yes, sir: he made certain statements to me; he laid the facts before me, and then said he was afraid to testify. The evidence did not connect defendant with any threats or hostile movements towards the witness. Held, that the admission of such evidence, against defendant's objection, entitled him to a new trial.

Appeal from circuit court, Multnomah County; LOYAL B. STEARNES, Judge.

Indictment against Chung Foo and Joe Day for assaulting Sue Bing with a dangerous weapon. On a separate trial Day

was convicted, and from a judgment thereon appeals. Reversed.

The other facts fully appear in the following statement by STRAHAN, C. J.:

The defendant was jointly indicted with one Chung Foo for being armed with a dangerous weapon, and assaulting Sue Bing therewith, and upon a separate trial was convicted, from which judgment of conviction this appeal was taken. Upon the trial in the court below the defendant sought to impeach the prosecuting witness, Sue Bing, by making it appear that, upon a preliminary examination, had in the police court of the city of Portland, he testified that he did not know who it was that shot him, but that he had been informed that he was shot by Joe Day and Chung Foo. For that purpose, defendant's counsel asked Sue Bing, on his cross-examination, a number of times if he did not so testify in the police court. He remained silent, failing to answer either of said questions. The court then repeated said questions to the witness several times, with the same result. The record then recites: "Here the district attorney admitted that the complaining witness, Sue Bing, did so testify in the police court." After some further questions, the court propounded this question to the witness: "Did you testify- Didn't you swear before Judge CAREY in the police court when you were examined in this case down there, didn't you say before the police judge, you didn't know who shot you? Say yes or no. To which the witness answered: "Yes, I say I never see him before July 2d. I don't know him before that time. The court then repeated the question substantially, but, failing to elicit an answer, he remarked to counsel: "You will have to ask the witness so he can understand your question." The district attorney then observed the reason he did not testify in the police court was because he was afraid they would kill him, to which defendant's counsel objected, but did not take the ruling of the court upon the propriety of the district attor ney's statement of the fact, nor was the same withdrawn. The witness continued: "At jail I tell Jack Rugg I was afraid; that is all. Question by the district attorney: You no afraid now? Answer. They tell me they kill me, and tell me to no tell who shoot me, and they say they give me eighty dollars not to tell who shoot me. Question by the district attorney: Some one offered you eighty dollars if you would not say who shot you? A. Yes. Question by the district attorney: Can you tell who it was,-what Chinaman it was? A. Yes. (The witness here pointed out a Chinaman in the courtroom whom he said offered him eighty dollars not to testify against Joe Day and Chung Foo in this case.) Question by the district attorney: What is his name? A. Choo Doo. Question by the district attorney: What company does he belong to? A. I don't know." part of the examination does not appear to have been objected to. Ju Guy, a witness for the defendant, testified that he was present in the police court, and heard Sue Bing testify. Among other things he

This