cient to sustain the verdict returned by the jury, it follows that the judgment appealed from must be affirmed.

other

stock, at which meetings, among things, ground was selected as a site for the hotel building to be erected by the corporation, committees were appointed to se

(11 Wash. 249)

BIRGE v. BROWNING et al. (Supreme Court of Washington. Feb. 20, 1895.) SUBSCRIPTIONS TO CORPORATE STOCK - ESTOPPEL.

1. Under 1 Hill's Code, § 1497, providing that no corporation shall commence business until the whole of its capital stock has been subscribed, it is a good defense to an action against subscribers for unpaid subscriptions that the whole amount of the capital stock was never subscribed, in the absence of proof of an estoppel.

2. Part payment of their subscriptions to the capital stock of a proposed corporation does not constitute a waiver by the subscribers of the performance of conditions necessary to the formation of the corporation, or an estoppel to deny its corporate existence, in the absence of evidence that they attended the corporate meetings, and knew that such conditions were not performed.

Appeal from superior court, Lewis county; W. W. Langhorne, Judge.

Action by George F. Birge, receiver, against F. H. Browning and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Leroy A. Palmer and Landrum & Landrum, for appellant. A. E. Rice, Geo. E. Rhodes, and H. Julius Miller, for respondents.

GORDON, J. The appellant here is the receiver of the Centralia Hotel Company, a corporation, which had prior to the commencement of this action been adjudged insolvent. He brought this action to recover the amounts unpaid upon respondents' subscriptions to the capital stock of said corporation. The respondents answered-First, that there was no actual incorporation of the company; second, that the full amount of the capital stock had not been subscribed. To which appellant replies that the respondents are estopped to deny the existence of the corporation, and that they had waived their right to interpose these defenses. The court below rendered judgment for the respondents, from which judgment this appeal is prosecuted.

The articles of incorporation of the Centralia Hotel Company were filed on the 23d of March, 1891. None of the respondents were named as officers in such articles of incorporation, nor were any of them afterwards elected to office therein. The capital stock was fixed at $40,000, divided into 800 shares of $50 each. The entire amount subscribed, however, never exceeded $16,000. Meetings were held, both before and after the filing of the articles of incorporation, which were attended by promoters of the enterprise and subscribers to the capital

of the building, and to solicit subscribers to the capital stock. By-laws were adopted, and other business transacted. On June 16, 1891, the trustees awarded a contract for the construction of an hotel building, and thereafter work was commenced upon said building, and progressed until about $14,000 had been expended in its construction, when operations were suspended for lack of funds. At that time about $6,000 had been collected upon stock subscriptions, and about $3.000 additional in material and labor had been accepted in payment of stock subscriptions. Some of the respondents had made partial payments on their subscriptions, but the pleadings nowhere allege, nor does the proof show, that any of the defendants knew that the full amount of the capital stock had not been subscribed until work ceased on the hotel building.

At the close of the plaintiff's case the court should have granted respondents' motion for judgment of dismissal, because, as the case then stood, in addition to what has already been stated, there was no evidence tending to show that any of the respondents were in attendance at any of the meetings so held, and there was no proof of a waiver by any of the defendants, nor any proof creating an estoppel by conduct as to any of them. The court overruled said motion, however, and the testimony subsequently taken did not establish any new fact, nor does it alter or add to the foregoing statement. This court, in the case of Hotel Co. v. Schram, 6 Wash. 134, 32 Pac. 1002, has said: "The capital stock of a corporation being fixed by its charter, the corporation has no authority to begin business until the whole amount of such capital stock has been subscribed." Section 1497, 1 Hill's Code, provides that "no such corporation shall commence business until the whole amount of its capital stock has been subscribed"; and we have no doubt that, in the absence of any statutory provision upon the subject, this would be found to be the law. It is conceded by the learned counsel for appellant that, in an action by a corporation against stock subscribers, all the conditions precedent to liability must have been complied with before liability attaches, unless such conditions have been waived by the acts and conduct of the persons for whose benefit the implied condition existed; and the controlling questions here are of fact, and not of law. The court below found the facts against the appellant, and an examination of the record convinces us that there is nothing in the evidence to justify the contention of appellant's counsel that any of the defendants have been guilty of such acts or conduct as amount in law

to a waiver or create an estoppel. It follows that the judgment appealed from should be affirmed.

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

(11 Wash. 366)

STATE ex rel. WASHINGTON BRIDGE CO. v. SUPERIOR COURT OF SNOHOMISH COUNTY et al. (Supreme Court of Washington. March 7, 1895.)

SUPERSEDEAS BOND ON APPEAL-CERTIORARI.

1. A judgment in favor of a bridge company for a specified sum of money for the construction of a bridge, and decreeing the foreclosure of a mechanic's lien upon the bridge and land upon which it stands, is "a final judgment for the recovery of money," within St. 1893, p. 122, § 7, providing that the supersedeas bond on appeal from such a judgment shall be in a penalty double the amount of damages and costs recovered therein.

2. Certiorari is an appropriate remedy, where the court, without jurisdiction, assumes to fix the amount of a supersedeas bond on appeal in a case, where the amount of such bond is expressly prescribed by statute.

Certiorari by the state of Washington on the relation of the Washington Bridge Company against the superior court of Snohomish county and others to review an order fixing the amount of a supersedeas bond on appeal from a judgment in favor of such company for a sum of money and decreeing the foreclosing of a mechanic's lien for the construction of a bridge. Order set aside.

Stiles, Stevens & Tillinghast, for relator. Black & Edwards, for respondents.

DUNBAR, J. The relator obtained a judgment against the Land & River Improvement Company of Everett for the sum of $8,671.80 and costs, recovered November 19, 1894. The judgment further decreed the foreclosure of a mechanic's lien for the construction of a bridge, upon the bridge and the land upon which it stood, and established relator's lien as a prior lien to those of the other defendants in the action. Execution was issued November 20, 1894, to the sheriff of Snohomish county, and he proceeded to advertise the property for sale. On the 7th day of December following the Land & River Improvement Company of Everett made an ex parte application to the judge of the superior court of Snohomish county for an order fixing the amount of the supersedeas bond. An order was made by the judge naming $1,000 as the amount of such bond. On the 8th day of January, defendant company served and filed its notice of appeal from the judgment, and filed one bond in the sum of $200 for costs, and another in $1,000 as a supersedeas bond. The clerk on the same day gave notice to the sheriff that a supersedeas bond had been filed. Relator at the time excepted to the sufficiency of the

$1,000 bond, but his objection was overruled, and he then moved the court for an order to require the sheriff to proceed with a special execution. This motion was denied. So it will be seen that the question involved here is, can a supersedeas bond to stay an execution of this kind of a judgment be fixed, so far as the amount is concerned, by the court, or is the amount fixed by the terms of the statute? Section 7 of the chapter in relation to appeals to the supreme court (St. 1893, p. 122) provides that "the appeal bond must be executed in behalf of the appellant by one or more sufficient sureties, and shall be in a penalty of not less than $200 in any case; and in order to effect a stay of proceedings as in this section provided, the bond, where the appeal is from a final judgment for the recovery of money, shall be in a penalty double the amount of the damages and costs recovered in such judgment and in other cases shall be in such penalty, not less than $200, and sufficient to save the respondent harmless from damages by reason of the appeal, as a judge of the superior court shall prescribe." It is the contention of respondents in this case that the judgment here falls within the last provision above quoted, and that the statute should not be literally construed; while the relator contends for a strict construction of the statute, insisting that this is a final judgment for the recovery of money, and. that the judge of the court has no jurisdiction so far as the amount of the bond is concerned. We are inclined to agree with this construction. This judgment is certainly a final judgment for the recovery of money. The judgment is that the plaintiff shall recover a certain sum, and because the judgment proceeded to give the plaintiff a lien upon certain property does not, it seems to us, without some provision of the law to that effect, take from him his right to the statutory bond. It is strongly urged by the learned counsel for the respondents that the statute cannot be construed to recover damages for foreclosure of mortgages, or in replevin actions or actions of forcible entry and detainer, and that the intention of the legislature was to provide for the bond in double the value of the judgment only in cases where there was no other security for the payment of the judgment. It seems to us that had this been the intention of the legislature it would have been easy and natural for it to have inserted the word "only," which would then have made the statute plain. But whatever construction might be placed upon this law, so far as the foreclosure of mortgages is concerned,-a question which we will not now investigate,-this action must stand upon an entirely different basis. In the foreclosure of a mortgage a deficiency judgment is generally rendered, but there may or may not be a deficiency judgment in the foreclosure of a mechanic's lien. The judgment is generally twofold in its application; the judgment for the defi

ciency being only against the contractor, and there being no judgment for deficiency against the owner of the property upon which the' lien is foreclosed. The lien in this case is purely incidental. The judgment was a straight judgment for the recovery of so much money; and, in the absence of any provision of the statute excepting a judgment of this kind from the operations of the seemingly mandatory provisions of the law above quoted, we must conclude that the plaintiff in this case was entitled to the statutory bond.

It is also urged by the respondents that the plaintiff has not sought his proper remedy; that his remedy was by mandamus against the sheriff to compel him to act, instead of

by certiorari against the court. It may be

that the relator here had the right to mandamus the sheriff, but, if he had, we think it was a concurrent right, and it would be more equitable to proceed against the court who made the order without jurisdiction than against the subordinate officer, whose primary duty it is to obey the orders of the court. From our view of the law, the court in this case acted without jurisdiction absolutely, having no authority to fix the amount of the bond; and it is stated by Harris on Certiorari (section 78) that, "in England as well as in this country, the writ of certiorari I will go when the acts sought to be reviewed or to be questioned were in cases of jurisdiction, and not in any mere form." We think the cases generally sustain this text. The relator, then, having applied for the proper remedy, and the court having acted without jurisdiction, the order complained of will be set aside and held for naught.

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

(11 Wash. 417)

STATE v. BODECKAR. (Supreme Court of Washington. March 16, 1895.)

INTOXICATING LIQUORS-SALE WITHOUT LICENSESUFFICIENCY OF INFORMATION-DISMISSAL -DISCHARGE OF DEFENDANT.

1. An information for selling liquor without a license, under Pen. Code, § 133, making such selling a misdemeanor, is not defective because it fails to state the name of the person to whom the sale was made, where it states that the name of such person was unknown to the prosecuting attorney.

2. On the dismissal of an information on demurrer thereto, it is error to discharge defendant, as he should be held to answer a new information.

Appeal from superior court, King county; Richard Osborn, Judge.

An information charging John Doe Bodeckar with selling liquor without a license was dismissed, and the state appeals. Reversed.

John F. Miller, Pros. Atty., and A. G. McBride, for the State.

ANDERS, J. The prosecuting attorney filed an information in the superior court of King county accusing the defendant of the crime of selling intoxicating liquor without having obtained a license therefor from the proper authorities. The offense is alleged to have been committed as follows: "John Doe Bodeckar, whose true Christian name is to the prosecuting attorney unknown, in King county, state of Washington, on the 4th day of July, 1894, unlawfully and willfully did sell and dispose of, for and in consideration of money, intoxicating malt liquor, to wit, beer, commonly known and designated as 'lager beer,' to a person and persons whose name is to the prosecuting attorney unknown, said malt liquor then and there being an intoxicating liquor, and not then and there sold upon the written prescription of any reputable physician, or for medical, mechanical, or scientific purposes, but for the purpose of beverage only, said intoxicating liquor as aforesaid then and there not sold within the corporate limits of any city, town, or village, or within one mile of the corporate limits of any city, town, or village, or within one mile of the corporate limits of the same, he the said John Doe Bodeckar, whose true Christian name is unknown to the prosecuting attorney, as aforesaid, not then and there having a license issued by the proper authorities to sell intoxicating liquors in King county, state of Washington." It does not appear that the defendant either interposed a motion to set aside the information or demurred thereto, but it does appear that the cause was regularly called for trial, that a jury was regularly impaneled and sworn, and that a witness was called upon the part of the state. The defendant then objected to the introduction of any evidence for the alleged reason that the information does not state an offense. The court, after argument, sustained the objection, and thereupon releas ed the defendant from custody, exonerated his bondsmen, and discharged the jury. From such judgment the state prosecutes this appeal.

This action was instituted under section 133 of the Penal Code. The crime charged is therefore a statutory one, and the sufficiency of the information must be tested by the provisions of the statute itself. Section 1234 of the Code of Procedure provides that the indictment or information must contain (1) the title of the action, specifying the name of the court to which the indictment or information is presented, and the names of the parties; (2) a statement of the acts constituting the offense, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Section 1244 states when an indictment or information is sufficient, and it seems to us

that the information in question is in substantial conformity to these sections of the Code. It is evident that the acts constituting the offense charged in this instance are stated in ordinary and concise language, and in such a manner as to enable any person of ordinary understanding to know what was intended, and that is all that the law requires in charging the offense. It is stated in the brief of counsel for the appellant that the court deemed the information insufficient, for the reason that it did not state the name of the person or persons to whom the liquor therein men tioned was sold. It is true that the name of the person to whom the beer was sold is not stated in the information, but many courts hold that in cases of this character it is not necessary to designate the name of the party to whom the sale was made. State v. Becker, 20 Iowa, 438; State V. Schweiter, 27 Kan. 499; State v. Gummer, 22 Wis. 422; State v. Jaques, 68 Mo. 260; State v. Heldt, 41 Tex. 220. But even where it is held that the name of the person to whom the intoxicating liquor was sold should be stated, the indictment or information is nevertheless held sufficient if it is alleged that the name of such person is unknown. The crime under our statute consists in the selling, and there would seem to be no reason why the name or names of the individual or individuals to whom the sale is made should be specified. But, however that may be, we think that where it is shown by the information, as in this case, that the party was unknown, the information is sufficiently definite and certain in that regard. It was said in Myers v. People, 67 Ill. 503, that where it is an offense to sell spirituous liquors to a specified class of persons, or persons of certain habits, etc., then the names of those persons should be set forth, in order that the defendant may have an opportunity to prepare for his defense. We think the correct rule, and the one supported by most of the authorities, is laid down by Mr. Bishop in his Criminal Procedure (volume 1, § 548), as follows: "A sale of intoxicat ing liquor without a license, where the license is from public authority, and evidenced by a public record, may be charged as to a person unknown to the jurors." He further says, in the same section: "Even, by some opinions, if the name is known, it need not be alleged, though other opinions require the name where known."

In our opinion, the court also erred in discharging the defendant upon the objections made at the trial. It is enacted in section 1278 of the Code of Procedure that, if the court direct that the case be resubmitted, the defendant, if already in custody, must so remain, unless he be admitted to bail; or, if already admitted to bail, or money has been deposited instead thereof, the bail or money is answerable for the

appearance of the defendant to answer a new indictment or information. That section relates to cases where the indictment has been set aside upon motion 'or found insufficient upon demurrer. The only authority given the court for discharging a defendant upon demurrer-and the objection under consideration must be deemed a demurrer-is that contained in section 1281, which is as follows: "If the demurrer is sustained because the indictment or information contains matter which is a legal defense or bar to the action, the judgment shall be final, and the defendant must be discharged." In this case there was nothing stated in the information which could possibly be construed as a legal defense or bar to the action, and the court was therefore not warranted in discharging the defendant. The court should have held him to answer a new information, even though it was of the opinion that the facts stated did not constitute an offense.

We cannot commend the practice of permitting the sufficiency of informations to be challenged for the first time by objec tions to the introduction of testimony. The law evidently contemplates that the de fendant must either move to set aside the information or demur thereto, or both, prior to entering his plea of not guilty; and when he fails to do so courts should not ordinarily permit him to call in question the sufficiency of the information in the manner which was done in this case. While the court should not permit a defendant to be tried or convicted upon an insufficient indictment or information, if properly objected to, it is but just to the state that it have notice of the particular objections which may be interposed to the accusation set forth in the information, and an opportunity to meet them in an orderly manner. This cannot be said to be the case where objections of this character are interposed at the trial. The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.

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

(11 Wash. 422)

STATE v. GOLDEN. (Supreme Court of Washington. March 16, 1895.)

CRIMINAL LAW-PROSECUTION OF ACCESSORY. An accessory before the fact to a felony should be prosecuted as a principal. Appeal from superior court, King county; T. J. Humes, Judge.

Mike Golden was convicted of larceny, and appeals. Affirmed.

Melvin G. Winstock and Frank B. Ingersoll, for appellant. John F. Miller, Pros. Atty., and A. G. McBride, for the State.

SCOTT, J. This appellant, one Goodfriend, and one Hart, constituted three of a party of five who were charged with stealing $300 from two young women. Separate trials were demanded, and the three named were tried and convicted. The other two eluded the officers, and escaped. It is urged that appellant's demurrer to the information should have been sustained on the ground that the acts going to show that he aided and abetted in the commission of the crime were not stated therein. No particular, however, is pointed out wherein the information is claimed to have been insufficient, and, although the appellant was but an accessory, we are of the opinion that it clearly appears from the proof that he was an accessory before the fact, and under the repeated holdings of this court he should be prosecuted the same as a principal. The allegations in the brief are too general to raise any point as to the information, but we have examined it nevertheless, and think it was sufficient. It also appears to us that the appeal in this case is without merit. The questions raised by appellant as to the admission of certain evidence and the instructions of the court are all based upon the theory that he was an accessory after the fact. which, in our opinion, is not at all warranted by the proofs. The evidence is entirely sufficient to justify the conviction of appellant as a principal. We are so well satisfied of this that we deem it unnecessary to set the same forth in detail. The instructions of the court covered the cause fully, and it was fairly submitted to the jury. Affirmed.

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

and the petition was granted, and the cause reassigned for argument. In the former opinion we expressed a doubt as to whether the statute in question was sufficiently definite to authorize an appeal, but we have since held, in Hays v. Bank (decided January 11, 1895) 39 Pac. 98, that an appeal will lie.

Appellant has shown in his petition for rehearing that he served the notice of appeal in question within the 10 days allowed by the statute (1 Hill's Code, § 2170), and transmitted the same to the state board of equalization and appeal through the mail; that he mailed the same at Port Townsend, on the eighth day after the decision was rendered, and, by the ordinary time taken for mail matter to reach Olympia from Port Townsend, it should have arrived here the next day, and certainly on the tenth day, which would have been in time. A sufficient excuse is shown for not having presented these matters at the original hearing. There is no counter showing, and nothing to controvert the fact that the notice was received within the 10 days allowed, excepting that it was marked as filed upon the eleventh day. Under this showing, and especially as the board had not certified their findings to the commissioner of public lands, we are of the opinion that we should find as a fact that the notice had been actually received by the state board of equalization and appeal within the 10 days. The judgment of the lower court is therefore reversed, and the cause remanded, with instructions to proceed therewith.

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

(11 Wash. 407)

UNION WHARF CO. v. KATZ. (Supreme Court of Washington. March 16, 1895.)

APPEAL FROM STATE BOARD OF EQUALIZATION.

Where it is shown in the petition for rehearing that notice of appeal from a decision of the state board of equalization in a contest as to the right to purchase tide lands was served and transmitted by mail in time to reach the board within the 10 days allowed by 1 Hill's Code, § 2170, for such appeals, there being no counter showing, sufficient excuse being given for failure to present these facts at the original hearing, and the board not having certified their findings to the commissioner of public lands, it will be presumed that such notice was received by the board within the 10 days, and appeal granted accordingly.

(11 Wash, 176)

LIBBEY v. PACKWOOD. (Supreme Court of Washington. March 16 1895.)

DECISION ON APPEAL-JUDGMENT ON CROSS COMPLAINT.

On reversal of a judgment for plaintiff, in an action to compel the specific performance of a contract to surrender notes executed by plaintiff, on the ground that plaintiff had waived all rights under the contract, judgment will not be rendered for defendant on his cross complaint, seeking a recovery on the notes, where the record shows that the evidence on both sides in regard to the right to recover was very meager, little attention being paid to his claim on the trial.

On motion by appellant for judgment on his cross complaint, the judgment having been reversed. Denied.

For original opinion, see 39 Pac. 444.

SCOTT, J. On February 14th a decision was rendered in this cause reversing the judgment of the lower court. The appellant has filed and served a motion for judgment upon the notes pleaded in his cross complaint. It is not contended that the relief