nesses, whether the latter testify orally or in writing. By a figure of speech the former may be said to testify, but they come upon a stand by themselves, and are not to classed with what is strictly testimony; for, having none of the qualities of personality, telling always (if one will only listen) the same story, and the whole of all they have to tell, they are subject to none of the variations of memory and recital which unfortunately attend the living witness, and are entirely destitute of partisanship, and of all ability to influence a jury by feeling, argumentation, or will. The introduction of a deposition into the juryroom, which is justly condemned by all the authorities, would generally put before the jury a mixture of competent and incompetent matters, between which they could not well discriminate, and would give to one human utterance, merely because it chanced to be written down, undue prominence and effect over other equally, or more important or reliable, human utterances which happened to be oral. On the other hand, the delivery of exhibits to the jury, in all ordinary cases where they are pertinent, seems to us not only not to be deprecated, but exceedingly to be desired, as tending to give, amid the mass of variable quantities that inevitably go to make up human testimony, certain trustworthy constants, upon which the mind can lean, and to which, for testing and harmony, everything else can be brought and made fast. Referring to section 231, we find it to read as follows:

"Upon retiring for deliberation the jury may take with them the pleadings in the cause, and all papers which have been received as evidence in the trial, (except depositions,) or copies of such parts of public records or private documents given in evidence as ought not, in the opinion of the court, to be taken from the person having them in possession.'

This is a part of the civil practice act. Obviously, it needs construction. Drive the word "papers" down into its own narrow literal sense, and you absurdly force out of it all the living and precious spirit of this law. Of what may be upon papers, rather than of the papers themselves, the legislature is speaking. The writing, diagram, mark, or spot which would under this section be admissible to the jury-room, if on paper, must, according to the liberal construction commanded by section 758 of the Code, be also admissible if upon. bark, bone, wood, cloth, stone, metal, or any other substance. Having got thus far, we are unable to see but that the spirit of the section requires the admission of any exhibit standing within the same. reason, whether it be blank paper or blank anything else, moist or dried, solid or liquid. Ever since in 1854 this section was first enacted in this territory, such has been the liberal construction always given it in all the courts. We hold that it is the correct construction, and that, assuming section 231 to be applicable in criminal cases, the course of the judge below in allowing the hat and shirt to go to the jury-room was proper under that section.

However, it is to be remembered that section 231 is in the chapters prescribing civil practice, and is not anywhere, by reference or other

wise, expressly adopted as furnishing the rule in criminal procedure. Of such express adoption there was, perhaps, no need, for probably in all things, except where the statutes plainly indicate the contrary, the practice in criminal cases should be assimilated to that prescribed for other actions at law, the legislature having in many cases intimated a desire for such assimilation. Let that be as it may, the legislature has spoken, in section 1105 of the Code, with sufficient clearness to show, as to this very matter of sending exhibits out with the jury in criminal cases, what it intends shall be the law. Expressly that section states the grounds upon which an application for a new trial shall be granted. Legitimately it implies that an application not so grounded shall be denied. Among the grounds it specifies, the pertinent ones are as follows: "(1) When the jury has received any evidence, paper, document, or book, not allowed by the court, to the prejudice of the substantial rights of the defendant; (2) misconduct of the jury." We think that in the statement of the first ground in this section the word "evidence" means tangible evidence, as a book, paper, or document is a tangible thing, which has already assumed in the cause the character of evidence; and that the words "paper, document, or book" mean a paper, document, or book not in evidence. By counsel it is argued that the word "evidence," associated as it is, can signify nothing but evidence on paper, i. e., depositions; but such an effort to make everything in the list papyriform, in order to give effect to the maxim noscitur a sociis, unnecessarily strains a point. Is not the principle of the maxim sufficiently honored when the word "evidence" has such an interpretation that all the various things embraced are capable of being "received" by the jury in the same way and sense; that is to say, by manual act? Both the first and second grounds of the section should be construed together. Laying them side by side, we gather the legislative intention to be that the reception by the jury, at any time, of any tangible matter in evidence, or of any book, paper, or document not in evidence, when, without violating statutory or constitutional right, it is allowed by the court, or when, though not so allowed, it cannot be supposed to be to the prejudice of the defendant's substantial rights, shall not be deemed misconduct in the jury, or good cause for a new trial.

Each of the supposed objectionable passages of the trial having been shown, for the foregoing reasons, to be in harmony with the law, the judgment of the district court is affirmed.

HOYT, J., concurred.

(2 Wash. T. 117)

CRAWFORD and others v. COCHRANE and others.

Filed July, 1882.

An agent who sells logs without having them scaled as required by law is guilty of gross negligence, and liable to the owner for loss or damage resulting therefrom. The act of the territorial legislature of 1879, providing for the scaling of logs by the lumber inspector, is not within the inhibition of section 1889 of the Revised Statutes.

Appeal from a judgment of the district court.

Struve & Haines, for appeliant.

Burke & Rasin, Hall & Osborne, and E. P. Ferry, for appellees.

WINGARD, J. This cause was submitted to a referee, whose finding was approved by the district court, and judgment was entered according thereto. From that judgment this appeal is taken.

We are unanimously of opinion that the act of the territorial legislature of 1879, providing for the scaling of logs by the lumber inspector, is not within the inhibition of section 1889 of the Revised Statutes. Doubtless, degrees of negligence may exist in fact as well as in theory, although it may be difficult or impossible to draw the exact line between them; but when a party, by neglecting or refusing to conform to a known law, in the discharge of an agency or charge, causes loss or damage to another, he should be held to be guilty of gross negligence, and so we regard the plaintiffs in error in this case. We find no reason to disturb the judgment of the court below, and it is therefore affirmed.

GREENE, C. J., and HoYT, J., concurred.

(2 Wash. T. 144)


Filed July, 1882.

Where, in an action to recover money, defendant sets up his discharge under the insolvent debtor's act in bar of plaintiff's claim, and plaintiff replies that the discharge was obtained by fraud, but fails to allege that he had no notice of the same at the time of the adjudication of insolvency, such reply is demurrable.

Error to district court.

P. P. Carroll and McNaught, Ferry, McNaught & Mitchell, for plaintiff in error.

Hanford & Judson, for defendant in error.

WINGARD, J. The plaintiff in error brought this action for the recovery of money against the defendant in error, in the district court. The defendant set up his discharge under the "insolvent debtor's" act in bar of the plaintiff's claim. The plaintiff replied that the discharge was obtained by fraud, and therefore void, but failed to allege that the fraud was unknown to him, or that he had no notice of the same at the time of the adjudication of insolvency. A demurrer was interposed to this reply, which the court below sustained; and this is the error complained of.

While we are not unanimous as to the proper construction to be given to section 2044 of the Code, we are agreed that the judgment of the court below was not error, and it is therefore affirmed.

GREENE, C. J., and HoYT, J., concurred.

(2 Wash. T. 112)


Filed July, 1882.

A judgment in a former action between defendant and plaintiff's grantor, in which the title to the land in controversy was in issue, will bind plaintiff in a subsequent action of ejectment.

Where the lower court fails to find on all of the material issues, and a motion to find on all such issues is not interposed, such failure cannot be urged as error on appeal.

Error to district court.

J. B. Allen and Dolph, Bronaugh, Dolph & Simon, for plaintiff in


Anders, Budd, Caton & Crowley, for defendant in error.

GREENE, C. J. Plaintiff sued in the district court to recover pos session of lot 7, in block 13, in the city of Walla Walla. He alleged in usual form his ownership in fee and right to possession, and the wrongful witholding of such possession by defendant. Defendant answered, denying plaintiff's ownership, and affirming that he him. self is administrator of one Dennis McCraith, deceased, and that in September, 1866, in a certain suit between defendant's decedent and plaintiff's grantor, the title and right to possession of the premises was duly litigated, and was upon such litigation duly adjudged in favor of defendant's decedent. In his reply, the plaintiff denied the litigation and adjudication alleged in the answer. On the trial, it appeared that, in the suit mentioned in the answer, there had been no judgment regularly recorded. But evidence was adduced compe

tent, and, in our opinion, sufficient, to prove that such a judgment had actually been rendered. It was in evidence also-and about this fact there seems to be no dispute-that a tract of land, including the premises in controversy, was, on July 17, 1865, entered pursuant to statute by the city of Walla Walla, and the purchase price then paid into the local land-office. It further appears in evidence that on August 4, 1866, the city deeded the premises to one J. C. Hawthorne, who afterwards transmitted the paper title by a chain. of conveyances to the plaintiff, and that the patent from the United States was issued to the city, July 20, 1869. The judge who tried the cause a jury having been waived-found as follows:

"That on the fourth day of September, 1866, Dennis McCraith brought suit in this court against J. C. Hawthorne, through whom Robert Eakin, the plaintiff, claims title in this suit, and recovered a judgment in 1867 against said Hawthorne for the identical real estate claimed by the plaintiff, Eakin, in his complaint in this suit. As a conclusion of law, I find that the defendant is entitled to a judgment in this case."

To the introduction of the evidence offered to show the former adjudication, and to each of the judge's findings, exception was duly taken and allowed. Judgment was given for defendant conformably to the legal finding of the judge, and this judgment is now brought here for reversal by this writ of error.

In making entry of the land the city acted under the town-site act of twenty-third of May, 1844, (5 St. 657,) which was subsequently amended and supplanted by the very similar act of second of March, 1867, (14 St. 541.) By the entry and payment, and the instant they were consummated, the city of Walla Walla became vested with the legal title to the land. Hussey v. Smith, 99 U. S. 20, 22. This title it forthwith and thenceforth held "in trust for the several use and benefit of the occupants thereof, according to their respective interests," and not otherwise. Between plaintiff's grantor, Hawthorne, and defendant's decedent, after the passage of title out of the United States, and after the city had deeded to Hawthorne, the question of occupancy and interest was litigated and determined. That determination was in favor of defendant's decedent, and against Hawthorne, the plaintiff's grantor.

Plaintiff is not here claiming any other title than what the city was able to give under the town-site act, nor any other right to ownership or possession than what his grantor had, or is supposed to have had, at the date of the litigation. The result of the litigation, therefore, bound, as privies in estate and representation, the parties now in this court.

The judge's findings of fact are so meager that they do not cover all the material issues made by the pleadings. His conclusions of law, therefore, do not flow as a logical sequence from the facts found. But if advantage was to be taken of this, there should have been a motion addressed to the court below to make additional findings to

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