Appeal from Umatilla county. Lucian Everts, for appellant. Turner, Bailey & Ballery, for respondent. LORD, J. The plaintiff and defendant were sureties upon a promissory note executed by one James Johnson to the First National Bank at Walla Walla. James Johnson died insolvent. After the note became due, the defendant called upon the payee and expressed his willingness to pay his part or share of the note, but he did not pay or offer to pay the same. He also made some effort to notify the plaintiff of his readiness to make such payment of his aliquot part, but the information was never communicated to the plaintiff. Subsequently, the holder and payee of the note brought an action to enforce its collection, but the defendant was not served with process after the action was commenced, but before judgment was recovered the defendant paid to the bank his moiety of the note. Thereafter a judgment was recovered against the plaintiff for the balance due upon the note, including costs, and a certain sum adjudged reasonable as attorney's fee, as stipulated in the note. This suit is brought to compel the defendant to contribute his share or moiety in payment of such costs and attorney's fee. The defendant insists that he is not liable, for the reason that he has paid his part, and that the additional expenses incurred as incidents of the action was due to the default and negligence of the plaintiff. The right to contribution is based upon the maxim, "Equality is equity." Originally it was enforced. only in equity, and on principles of natural justice. The right to it did not depend upon contract, but sprung from equitable considerations, arising out of the relation of the parties to each other, and the fact of a common interest and a common burden to bear. "The right to contribution," says CHURCH, C. J., "between co-sureties, depends. upon principles of equity, rather than upon contract. It is well settled that the liability exists, although the sureties are ignorant of each other's engagement. The equity springs out of the proposition that when two or more sureties stand in the same relation to a principal, they are entitled equally to all the benefits, and must bear equally all the burdens of the position. In such cases the maxim, Equality is equity,' applies." Wells v. Miller, 66 N. Y. 258. Although the obligation of co-sureties to contribute to each other is not founded upon contract, or any notion of an implied promise, yet the doctrine of contribution, as applied and administered in equity, has stood so long, and been so universally recognized, that a jurisdiction at law has grown up and become well settled. 3 Pom. Eq. Jur. § 1418, note; Brandt, Sur. & Guar. § 220. When, therefore, two or more persons jointly become sureties for another on a note for the payment of many, each surety becomes liable to the other to pay his share of the liability in the event of the failure or insolvency of the principal. "By becoming sureties," said APPLETON, C. J., "each impliedly promised the other that he would faithfully perform his part of the contract, and pay his proportion of the loss in case of the insolvency of the principal." Hichborn v. Fletcher, 66 Me. 210. He is not obliged to delay payment until suit is brought. His liability accrues upon the maturity and non-payment of the note for which he is surety. If, however, it is not paid, and a judgment is recovered against the principal and his sureties, or against the sureties alone, and one of them pays it, he can recover one-half of the costs of the suit from his co-surety. Davis v. Emerson, 17 Me. 64; Newcomb v. Gibson, 127 Mass. 398. In the former of these last cases the court say: "The failure to pay, which occasioned the costs, was imputable to the defendant as much as the plaintiff. The plaintiff paid the execution, including the costs. The costs cannot be distinguished from the debt. Every equitable principle which entitles the plaintiff to contribution for the one, applies equally to the other." In such cases, where the costs are recovered in a judgment against them jointly, it is clear, then, the costs have become a common burden, and each may recover of the other for the payment of more than his proportion. And it has been further held that a surety may not only recover of his co-surety a proportionate share of his costs, but also the expenses incurred in defending a suit, where the defense set up was reasonable, hopeful, and prudent. Fletcher v. Jackson, 23 Vt. 593; Marsh v. Harrington, 18 Vt. 150. As an incident of the common burden after suit brought, and when both are in default of payment, the liability for contribution for costs, is founded upon the same equitable principle as is applied to the main obligation. In Briggs v. Boyd, 37 Vt. 540, the court say: "But this was a debt for which the plaintiff and defendant were jointly liable. Briggs was no more bound to pay the whole of it than Boyd. As between themselves, each was to pay one-half. Had Boyd paid his half, or offered to pay it, before suit, there would be ground for his saying that he ought not to contribute to the costs. But the costs were made in collecting the whole of the note from Briggs. As one appears to have been just as much in fault as the other in not paying the note, which led to the necessity of making the costs, we think they should bear equally the burden of the costs." Now, what are the facts in the case before us? Both the plaintiff and defendant were in default of payment before the action was brought upon the note. As between themselves, each was liable for his share, but neither paid his part, nor any part of it, before the action was commenced. It is true that the defendant had expressed a willingness to liquidate his share to the payee, but he did not pay it, or offer to pay it. It is true, too, he sent word to the plaintiff that he was willing to pay his share, but the message was never communicated to the plaintiff. As was said in Briggs v. Boyd, supra, had he "paid his half, or offered to pay it, before suit was brought, there would be ground for his saying that he ought not to contribute to the costs." Mere willingness, unaccompanied by any offer, is not sufficient. Had he tendered to the plaintiff an offer to pay his part, and the plaintiff had refused or delayed in the acceptance of such offer, the case would stand different. It is clear that neither had any defense to the note, and, whenever an action should be brought, the judgment, with its incidents, was inevitable. The fact that the defendant was not served with process is not material. So far as payment is concerned, they were equally in fault, and neither had done such things with respect to each other that would furnish any just reason for exoneration from liability. Suits for contribution against a co-surety for costs, like many other suits in equity, depend very much upon the particular facts of each case. Considerations of right and justice, as applicable to the facts, are the controlling principles in determining the result. Upon the facts as presented by this record, we are of the opinion the defendant is liable for his proportionate share of the costs, and a decree must be entered accordingly. SUPREME COURT OF WASHINGTON TERRITORY. (2 Wash. T. 283) SCHILLING V. TERRITORY. July Term, 1884. 1. CRIMINAL LAW-INDICTMENT-LOCUS IN QUO. A crime having been charged in an indictment as being committed in Seattle, which is a city duly incorporated under the laws of Washington Territory, the court will take notice that said city is situated in the county of King, and the indictment, thus aided, is sufficient without distinct mention of the county as the locus in quo. 2. SAME-KEEPING A GAMBLING-HOUSE-STATUTE OF WASHINGTON. A defendant having been charged, in the language of the statute, with keeping and maintaining a gambling house, the indictment is sufficient, even though it does not state what kind of gambling was carried on. For decision on other points raised, see Rosencrantz v. Territory, ante, 305. J. C. IIaines and Thos. Burke, for plaintiff in error. HOYT, J. The main question in this case is decided by the case of Rosencrantz v. Territory, and, so far as the question of the constitution of the grand jury is concerned, we refer to the discussion therein. But, in addition to the questions thus raised, the record in this cas presents the question of the sufficiency of the indictment, which is objected to on two grounds: First, that it does not sufficiently state the county in which the offense was committed; and, second, that it does not state facts sufficient to constitute a crime or misdemeanor. As to the first point, it is sufficient to say that the crime having been charged to have been committed in the city of Seattle, which is a city duly incorporated under the laws of this territory, the court would take judicial notice that the said city was situated in the county of King, and the indictment, thus aided, was sufficient in this regard. The said defendant was in said indictment charged with having kept and maintained a gambling-house, and it is objected that this was insufficient, in that it did not state what kind of gambling was carried on in said house; but we are of the opinion that the legislature intended to prohibit the keeping of a house for any gambling purpose, and even if this is not so, yet the offense was charged in the language of the statute, and is sufficient to put the defendant upon his defense. No error appearing in the record, the judgment and sentence must be affirmed; and it is so ordered. WINGARD, J., concurs. (2 Wash. T. 286) HAYS and others v. TERRITORY. July Term, 1884. 1. CRIMINAL LAW-GAME LAWS-SPECIAL LEGISLATION · ORGANIC ACT OF THE TERRITORY OF WASHINGTON. The restriction placed by the legislature upon hunting in certain specified counties in Washington Territory does not involve such a granting of special privileges as is inhibited by the organic act. 2. SAME JURY COMPOSITION OF MARRIED WOMEN AS JURORS - LAWS OF UNITED STATES AND OF WASHINGTON TERRITORY. There is nothing in the constitution and laws of the United States to prevent married women serving on juries under the statutes of Washington Territory. Robinson, Porter & Robinson, for plaintiffs in error. J. C. McFadden, for defendant in error. GREENE, C. J. By this record there are presented to us but two questions which we deem worth while to consider. They are questions as to the validity of the game law, upon which this indictment was framed, and as to the validity of an indictment found by a grand jury composed in part of married women. The game law in question restricted hunting in five counties only. It is contended that for this reason it is inconsistent with that inhibition in the organic act, which forbids the legislature from granting special privileges. But the provisions of this game law fall without distinction upon all inhabitants of the territory. All are forbidden to hunt at certain seasons within the counties named. There is no special privilege, unless it be in favor of the brute life of the specified area, or those of human kind who are so happy as to be alive at the hunting season. We think the law to be a sensible police regulation entirely within the power of the territorial legislature to enact. Upon the question of eligibility of married women to grand jury duty we have but a word to say. This court, circling through its four phases like the moon, has already, once, when differently constituted, passed and thrown its light upon that question. What it then saw it sees now. Its views are unchanged. But, as the question has revolved somewhat, so as to bring a part of it more directly under our gaze, we will content ourselves with casting our more restricted view upon that part only. It is contended that the provisions of the federal constitution pre.. serving to the citizen the right of juries, grand and petit, as known to the common law, are incompatible with any legislation by our ter ritorial legislature that would make it the right or duty of women to serve as petit jurors in any case, or as grand jurors in cases capital or infamous; and that, therefore, the legislation which, interpreted as this court interprets it, admits without discrimination women to jury duty as freely as men, cannot rightly be given any such interpretation or effect. The definition and touchstone. of qualification for jury duty, at the time of the adoption of the constitution and its |