it was furnishing to him surgical treatment, and that it is estopped from denying that such was the fact, does it follow, under the facts of this case, that it is liable for the mal practice of the physician? We think it does not. This hospital was maintained, and the physician provided, for the sole purpose of relieving sick and injured employés without expense to them, and without any intention on the part of the company of making any profit out of the undertaking. It was, therefore, a charitable institution, and it was supported by the contributions of employés, and carried on in their interests; and if the company did employ the physician, as claimed by respondent, to look after and treat the sick and injured, it is not liable for his negligence, but is responsible only for want of ordinary care in selecting him. McDonald v. Hospital, 120 Mass. 432; Van Tassell v. Hospital (Sup.) 15 N. Y. Supp. 620; Insurance Patrol v. Boyd, 120 Pa. St. 624, 15 Atl. 553; Laubheim v. Steamship Co., 107 N. Y. 228, 13 N. E. 781; Railway Co. v. Artist, 9 C. C. A. 14, 60 Fed. 365. And it is not shown that the company was derelict in that particular. In fact, it is not even alleged in the complaint that it did not exercise ordinary and reasonable care to select an ordinarily skillful physician. The action was not brought upon that theory, and the proof fails to support a finding of negli gence on the part of the company, and the judgment must, therefore, be reversed. Reversed and remanded. STILES and HOYT, JJ., concur. (10 Wash. 573) HAYS et al. v. MERCHANTS' BANK OF PORT TOWNSEND. (Supreme Court of Washington." Jan. 11, 1895.) TIDE LANDS COMPETENCY OF PURCHASER-WHO MAY CONTEST DECISION OF BOARD OF EQUALI ZATION APPEAL TO SUPERIOR COURT REQUISITES. 1. Gen. St. § 2170, giving the superior court jurisdiction of an appeal from the decision of the state board of equalization, making an award of right to purchase tide lands, and Code Proc. 49, which provides that when jurisdiction is conferred on a court all the means to carry it into effect are also given, that court may possess itself of the application, notice of contest, and record of the board's action. 2. The better proceedings, more consonant with the spirit of the Code, in the consideration by the superior court of an appeal from a decision of the state board of equalization relative to the right to purchase tide lands, is to make an order, upon application by a contestant, directed to the board, requiring it to send up papers and records by copy; and the transcript sent up in cases arising before the act of 1893 should be authenticated by the secretary, and such a proceeding brings up the whole cause for retrial. 3. Where, in an appeal from the award of the state board of equalization of a right to purchase tide lands, the secretary of that board voluntarily sent to the superior court what purported to be a record of the contest, attested by him, no attempt having been made to show incorrectness therein, that court will not be held not to have acquired jurisdiction, on the ground that the record thus transmitted gave it nothing of an official character to act upon. 4. Under Gen. St. § 2172, giving the owners of the land abutting on tide lands the preference right to purchase the latter, a judgment creditor who has purchased the abutting property at his own execution sale cannot, before expiration of the time allowed his debtor to redeem, contest the application of one who has acquired possession thereof by mesne conveyances from the judgment debtor. 5. The objection that an applicant for the purchase of tide lands is not qualified is a matter lying between him and the state, and cannot be raised by one who was not entitled to contest the application. Appeal from superior court, Jefferson county; R. A. Ballinger, Judge. This is a contest between W. F. Hays and others, as contestants, and the Merchants' Bank of Port Townsend, as contestee, for the right to purchase certain tide-lands. From a reversal by the superior court of an order of the state board of equalization and appeal awarding the right of purchase to contestee, contestee appeals. Reversed. A. R. Coleman and C. A. Burnett, for appellant. W. F. Hays, for respondents. STILES, J. This was an appeal from the decision of the state board of equalization and appeal in a tide-land contest. The ac tion of the board was reversed by the superior court, and the first point made here by the appellant is that the court could not take cognizance of the appeal, because of the failure of the law to prescribe a method of procedure in such cases. We have had oc casion in State v. Forrest, 8 Wash. 610, 36 Pac. 686, 1120, and in McKenzie v. Woodin (Wash.) 37 Pac. 663, to comment upon some of the deficiencies and incongruities of the statute, but this is the first time that so seri ous an attack has been made upon its execu tion. To sustain the appellant upon this point would certainly have the effect to invalidate the whole act for the sale of tide lands, at least where there were opposing claimants; since it was obviously not the intention to make the action of the board final in any case where there was contest of an application. But Gen. St. § 2170, clearly gives the court jurisdiction to entertain appeals, and the power ought not to be permitted to fail if there is any reasonable means of sustaining it. Code Proc. § 49, we think furnishes a way out of the difficulty, It provides as follows: "Sec. 49. When jurisdiction is, by the constitution of this state, or by statute, conferred on a court or judicial officer all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding be not specifically pointed out by statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." These provisions are very sweeping, and they certainly empower a superior court to possess itself of everything necessary to enable it to review the action of any inferior court, board, or tribunal, where such authority is conferred upon it by statute. The word used in the law to describe its authority is "appeal," but we take it that the word is not used in any technical sense, but to signify an authority to retry the questions arising before the board upon a contest. To do this, it ought to be possessed of the applications, notices of contest, and the record of the board's action, and the statute authorizes it to adopt such method of possessing itself of the case as may appear to be most conformable to the spirit of the Code of Procedure. We are inclined to believe that it would be more consonant with the spirit of the Code were the superior court, in each of these cases, upon application of a contestant, to make an order, directed to the board, requiring it to send up the papers and record, by copy, and that the transcript sent up in cases arising before the act of 1893 should have been authenticated by the chairman of the board, rather than by the secretary, who was an officer unknown to the former statute. It is true that neither was a chairman, as such, spoken of in the act of 1890; but, by the common custom of all boards of this kind, they are organized with a chairman or president, who commonly represents the board by his signature. The proceeding thus suggested would be, in substance, a certiorari, and would be similar, both in the practice and in the result, to certiorari to a justice of the peace, which we have recently held takes up the whole case for retrial in the superior court. McEneaney v. Dart (decided Nov. 2, 1894) 38 Pac. 764. In this case the secretary of the board seems to have voluntarily sent to the superior court of Jefferson county what purported to be a record of the contest, attested by him, and objection was made, and is here insisted upon, that the record thus transmitted gave the court nothing bearing an official character to act upon. We confess to difficulty in passing upon this point; but, inasmuch as all the cases of this kind we have had before us were based upon the same sort of irregular certification, we shall not now, after the deficiencies of the old law have been somewhat remedied by the designation of a permanent chairman and the provision for a secretary, disturb the course of things by holding the court to have been without jurisdiction. We do not know how many of these tide-land titles would be overturned by such a ruling. No attempt was made to show, in this case, that the purported record was incorrect in any particular. But, upon the merits of the contest, we think it is imperative that the decision of the superior court be reversed, because the respondents here were not qualified to contest the application of the appellant, or to pur chase the lands in question at any time within the period allowed for the filing of contests. Prior to March 26, 1890, the Port Townsend Foundry & Machine Company was the owner of the upland portion of lots 1, 2, 3, and 4, block 15, in the city of Port Townsend, and had thereon certain improvements. On August 12, 1890, the above-named company conveyed this property to one Perkins; and he, December 31, 1890, conveyed it to appellant, which filed its application to purchase May 20, 1892. Respondents filed their application later, and in July, 1892, filed a notice of contest of appellant's application. Respondents' claim and contest were based upon a sheriff's certificate of sale made upon a judgment against the foundry and machine company, filed and recorded in the office of the auditor of the county June 24, 1890, and therefore a lien upon the real property of the debtor company. The sale was made, and the certificate of purchase executed, January 29, 1892, and the sale was confirmed April 28, 1892. When the hearing before the board was had in March, 1893, the time for redemption from the execution sale had expired, and respondents had received a sheriff's deed. These facts they made known to the board by a supplemental showing in the contest. Thus, the appellant was the owner of the upland when its application was filed, and at all times until more than six months after the filing of the counter application and contest by respondents; and the question is, were the respondents competent contestants? We think not. The statute (Gen. St. § 2172), gives to owners of the lands abutting on tide lands the preference right to purchase, and it cannot be maintained that the respondents were owners of the land covered by their certificate at any time prior to their receiving a deed. A judgment debtor, until after the expiration of the time to redeem real estate sold on execution, is the holder of the legal title, and must in all respects be treated as the owner of the land. Freem. Ex'ns, § 323; Dray v. Dray, 21 Or. 59, 27 Pac. 223; McMillan v. Richards, 9 Cal. 365; Curtis v. Millard, 14 Iowa, 128. True, under our statute, the purchaser is to be let into possession on demand; but whether, if respondents had been in possession, a different result would follow, we do not decide, for there was no such possession in this case. But for the interposition of the respondents, therefore, it is altogether likely that, long before the expiration of the time for redemption, appellant would have had its conveyance from the state; and it would be altogether unjust to allow a contestant who has no present right to contest to go into the land office and file a claim based on no title in himself, and, after months of delay beyond the time permitted for the filing of contests, give him the land upon the basis of some after-acquired title. Moreover, we do not think it was the intention of the legislature that these applications for purchase of tide lands, by shore owners, should be based upon anything but legal title. The board is not a court of equity, and it is not constituted for the adjudication of either equitable or inchoate rights. It must be satisfied, of course, that ownership exists, but it takes things as they are at the time of application and within the time allowed for contest. It may well be that in the case before us the institution of respondents' contest was the very reason why their sale was not redeemed from, owing to the uncertainty that the appellant was in whether it would be awarded this land. Respondents urge that appellant is not shown to be a qualified applicant, because it made no proof of facts showing it to be entitled to hold real property in this state. The point would be well taken if urged at the suit of a competent contestant. All that we know from the record is that the name of the appellant is Merchants' Bank of Port Townsend, but whether it be a foreign or a domestic corporation, or a corporation at all, or, if a corporation, whether its stock is so held that it can buy land in Washington, or whether its articles permit of its buying land anywhere, is not disclosed. Its application was made by "C. F. Seal, Cashier," who says that he is entitled to purchase lands. The board seems to have treated this as an application of the bank, because it was signed, "Merchants' Bank of Port Townsend, by C. F. Seal, Cashier;" and the whole case before the board proceeded on the theory that the bank was the applicant, and there was a finding there that it was qualified to purchase, but whether upon any evidence the record does not disclose. But respondents can raise no question upon this. The whole matter lies between the state and the applicant. The appellant raised other points, but they are too numerous to notice, and they are not necessary to a decision of the case. Judgment reversed, and cause remanded, for dismissal of the appeal and contest. HOYT and SCOTT, JJ., concur. DUNBAR, C. J., and ANDERS, J., not sitting. (10 Wash. 280) HOWARD v. SEATTLE NAT. BANK. (Supreme Court of Washington. Jan. 12, 1895.) Petition for rehearing. Denied. HOYT, J. In its petition for rehearing, respondent claims that there are expressions in the opinion which might prevent a full presentation of the case in the superior court. It was not the intention to hold more than that such facts were alleged in the complaint that it was error to sustain a general demurrer thereto, and thus prevent a trial upon the merits. There was no intention to restrict the further proceedings in the cause. If anything was said which warrants any other construction, it is hereby modified. The cause will be remanded for further proceedings, with leave to plaintiff to file an amended complaint, or if he elects to stand upon the old one, the defendant shall have the right to attack it by motion or special With demurrer, should it desire so to do. this modification of the original opinion, and of the judgment to be entered here upon reversal, there will be no necessity for a rehearing upon the grounds stated in the petition therefor, and it will be denied. DUNBAR, C. J., and STILES, J., concur. (10 Wash. 484) HARKER v. WOOLERY, Sheriff.1 (Supreme Court of Washington. Jan. 4, 1895.) CHATTEL MORTGAGES-AFFIDAVIT OF GOOD FAITH -FORECLOSURE NOTICE. 1. Where a chattel mortgage would be val id without the mortgagor's wife joining therein, the fact that she does not unite with him in the affidavit of good faith required by 1 Hill's St. § 1648, does not invalidate the mortgage, though she joins in its execution. 2. The fact that a notice of foreclosure describes the property as 208 sacks of wheat, while the mortgage itself described it as a certain number of acres of wheat, is not such a variance as will vitiate the foreclosure, where it appears that the notice referred to the mortgage, and that in all other respect the description was the same as in the mortgage. Appeal from superior court, King county; R. Osborn, Judge. Action of claim and delivery by A. Harker against James H. Woolery, sheriff, for 172 sacks of wheat taken from plaintiff by defendant under a notice of foreclosure of a chattel mortgage executed by Robert Brown and Margaret Brown, his wife, to H. Flower. From a judgment for defendant, plaintiff appeals. Affirmed. G. D. Farwell, for appellant. R. J. Huston and E. P. Dole, for respondent. SCOTT, J. This was an action to recover a certain quantity of wheat, in sacks, which had been taken possession of by the defendant, as sheriff, under a notice of foreclosure of a chattel mortgage purporting to have been given by Robert Brown and Margaret Brown, his wife, to one H. Flower. Judgment was entered for the defendant, and plaintiff appeals. The first point raised is that the court erred in overruling an objection to the following question asked one of the plaintiff's wit nesses: "Do you remember telling me at that time that Mr. Robertson agreed at one time, when Brown was there, that you were to handle this wheat?" It is contended that this was improper cross-examination. record shows that the question was answered before the objection was made, and there was 1 Rehearing denied. The no motion to strike it. But, regardless of this, the witness' answer was that he did not remember. Consequently, the matter is so utterly immaterial as not to require any further notice. It is next contended that the mortgage was invalid because Margaret Brown did not join in making the affidavit of good faith, the same having been made by Robert Brown alone. It is strenuously contended that the mortgage should have been excluded from evidence for this reason; and authorities are cited to show that under statutes relating to verification, similar to ours, 1 parties making a mortgage must all join in the affidavit in question. Whatever the rule may be generally, we think the mortgage here was sufficient, because a valid lien upon the chattels in question could have been created by the mortgage of Robert Brown, without his wife, it being the community property of the parties. Said parties were designated in the mortgage as husband and wife, and the presumption was, of course, that the property was community property. It being personal property, the absolute disposition of it was in the husband; consequently, all parties had notice of the capacity in which Margaret Brown acted, and were bound to take notice that she was an unnecessary party to the mortgage. It is next contended that the description of the property in the notice of foreclosure was insufficient. The notice contained the same description as that in the mortgage, and it referred to the mortgage, so that all parties might obtain as full information with regard to the property as could be given; it being a certain quantity of wheat raised upon a certain place, and described in the mortgage as so many acres of wheat, etc., and in the notice as 208 sacks. A number of questions are raised as to the instructions given by the court to the jury. After an examination of the same, we think the cause was fairly submitted, and that there was no material error therein. The judgment of the court will be affirmed. DUNBAR, C. J., and STILES and HOYT, JJ., concur. (10 Wash. 498) STATE v. TABELL. (Supreme Court of Washington. Jan. 8, 1895.) SALMON FISHING-COMPLAINT. A complaint for placing a fish trap in the Columbia river, in violation of Act Feb. 10, 1893 (Sess. Laws, p. 15), regulating and licensing the catching of salmon, is fatally defective if it does not allege that the trap in question was designed for catching salmon, or was suited for that purpose. Appeal from superior court, Pacific county; W. W. Langhorne, Judge. Bert Tabell was convicted of placing a fish 11 Hill's Ann. St. § 1648. trap in the Columbia river, in violation of Act Feb. 10, 1893, and he appeals. Reversed. John H. & A. M. Smith, for appellant. Marion D. Egbert and L. E. Ginn, for the State. SCOTT, J. The defendant was arrested upon a complaint made before a justice of the peace, the charging part of which is as follows: "Frank Huffman, being by me first duly sworn, on oath complains in writing, and charges one Bert Tabell, the above-named defendant, with having unlawfully constructed and placed within the waters of the Columbia river, in Pacific county, state of Washington, one certain fish trap; that said fish trap was so constructed and placed by said Bert Tabell between the 12th day of February, 1893, and the 15th day of May, 1893, without leaving an end passage way of at least 30 feet, and a side passage way of at least 900 feet, between said fish trap so constructed and the fish trap next in poșition thereto; that said fish trap so constructed by the said Bert Tabell, and placed within the waters of the Columbia river, Pacific county, state of Washington, was not so constructed and placed there prior to the 10th day of February, 1893, nor fished, numbered, or operated during the year 1892." Upon being brought before the justice, defendant moved against the complaint, upon the ground that it did not state facts sufficient to charge a crime. The justice held the complaint sufficient, and the defendant was tried and convicted. He then appealed the cause to the superior court of Pacific county. On a retrial there, the complaint was again held good, and defendant appealed to this court. The complaint was presumably intended to be brought under the provisions of "An act to regulate and license the catching of salmon," approved February 10, 1893 (Sess. Laws, 1893, p. 15); but it nowhere alleges that the fish trap in question was designed for catching salmon, or was suited to that purpose. For this reason we think it was fatally defective, and it should have been quashed when attention was first called thereto. Judgment reversed. DUNBAR, C. J., and STILES and HOYT, JJ., concur. (9 Wash. 495) CURRY et al. v. CATLIN et al. (Supreme Court of Washington. Aug. 7, 1894.) For majority opinion, see 37 Pac. 678. HOYT, J. (concurring). I agree with the conclusion of the majority as to the merits of the controversy, but cannot assent to that part of the opinion in which it is stated that the complaint of Catlin, by which he sought to have an adjudication that his debt was one which could be enforced against com munity property, did not state a cause of action; for while it is true that the presumption is that it could be so enforced, yet the fact that such presumption is only a prima facie one might largely affect the price which would be realized upon a sale of the community property to satisfy the judgment. The plaintiff should have the right to have the status of his judgment conclusively established before the sale of community property thereunder. Such an adjudication is not only in the interest of the plaintiff, but of the defendant as well; and it is to the interest of the public that property offered for sale upon execution should bring the highest price. In my opinion, the judgment should be in all things affirmed. (10 Wash. 451) TIBBALS v. IFFLAND.1 (Supreme Court of Washington. Jan. 3, 1895.) ACTION FOR RENT-EVIDENCE-WRITTEN ASSIGNMENT OF LEASE-PAROL EVIDENCE OF CONTENTS -VALIDITY-RECORDING - ASSIGNMENT BY LESSEE'S ASSIGNEE-EFFECT. 1. In an action by a lessor against the assignee of the lessee, for rent, in which defendant pleads that he assigned his interest and surrendered possession to another before such rent accrued, defendant may state what he did with the lease and the premises described in it, as a preliminary to proof of the assignment. 2. Where, in such action, proper foundation is laid for secondary evidence of the contents of the assignment, it is not error to permit defendant's witness, who has testified to the assignment of a lease and its contents, to state what lease the assignment purported to assign. 3. In such case, evidence as to how defendant came to get the lease, and his object in getting it, is immaterial. 4. It is not prejudicial to plaintiff, in such case, to refuse to permit a witness who wrote the assignment to state whether the assignment was not a scheme of his to get defendant "rid of the lease." 5. There was uncontradicted evidence that defendant assigned the lease in writing, and that he delivered the assignment and possession of the premises to the assignee; and defendant testified that the assignee soon after left the place for P., and that he (defendant) searched the hotels and boarding houses at P. to get the assignment; that he had addressed letters to the assignee at P. and V., the only places he had any reason to believe he might be found, and received no reply; and that he did not know such assignee's whereabouts. Held, that secondary evidence of the contents of the assignment was admissible. 6. Though the statute provides that the county auditor shall, on payment of his fees, record leases which have been acknowledged and proved (1 Hill's Code, § 199), a failure to record an assignment of a lease does not render it invalid. 7. A lessee's assignee may assign his interest in the lease, and rid himself of liability to pay rent, though the lessor has no notice of such assignment. 8. The interest conferred by a lease for any term of years, on the lessee or his assignee, is a chattel interest, which he can dispose of without his wife's consent. 9. Evidence of diligence of a party, as ground for the introduction of secondary evidence of the contents of a written instrument, is for the court, and should not be considered by the jury. 1 Rehearing pending. Appeal from superior court, Jefferson county. Action by H. L. Tibbals, Sr., against John Iffland. From a judgment for defendant, plaintiff appeals. Affirmed. Smith & Felger and Trumbull & Trumbull, for appellant. Carroll & Rohde and R. W. Jennings, for respondent. ANDERS, J. On June 15, 1889, the appellant, by an instrument in writing duly executed, leased to one Herman Trapeur a certain storeroom in the city of Port Townsend for the period of five years from the 1st day of March, 1830, for the sum of $100 per month, payable in advance on the 1st day of each and every month, which sum the said Trapeur agreed to pay in accordance with the terms of said lease. On April 6, 1890, the said lessee assigned all his right, title, and interest in and to said lease to one Whittlesey, who on October 22, 1891, assigned the same to the respondent, Iffland. The respondent, about the 1st day of November, 1891, went into possession of the premises, and paid the rent to appellant, according to the provisions of the lease, for three months thereafter, and then failed and refused to make further payments. This action (originally two actions, which were consolidated and tried as one) was instituted to recover the rent alleged to be due for six successive months, beginning with March, 1892. The respondent set up as defenses to the action: (1) That on the 15th day of January, 1892, he, by an instrument of writing duly acknowledged, assigned, for value, all his right, title, and interest in and to the lease alleged in the complaint, and the premises therein described, to one John Barnett, and surrendered the possession of said premises to said Barnett, and put him in possession of the same; and (2) an adjudication in his favor in a justice court in an action for the rent for the month of February, 1892. Most, if not all, of the testimony offered as to this latter defense was rejected by the court, and the case went to the jury upon the questions raised by the first affirmative defense pleaded; and there was a verdict and judgment for the defendant. It is alleged that the court erred in admitting in evidence certain testimony over the objection of the appellant, in rejecting certain other testimony offered by appellant, and in giving certain instructions to the jury. The court permitted the respondent, over appellant's objection, to answer the interrogatory, "What, if anything, did you do with that lease, and the premises described in that lease," It is admitted by the pleadings that the respondent acquired whatever interest he had in the premises by virtue of a written assignment of the original lease, and this question was preliminary, merely, to the proof of assignment, subsequently submitted, and was therefore admissible. After |