Nov. 1901.]

Opinion of the Court-ANDERS, J.

ities or public corporations were compelled by mandamus. to levy taxes for the payment of indebtedness, yet an examination of them discloses that in each instance the action was based on a judgment for over-due interest on bonds, or for some other debt due a judgment creditor. In United States v. County of Clarke, supra, which is especially relied on by appellant, the relator had recovered a judgment for unpaid interest on bonds issued by the county to a railroad company. The law authorizing the bonds also authorized the levy of a special tax to pay them, but the special levy was found to be inadequate to meet the obligations of the county in full, and, a portion of the interest being in arrears, the claim therefor, as we have said, was reduced to judgment. An execution having been issued upon this judgment and a return made that no property subject to execution could be found, the judgment creditor applied for a mandamus commanding the county court and the justices thereof to direct the clerk of the county to draw a warrant on the county treasurer for the balance of the judgment remaining unpaid, so that he might be enabled, on its presentation, to have it paid in its order out of the county treasury. The defendants resisted the application for the writ on the grounds that the law expressly provided that the levy of a tax by the county court should not exceed one-twentieth of one per cent. each year for the payment of the bonds and the interest thereon; that they had levied that tax; that they had no authority to provide any other fund for the payment of said bonds or interest, or any judgment thereon; that the relator was not entitled to have his judgment paid out of any other fund; that there was no fund in the treasury applicable to the payment of the bonds, and that they were not authorized to order a warrant for the payment of relator's

judgment payable out of any other fund than that derived from the tax of one-twentieth of one per cent. authorized by law. A demurrer to the defense was sustained by the circuit court, and the petition dismissed. The cause was then removed to the supreme court of the United States by writ of error. The latter court reversed the judgment of the court below, and directed the entry of a judgment in favor of the relator on the demurrer to the return of the respondents. The court took the view that, inasmuch as the law authorizing the levy of the special tax contained no provision that only the fund derived therefrom should be applied to the payment of the bonds, the statute was not exclusive, and therefore held that the bonds were debts of the county as fully as any other of its obligations, and that for any balance remaining due on account of principal or interest, after applying the proceeds of the special tax, the bondholders were entitled to payment out of the general fund of the county. It will be observed that the relator in that case did not urge the levy of a further special tax. He simply asked the court to compel the clerk to issue and deliver to him a warrant on the county treasurer for the amount of his judgment. The relief prayed for was granted for the reasons above stated.

In Louisiana ex rel. Nelson v. St. Mark's Parish, a judgment creditor of the parish was entitled by his contract to be paid out of specific tax levies, which contract the corporation had failed to comply with, and a mandamus was awarded to compel the levy and collection of a sufficient tax to pay his judgment. In Ex parte Parsons the court held that where a municipal corporation was under obligation to levy taxes to meet a debt due a particular creditor, such creditor was entitled to a mandamus com

Opinion of the Court-ANDERS, J.

Nov. 1901.] pelling the corporation to levy a special tax for that purpose, or add the required amount to the general levy. The three cases last above mentioned appear to be as favorable to appellant's contention as any of the cases cited, yet it is apparent that they are not strictly in point here. In fact, they afford no material aid in the solution of the question now under consideration, and no case has been found deciding the exact point in question. If the appellant were attempting to enforce the payment of a judgment for the unpaid interest, instead of the levying of another special tax, then the case of United States v. Clarke County, supra, and some other cases cited by appellant, would be in point. Under the circumstances, therefore, the question here presented must necessarily be determined by a consideration of the statute alone. It may be true that it was within the province of the city council, in making the annual levy to meet the interest upon the bonds, to allow a margin for possible delinquency in the payment of taxes, and to fix the rate of taxation accordingly, but we cannot say that it was their absolute duty to do so. And, if they had undertaken to pursue that course, it is manifest that it would have been impossible for them to determine in advance what part, if any, of the levy would not be paid, or even become delinquent; and, if they had adopted that plan, there might still have been a deficiency in the interest fund, resulting from a mere error of judgment, and in that event the appellant would probably have applied to the court for a writ of mandate to compel the respondents to make an additional levy.

We deem it proper, in closing this opinion, to observe that we do not wish to be understood as deciding that the city of New Whatcom is under no obligation to pay the balance due on the interest coupons in question. That is

Syllabus.

[26 Wash. a matter not necessary to be determined at this time. Our conclusion is simply that upon the undisputed facts disclosed by the record in this case the appellant is not entitled to the particular relief demanded.

The judgment appealed from is affirmed.

REAVIS, C. J., and DUNBAR and FULLERTON, JJ., con

cur.

[No. 3978. Decided November 29, 1901.]

MINNIE THOMPSON RECTOR, as Administratrix, Respondent, v. SIDNEY THOMPSON et al., Appellants.

In an action for the conversion of cattle, a letter by plaintiff's attorneys to some of the defendants who had possession of them, that the cattle had been stolen and that steps would be taken to recover their value unless surrendered to the owner, is admissible in evidence to show notice, although containing irrelevant and incompetent matters, which had already been excluded as incompetent.

SAME LIABILITY OF RECEIVERS OF STOLEN PROPERTY.

The fact that the original taking was by one of the defendants who shipped the cattle by rail consigned to himself to be delivered at the stock yards of the other defendants, would not entitle the latter to a non-suit, where they had actual notice that the original taking was wrongful.

CHANGE OF VENUE -TIMELINESS OF MOTION.

A motion for a change of venue comes too late, where it is interposed at the close of plaintiff's case, upon the dismissal from the case of the only defendant residing in the county where the trial was had, when there is no showing that such defendant had been made a party in bad faith for the purpose of enabling the venue to be laid in such county, since Bal. Code, § 4856, provides that a defendant entitled to a change of venue must apply therefor "at the time he appears and demurs or answers."

Appeal from Superior Court, Lewis County.-Hon. HENRY S. ELLIOTT, Judge. Affirmed.

Nov. 1901.]

Opinion of the Court-MOUNT, J.

John A. Parker, M. A. Langhorne and Forney & Ponder, for appellants.

Reynolds Stewart, for respondent.

The opinion of the court was delivered by

MOUNT, J.-Prior to the death of Emma M. Thompson, she and her husband, C. C. Thompson, were the owners and in possession of certain cattle described in the complaint and in controversy herein. On February 20, 1900, said Emma M. Thompson and her husband executed a bill of sale of the said cattle to their son Sidney Thompson in consideration that said Sidney Thompson should care for them and their two minor children during the lives of the grantors and during the minority of said minors. A short time after the execution of this bill of sale, said Emma M. Thompson died, and her husband, C. C. Thompson, was adjudged non compos mentis. The two minors, with their father, were taken in charge by the plaintiff, a married daughter of said Emma M. and C. C. Thompson. On July 16, 1900, plaintiff, upon petition therefor, was appointed administratrix of the estate of Emma M. Thompson, deceased, and guardian of the person and estate of said C. C. Thompson, non compos mentis. Prior to, and also at the time of, the appointment of plaintiff as administratrix and guardian, as aforesaid, said Sidney Thompson renounced the contract above referred to, and told plaintiff to take possession of the cattle above mentioned, which she did immediately upon her appointment as administratrix. On or about the 7th day of July, 1900, some three months after Mrs. Rector had taken charge of said cattle, Sidney Thompson, together with the defendant Stock and others, without the knowledge or consent of plaintiff, took the said cattle from the pasture in

26-26 WASH.