July, 1891.] Dissenting Opinion - ANDERS, C. J. to the age. All the qualification is that the woman shall be unmarried and of previously chaste character. We find no substantial error in the instructions of the court or the admission of testimony, and the judgment of the lower court is affirmed. STILES and HOYT, JJ., concur. ANDERS, C. J. (dissenting).—It appears from the certified statement of facts in this case that the jury were told by the court, after the testimony was closed and the cause was finally submitted to them, that they might, in case they agreed upon a verdict during the night, seal the same, and deliver it to their foreman and bring it into court on the following morning, which the jury accordingly did. The record fails to show that the defendant consented to this proceeding, and I am of the opinion that without his consent, which should affirmatively appear of record, the jury should not have been permitted thus to separate. The contrary was the practice at common law, and the only change made by our statute is that permitting the jury to separate by consent of the defendant and the prosecuting attorney during the trial. See Code, § 1089. Section 1102 of the Code provides that "when the jury have agreed upon their verdict they must be conducted into court by the officer having them in charge. Their names must then be called, and, if all appear, their verdict must be rendered in open court; and, if all do not appear, the rest must be discharged without giving a verdict, and the cause must be tried again at the same or next term." This language, it seems to me, clearly implies that the jury must be kept in charge by the officer, and not be permitted to go at large until after the rendition of their verdict in open court. See Proffatt, Jury Trial, § 451. Upon the other questions involved in the case I concur in the opinion delivered by Mr. Justice DUNBAR. SCOTT, J., concurs. ON PETITION FOR REHEARING. DUNBAR, J.-The petition for rehearing in this case is founded on the alleged imperfection of the transcript sent up to this court from the superior court, and the petition. is to rehear on an amended record. The case was tried on the record brought here by the appellant. Had he suggested a diminution of the record when the case was before this court it would have ordered the record supplied; but public policy will not allow cases to be tried by piecemeal. It cannot allow an appellant to rest his case on certain points of the record, and if he fail, to try his case on another and different record. ANDERS, C. J., STILES, HOYT, and SCOTT, JJ., concur, 2 564 d23 607 [No. 170. Decided July 15, 1891.] J. C. RATHBUN V. THURSTON COUNTY. APPEALS -RECORD - PRESUMPTIONS. Where the evidence in a cause is not made a part of the record on appeal, it will be presumed that the findings of fact by the court below were warranted by the evidence. Appeal from Superior Court, Thurston County. Action by J. C. Rathbun against Thurston county on a contract for publishing a delinquent tax list. Judgment for plaintiff for part of his claim, from which judgment he appeals. J. C. Rathbun, for appellant. Chas. H. Ayer, County Attorney, and W. J. Milroy, for appellee. July, 1891.] Opinion of the Court-ANDERS, C. J. The opinion of the court was delivered by ANDERS, C. J.-This action was tried in the court below upon a written stipulation of facts, from which it appears that appellant, who was the publisher of a newspaper, advertised the delinquent tax list of the county for the year 1889, for an agreed compensation of 75 cents for each separate description of real estate for the first insertion, and 25 cents for each subsequent insertion. It is conceded that the advertising was done in accordance with law and the agreement of the parties; but, on settlement with the county commissioners for the work done, a controversy arose over the meaning of the expression "each separate description of real estate." The plaintiff contended that a separate description of real estate is a description of an individual lot, tract or parcel of land appearing upon the assessment roll, without respect to the number of such individual lots, tracts or parcels that may have been assessed to a single owner, notwithstanding the tax levied upon all such parcels may have been carried out in total, and placed opposite the last item in the list. On the contrary, the commissioners claimed that such separate description embraces all the lots, tracts and parcels of land assessed to a single owner, where the valuation thereof is carried out in total, and the tax levied against the whole is placed opposite the last item in the list instead of a separate assessment and valuation. being made for each such lot, tract or parcel of land. According to the contention of plaintiff he is entitled to be paid the contract price for publishing 564 separate descriptions, but according to the view of defendant he is only entitled to compensation for advertising 270 of such descriptions, and for which the county paid him. The court below found as facts that the delinquent tax list published by plaintiff contained 330 separate descriptions, and that there was still due the plaintiff from defend ant the sum of $90, for which sum judgment was duly The judgment of the lower court is therefore affirmed. 2 566 d22 198 2 566 28 492 28 493 €28 502 2 566 e42 411 [No. 259. Decided July 17, 1891.] A. F. MILLS V. THE STATE OF WASHINGTON, on the Under the statutes of this state (Code 1881, 2 702, et seq.), relating to information in quo warranto proceedings, the mayor of a city has no interest in the office of city councilman sufficient to entitle him to appear as relator in such proceedings to oust an alleged usurper of that office. Under the act of March 9, 1891, providing that the number of councilmen in cities of the third class shall be increased from six to seven, and authorizing the mayor or mayor pro tem., on or before June 15, 1891, with the consent and approval of the council to appoint the additional member, a mayor pro tem., duly elected and lawfully acting, has authority to make such appointment, although such appointment may be long prior to the time limited by law, and the mayor may be within the corporate limits of the city at the time. Appeal from Superior Court, Clarke County. Quo warranto on the relation of J. R. Smith, mayor of the city of Vancouver, Washington, in his official capacity, to oust from the office of city councilman of the city of Vancouver the appellant, A. F. Mills. Vancouver is a city of the third class, organized under Laws 1889-90, p. 131. By the amendatory act of March 9, 1891, the number of councilmen for such city was enlarged from six to seven, and the act provided that "the mayor or mayor pro tem. shall, on or before the 15th day of June, 1891, with the consent and approval of the city council, appoint an additional member as provided for by this section." On the 30th day of March, 1891, prior to the adjourned meeting of the city council to be held on that day, the mayor, J. R. Smith, filed with the clerk of the council the nomination of W. H. Brewster as councilman at large. The council met the same day, in pursuance of a former resolution of adjournment from the regular meeting on the 16th of March, 1891, and the mayor of the city being absent, they proceeded regularly to elect one of their members, L. M. Hidden, as mayor pro tem., and after considering the nomination of W. H. Brewster, made by the relator, rejected the same. The mayor pro tem. then presiding, was requested to fill the vacancy in the office of seventh or additional councilman, and the mayor pro tem. thereupon nominated the appellant, A. F. Mills, who was thereupon elected by a vote of four to two, the mayor pro tem. voting in favor of his appointment. On |