Volume 104 — Washington Reports

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered November 3,1917, upon findings in favor of the plaintiff, in an action to foreclose a mechanics ’ lien, tried to the court.</p>

<p>Appeal from a judgment of tbe superior court for Yakima county, Holden, J., entered November 19,1917, upon tbe verdict of a jury rendered in favor of tbe plaintiffs, in an action on contract.</p>

<p>Sales (165) — Remedies op Buyer — Counterclaim: for Breach of Warranty — Measure op Damages. Upon counterclaim for breach of warranty, in an action for the price of graders, the defendants’ measure of damages would be the difference between the purchase price and the actual value of the goods when delivered, the sale price of machinery being prima facie the value, and any evidence of value for the particular job in excess thereof is inadmissible as speculative.</p> <p>Same (165). In an action for the balance due on the purchase price of machinery, in which there was a counterclaim for damages for breach of warranty, it is error to give instructions limiting the allowance for damages to the balance due.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered January 2, 1918, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

<p>Appeal (1002) — Review—Verdict. Where a question of fact is presented upon conflicting evidence, a- verdict supported by substantial evidence will not be reviewed on appeal.</p>

, entered June 6, 1917, upon findings in favor of the defendants, dismissing an action for specific performance, tried to the court.

<p>Corporations (23) — Corporate Name’ — ’Right to Use — ’“Trust” Company — Statutes—Construction. A corporation the articles of which authorized it -to engage in a trust business, cannot lawfully use the word “trust” in its corporate name, although it does not actually engage in a trust business, without complying with Laws 1917, eh. 80, p. 271, which defines what constitutes a banking or trust business, provides for the incorporation of banks and trust companies and for their supervision, imposes penalties not applicable to other corporations, and provides that no corporation shall engage in a trust business except as authorized by the act and that no corporation shall use the word “trust” in its corporate name except a corporation authorized by the laws of the state; since the act was intended to put banks and trust companies in a distinct class with limited powers and new safeguards.</p> <p>Same (23). The words “Trust Company” in such act are not ambiguous, and the phrase “authorized by laws of the state,” was merely intended to differentiate between trust companies organized under the act and foreign trust companies authorized by the act to engage in a trust business, and not to authorize existing companies to continue the use of the trust name, if not engaged in a trust business without complying with the law.</p> <p>Constitutional Law (126) — Due Process — Deprivation of Property — Corporate Name. Laws 1917, p. 271, prohibiting the use of the word “trust” in the corporate name of a company not incorporated as a trust company, is not a taking of property without due process, as to existing corporations, in view of Const., art. 12, § 1, which provides that laws relating to corporations may he altered, amended or repealed at any time, and that corporations doing business in the state may be regulated, limited or restrained by law.</p>

Consolidated appeals from a judgment of the superior court for Whatcom county, Pemberton, J., entered September 27, 1917, upon finding’s in favor of the defendant, in an action in replevin, tried to the court, and from an order entered December 21, 1917, rejecting claims in a receivership of an insolvent corporation, after a hearing before the court upon objections thereto.

<p>Application filed in the supreme court August 3, 1918, for a writ of mandamus to compel the commissioner of public lands to issue a lease for mining prospecting purposes on state lands.</p>

<p>Cross-appeals from a judgment of tlie superior court for Spokane county, Sullivan, J.,- entered April 16, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>United States (2) — Members of Congress — Qualifications — State Regulations. The Federal Constitution, art. 1, §§ 2 and 5, providing the qualifications of members of Congress and that Congress shall be the sole judge thereof, cannot be added to or varied by the state Constitution, art. 4, § 15, which provides that judges of the supreme and superior courts shall be ineligible to any other office or employment other than a judicial one during the term for which they have been elected.</p> <p>Same (2). The fact that the state, in the absence of Federal legislation, can provide for primary elections, does not give it power to provide the qualifications of those seeking nomination for membership in Congress at such primary elections.</p>

, entered January 4, 1917, upon findings in favor of the defendants, dismissing an action for an injunction, tried to the court.

<p>Appeal from an order of the superior court for Snohomish county, Alston, J., entered May 10,1917, vacating a default judgment, after a hearing before the court.</p>

<p>Marriage (5) — Persons Who Mat Marry — Divorced Person. A marriage within the six months prohibited by the divorce, outside of the jurisdiction where the parties went for that purpose and immediately returning without intent to change their domicile, is void.</p> <p>Same (17) — Annulment—Grounds—Mistake of Law and Pact. Where plaintiff in a divorce case, after trial believed in good faith that a decree of divorce was entered, and within six months married in a foreign jurisdiction honestly believing that such marriage would be valid, her mistake of fact and law was in no sense meretricious, and authorizes the court to annul the marriage at her suit.</p> <p>Same (21) — -Annulment—Property Rights. Upon the annulment of a void marriage, in no sense meretricious but entered into in good faith, the courts will treat the relation as a partnership as to all property acquired by the joint efforts of the parties while living together as husband and wife, the wife having assisted in the business, earned part of her personal expenses, and faithfully performed the duties of a housewife.</p>

<p>Trover and Conversion (13) — Defenses—Restoration or Tender —Tender op Property. A mere direction to the owner of property to remove it from defendant’s place of business where it was stored is not a tender that would absolve the wrong, and there was a conversion, where defendant afterwards sold and delivered the property to a third person, on account of plaintiff’s failure to comply with the demand for removal.</p> <p>Frauds, Statute of (11) — Leases—More Than One Year. A lease for one year, although executed within the month prior to its taking effect, is not a lease for more than one year, within Rem. Code, § 8802, requiring such leases to be acknowledged.</p> <p>Landlord and Tenant (87) — Eviction—Acts Constituting — Agreements. A market stall tenant cannot recover for eviction, if, being unable to pay rent, he agreed to move into a cheaper stall prepared for him, and refused to vacate on notice to quit.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered September 18, 1916, upon granting a nonsuit, dismissing an action by a carrier to recover the published tariff rates for an interstate shipment of live stock.</p>

<p>Contracts (57) — Construction—Intent of Parties. The most important rule for the construction of contracts is that the intent of the parties must govern, to be gathered from the contract as a whole and not from detached parts; and a clumsy arrangement of words, coupled with the “comma fault,” will not contravene a reasonable interpretation according to the intention.</p> <p>Insurance (103) — Nonpayment of Premium — Excuses — Construction of Policy — Notice of Disability. Notice of total disability must be given prior to default and cancellation for nonpayment of premiums, under a policy of life insurance, providing that if the insured, before attaining the age of sixty, shall furnish proof that he “has,” before default, become wholly disabled, the company shall pay for him all premiums “which shall, become due” during the continuance of the disability; especially in view of other provisions of the policy requiring insured, upon request, to give proof of continuance of the disability, and limiting the period of grace for payments to one month pursuant to Rem. Code, § 6059-184, during which time the policy “shall remain in full force and effect.”</p>

<p>Juby (8) —Right to Jury Trial — Recovery of Mining Claim. In an action involving conflicting claims to unpatented mining claims, defendants are entitled to a jury trial where they alleged ownership and right of possession and that they were wrongfully deprived of possession by plaintiff, which had committed waste.</p> <p>Mines and Minerals (12) — Actions to Recover Possession — Title. In possessory actions to recover unpatented mining claims, the better title prevails, the rule in ejectment for recovery on the strength of one’s own title not applying.</p>

Cross-appeals from a judgment of the superior court for King county, Bell, J., entered October 27, 1917, upon findings in favor of certain defendants, in an action to foreclose a mortgage, tried to the court.

<p>Attorney and Client (7) — Disbarment—Grounds. An agreement to advise and defend, free of charge, the members of a mercantile association, which solicited membership and advertised the contract, is unprofessional as a solicitation of business; but is not ground for the disbarment of attorneys who voluntarily discontinued the arrangement and had borne a professional reputation of the highest order for many years, and were guilty of no fraud or moral turpitude.</p>

<p>Attorney and Client (7, 7-1) — Disbarment—Grounds—-Misappropriations. Tbe misappropriation, with, intent to defraud, of money collected by an attorney in his professional character, is ground for his disbarment; and it is not a purgation of his offense that he returned the money after being charged with embezzlement.</p>

<p>Attorney and Client (7, 7-1) — Disbarment—Grounds—Misappropriations. The receipt of fees by an attorney while acting as administrator, for which he has not accounted, is ground for disbarment.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered November 20, 1917, in favor of the defendants, dismissing consolidated actions to exclude plaintiffs from the requirements of the industrial insurance act, after a trial to the court on the merits.</p>

, entered January 4, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an electric train.

<p>Divorce (99) — Custody and Support of Children — Agreements of Parties — Effect. A separation agreement providing for the custody and support of children and that the parties should not interfere with each other is avoided where the husband thereafter interfered with the wife, making threats to kill her; and the court in granting a divorce is not hound by the separation agreement.</p>

, entered March 4, 1918, upon findings in favor of the plaintiff, in an action for money had and received, tried to the court.

, entered January 4, 1918, in favor of the defendants, dismissing an action to enforce a claim against the estate of a decedent.

, entered June 12, 1917, upon findings in favor of the plaintiff, allowing a claim for compensation, upon appeal from an order of the industrial insurance commission, tried to the court.

Cross-appeals from a judgment of the superior court for Spokane county, Blake, J., entered June 30, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages.

<p>Municipal Corporations (405-407) — Torts'—Governmental Functions — Park—Construction op Dam. Tbe improvement of a city park not for profit being tbe exercise of a governmental function, tbe city is not liable for tbe negligent construction of a dam backing up tbe water of a stream to tbe damage of an upper riparian proprietor.</p>

,. entered September 14, 1917, upon sustaining a demurrer to the information, dismissing a prosecution for violation of the fishing laws.

, entered November 17, 1917, upon findings in favor of the defendant, dismissing an action to annul a marriage, tried to the court.

, entered January 16, 1918, upon findings in favor of the garnisk.ee defendants, dismissing garnishment proceedings, tried to the court.

<p>Arrest (6) — Authority to Arrest Without Warrant. An officer may not on information or suspicion make an arrest for a misdemeanor' without a warrant, unless the misdemeanor was actually committed in his presence.</p> <p>Sheriffs and Constables — Civil Liability for Negligence — Attempt to Arrest Without Warrant. It is unlawful for officers to combine to stop travelers on the highway in an attempt to find and arrest without warrant some person transporting liquors in violation of the prohibition law.</p> <p>Damages (9 — 11)—Grounds — Proximate or Remote Consequences — Shooting in Conspiracy for Unlawful Arrest. Where an innocent traveler on the highway was shot by one of a party of officers who had unlawfully combined to stop travelers in an attempt to find and arrest without warrant some person violating the prohibition law, the unlawful combination was the proximate cause of the injury, whether the shooting was wanton or not; and it is immaterial that the shooting was not agreed upon by the conspirators in advance.</p> <p>Conspiracy — Civil Liability — Joint Tort Feasors. Where two or more persons enter into an unlawful conspiracy each is responsible for any act done by either in furtherance of the common design, and it is immaterial that the act was the result of a sudden impulse, when it followed in natural sequence in continuous succession of the events.</p> <p>False Imprisonment (4) — Civil Liability — Defenses. It is no defense to an action for unlawful conspiracy by officers to stop travelers on the highway to make arrest for misdemeanor without warrant, that plaintiffs exceeded the speed limit in attempting to escape from supposed highwaymen.</p> <p>Intoxicating Liquors (29, 30) — Regulation — Transportation and Possession. The possession of less than a pint of whiskey in an automobile is not necessarily unlawful, especially when knowledge of its presence is not shown.</p> <p>False Imprisonment (4) — Arrest Without Warrant — Civil Liability — Defenses. Neither the good intentions of an officer nor the advice of his attorney is a defense to a civil action for damages for making an unwarranted arrest for misdemeanor without warrant.</p> <p>Fullektoh, J., dissents.</p>

, entered February 5,1918, upon findings in favor of the defendants, dismissing an action for forcible entry and detainer, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 25, 1918, in favor of the defendant, in an action to vacate a default judgment, tried to the court.</p>

<p>Evidence (175-179) —Parol Evidence to Vary Writing — Ambiguity — School Teacher’s Contract. A teacher’s contract allowing excuse from work in tbe summer school without providing the conditions of such excuse, and providing that the conditions of services as heretofore existing will prevail the coming year, is so ambiguous as to admit of parol evidence that it had been the custom to excuse a teacher only upon his or her request.</p> <p>Schools and School Districts (48-50) — Teachers—Contracts— Construction. A teacher’s contract providing that the teacher shall forfeit pay for the two summer months when excused “at his own request” upon two months’ notice to the board, leaves excuse from work optional with the teacher.</p>

, entered March 28, 1918, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendants, in an action on promissory notes.

, entered June 3,1918, denying a petition for the appointment of guardians for minors, and appointing another as guardian of their estates.

Application filed in the supreme court October 2, 1918, for a writ of prohibition to the superior court for Pierce county, Chapman, J., to prohibit further proceedings in a cause.

Proceeding filed in the supreme court February 18, 1918, for the disbarment of an attorney, upon findings of the state board of law examiners.

<p>Attorney and Client (7-1) — Disbarment-—Grounds-—Criminal Offenses — Blackmail. An attorney of mature years and long experience should be disbarred where it appears that, having been fully informed of, and having given advice as to, a blackmail scheme, he assisted therein by delivering the blackmailing message, having knowledge, or ample means of reading and acquiring knowledge, of its contents before delivery.</p> <p>Threats —■ Blackmail — Acts Constituting — Accessories. An attorney who advises as to and delivers papers intended to extort a settlement of a dispute and the purchase of stock through accusations of crime and threats of publication of alleged events and incidents of the recipient’s life, having knowledge or reasonable grounds of belief as to, and full opportunity to ascertain, its contents before delivery, is guilty of blackmail, under Rem. Code, § 2613, including within the definition of blackmail an accusation of crime with intent to extort or gain any money or property or affect any cause of action or defense, and Id., § 2007, abolishing the distinction between an accessory before the fact and a principal and making aiders and abettors liable as principals.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered November 3, 1917, upon a trial and conviction of having possession of crabs during the closed season.</p>

<p>Appeal from a- judgment of the superior court for Pierce county, Chapman, J., entered January 4, 1918, upon findings in favor of the defendant, upon withdrawing the case from the consideration of the jury, in an action in replevin.</p>

Kennan, judge pro tempore, entered October 3, 1917, upon findings in favor of the plaintiff, in an action to recover money and to establish an interest in real property, tried to the court.

<p>Master and Servant (122-1 — 129)—Actions — Complaint — Assault by Servant. A complaint for assault upon an employee by the master’s superintendent fairly raises the question whether he was at the time acting within the scope of his employment, where it is alleged that acting as superintendent, with power of supervision over the men, he accosted plaintiff while employed, falsely accused him of inciting a strike, and wantonly and maliciously struck him.</p> <p>Same (172, 174-1) — Assault by Servant — Liability—Scope of Employment. Where a superintendent was placed in charge of a distant cannery with general power to maintain discipline at his own discretion, which he abused in the exercise of his authority, when he lost his temper and committed a malicious assault upon an employee whom he sought to discipline, the master is liable.</p> <p>Damages (79) — Excessive Damages — Passion or Prejudice. A verdict for $1,000 for a malicious assault by a servant does not alone reflect passion or prejudice where plaintiff was painfully injured.</p>

Application filed in the supreme court October 4, 1918, for an order permitting the filing and serving of a statement of facts.

<p>Appeal from an order of the superior court for King county, Frater, J., entered February 11, 1918, quashing service of summons in an action against foreign corporations.</p>

, entered January 14, 1918, upon findings in favor of the plaintiff, in.an action to recover the value of property described in a bill of lading.

<p>Counties (46) — Highways (33) — Contractor's Bonds — Reserve Fund — Rights of Creditors and Sureties. Tb.e reserve fund withheld from contractors on county highway work as a trust fund for creditors of the contractor is also for the protection of his bondsmen; and materialmen furnishing supplies cannot participate in such reserve fund, as against the contractor’s sureties, unless they served notice of delivery within ten days after the first delivery of the material, as required by Rem. Code, § 1159-1, as a condition precedent to liability therefor on the contractor’s bond.</p>

<p>Divorce (50, 83) — Collateral Attack — Support of Child. Where a decree of divorce did not provide for the maintenance of a child awarded to the mother, and she waged a separate action to recover therefor, a defense therein that the original decree did not properly express the conclusion of the court, asking modification thereof, is a collateral attack upon that decree and cannot be entertained.</p>

, entered April 20, 1918, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.

Application filed in the supreme court September 24,1918, for a writ- of certiorari to review an order of the superior court for Skagit county, Brawley, J., dissolving a temporary injunction, and for an order of supersedeas.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered October 9, 1917, upon findings in favor of the defendants, ordering the return of intoxicating liquors seized, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Skamania county, Back, J., entered September 14, 1917, in favor of the plaintiff, in an action to'vacate a tax sale, tried to the court.</p>

<p>Homicide (5, 6) — Manslaughter—Elements—Killing With Design — Statutes. Under Rem. Code, §§ 2392-2395, defining murder in the first degree as the killing with premeditated design to effect the death of the person killed, murder in the second degree as the killing with such design but without premeditation, and manslaughter as every other killing not excusable or justifiable, killing with a design to effect death is murder and the element of manslaughter is excluded, even if under provocation or sudden heat of passion.</p> <p>Same (118) — Trial — Instructions — Grade or Degree — Manslaughter. Under a plea of self-defense, admitting that the killing was with a design to kill, the accused is guilty of murder or not guilty and is not entitled to an instruction on the subject of manslaughter, as defined by Rem. Code, § 2395.</p> <p>Same (94, 121) — Trial—Absence of Evidence of Manslaughter. On a plea of self-defense, accused is not entitled to an instruction on the subject of manslaughter, where there was no evidence to show facts within the statutory definition of manslaughter.</p> <p>Criminal Law (316) — Trial — Instructions Already Given. Error cannot be assigned upon the refusal of requested instructions where the instructions given fairly covered the subject.</p> <p>Same (255) — Trtal—Instructions—Comment on Evidence. In a prosecution for murder, a request to instruct the jury to consider the intoxicated condition of the deceased at the time he was shot, as bearing upon the weight to be given to his dying declaration made three days later, is properly refused as a comment on the evidence.</p> <p>Homicide (46) — Evidence—Admissibility—Other Offense. In a prosecution for murder, in which the testimony necessarily showed that two persons had been shot and had subsequently died and the jury was thoroughly familiar with the fact, it is not error to refuse to strike the testimony of the killing of the second victim.</p> <p>Same (48). In a prosecution for murder, in which it appears that two persons were shot by the accused, evidence as to the wounds on the body of the second victim, for whose killing accused had been acquitted, may have been competent as to the direction of the shots fired by accused.</p> <p>Criminal Law (448) — -Appeal—Harmless Error — Reception op Evidence. Error of a harmless nature in the reception of evidence in a murder case does not justify a reversal.</p> <p>Homicide (67) — Evidence—Admissibility — Dying Declarations —Attending Circumstances. Oral testimony of the circumstances under which a dying declaration, taken down and subscribed in due form when made, is admissible as explanatory.</p> <p>Same (62) — Evidence—Admissibility — Previous Threats — Remoteness. Upon an issue of self-defense, evidence of threats against the accused made ten years before, and testified to by a witness who had not lived in the neighborhood for seven years, are too ancient to be admissible.</p>

<p>Appeal from au order of the superior court for Pierce county, Chapman, J., entered January 19, 1918, affirming an order of the public service commission, after a hearing before the court.</p>

, entered January 3, 1918, upon findings in favor of the plaintiffs, in an action for damages to an automobile sustained in a collision, tried to the court.

<p>Municipal Corporations (391) — Use of -Streets — Contributory Negligence — Question for Jury. The contributory negligence of a pedestrian, struck by a backing automobile at a street crossing, in failing to look in the direction after the auto had passed him, is for the jury, where he was giving his attention to and waiting for another automobile which was passing between him and the defendant’s automobile, and the time was short and circumstances such that plaintiff might he justified in assuming that it was not going to he backed over the line of the sidewalk.</p>

<p>Master and Servant (145, 155) — Injury to Servant — Negligence — Safe Tools — Sufficiency of Evidence. Where a steel “snap” for heading rivets, with a soft end, was taken to the blacksmith by the foreman, and there was evidence that it was tempered on its return, and broke and injured the plaintiff on the first blow of the hammer, there was sufficient evidence to go to the jury on the question of whether the soft end had been tempered by the blacksmith.</p> <p>Same (90, 99) — Assumption of Risks — Simple Tools — Notice. While a steel “snap” for heading rivets with a soft end for striking is a simple tool, when the foreman took it to the blacksmith to change the cup end, and had it hardened at the hammer end and made dangerous, it was his duty to notify the riveting crew; and plaintiff, injured when it broke at the first blow of the hammer, did not assume the risk, and was not required to make a careful examination to see if it was safe; there being evidence that the defect was not apparent from casual observation.</p> <p>Appeal (473) — Review—Subsequent Appeals — Law of Case. A decision on a former appeal that one J. was not a partner of a firm is the law of the case and conclusive upon a second appeal.</p>

<p>Evidence (103-108) — Hearsay—Experts. Tbe evidence of experts on land values is inadmissible and prejudicial where their estimates, as far as timber and improvements were concerned, were based on the estimates of other experts who were not called to testify.</p> <p>Trial (39) — Evidence—Motion to Strike. A motion to strike all the testimony of experts on land values, admittedly based in part on hearsay, is not too general because of the inclusion of proper preliminary testimony which was material only as associated with the valuations.</p> <p>Appeal (142) — Preservation of Grounds — Exceptions—Instructions. Error in orally instructing the jury is waived by the failure to take an exception to the giving of oral instructions at the time.</p> <p>Eminent Domain (76) — Measure of Damages — Benefits From Improvement. Upon condemnation for an army post, the measure of damages is the fair cash market value of the property without regard to any benefits that may result from the establishment of the post.</p>

, entered December 15, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a promissory note.

<p>Sales (29) — Construction oe Contract — Subject-Matter—“Surplus” Hops. A contract to purchase 40,000 lbs. of hops, more or less, being all the “surplus hops grown on” specified yards, after delivery of 22,000 lbs. previously contracted to the buyer and 20,000 lbs. contracted to a third person, does not include any of the hops contracted to such third person; and the seller cannot repurchase from such third person and offer the same, on failure of the crop to produce the 40,000 lbs., more or less, in contemplation at the time of the sale.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 16, 1918, upon the.verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a collision with a motor truck.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered September 12, 1917, upon granting a nonsuit, dismissing an action for an injunction.</p>

, entered September 25, 1917, upon findings in favor of tbe plaintiff, in an action to contest a will, tried to the court and a jury.

<p>Municipal Corporations (405) — Torts —Of Police Officers — Abatement of Nuisance — Liability—Pleading. A complaint alleging that a city, “through its duly constituted officers, determined” that plaintiffs place of business constituted a nuisance, will not by inference be considered as alleging that any court of the city, or that the city council by ordinance, had determined the fact; in view of Rem. Code, § 287, as to the manner of pleading such a determination, and § 291, providing for the pleading of an ordinance by title and date of passage.</p> <p>Same (405). A complaint alleging the abatement and destruction, by police officers acting as agents of the city of Seattle, of plaintiff’s place of business as a nuisance, without alleging affirmative action by the city council, is subject to general demurrer, in that it fails to allege that the officers represented the city acting for itself in its corporate, as distinguished from its governmental (and nonliability) capacity; in view of Rem. Code, § 7507, subd. 31, including, in the enumeration of corporate powers, for which the city would be liable, the power to declare nuisances and abate the same, and of Seattle charter, art. 4, § 18, subd. 31, providing that the city may, by ordinance and not otherwise, declare nuisances and provide for the abatement of the same.</p>

<p>Witnesses (84) — Cross-Examination of Accused — Self-Defense. Upon an issue of self-defense, the state is entitled to show by cross-examination that the accused, after an altercation, had found a safe asylum by going to his garage and locking the door, where he obtained a gun with which he shot the deceased, indicating a voluntary return to the fray.</p> <p>Criminal Law (387) — Appeal — Preservation of Grounds — Objections to Evidence. Error cannot be predicated on the failure to lay sufficient foundation for a dying declaration, in the absence of any objection to the evidence upon that ground.</p> <p>Criminal Law (229) — Homicide (88) — Trial—Reception of Evidence — Scope of Rebuttal. Where the accused testified to a conversation had with the deceased just prior to the killing, it is proper rebuttal for the state to call the wife of the deceased and give deceased’s account of the conversation repeated to her in his dying declaration, under a sense of impending death.</p> <p>Criminal Law (314) — Homicide (95) — Trial—Necessity of Particular Instructions — Dying Declarations. It is not error to fail to instruct that dying declarations should be received with caution, in the absence of any request therefor; there being a wide distinction between misdirection and nondirection, where the charge is not mandatory by statute.</p>

, entered December 10, 1917, upon findings in favor of the plaintiffs, upon discharging the jury, in an action of forcible entry and detainer.

<p>Guardian and Ward — Termination of Relation- — Effect of Majority. An order, entered -without notice, authorizing a guardian to compromise a suit instituted by the ward after he became of age, is void, under Rem. Code, §§ 1631 and 1636, providing that the trust expires when the ward becomes twenty-one and making it the guardian’s duty to then account for all the estate remaining in his hands.</p> <p>Work and Labor (18) — Trial — Instruction — Implied Agreement. In an action by a nephew to recover for services while a member of his uncle’s family, it is proper to instruct that an agreement to pay for the services need not be in any form of writing or oral statement but may be implied from the conduct of the parties and that it is for the jury to determine whether the evidence shows an understanding that plaintiff would be paid.</p>

<p>Carriers (82) — Actions for Injuries — -Pleading. In a complaint for personal injuries through stepping into a hole in a county ferry approach, an allegation that the accident occurred “while alighting from a street car,” was used in a general sense and as qualified by other references, when construed together with the allegation that it was “while attempting to walk” upon the approach to the ferry, and “in the direct pathway thereof,” and allegations fixing the exact location of the hole in the walk.</p> <p>Same (81) — Companies Liable — Joint Liability — Common Approach. In an action for personal injuries “while alighting from a street car,” stepping into a hole in a plank roadway maintained at the terminus of the street car tracks by two carriers jointly, both would be liable, where the accident was not due to any movement of the street car.</p> <p>Counties (56) —Torts—Liability—Operation op Perry. A county operating a ferry for hire under the authority of Rem. Code, § 5013, acts in its proprietary capacity, and, is liable in damages for its acts and omissions as an individual engaged in a like enterprise.</p> <p>Carriers (81) — Companies Liable — Joint Liability — Common Approach. Where two common carriers, each acting independently in the collection of fares, maintain an approach or connecting way for the convenience of passengers in transferring, the duty of maintenance is upon both, and liability to passengers cannot be evaded by either by contract between themselves, or by a denial of ownership in the fee to the approach.</p> <p>Carriers (82) —Action for Injuries — Pleading. In an action against a carrier by an intending passenger injured upon an approach, an allegation overstating the degree of care required does not render the complaint subject to general demurrer.</p> <p>■Same (70, 75) — Care Required — -Intending Passengers. A carrier is only bound to exercise ordinary care as to an intending passenger using an approach to a ferry.</p> <p>Same (88) — Actions for Injuries — Questions for Jury. Where an intending passenger, in the nighttime, stepped into a hole in a county ferry approach that was not lighted so that the hole could be seen, whether the county exercised reasonable care for the safety of passengers is a question for the jury.</p> <p>Counties (37) —Contbacts and Inability— Maintenance oe Ferby — Ultra Vibes. A county, being authorized by Rem. Code, § 5013', to conduct a' ferry and collect tolls, the maintenance of approaches and landing places is not ultra vires, but is necessarily implied as part of the general power granted.</p> <p>Same (100) — Actions—Pleading—Notice oe Claim. In a complaint against a county repeatedly referring to an accident on a county ferry approach in November, 1916, a charge that the county had notice of the defect long before November 30, 1917, is clearly a clerical error, and sufficiently pleads notice, as against a general demurrer.</p> <p>Pleading (6) — Conclusions—“Negligent.” A complaint against a carrier by a passenger for personal injuries, is sufficient where it sets out the facts and breach of legal duty, although it fails to use the term negligent, or allege that a defect was dangerous.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered November 14, 1917, in favor of the plaintiffs, in an action for an injunction, tried to the court.</p>

<p>Forgery (4) — Information—Duplicity. An information for forgery is not duplicitous in charging -the forgery of a check with intent to defraud and of knowingly uttering the check with intent to defraud, as parts of one connected act continuous in point of time.</p> <p>Same (4). An information charging that accused feloniously forged a check imports an intent to defraud.</p> <p>Criminal Law (452) — Appeal—Harmless Error — Instructions. An instruction as to forgery, putting a greater burden on the state than called for* is not prejudicial to defendant.</p> <p>Same (259-2620 — Trial—Instructions—Comments—Assumptions. In a prosecution for forgery, an instruction to the jury, if they find that defendant passed the check with intent to defraud, will not be held as a comment upon or an assumption of the facts, where it could not have misled the jury, and the passing was not a matter in issue.</p> <p>Same (54) — Former Jeopardy — Identity of Offenses — Forgery of Different Checks — Identification by Witness. In a prosecution for forgery and altering one of two identical checks passed by the accused on the same day, the fact that the prosecuting witness, when on the stand, could not identify and state on which check the prosecution was based, does not operate as denial of the right to plead former jeopardy, where the check in suit had identifying marks, and the prosecuting attorney stated that the prosecution was based upon it.</p> <p>Same (159) — Evidence (218) — Comparison of Handwriting. In a prosecution for forgery, a bank officer who had never seen the accused write or paid any of his checks, cannot give his opinion that the accused had written and signed the check, based upon a comparison of the handwriting with an unauthenticated bank identification card from the bank’s filing system, containing the purported signature of the accused.</p>

<p>Partnership (55)- — Actions—Capacity to Sue — Certificate of Assumed Name — Raising Issue — Statutes. Where, upon demurrer to a complaint by a copartnership which failed to allege the filing of a certificate of assumed name in the county where it did or intended to do business, an amended complaint was filed alleging the filing of. the certificate in K. county and issue was joined by general denial, the capacity of the plaintiff to sue was sufficiently raised; and under Rem. Code, §§ 8369-8373, requiring plaintiff to allege and prove capacity, there was a complete failure of proof, where it appeared that plaintiff was organized to do business in P. county, and had no business and had never done any in K. county.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered February 18, 1918, upon the verdict of a jury rendered in favor of the defendant, in an action for damages.</p>

<p>Executors and Administrators (60) — Allowance to Surviving Wife — Nonresidents—Statutes. A nonresident widow is entitled to tbe allowance of $3,000, under Laws 1917, pp. 670, 671, §§ 103, 104, providing that the home, household goods and property not exceeding $3,000 shall be set aside to the widow; since the law is not strictly a homestead or exemption law, but is based on charity to prevent dependency and is to be liberally construed; the widow being in no sense a contending party as to creditors.</p> <p>■Same (59) — Statutes (5) — Continuations—Allowance to Surviving Wife. Although Rem. Code, § 1464, restricting a widow’s allowance to $1,000 was repealed by the probate code of 1917 without saving existing rights, Laws 1917, pp. 670, 671, §§ 103 and 104, making the allowance $3>,000 will be treated as a re-writing or amendment of existing laws, in view of Id., g 219, which provides that the court shall have full power and authority to settle the estate in any case where the provisions of the act are inapplicable or doubtful.</p> <p>Constitutional Law (85) — Obligation of Contracts — Exemption Laws. An award to the widow on distribution of $3,000 under the act of 1917, pp. 670, 671, §§ 103' and 104, is not an impairment of the obligation of debts created by the decedent prior to the passage of that act, although it amends the existing law limiting the allowance to $1,000, where the residue of the estate going to the widow under the award was less than $1,000.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Hewen, J., entered June 20, 1918, upon a trial and conviction of criminal anarchy.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered June 20, 1918, upon findings in favor of the plaintiff, in an action for breach of warranty, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered June 4, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of tbe superior court for Wbatcom county, Brawley, J., entered March 20, 1918, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Intoxicating Liquors (53) —Searches and Seizures — Boats — Statutes. A boat on which intoxicating liquors are found is not subject to seizure and forfeiture by a justice of the peace, under Rem. Code, § 6262-11, providing for the seizure and forfeiture by justices of the peace of all “implements, furniture and fixtures” used or kept for the illegal sale of intoxicating liquors; in view of Id., § 6262-5, providing that premises, buildings, vehicles or boats unlawfully used may be abated as nuisances by action to be brought in the superior court, and may be released upon bond.</p>

<p>Appeal from a judgment of the superior court for King county, Hall, J., entered April 12, 1918, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 25, 1916, in favor of the defendants, in an action for rescission, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered January 11,1918, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Adoption (5) —Notice — Persons Entitled. A divorcee, who came into the possession of a child in its infancy, and had no interest except to pay alimony awarded for its support, not being the father of the child, is not entitled to notice of proceedings for its adoption.</p> <p>Same (4) — Consent of Mother. A writing whereby the mother voluntarily gives up all claim to her infant child, then delivered to a foundling home, is sufficient consent to a subsequent adoption of the child, and obviates the necessity of notice to the mother under Rem. Code, § 1696.</p> <p>Same (5) — Notice—Sufficiency. Where a child has been declared a dependent child and made a ward of the juvenile department of the superior court, subsequent adoption proceedings in the same court are sufficient notice to the juvenile department, the knowledge of the judge hearing the matter being at least notice of the hearing to the other department.</p> <p>Same (9) — Setting Aside — Fitness of Petitionee. Where, in dependency proceedings, a woman had been found to be a suitable person to have custody of the dependent child, and later on obtaining a divorce she was again awarded its custody as a suitable person, an objection to adoption proceedings by her that a next friend should have been appointed to represent the infant on the determination of the fitness of the petitioner, is insufficient to warrant vacation of a decree of adoption.</p>

<p>Fraudulent Conveyances *(92, 97) — Transaction Between Relatives — Preference—Consideration—Evidence—Sufficiency. Transfers by a failing debtor of all his available resources to his daughter in consideration of a previous promise to pay her $25 a month as housekeeper during the previous five years, are shown to be fraudulent as to creditors, where the proof of the agreement was not satisfactory and it appears that the property was worth considerably more than his daughter’s claim, and he continued to exercise dominion over it, negotiating a mortgage upon it and offering part of it to a creditor in settlement of the indebtedness; since preference to one in such relation requires satisfactory proof of good faith and consideration, subject to the closest scrutiny.</p>

<p>Appeal from a judgment of the superior court for King county, Mitchell, J., entered July 23, 1917, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief, tried to the court.</p>

judgment of the superior court for Walla Walla county, Mills, J., entered April 6, 1917, in favor of the plaintiff, notwithstanding the verdict of a jury in favor of the defendant, in an action on contract.

, entered January 2, 1918, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a fire insurance policy.

<p>Vendor and Purchaser (60) — Rescission by Vendee — Fraud— Reliance on Representation. A sale of arid land will he rescinded for fraud, where it was induced by the seller’s misrepresentation that there was plenty of water to irrigate it, emphasized by a statement of his attorney to the same effect touching on the priority of rights under the law; the buyer having the right to rely on representations peculiarly within the seller’s knowledge which were difficult of ascertainment by the vendee.</p>

<p>Appeal from a judgment of tbe superior court for Pacific county, Hewen, J., entered November 5, 1917, upon findings in favor of tbe plaintiff, in an action to foreclose a mortgage, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered December 22, 1917, upon sustaining a demurrer to the complaint, dismissing an action for specific performance.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered February 16, 1918, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered March 22, 1918, upon findings in favor of the defendant, upon granting a nonsuit, in an action in tort.</p>

, entered January 10, 1918, upon findings in favor of the plaintiff, in an action for an injunction, tried to the court.

, entered May 6, 1918, upon findings in favor of the plaintiff, in an action to recover money paid on a contract for the. sale of land, tried to the court.

<p>Appeal from a judgment of the superior court for Clarke! county, Back, J., entered May 18, 1918, in favor of the defendant, dismissing an application for a writ of prohibition, upon sustaining a demurrer to the affidavit.</p>

<p>Marriage (11, 14) — By Cohabitation and Reputation — Presumptions — Evidence. A presumption of lawful marriage from holding out and cohabitation cannot he indulged where the proofs show that the parties, unable to speak or read English, relied upon applications and affidavits for a marriage license which they paid for and supposed constituted a lawful marriage, no license ever having been issued or ceremony performed.</p> <p>Master and Servant (121-2) — Workmen’s Compensation Act— “Dependents” — -“Widow.” One who lived with deceased as his wife, believing herself to be lawfully married, is not a “dependent” of the deceased, as defined by the workmen’s compensation act, Rem. Code, § 6604-3, specifying “widows” and certain relatives as within the definition.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered January 14, 1918, upon granting a nonsuit, dismissing an action on contract.</p>

, entered June 11, Í918, upon findings in favor of the defendant, dismissing an action on a contractor’s bond, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 19,1917, upon granting a nonsuit, in an action for fraud, after a trial to the court and a jury.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered October 27, 1917, dismissing an action for equitable relief, tried to the court.</p>

<p>Contempt (3) — Publications Relating to Court Proceedings. Rem. Code, § 2372, subd. 7, providing that one who publishes a false or grossly inaccurate report of court proceedings shall be guilty of a misdemeanor, designates a particular kind of criminal contempt, regardless of common law definitions; and an information plainly charging the same is not subject to demurrer.</p> <p>Same (3) — Publications—Pendency of Proceedings. In a prosecution for criminal contempt by publishing a false report of testimony that had already been given, the case was “pending” when the trial continued for several days after the publication.</p> <p>Same (22) — Evidence—Sufficiency. In a prosecution for criminal contempt by publishing a false report of court proceedings, the admission of the publication, and evidence of its gross inaccuracy and the synchronous pendency of the action, sustained a verdict, the weight and credibility of the evidence being for the jury.</p> <p>Same (3.) — Publications Relating to Court — Pendency of Proceedings. The publication of a false or grossly inaccurate report of the proceedings of a court is criminal contempt, within Rem. Code, § 2372, subd. 7, whether the proceedings are pending at the time of the publication or concluded prior thereto.</p>

, entered March 30, 1918, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee on a vessel.

, entered September 14, 1917, upon granting a nonsuit, dismissing an action for personal injuries sustained by a street railway employee struck by an automobile.

, entered November 25, 1916, in favor of tbe defendant, dismissing on tbe pleadings an action to recover premiums due under tbe provisions of tbe industrial insurance act.

<p>Appeal from a judgment of tbe superior court for Spokane county, Girand, J., entered December 11, 1916, upon findings in favor of tbe plaintiffs, in an action on contract, tried to tbe court.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, X, entered July 9, 1917, upon findings in favor of the defendants, in an action for rent, tried to the court.</p>

, entered April 10, 1916, upon the verdict of a jury rendered in favqr of the plaintiff, in an action for personal injuries sustained by an employee working on an electrical generator.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 22, 1917, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 2, 1916, dismissing an action for wrongful death, upon granting a nonsuit.</p>

, entered July 23, 1917, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief, tried to the court.