now asked was urged upon our attention at the prior hearing, but it is claimed that it should follow as a matter of course, the court having found against the plaintiff upon his cause of action. A further examination of the record does not satisfy us that this matter was fully litigated or received such attention at the trial as would justify the rendering of a judgment thereon at this time. The main controversy was apparently upon the plaintiff's cause of action; and the right of the defendant to recover upon the notes seems to have been only indirectly brought in question and incidentally referred to several times upon the trial. In one part of his testimony, plaintiff claimed there was an agreement that the notes were not to be paid, and in another there was a casual reference to the fact that he had received no consideration therefor, as the deed to the lands in question had never been delivered to him. It also appears that the defendant claimed to have come into the possession of said notes as a bona fide holder, and he now urges that such defenses were not available as against him for that reason. The evidence upon both sides as to such matters is meager and unsatisfactory, and, in view of the foregoing, we are not disposed to grant the motion, and are of the opinion that justice will be best subserved by remanding the cause for a trial of the issue regarding the right of the defendant to recover upon the notes, with leave to the parties to amend their pleadings, if desired, and introduce further testimony; and it is so ordered.

Where defendant moved for a new trial, and also moved to vacate the judgment because it was prematurely entered, and the motion for a new trial was heard on its merits and denied, the judgment will not be disturbed because of the erroneous denial of the motion to vacate the same, where defendant lost no substantial right by such denial.

Appeal from superior court, Jefferson county; Henry McBride, Judge.

Action by Port Townsend National Bank against Andrew Weymouth on a promissory note. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

Morris B. Sachs and George H. Jones, for appellant. Carroll & Rohde, for respondent.

SCOTT, J. A verdict was found in favor of plaintiff on the 1st day of June, 1893. Judgment was rendered thereon on the following day. Thereafter, on the 3d day of

June, the defendant filed and served a notice of intention to move for a new trial, and on the 5th day of said month filed such motion Before the determination thereof, and on June 13th, the defendant also filed a motion to vacate the judgment on the ground that it had been prematurely entered. This motion was heard and determined against the defendant on the 21st day of said month, and the motion to set aside the verdict and for a new trial was denied on the 14th day of December following. The only point raised upon this appeal is that the court erred in refusing to vacate the judgment. There seems to be some inconsistency in the statutes relating to motions for a new trial and for rendering judgments on verdicts. 2 Code, § 404, provides that the party intending to move for a new trial must, within two days after the verdict of the jury, etc., file and serve a notice of his intention to so move; while section 435 provides that judgment shall be entered upon a verdict within five days after the filing thereof, unless a motion for a new trial shall have been filed, etc. In this case the judgment was rendered within the five days, and before notice of an intention to move for a new trial had been given, but within the two days allowed the defendant to give notice of such intention. Conceding that the judgment was prematurely entered, we do not think the action of the court should be set aside or reversed under the circumstances of this case, for it clearly appears that the defendant lost no substantial rights in the premises. His motion for a new trial was thereafter heard upon the merits, and was denied; and we think for this reason, at least, the point is not well taken, and the judgment should be affirmed.

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

(11 Wash. 432)

STATE ex rel. THEIS et al. v. BOWEN, Treasurer.

(Supreme Court of Washington. March 18, 1895.)

STATE WARRANTS-RATE OF INTEREST-PRESENTATION.

Interest is payable upon state warrants at the legal rate in force at the date of their presentation to the state treasurer for indorsement; and the act reducing the legal rate of interest to 8 per cent. is inapplicable to state warrants issued, and so presented, before such act went into effect.

Mandamus to compel the state treasurer to pay the amount of certain state warrants, and interest thereon at the rate existing before the Washington act reducing the legal rate to 8 per cent. went into effect. Writ granted.

Blake & Post, for petitioners. James A. Haight, Asst. Atty. Gen., for respondent.

HOYT, C. J. The record in this case presents but a single question: What was the

effect of the act reducing the legal rate of interest to 8 per cent. upon state warrants issued before such law went into effect? In our opinion, this question is decided by the case of Trust Co. v. Gelbach, 8 Wash. 497, 36 Pac. 467. Counsel for respondent has attempted, in his able argument, to distinguish this case from that one, but, to our minds, there is no substantial difference between the question therein decided and the one presented in this case. It was held in that case that the statute, which provided that warrants not paid for want of funds should draw interest at the legal rate, so impressed the rate in force at the time payment was refused upon the warrants that a change in such rate thereafter would have no effect upon the rate collectible thereon. If such was the force of an agreement to pay interest provided by the statute, the same force should be given to an agreement to pay interest authorized by a custom so long recognized and acquiesced in as to have the force of a statute. If, prior to the going into effect of the law in question, any rate of ́interest could be collected upon the warrants of the state, it was the legal rate then in force, and, if that or any other rate was collectible, it was by force of a law, or custom so acquiesced in as to have the force of a law. That some rate of interest was collectible on state warrants before the act in question went into effect is conceded by the respondent. It must follow that there was either a law authorizing such interest to be paid or a custom to that effect of the kind above specified. Hence there was no real distinction between county warrants and state warrants so far as this question is concerned. As to one class the statute provided that they should draw the legal rate of interest; as to the other class the statute, or that which had the force of a statute, made a like provision. If in the one class the legal rate prevailing at the time payment was refused was so impressed that it would not be affected by a change in such rate, there is no reason why such rate should not be held to have been in like manner impressed upon the other class. The writer did not concur in the conclusion to which the court arrived in the case above cited, but by its decision the law of the state as to the payment of interest upon county warrants was declared and made certain, and the rule therein announced should be adhered to. And, in our opinion, the same line of reasoning will compel us to hold that interest must be paid upon state warrants at the legal rate in force at the date of their presentation to the treasurer for indorsement. It is true that the law reducing the rate might be constitutional when applied to contracts of the state, and unconstitutional when applied to those of counties, for the reason that it may be within the power of a state to repudiate a legal contract. But as we understand the case above cited, the reduced rate was held

not to apply to warrants issued before the passage of the act. for the reason that the language used showed such to have been the intention of the legislature, and not because the act was unconstitutional; and on that ground the same rule would obtain in respect to warrants of the state as to those of a county. It follows that the petitioners are entitled to the relief prayed for. It is therefore ordered that a peremptory writ of mandamus be issued to the state treasurer in accordance with the prayer of the petition. Neither party will recover costs.

DUNBAR, ANDERS, and GORDON, JJ.,

concur.

(11 Wash. 318)

WHITMAN v. MAST, BUFORD & BURWELL CO. et al. (DAWSON et al., Interveners).

(Supreme Court of Washington. March 1, 1895.)

ASSIGNMENT FOR BENEFIT OF CREDITORS-RIGHTS OF RECEIVERS.

1. The decisions of the supreme court of Minnesota that assignments for the benefit of creditors made under Sess. Laws Minn. 1881, p. 193, c. 148, and Sess. Laws Minn. 1889, p. 78, c. 30 (St. 1894, §§ 4240-4254), are voluntary, will be followed by the courts of Washington.

2. A voluntary assignment passes title to all the assignor's personal property, wherever situated.

3. Receivers appointed on the removal of an assignee for the benefit of creditors in proceedings under the assignment laws of Minnesota (Sess. Laws 1881, p. 193, c. 148; St. 1894, §§ 4240-4254) are successors to all the rights of the assignee.

Appeal from superior court, Yakima county; Carroll B. Graves, Judge.

Action by Charles E. Whitman against the Mast, Buford & Burwell Company, in which E. E. Kelso was summoned as garnishee. Victor Robertson, as assignee of defendant, intervened. William Dawson, Jr., and Albert B. Ovitt, receivers, were substituted as plaintiffs in intervention. Judgment for plaintiff, and interveners appeal. Reversed.

Jones & Newman, for appellants. Whitson & Parker, for respondent.

SCOTT, J. On the 17th day of September. 1893, Mast, Buford & Burwell Company, a corporation organized and existing under the laws of the state of Minnesota, made a general assignment of all its property, wherever situate, for the benefit of its creditors, and appointed Victor Robertson, of St. Paul, Minn., assignee. E. E. Kelso, a resident of this state, was indebted to said corporation in a large amount upon account. The respondent, Charles E. Whitman, is a citizen of the state of Missouri. On December 12, 1893, respondent recovered a judgment against said corporation in the superior court for Yakima county, this state, and on the 26th day of February, 1894, caused a writ of garnishment to be served upon the said E. E. Kelso,

December, 1894, upon motion, William Dawson, Jr., and Albert B. Ovitt, receivers, were substituted as plaintiffs in the complaint in intervention in the place and stead of said assignee. Respondent interposed a general demurrer to the complaint in intervention and a motion for judgment upon the answer of the garnishee, both of which were sustained by the court, and, appellants electing to stand upon the answer of the garnishee and the complaint, the court granted judgment against the garnishee; to all of which rulings the appellants excepted, and from which they now prosecute this appeal.

The main point in controversy was as to whether or not this was a voluntary assignment. It is asserted that the lower court was of the opinion that it was an involuntary one, and it is conceded by appellants that if the court was right in its view of this question the judgment should be affirmed. It is also conceded by both sides that the decisions of the supreme court of Minnesota upon said question should be recognized as binding here. It is contended by appellants that such assignment is a voluntary one, on the ground that it is only made at the option of the debtor, while the respondent contends that it is involuntary, on the ground that when once the proceedings are set in motion the statute steps in and regulates the entire matter to its determination, and the debtor has no further control thereover in any manner. The assignment was made under chapter 148, Sess. Laws Minn. 1881 (page 193), and the act amendatory thereof, found on page 78, c. 30, Sess. Laws 1889 (sections 4240-4254, St. 1894). The title of that act is as follows: "An act to prevent debtors from giving preference to creditors and to secure the equal distribution of property of debtors, among their creditors, and for the release of debts against debtors." The provisions of these acts are that when any debtor shall become insolvent, or garnishment shall have been made against him, or the property of any debtor shall have been levied upon by virtue of an attachment, execution, or legal process issued against him for the collection of money, he may make an assignment for the equal benefit of all his creditors, who are required to file releases of their demands against the debtor; and such assignment discharges the attachment, garnishment, or other levy upon his property, with certain exceptions therein provided. The assignment must be filed in the office of the clerk of the district court. An attempt to make an assignment under this act whereby one creditor shall obtain preference over another is punishable as a misdemeanor. The

debtor himself may be restrained from leaving the state, and may be required to appear and make full disclosure as to the disposition of property or in relation to any other matter pertaining to the insolvent estate. Any security given within four months prior to the assignment, with a view to giving preference to any creditor upon a pre-existing debt, shall be void as to all persons or creditors receiving the same who shall have reasonable cause to believe that such debtor was insolvent. In case of the death of the assignee or receiver, the court may appoint another to fill the vacancy, and the court may for proper cause remove such assignee, and appoint another in his stead; and the court shall order such removal upon a two-thirds vote of the creditors. No creditor shall receive any benefit under the provisions of the act, or any payment of any share of the proceeds of the debtor's estate, unless he shall have filed a release of his claim, and thereupon the judge shall enter an order discharging such debtor from any claims of creditors who filed such releases. The assignee or receiver shall, within 10 days after his appointment, publish a notice; and all creditors claiming the benefit of the act shall file their releases with the said assignee or receiver within 20 days after the publication thereof. The court directs the distribution of the estate, and has control of the assignee or receiver, as the case may be, until settlement; and the act reads (Sess. Laws Minn. 1881, c. 148, § 1; St. 1894, § 4240): “Which assignment shall be made in accordance with and be governed by the laws of the state of Minnesota." From all of which it is argued that the assignment was a statutory one under an insolvency law, and was in effect involuntary. And respondent contends that the supreme court of that state, notably in the case of Jenks v. Luddin (Minn.) 27 N. W. 188, has so construed it. In that case the court uses this language: "Now, our insolvent law and the statute of Wisconsin regarding assignments for the benefit of creditors are essentially different. Our act of 1881 is, as we have repeatedly held, a bankrupt act, the assignee being in effect an officer of the court, and the assigned property being in custodia legis, and administered by the court or under its direction."

The supreme court of wisconsin in considering this act in McClure v. Campbell (Wis.) 37 N. W. 343, held in accordance with the views of the respondent here as to the effect of Jenks v. Luddin, supra. We are of the opinion, however, that the case of Jenks v. Luddin will not bear the construction contended for, viz. that such assignments are involuntary, and that the supreme court of Minnesota by its later decisions does not so recognize it. It is true the supreme court of Minnesota has termed this a "bankrupt” law, but an examination of the decisions shows that this term is used in a very broad sense, and not in its strict technical meaning. They say of the first section that it provides

for "voluntary bankruptcy," and that it "authorizes voluntary assignments and insolvency proceedings." May v. Walker, 35 Minn. 194, 28 N. W. 252, is a later case than Jenks v. Luddin, and in this case the view above stated is clearly recognized. The court says this was a case of assignment of partnership property only; "the assignment in this case was evidently intended to be a voluntary one under our insolvent act (Laws 1881, c. 148; St. 1894, §§ 4240-4254). The voluntary assignment there recognized is of all the debtor's property and estate not exempt by law." The case of Jenks v. Luddin, supra, is not at variance with the foregoing. In this case the attachment was made in Wisconsin on real estate, and was made prior to the assignment, and the court says: "We are utterly unable to perceive upon what principle the courts of this state can or ought to interfere and deprive him of the benefit of his lien which he had acquired, prior to the assignment, upon the debtor's real estate in Wisconsin. We find no precedent for any such thing. Even in England, whose courts hold very firmly that an assignment under a bankrupt or insolvent law has a universal application, and passes all personal property of the insolvent in foreign countries, and that all attachments made thereon after such assignment. are invalid, we find no case where they have ever attempted to enjoin a creditor from availing himself of his attachment upon real property situated abroad, whether levied before or after the assignment; and, in the case of personal property situated abroad, we find no case where they have denied to a creditor the benefit of his attachment levied prior to the assignment." In Covey v. Cutler (Minn.) 56 N. W. 255, the supreme court of Minnesota clearly recognizes the voluntary character of these assignments, and says that nothing was said in Jenks v. Luddin in conflict therewith. The case of Covey v. Cutler, though brief, is directly applicable, and, it seems to us, decisive of the question that such assignments are regarded in Minnesota as voluntary ones, having the effect of transferring the entire personal property of the debtor, wherever situate. If we were not to recognize this construction as binding in this controversy, and were to consider the question independently, we would arrive at the same conclusion, and follow the doctrine announced. The act in question has many features in common with our own insolvent law, but we said nothing contrary to the foregoing in the case of Shoe Co. v. Adams, 5 Wash. 333, 32 Pac. 92, cited by respondent.

The assignment itself shows that it was made by the debtor upon his own motion. It is not an assignment by operation of law, but is the voluntary act of the assignor. The principal distinction between a voluntary assignment and an involuntary assignment in bankruptcy is in its inception. In the one case the assignor's property is placed

in the hands of a third party by his own' act and with his consent; in the other it is placed in the hands of a third party by operation of law, and without his act and against his consent. The subsequent control by the court under statutory regulations does not destroy this distinction. Whether

or not an assignment is a voluntary conveyance by the assignor must be decided from a consideration of the manner in which the transfer of the property is made, and not what may be prescribed by the statute as to the manner in which the property is to be disposed of by the assignee after assignment. In Story, Confl. Laws (8th Ed.) § 411, it is. said: "There is a marked distinction between a voluntary conveyance of property by the owner and a conveyance by mere operation of law in cases of bankruptcy in invitum. Laws cannot force the will, nor compel any man to make a conveyance. In place of a voluntary conveyance of the owner, all that the legislature of a country can do, when justice requires it, is to assume the disposition of his property in invitum. But a statutable conveyance, made under the authority of any legislature, cannot operate upon any property except that which is within its own territory. This makes a solid distinction between a voluntary conveyance of the owner and an involuntary legal conveyance by the mere authority of law. The former has no relation to place; the latter, on the contrary, has the strictest relation to place. *

* It is therefore admitted that a voluntary assignment by a party, according to the law of his domicile, will pass his personal estate, whatever may be its locality, abroad as well as at home. But it by no means follows that the same rule should govern in cases of assignments by operation of law." This is undoubtedly sustained by the weight of authority.

It is further contended by the respondent that, even though Robertson could have maintained this action on the theory of a voluntary assignment, the receivers could not do it, as they derive their authority solely by the appointment of the court in Minnesota. Robertson was removed pending his petition in intervention, and upon application to the lower court the receivers were substituted in said proceeding, to which the respondent objected. The title to the property was vested in Robertson by virtue of the assignment. Donohue v. Ladd, 31 Minn. 244, 17 N. W. 381. The law provided that the assignee might be removed and receivers appointed. This was a part of the assignment proceedings, and the insolvents in effect assented thereto when they made the assignment, and the receivers must be held to have succeeded to all the rights of the original assignee, and therefore could maintain the action. Reversed.

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

(11 Wash. 429)

HAYWARD v. SNOHOMISH COUNTY. (Supreme Court of Washington. March 18, 1895.)

EMINENT DOMAIN-PUBLIC DIKES-COMPENSATION. Gen. St. tit. 21. c. 2, providing for the construction of public dikes and dams to protect overflowed lands, provides in section 1933 for compensation for property taken or damaged only in case application is made therefor by the owner, and therefore violates Const. art. 1, § 16, providing that property shall not be taken or damaged for a public use without just compensation having been first made.

Appeal from superior court, Snohomish county; John C. Denney, Judge.

In the matter of the attempted collection of taxes for dike purposes by Snohomish county against Anthony J. Hayward. There was a judgment for plaintiff, and defendant appeals. Reversed.

Crowley, Sullivan & Grosscup, for appel

lant.

DUNBAR, J. This is an appeal from a judgment of the superior court of Snohomish county rendered in an action brought for the collection of taxes under the revenue law of 1893, and involves the constitutionality of chapter 2, tit. 21, Gen. St., which is a chapter in relation to public dikes and dams. Section 1929 provides that when five or more owners of lands adjoining and contiguous, subject to overflow from tide water or river freshet, shall petition the board of county commissioners of the county in which such lands are situate, setting up certain facts, if the county commissioners find, among other things, that such proposed improvement shall be for the public good or benefit, they shall so declare on the record of their proceedings, and appoint three viewers to view out and locate the proposed dikes and dams, etc. Section 1930 provides that the routine of procedure under this chapter shall be, as far as practicable, the same as prescribed by the road law for the location and establishment of county roads; also providing that the dikes and dams established under this act shall be to all intents and purposes public highways. Section 1931 prescribes the duties of the viewers,-among other things, that they estimate the cost of the proposed dikes and dams, and such costs, when approved by the board, shall be apportioned and added to the regular taxes of the landowners of such district on the assessment roll for the current year, and collected as other taxes. Section 1932 provides for the supervisors of dikes and dams for the district; and section 1933 provides that in locating and establishing the dikes and dams, if the owner or owners of the lands through which they pass shall feel aggrieved on the score of right of way or other cause, they shall have proper cause for damages, and that in such cases claims for damages shall be filed and the amount thereof determined in accordance with the provisions of the general

road law; and the amount thereof so determined and allowed by the board of county commissioners shall be taxed against the lands of said district in due proportion as the tax for construction, and, when collected, shall be reserved and paid under the direction of the board to the claimant or claimants. In Askam v. King Co., 9 Wash. 1, 36 Pac. 1097, it was decided by this court that the drainage law of this state (Gen. St. tit. 21, c. 1) is unconstitutional, as it provides for the taking of private property without there having been an assessment of damages or the payment of compensation therefor. This case followed the case of Peterson v. Smith, 6 Wash. 163, 32 Pac. 1050, where the question of the power to condemn land under the provisions of chapter 19, Laws 1890, was in question; and we there held that the procedure provided for in that act was in violation of section 16, art. 1, of the constitution, which provides that no private property shall be taken or damaged for public or private use without just compensation having been first made and paid into court for the owner. It was also noticed in that case that the constitution provides that, whenever an attempt is made to take property for use alleged to be public (an allegation which appears in the dike ław in question), the question whether the contemplated use be really public shall be a judicial one, and determined as such, without regard to any legislative assertion that the use is public. We there held that under this constitutional guaranty the owner of the land could not be compelled to present the claim for damages, but that he could remain quiet, and be assured of his constitutional right to receive his damages before his property was appropriated; that before it was condemned the county must ascertain his damages, and either pay it to him or pay it into court for his benefit, and that the amount of his damages must be ascertained in court in a proceeding instituted for that purpose, and in which the defendant could appear and make his showing, if he so desire; that there was no authority under the constitution for submitting the question of damages to the road viewers, to be arbitrarily passed upon by them,-following the doctrine laid down by the supreme court of California in Weber v. Board, 59 Cal. 265, under substantially the same statutes and same constitutional provisions. The law in question here is subject to the same objections that were discussed in the case above mentioned. There is no brief filed by respondent in this case, but it is alleged in the brief of the appellant that it was conceded in the court below that section 1933 was unconstitutional, but that the court did not consider that section a material part of the chapter. It seems to us that, if section 1933 were eliminated from the chapter, there would be no provision left whatever for the compensation of the landowner, and no pow