Volume 21 — Washington Reports

<p>Appeal from Superior Court, Bang County. — Hon. E. D. Benson, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. E. D. Benson, Judge.</p>

<p>APPEAL — TIME OF FILING BRIEFS — EXTENSION BY COURT.</p> <p>The action of the lower court in granting an extension of time for the filing and serving of briefs on appeal, beyond the period prescribed by law, will not be disturbed, when there is no other showing of abuse of its discretion therein than the fact that the extension was granted without notice to the adverse party.</p> <p>APPEAL-TIME OF TAKING-WHEN BEGINS TO RUN.</p> <p>The time within which an appeal may be taken from a final judgment begins to run from the date of its entry, whether the party desiring to appeal has notice thereof or not, under Laws 1895, p. 81, § 1 (Bal. Code, § 6502), which provides that in civil actions an appeal from any final judgment must he taken within ninety days after the date of entry of such final judgment, and an appeal from any order other than a final order, within fifteen days after the entry of the order, if made at the time of the hearing, and in all other cases within fifteen days after the service of a copy of such order, with written notice of the entry thereof, upon the appealing party or his attorney.</p> <p>APPEAL- — WHAT ORDERS APPEALABLE.</p> <p>An order made hy the court refusing to vacate and set aside a final decree in a cause is not appealable, as an order affecting a substantial right, under Laws 1893, p. 120, § 1, subd. 7 (Bal. Code, § 6500J, which provides that any party aggrieved may appeal from any final order made after judgment which affects a substantial right.</p>

<p>Appeal from Superior Court, Mason County. — Hon. Charles W. Hodgdon, Judge.</p>

<p>Appeal from Superior Court, Jefferson County. — Hon. James Gr. McClinton, Judge.</p>

<p>Appeal from Superior Court, King County. — lion: William Hickman Moore, Judge.</p>

<p> Original Application for Prohibition. </p>

<p>Appeal from Superior Court, King County. — Hon.. E. D. Benson, Judge.</p>

<p>NEW TRIAL-SURPRISE.</p> <p>In an action for tobacco sold and delivered by plaintiffs, in which the defendants counterclaim for damages for the value of a quantity of tobacco sold them but not delivered, plaintiffs are not entitled to a new trial on the ground of surprise, from the fact that defendants introduced in evidence a bale of the tobacco to establish its quality, instead of the sample, which had been used up, especially when, from depositions taken in defendants’ behalf several months prior to the trial, plaintiffs must have been apprised of defendants’ claim as to the quality of the tobacco.</p> <p>SAME — DISCRETION OF COURT.</p> <p>Where the record shows a substantial conflict in the testimony, the discretion of the trial court in granting or refusing a new trial will not be disturbed.</p>

<p>Appeal from Superior Court, Pierce County. — -Hon. Thomas Carroll, Judge.</p>

<p>Appeal from Superior Oourt, King County. — Hon. William Hickman Moore, Judgé.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leanher H. Prather, Judge.</p>

<p>APPEAL- — - UNCERTAINTY OF JUDGMENT-REMAND FOR MODIFICATION.</p> <p>In case the judgment of the lower court may give rise to uncertainty as to its scope, the appellate court has jurisdiction, in order to avoid such uncertainty, to remand the case to the lower court for the purpose of having the judgment of that court made more specific.</p>

<p>MUNICIPAL CORPORATIONS — DEFECTIVE SIDEWALKS-CONSTRUCTIVE NOTICE-INSTRUCTIONS.</p> <p>In an action against a city for injuries occasioned by a defective sidewalk, the province of the jury as to questions of fact is not invaded by an instruction charging them that, if the sidewalk had been in a dangerous condition “anywhere from one to four months” before the time of the injury, it was not necessary that actual notice to the city be shown, when it appears from the instruction as a whole that it was intended merely to submit to the jury the question of the city’s constructive notice, and not to fix a period of time which would constitute constructive notice.</p>

<p>Appeal from Superior Court, Ohehalis County. — Hon. Charles W. Hodghdon, Judge.</p>

<p>FRAUDULENT CONVEYANCES-RIGHTS OF PARTIES-INSTRUCTIONS.</p> <p>Upon an issue as to whether an attempted transfer of property by a debtor in failing circumstances was to a bona fide creditor or merely to protect the debtor against creditors, error cannot be-predicated upon an instruction charging the jury that, if the transfer was made for the purpose of protecting the interest of the debtor, it was not a sale and could not protect the transferee-in the possession of the property, when the court, elsewhere in its instructions, fully charged as to the right of a failing debtor to-prefer creditors and that a preferred creditor would not be affected by the debtor’s fraud in making the transfer with intent to defraud other creditors, if the one preferred did not know off and participate in, the fraud.</p> <p>SAME.</p> <p>Where the bona fides of a sale between a debtor and an alleged creditor is in issue, evidence tending to establish a partnership between them falls within the issues, for the purpose of establishing that the transfer was fraudulent as to creditors; and where there is some evidence as to the existence of such a partnership, it is not error for the court to charge the jury as to what constitutes partnership.</p> <p>PARTNERSHIP-WHEN ARISES-AGREEMENT TO SHARE PROFITS.</p> <p>Where two persons agree to engage in a joint adventure, one to furnish the capital," the other the skill and labor, and both to-share the profits, nothing being said about losses, the law presumes an agreement to share the losses also.</p> <p>REPLEVIN-NECESSITY FOR DEMAND — INSTRUCTIONS.</p> <p>In an action of replevin to recover from a sheriff goods alleged to have been wrongfully seized by him, a charge to the jury that if there was a demand made upon the sheriff for the goods after he had turned the property over to a receiver and no longer had them in his possession, then the verdict should he for defendant, is not erroneous on the ground of assuming that it was necessary for plaintiff to prove a demand, in order to recover, when the instructions have already fully and clearly stated to the jury the principles of law governing cases where demand is necessary and where it is not.</p> <p>REPLEVIN AND TROVER DISTINCT ACTIONS.</p> <p>Where in an action of replevin it appears that the defendant was not in possession of the property claimed at the time of demand or the commencement of the action, plaintiff cannot recover; and the fact that in such an action a recovery of the value of the property is sought, in case delivery cannot he had, would not warrant plaintiff in treating the action as one for the conversion of the property.</p>

<p>CONSTITUTIONAL LAW-UNIFORMITY OF TAXATION-BULE DOES NOT APPLY TO EXPENDITURE OF TAX MONEYS.</p> <p>Tbe act of March 10, 1897 (Laws 1897, p. 77), which requires the county treasurer to collect such assessments for street improvements as are certified to him by the legislative body of cities of the first class within his county, is not unconstitutional as rendering taxation unequal and ununiform, on the ground that it provides no method of reimbursement to the county for its expense in collecting, such assessments, thus tending to throw .the burden of cost upon the general taxpayer of the county, whose property is not benefited by the special improvement, since the constitutional requirement as to equality and uniformity in taxation applies only to the mode and rate of assessment, and is not a restriction upon the legislative power to direct the purposes for which tax collections may be expended.</p> <p>COUNTIES-COMPENSATION FOR COLLECTION OF CIT5T TAXES.</p> <p>Where a law of the legislature has imposed the duty on county treasurers of collecting the taxes for cities of the first class and provided the amount of compensation to be paid therefor by the city to the county, such compensation will be presumed by the-courts, in the absence of a showing to the contrary, to be ample- and adequate for additional services of a similar nature imposed on the counties by a subsequent law.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richaedsoil, Judge.</p>

<p>MANDAMUS-WHEN LIES — REMEDY BY APPEAL.</p> <p>Mandamus wil not lie to compel the superior court to assume jurisdiction of an. appeal from a justice of the peace, when there is a remedy by appeal from the judgment of the superior court.</p> <p>SAME — JURISDICTION OF SUPREME COURT — AMOUNT IN CONTROVERSY.</p> <p>The constitutional provision giving the supreme court original jurisdiction in mandamus as to state officers must be construed in connection with the provision of the same section prohibiting the jurisdiction of the supreme court in cases of appeal where the amount in controversia is less than $200, and hence the supreme court has no jurisdiction by mandamus to compel the superior court to try an action where the amount involved is less than $200.</p> <p>(Anders, J., dissents.)</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richardson, Judge.</p>

<p>JUDGMENTS-CONFORMITY TO PLEADINGS.</p> <p>A defendant cannot predicate error upon the fact that the court’s judgment is founded on the contract set up in his own answer, which is different from the contract on which the action is based.</p> <p>FINDINGS OF COURT — -EXCEPTIONS MUST BE SPECIFIC AS TO ERRORS.</p> <p>An objection that the findings of the court are not in proper form, because being combined with the conclusions of law and judgment in one statement, instead of being separately stated as required by the statute, must be deemed waived when not excepted to on that specific ground.</p>

<p>Appeal from Superior Court, Jefferson County. — Hon. James G. McClinton, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon.. Thomas Carroll, Judge.</p>

<p>Appeal from Superior Court, Thurston County. — -Hon. Charles H. Ayer, Judge.</p>

<p>VACATION. OF .JUDGMENT-TIME.</p> <p>There is no limitation as to time upon an action to set aside a judgment which is absolutely void for want of jurisdiction in the court to make it. - '</p> <p>COURTS — JURISDICTION IN INSOLVENCY — DISCHARGE OF DEBTOR.</p> <p>Where the superior court has acquired jurisdiction in insolvency proceedings through the act of the insolvent in making an assignment for the benefit of creditors and by the operation of the law thereon, and by the giving of the statutory notices to the creditors of the insolvent, its jurisdiction to discharge the insolvent from his debts and liabilities is not lost because the assignee has been finally discharged, and 50 per cent, of the insolvent’s indebtedness over and above all expenses of the assignment were not realized from the insolvent estate.</p> <p>SAME-EFFECT OF ERRONEOUS DECISION.</p> <p>Jurisdiction of a court which has jurisdiction of both the subject-matter and of all the parties is not lost nor affected by the character of the decision the court may make upon' any proposition .before it.</p> <p>ESTOPPED — BY PREVIOUS INCONSISTENT ACTS.</p> <p>A creditor who has appeared in insolvency proceedings and ' has accepted a dividend under the assignment cannot be heard to impeach the discharge of the insolvents from their debts and liabilities.</p>

<p>NOTICE OE APPEAL-TO WHOM GIVEN — INTERVENORS.</p> <p>Notice of appeal need not be given to one who has attempted to intervene in a cause, hut who has failed to obtain leave of court to file his complaint, as required by Bal. Code, § 4846.</p> <p>PUBLIC LANDS-JUDICIAL ACTS OP LAND DEPARTMENT — REVIEW-MISTAKE OP LAW.</p> <p>A mistake or misconstruction of law on the part of the United States Land Department, which will authorize a review of its-decisions by the courts, must be clearly manifest and not founded upon a possible finding of the facts different from that put upon them by the department.</p> <p>SAME — REVIEW OP QUESTIONS OP PBAUD.</p> <p>Merely proffering false evidence before the United States Land' Department as to matters litigated before it does not constitute such a fraud as entitles the courts to interfere with the decisions of the department; but the fraud which authorizes interference-by the courts must be extrinsic or collateral to the matter tried by the department.</p> <p>SAME — REVIEW OP QUESTIONS OP PACT.</p> <p>The courts cannot review the decisions of the United States-. Land Department on the ground that the evidence was insufficient, or that only incompetent evidence was before it, as the power to try questions of fact necessarily embraces the power to-pass upon the weight and competency of evidence.</p> <p>SAME — COMPULSORY ATTENDANCE OP WITNESSES BEPORE LAND DEPARTMENT.</p> <p>That the rules of the United States Land Department do not provide for the compulsory attendance of witnesses in contest cases does not authorize interference by the courts with a decision of such department, as Congress, having power under the constitution to make all needful rules and regulations respecting-public land, and having organized the land department for that, purpose, without authorizing it to compel the attendance of witnesses, will be presumed to have concluded that the power was-, unnecessary to secure a correct determination of such contest.</p> <p>SAME — POBPEITURE OP RAILROAD GRANT-RIGHTS OP LICENSEES OP RAILROAD COMPANY.</p> <p>One who purchased and improved land granted to the Northern Pacific Railroad Company, and received from his vendor a. postal card from the company acknowledging the receipt of his. application to purchase, stating that the same had been placed on file, and briefly describing the character of settlement or improvement necessary to be made in order to obtain a preference right of purchase from the company, will, independently of any rights the-vendor may have had, be deemed to nave been a licensee of the company within the forfeiture act of September 29, 1890, providing: that any citizen in possession of any lands thereby resumed by the United States, under deed, written contract with, or license from, the state or corporation to which the grant was made, shall have a preference right to purchase the same from the United States, where he caused the land to be fenced and plowed, and cropped it for several years, and had possession thereof by a tenant, it further appearing by a resolution of the company that such persons would have been deemed by it to be licensees, if the land had not been forfeited.</p> <p>SAME — PREFERENCE RIGHT OF PURCHASE-WHAT CONSTITUTES POSSESSION.</p> <p>The phrase “are in possession,” in the forfeiture act of September 29, 1890, providing for the relief of citizens who “are in possession” of land “hereby” resumed by the United States, under deed, written contract with, or license from, the state or corporation to which the grant was made, and of persons who have settled the land with bona fide intent to secure title thereto by purchase from the state or corporation when earned, does not, in case of licensees, contemplate an actual settlement; but possession by a tenant is sufficient.</p> <p>SAME-JURISDICTION OF LAND DEPARTMENT OVER CONTESTS.</p> <p>■ The general power conferred upon the United States Land Department is sufficient to give it jurisdiction of contests arising under the provisions of the forfeiture act of September 29, 1890, securing a preference right of purchase to' licensees from the state or corporation to which the land had been granted, or settlers upon such .land, notwithstanding that the causes of contest prescribed by Rev. St. U. S., § 2297, do not include those based on such preferential right.</p>

<p>CONSTITUTIONAL LAW — VESTED BIGHTS-SETTLEMENT OF DECEDENT’S-ESTATE OUT OF COURT.</p> <p>The right of a testator to have his estate settled without the intervention of the prohate oourt, under Code 1881, § 1443, where his will provides that his estate shall he settled as provided therein, without letters testamentary or of administration being required, is a vested right, which cannot be taken from him by a subsequent enactment. (Fullerton, J., dissents.)</p>

<p> Original Application for Habeas Corpus. </p>

<p> Original Application for Mandamus. </p>

<p>Appeal from Superior Court, Clallam County. — Hon. James Gr. McClinton, Judge.</p> <p>Hpon the sustaining of a demurrer to the complaint, plaintiff obtained leave to amend, and was given ten- days therefor. Ho amendment' was offered within the time limited, whereupon defendant moved the court to dismiss the action. ' Plaintiff was duly served with notice of the hearing, hut failed to contest such motion, which was sustained by the court and the action dismissed. Plaintiff now appeals.</p>

<p>Appeal from Superior Court, King County. — -Hon. E. D. Bewson, Judge.</p>

<p>STATES — PUBLIC DEBT-ISSUE OE BONDS-INCREASE OE INDEBTEDNESS.</p> <p>Under the act of March 8,1899 (Laws 1899, p. 67), authorizing the issue of state bonds for sale to the permanent school fund, and making it the duty of the state treasurer, upon the investment in such bonds of the permanent school fund held by him in trust, to transfer at once from such fund to the state general fund the par value of the bonds, to be used at once in the redemption of outstanding general fund warrants, bonds thus issued against one fund and sold to another fund of the state, do not constitute an increase of indebtedness, within the prohibition of § 1, art. 8, of the constitution.</p>

<p>-APPEAL — WHEN STATEMENT OF FACTS UNNECESSARY — EXCEPTIONS TCI FINDINGS.</p> <p>When the only error urged upon appeal is that the findings of fact do not sustain the conclusions of law, neither exceptions to the findings nor a statement of facts is necessary.</p> <p>•CONTRACTS-CONSIDERATION-DISCHARGE OF DEBT BY PART PAYMENT.</p> <p>An agreement by a judgment creditor to accept from a judgment debtor, who is financially embarrassed, cash and a note secured by mining stock for a portion of the debt in full satisfaction thereof, constitutes a valid consideration for the discharge •of the debt.</p>

<p>NONSUIT-ACTION FOE NEGLIGENCE-CONTRIBUTORY NEGLIGENCE.</p> <p>A nonsuit in an action against a municipal corporation, to recover damages for personal injuries sustained by a fall into an excavation in a city street, will not be granted on the ground that the street was sufficiently lighted to enable a person in the exercise of ordinary care to discover the danger and avoid it, where the testimony is conflicting as to the amount of light afforded by the street lights at that point, and there is evidence that the night was dark and foggy.</p> <p>APPEAL — HARMLESS ERROR — ADMISSION OF EVIDENCE.</p> <p>Admission of testimony showing the condition of a crosswalk at the place of an accident to a pedestrian, at the time of the accident and on the day prior, is not prejudicial error.</p> <p>QUESTION FOE JURY — NEGLIGENCE—INJURIES ON HIGHWAYS.</p> <p>Whether sufficient barriers were erected by a municipal corporation across a crosswalk at each side of an excavation in a principal street, and whether lights were placed thereon, is a question for the jury in an action against the city to recover damages for personal injuries sustained by falling into the excar vation, where the testimony on that point is conflicting, and it is undisputed that, if any barriers or lights were erected or placed at that point, they were removed prior to the accident.</p> <p>INSTRUCTIONS-CONTRIBUTORY NEGLIGENCE.</p> <p>. An instruction on contributory negligence, that want of care, prudence or caution upon plaintiff’s part which “contributed in any material degree to his injury is fatal to his right of recovery,” is not erroneous because of the addition of the word “material.”</p> <p>SAME — EXCAVATIONS IN STREETS — DUTY OF CITY TO GUARD.</p> <p>An instruction that it is the duty of a municipal corporation to guard an excavation in its street by such “appropriate guards, barriers and beacon or danger lights” as will protect travelers on the street, using due care, from being injured thereby, is not erroneous as requiring the corporation to erect both barriers and lights'.</p>

<p>Appeal from Superior Court, King County. — Irion. E. D. Benson, Judge.</p>

<p> Original Application for Supersedeas. </p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Chables H. Heal, Judge.</p>

<p>Appeal from Superior Court, Snohomish County.— Hon. Frank T. Reid, Judge.</p>

<p>SEPARATE ESTATE OF WIFE-HOMESTEAD ENTERED BEFORE MARRIAGE.</p> <p>A homestead settled upon and improved by a woman before marriage, who continued to reside there, together with her husband, after her marriage, and to whom a patent was issued therefor after final proof was made, is her separate property, under § 4489, Bal. Code, which defines the separate property of a wife as her property and pecuniary rights “at the time of her marriage, or afterwards acquired by gift, devise or inheritance, with the rents, issues and profits thereof.”</p>

<p>■QUO WARRANTO — WHEN PROPER REMEDY-CONTESTED ELECTIONS.</p> <p>Where a city council of a city of the third class has provided no procedure for carrying on a contest for city offices, under Bal. Code, § 937, authorizing the city council to determine contested •elections of all city officers, the superior court is not ousted of its jurisdiction to try election contests therein by a proceeding in the nature of quo warranto.</p> <p>ELECTIONS-MARKING BALLOTS — INDICATING VOTER’S CHOICE.</p> <p>A cross on an election ballot opposite the words “vote for one,” ■one stroke of which extends below that space and into the space marked “Citizens’ Ticket,” is not a compliance with the statutory requirement that the ballot be marked opposite the political designation of the party for whom the elector intends to vote.</p> <p>■SAME.</p> <p>An election ballot must be so marked as to make it reasonably certain for whom the elector intended to vote, although the statute declares only those ballots void from which it is impossible to determine the elector’s choice, and requires a part to be counted when the ballot is sufficiently plain to gather therefrom a part of the voter’s intention.</p> <p>SAME.</p> <p>An election ballot, ai^iough not marked in the spaces provided, will be counted where it was marked immediately to the right of the names of the candidates for whom the elector voted.</p> <p>SAME — DISTINGUISHING MAKES.</p> <p>An election ballot on the back of which is a statement purporting to be made by the voter, reciting his inability to register, and declaring that by reason of his residence he is entitled to his franchise, was properly rejected, since, if the voter was not registered, he was not entitled to vote, and, if he placed the writing on the ballot himself, it was a distinguishing mark, which, under Bal. Code, § 1380, requires its rejection.</p> <p>SAME.</p> <p>A very heavy cross appearing at the proper place on an election ballot is not a distinguishing mark which will require its rejection, within the view of Bal. Code, § 1380.</p>

<p>APPELLATE JURISDICTION' — HABEAS CORPUS PROCEEDINGS.</p> <p>An appeal lies to the supreme court from a judgment remanding a prisoner on habeas corpus, under Bal. Code, § 6500, authorizing an appeal “in any action or proceeding,” and Bal. Code. § 5739, declaring that a judgment in a special proceeding is a final determination of the rights of the parties therein.</p> <p>BAIL — RIGHT TO IN EXTRADITION CASES.</p> <p>Bail is not authorized pending appeal in habeas corpus proceedings in extradition cases, under the statutory provision that a writ may issue for the purpose of admitting a party to bail who is charged with an offense against the laws of the state.</p> <p>HABEAS CORPUS — ISSUE IN EXTRADITION CASES.</p> <p>The only question in habeas corpus proceedings in an extradition case is to determine whether the conditions prescribed by the United States constitution and laws of congress have been complied with.</p> <p>EXTRADITION-SUFFICIENCY OF WARRANT.</p> <p>An extradition warrant is valid where it shows upon its face a compliance with the provisions of U. S. Rev. St., § 5278, requiring the accused to be demanded as a fugitive from justice by the executive of the state from which he fled, the demand to be accompanied by a copy of the indictment found, or of an affidavit made before a magistrate charging him with the commission of a crime in the demanding state, and certified by the executive of that state to be authentic.</p>

<p>Appeal from Superior Court, King County. — Hon. Obange Jacobs, Judge.</p>

<p>Appeal from Superior Court, King County. — lion. Orange Jacobs, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. Thomas H. Bbents, Judge.</p>

<p>LEVY — WHAT PROPERTY SUBJECT-GROWING CROPS.</p> <p>A growing crop planted hy a tenant, under a contract with his landlord to properly care for and harvest the crop and deliver to the latter one-third of the product, is not subject to the levy of an execution.</p>

<p>WATERS — RIGHTS BY APPROPRIATION-IRRIGATION.</p> <p>Appropriation of water for irrigation consists in the intention, accompanied hy reasonable diligence, to use the water for the purposes originally contemplated at the time of its diversion.</p> <p>SAME-CUSTOM OP ACQUISITION.</p> <p>The custom of the acquisition of the right to water for use in irrigation existed upon public lands of the United States in 1877.</p> <p>SAME — LOCATION OE STREAM — POINT OE DIVERSION — EEFECT ON RIGHTS.</p> <p>The right of appropriation of water for irrigation is not controlled by the location of the stream with reference to the premises which are irrigated, or by the change from time to time of the point of diversion.</p>

<p>Appeal from Superior Court, King County. — Hon.. E. D. Benson, Judge.</p>

<p>■CRIMINAL LAW — CONVICTION OF LESSER OFFENSE THAN ONE CHARGED.</p> <p>A person charged with a consummated offense may be found •guilty, under Bal. Code, § 6955, of an attempt to commit the offense.</p> <p>•SAME — PROSECUTION FOR SODOMY — ATTEMPT TO COMMIT — WHAT STATUTES APPLICABLE.</p> <p>The provisions of Bal. Code, § 7437, for the punishment of attempts to commit crime, are not rendered inapplicable to a prosecution for sodomy by the fact that Bal. Code, § 7057, prescribes punishment for assaults with intent to commit sodomy and certain other crimes, since the latter section defines a substantive •offense, with the punishment therefor, entirely distinct from that of an attempt to commit a crime.</p> <p>SODOMY — SUFFICIENCY OF INFORMATION.</p> <p>•An information charging sodomy is sufficient when it alleges that defendant did unlawfully and feloniously make an assault upon a male person, and, against the order of nature, had a ■venereal affair with and carnally knew such male person, and then and there feloniously and against the order of nature, with said male person, did commit and perpetrate the infamous, detestable •and abominable crime against nature of buggery, contrary to the •statute, etc.</p>

<p>RAILROADS-NEGLIGENCE-SWITCHING CARS ACROSS PUBLIC STREET.</p> <p>It is negligence on the part of a railroad company to switch cars in a public and well traveled thoroughfare, unattended, except by a brakeman at the rear end of the cars, who could not see the track in front because of the obstruction afforded by the loaded cars.</p> <p>SAME — INJURY TO MINOR — CONTRIBUTORY NEGLIGENCE.</p> <p>An attempt of a fourteen year old boy to cross a railroad track at a street crossing at which his view was unobstructed is not, as a matter of law, such contributory negligence as will preclude a recovery for injuries sustained by being struck by detached cars approaching the crossing without warning or signal, while stepping back to avoid an engine approaching on another track, which was in front of the cars when first seen by him.</p> <p>CONTRIBUTORY NEGLIGENCE — WANT OE VIGILANCE-WHEN RESULT OE DEPENDANT’S NEGLIGENCE.</p> <p>One will not be allowed to impute a want of vigilance to another injured by his act, if that very want of vigilance was the consequence of an omission of duty on his own part.</p> <p>ACTION FOR PERSONAL INJURIES — CONTRIBUTORY NEGLIGENCE-MATTER OP DEFENSE.</p> <p>Contributory negligence being a matter of defense, it will be presumed that the plaintiff in an action for personal injuries was observing due care, until the presumption is overthrown by a preponderance of testimony on the defendant’s part.</p>

<p>MUNICIPAL CORPORATIONS-WARRANTS — LIABILITY FOR PAYMENT — EFFECT OF LOSS OF FUNDS.</p> <p>City warrants regularly issued by tbe proper officers, and in tbe bands of innocent purchasers, would not be affected by tbe subsequent loss of bank deposits applicable to tbeir payment, arising through tbe insolvency of tbe banks.</p>

<p>EVIDENCE-TIME OE PRESENTATION OE WARRANTS — EEEECT OE TREASURER’S INDORSEMENT.</p> <p>The mere manual indorsement of city warrants by a treasurer, “ Not paid for want of funds,” is simply a ministerial act; and, whether made at the time of presentation or subsequent to his term of office, would be, at most, but evidence of their presentation.</p>

<p>LICENSE — SALE OF DRUGS BY PUBLIC OUTCRY AND EXHIBITIONS-AMOUNT OF LICENSE-REASONABLENESS.</p> <p>An ordinance hy the city of Walla Walla, imposing a license fee of $50 a day upon traveling vendors of drugs and nostrums, who conduct their sale hy public outcry, with an accompanying show or exhibition, is not unreasonable.</p>

<p>Appeal from Superior Court, Whatcom County. — -Hon. Hiram E. Hadley, Judge.</p>

<p>Appeal from Superior Court, Chehalis County.- — -Hon. Chabues W. Hodgdow, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — TIon. Leander H. Prather, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. BicHABDsorr, Judge.</p>

<p>Appeal from Superior Court, Rung County. — Hon.William Hiokman Moore, Judge.</p>

<p>Appeal from Superior Court, Whitman County. — Hon. William McDonald, Judge.</p>

<p>‘CRIMINAL LAW — PLEADING AND PROOF — VARIANCE-ACCESSORIES.</p> <p>Under Bal. Code, § 6842, providing that “the indictment must be direct and certain, as it regards the particular circumstances of the crime charged,” there is a fatal variance, when the evidence shows that one charged with burglariously breaking and entering a dwelling house was an accessory to the crime, but in fact not present at its commission.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leander H. Prather, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Jambs A. Williamson, Judge.</p>

— Hon. William McDonald, Judge. Action by Sibson & Kerr against Tbe Hamilton & Kourke Company, a corporation, to foreclose a mortgage, or trust deed, upon defendant’s property, consisting of a system of ■warehouses extending through the states of-Washington and Oregon. The plaintiffs took charge of the system, under the terms of the trust deed, and operated it themselves, for the purpose of applying the profits to the liquidation of the mortgage debt.

<p>MANDAMUS-TO SECRETARY OP STATE — -PREPARATION OP NOTARY COMMISSIONS.</p> <p>There being no provision of law requiring the secretary of state to perform, or have done, the clerical work involved in the preparation of commissions for notaries public, a writ of mandate will not issue to compel his performance of such duties.</p>

<p>REVIEW ON APPEAL — DISCRETIONARY MATTERS.</p> <p>The discretion exercised by the lower court in granting an extension of time in which to file and serve a statement of facts will not be reviewed on the appeal of the party in whose favor it was made.</p> <p>APPEAL — PILING STATEMENT OP PACTS — EXTENSION OP TIME — WHAT JUDGES MAY GRANT.</p> <p>Where an appellant desires an extension of time in which to file a proposed statement of facts in an appeal from a judgment rendered by a visiting judge, he is not restricted to an application to the visiting judge for such extension, but is entitled to have his application passed upon by the judge of the court of the place of trial, under Bal. Code, § 5062, which provides that the time may be extended “by an order of the court or judge wherein or before whom the cause is pending or was tried.”</p> <p>SAME-TIME TO WHICH EXTENSION GRANTED-CONSTRUCTION OE ORDER.</p> <p>An order extending the time in which to file and serve a statement of facts “to the 28th day of January,” must be construed as including that date, for purposes of filing and serving the statement.</p> <p>NOTICE OE MOTION-POSTPONEMENT OE HEARING-EURTHER NOTICE UNNECESSARY.</p> <p>Where notice of a motion is given for a certain date and the court is unable to take the matter up at the time fixed, further notice of the hearing is unnecessary, if the moving party is diligent in pressing his motion at the first opportunity offered thereafter.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Bioiiaedsoet, Judge.</p>

<p>CONSTITUTIONAL LAW — INVESTMENT OF PERMANENT SCHOOL FUND.</p> <p>Warrants drawn by the auditor upon the general fund of the state do not constitute bonds, in which the permanent school fund may be invested, within the meaning of § 5, art. 16, of the constitution, which provides that “none of the permanent school fund shall ever be loaned to private persons or corporations, but it may be invested in national, state, county or municipal bonds;” hence, Laws 1899, p. 53, authorizing the investment of the permanent school fund in state warrants, is unconstitutional.</p> <p>MANDAMUS-TO STATE TREASURER-COMPELLING INDORSEMENT OF STATE WARRANTS.</p> <p>It being a duty imposed upon the state treasurer by law to indorse all state warrants “not paid for want of funds,” when there is no money in the treasury applicable to their payment, mandamus will issue at the suit of a private person to compel performance of that duty, where he is the holder of a state warrant, which the treasurer has refused to so indorse.</p>

<p>Appeal from Superior Court, Walla Walla County. — ■. Hon. Thomas H. Biiehts, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. William Hickman Moore, Judge.</p>

<p>CRIMINAL LAW — INSANITY ARISING AFTER SENTENCE — INQUISITION— DISCRETION OF COURT.</p> <p>Where, after sentence of death upon a prisoner, his insanity is alleged, and the court has satisfied itself of the prisoner’s sanity, either through its own examination or through that of a commission appointed for the purpose, the action of the court in refusing the prisoner a trial in which he would have the right to be represented by counsel and to examine witnesses, is not reviewable on appeal.</p>

<p>GUT-MENTAL CAPACITY OP DONOR — EVIDENCE.</p> <p>Although the burden of maintaining the validity of a gift is upon the parties asserting it, the decree of the court sustaining the gift is ■warranted when it appears from the testimony of the attending physician and the majority of the disinterested witnesses, that the donor was fully competent to transact business, although suffering from the illness from which he afterwards died, and it was not established that there was any fraud or undue influence exercised upon him.</p>

<p>APPEAL — HARMLESS ERROR — IMPROPER ADMISSION Off EVIDENCE.</p> <p>The improper admission of opinion evidence, in an action by a seaman for injuries received on a vessel engaged in towing a barge, that the appliances used for towing were unsafe, is not ground for reversal, when it is manifest from the evidence as to the character of the appliances that they were not reasonably safe and that the jury were justified in so finding, whether the questionable evidence was .admitted or not.</p> <p>SHIPPING-INJURIES TO SEAMAN — ASSUMPTION Off RISKS.</p> <p>Where a seaman, after signing shipping articles for a voyage on a vessel engaged in towing, discovers on going aboard the vessel that the towline is to be attached to the mainmast, and, deeming such appliance unsafe, informs the mate, who is in charge of the vessel, that he will not go if the mainmast is to be used, and is assured by the mate that it will not be, such seaman can not be held to have assumed the risks of the employment, so far as the using of the mainmast is concerned.</p> <p>SAME-CONTRIBUTORY NEGLIGENCE.</p> <p>Obedience on board ship at sea to the orders of the mate or the captain is not negligence, even though the seaman knows the danger.</p> <p>MASTER AND SERVANT-FELLOW SERVANTS-CAPTAIN AND SEAMAN Off VESSEL.</p> <p>The relation of fellow servant does not exist between the captain or mate and an ordinary seaman, and the negligence of those officers in the details of the work of navigation on board the ship is the negligence of the owner, for whom they stand as vice principals.</p>

<p>CONTEMPT-WHAT CONSTITUTES — VIOLATING INJUNCTION.</p> <p>Where a decree of court has adjudicated all of the rights of the parties before it to the waters of a certain stream and enjoined a party from using more than a certain quantity, he is guilty of contempt in using more water than he is allowed under the terms of the decree, when he asserts title under deed from one who was not a party to the decree, but fails to show any right in his grantor.</p>

— Hon. William Hickman Moobb, Judge. Action by D. L. Fry against James O. Hestwood to recover the sum of $900, as the alleged balance due plaintiff on a written contract between him and defendant, in which plaintiff agreed to give his entire time, energy and attention for a period of twelve months to the advancement of the business of defendant in procuring contracts in connection with the defendant’s publication of the “Evergreen State Souvenir.” From a judgment in favor of…

<p>APPEAL-SUFFICIENCY OF NOTICE. •</p> <p>A notice of appeal setting forth that appeal is taken from the final orders entered by the court on January 12, 1898, which dismiss the petition herein as to the plaintiffs and defendants mentioned in the notice and in the causei, designates with sufficient certainty from what judgment the appeal is taken.</p> <p>SAME — BOND BY SURETY COMPANY.</p> <p>It is not necessary that an appeal bond by a surety company should show on its face, either that the company has complied with the laws of the state relating to recognizances, stipulations, bonds and undertakings, or that it is legally authorized to do business in the state.</p> <p>SAME-OBJECTIONS NOT RAISED BELOW.</p> <p>If objection that a surety company is not qualified to become surety on an appeal bond has not been raised in the court below, it must be deemed as having been waived.</p> <p>VACATING JUDGMENT-MATTERS REVIEW ABLE ON APPEAL.</p> <p>On appeal from a judgment on a petition to vacate a judgment, matters occurring in the original action, which were properly reviewable on appeal from the original judgment therein, are not properly a part of the record nor subject to consideration by the supreme court, when reviewing the proceedings wherein the subsequent judgment was rendered.</p> <p>SAME-SUFFICIENCY OF PETITION.</p> <p>Under Bal. Code, §§ 5153-5162, proceedings for the vacation of a judgment constitute an independent action, and, by the terms of § 5156, it is necessary, in order to obtain the benefit of a vacation, that there be filed a petition, verified by affidavit, setting forth the judgment or order, and the facts constituting a cause to vacate it; therefore, a petition which fails to set forth, except by inference, the judgment complained of, and does not allege what the original action was, or what the issues therein determined were, is demurrable for want of stating sufficient facts.</p> <p>AUTHORITY OF ATTORNEY — WHEN MAY BE QUESTIONED.</p> <p>Where the question of the authority of an attorney to appear for a party has been raised and passed upon in the original action, it can not be retried upon a petition to vacate the judgment therein, although Bal. Code, § 4767, provides that the court may at any stage of the proceedings relieve the party, for whom an unauthorized attorney has assumed to appear, from the consequences of his acts.</p>

<p>CONSTITUTIONAL LAW-EXTEA COMPENSATION TO OFFICERS.</p> <p>Under § 25, art. 2, of the constitution, which provides that “the legislature shall never grant any extra compensation to any public officer, agent, servant or contractor after the services shall have been rendered or the contract entered into,” an allowance of extra compensation to employees of the legislature subsequent to the rendition of the services they were employed to perform is void.</p> <p>SAME — PROHIBITION APPLIES TO EITHER BRANCH OF LEGISLATURE.</p> <p>The constitutional limitation against the granting of extra compensation by the legislature to officers, employees or servants of the state, is applicable to either branch, as well as to the whole body, of the legislature.</p> <p>SAME-PERFORMANCE OF EXTRA DUTIES.</p> <p>The constitutional restriction against the legislature’s granting extra compensation to officers or servants after the rendition of the services or the entering into the contract, and against increase of compensation of a public officer during his term of office does not prohibit the legislature, or either branch, from granting an employee compensation for services performed in addition to the regular duties for which he was employed.</p> <p>LEGISLATIVE OFFICERS AND EMPLOYEES-HOURS OF LABOR.</p> <p>When an employee enters the service of a legislature, he contracts to perform his duties whenever they are required to be performed, and he can not claim his employment is for the performance of his services during certain hours of the day nor for a certain number of hours per day, even though it may be customary in state offices to regard ten hours as constituting a day’s work.</p>

<p>WRIT OF ASSISTANCE — WHEN ISSUED — RIGHTS OF REDEMPTIONER.</p> <p>The purchaser of an equity of redemption in premises which have been sold upon foreclosure of mortgage is entitled to a writ of assistance to place him in possession, where he has redeemed within the statutory period, under Code Proc., § 519, which provides that “the purchaser from the day of sale until a resale or redemption, and the redemptioner from the day of his redemption until another redemption, shall be entitled to the possession of the property purchased or redeemed.”</p> <p>SAME — RIGHTS OF PRIVIES TO THE SUIT.</p> <p>The rule that the writ of assistance will issue only against parties to the suit, or their representatives, or those who came into possession under either of the parties while the suit was pending, is not infringed by its issuance' against privies to'the,original parties in the suit, though such privies may not have been named therein.</p>

<p>Appeal from Superior Court, King County/ — Hon. William Hickman Moore, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.</p>

<p>MANDAMUS — PROCEDURE—PARTY PLAINTIFF — PROSECUTION IN NAME OF STATE.</p> <p>Although the application for a writ of mandamus is made in tbe interest of a private person, it is proper practice to bring tbe proceeding in tbe name of tbe state, on tbe relation of tbe party beneficially interested.</p> <p>CORPORATIONS-INSPECTION OF RECORDS-RIGHTS OF STOCKHOLDER.</p> <p>A stockholder of a corporation has the right, at reasonable times, to inspect and examine the books and records of such corporation, so long as his purpose is to inform himself, in the interests of the corporation, as to the manner and fidelity with which the corporate affairs are being conducted; and, upon a refusal to permit such inspection, may enforce the right by mandamus proceedings.</p> <p>SAME — PRESUMPTIONS.</p> <p>The presumption, when a stockholder applies for inspection of' the corporate books and accounts, is that the inspection is sought, in the interests of the corporation; and, when the refusal is based on the ground that the inspection is sought for purposes antagonistic to the corporation, the burden is upon the officers refusing inspection to establish that the stockholder is not proceeding in good faith.</p> <p>SAME--GROUNDS OF REFUSAL.</p> <p>Where the refusal to permit a stockholder to inspect the books, and accounts of the corporation was based on the ground that the stockholder had no right of inspection at any time or for any purpose, it is unnecessary that the petition for mandamus to. compel compliance should affirmatively show the demand for inspection was made during office hours, or at the place of business, of the corporation, or that the person making the demand was the agent of respondent or had any lawful right to represent her in the transaction.</p>

<p>BOOM COMPANIES — BIGHT TO COLLECT TOLLS.</p> <p>The mere construction of a boom across a stream does not entitle the boom company to tolls on logs going through, when it performs no services in connection therewith, since Bal. Code, § 4391, authorizes such companies to charge tolls only in cases where requested by the owners to sluice, sack and drive their logs; and, in cases when not requested, where the logs lie in such position as to impede the drive.</p> <p>COSTS — WHEN SEPARATELY TAXED IN CONSOLIDATED ACTIONS.</p> <p>The consolidation, for the purposes of trial, of separate actions by the same plaintiff against separate defendants, for the foreclosure of various liens for booming logs, does not affect the rights of the several defendants to recover statutory costs in each of the original cases so consolidated.</p> <p>SAME — WITNESS PEES.</p> <p>Where some of the defendants in separate actions, which have been subsequently consolidated for trial, are subpoenaed as witnesses by another defendant in one of the cases thus consolidated, the party subpoenaing them is entitled, on a judgment in his favor, to tax costs for the attendance of such witnesses.</p>

<p> Original Application for Prohibition. </p>

<p>CHATTEL MORTGAGES — FORECLOSURE BY NOTICE — AUTHORITY OF CONSTABLE.</p> <p>A constable has no authority to foreclose a chattel mortgage hy notice and sale, under the terms of Bal. Code, §§ 5871, 5872, which provide that such instruments may be foreclosed hy the service of the notice therein prescribed hy the “sheriff or other proper officer.”</p> <p>CONVERSION-SALE OF CHATTELS UNDER ILLEGAL FORECLOSURE OF MORTGAGE — EVIDENCE.</p> <p>In an action against a mortgagee and a constable for conversion, hy reason of the illegal seizure of mortgaged personalty in an attempt to foreclose by summary process, the chattel mortgage is not admissible in evidence to prove the mortgagor's indebtedness, for the purpose of thereby establishing a set-off; nor is it, in connection with the constable’s return in the foreclosure proceedings, admissible to show justification for the seizure and sale.</p> <p>SAME — DEFENSES-ANOTHER ACTION PENDING.</p> <p>Where, pending the disposition in the superior court of a foreclosure proceeding, which had been transferred there after the beginning of the summary method of foreclosure by notice and sale, the mortgagee and the constable, in whose hands the notice had been placed, proceed with the seizure and sale of the mortgaged property, they are guilty of conversion, and in an action therefor at the suit of the mortgagor they are not entitled to set up the defense of another action pending, involving the same parties and the same cause of action.</p>

<p>VACATING JUDGMENT-GROUNDS — PERJURY.</p> <p>Perjury by the prevailing party, discovered subsequently to trial, does not constitute such fraud, within the meaning of Bal. Code, § 5153, subd. 4, as to warrant the vacating of the judgment in his favor, where the judgment does not rest upon the false testimony, but is supported by other evidence in the case.</p> <p>SAME.</p> <p>The acceptance of full indemnity by a surety from his principal would not alter his relations so as to make him liable as a principal, but would merely estop him from claiming a discharge by reason of an extension of time to the principal unknown to him; hence, perjury on the part of the surety in testifying that he had received no consideration from the principal for becoming surety, in an action in which he sought to be relieved of liability on the ground of an extension of time to his principal unconsented to by him, does not constitute such fraud practiced by the prevailing party as to warrant the vacating of the judgment, where the issues were clearly defined, and there were no circumstances in connection with the perjury which would relieve the opposite party from all implication of want of diligence and completely deceive him in the nature of the testimony.</p> <p>SAME — FAILURE TO DISCLOSE EVIDENCE.</p> <p>■ A judgment cannot be vacated on the ground of fraud, because in the trial the prevailing party defendant failed to voluntarily disclose the weakness of his defense, or to disclose evidence which would tend to overthrow his defense.</p>

<p>'Appeal from'Superior Court, Thurston County. — Hon. Bybow Millett, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. William Hickman Moore, Judge.</p>

<p>PLEADING-FAILURE OP CONSIDERATION-CONCLUSION OP LAW.</p> <p>Want of consideration for the execution of a promissory note is a matter of affirmative defense, which should be pleaded by stating the facts showing the want of consideration, unless the parties go to trial upon the allegation that the note is without consideration, thus treating the statement as an issuable fact instead of a conclusion of law.</p> <p>SAME — -MOTION TO MAKE'MORE DEFINITE — TIME POR INTERPOSING.</p> <p>Where a plaintiff is permitted on the trial to amend her reply for the purpose of putting it in such a shape as to make the introduction of evidence admissible showing want of consideration for the execution of a promissory note, after objection by defendant that the original reply did not allege any issue of fact, a motion by defendant to make the amended reply more definite and certain so as to state the facts showing want of consideration, does not come too late, and should be granted, where the allegations of the reply amount to a conclusion of law.</p>

<p>Appeal from Superior Court, Kittitas Oounty. — Hon. John B. Davidson, Judge.</p>

<p>APPEAL-SUFFICIENCY OF BOND — EXECUTION IN APPELLANT’S BEHALF.</p> <p>Under Bal. Code, § 6506, providing that the bond on appeal must be executed in behalf of the appellant by one or more sureties, it is not a defect for one of several appellants to omit joining in the execution of the bond, if the bond is sufficiently executed by sureties in his behalf.</p> <p>SAME-QUALIFICATION OF SURETIES BEFORE CO-SURETY.</p> <p>The fact that the affidavits of part of the sureties on an appeal bond were taken before another surety, who was a duly qualified notary public, would not affect the sufficiency of the affidavits nor invalidate the bond.</p> <p>STATEMENT OF FACTS-SERVICE OF COPY-OMISSION OF FILE MARKS.</p> <p>The copy of the statement of facts served on the adverse party, after the filing of the original with the clerk of the superior court, need not contain a copy of the file marks placed on the original by the clerk.</p> <p>MECHANICS’ LIENS-CONTRACT FOR PUBLIC WORKS-INDEMNITY AGAINST LIENS-RELATIVE EXECUTION OF BOND AND CONTRACT.</p> <p>Where a bond is given by a contractor upon work, under Gen. Stat., § 2415, to secure laborers and material men for labor performed and material furnished therefor, it is immaterial whether the contract between him and the public corporation be executed before or after the execution of- the bond.</p> <p>PLEADING AND PROOF — RESTRICTION OF EVIDENCE TO BILL OF PARTICULARS ALLEGED.</p> <p>Iu an action upon an account, which is set forth by a bill of particulars in the complaint, the plaintiff is not restricted in his proof to the items set forth, where it is clear that the defendant is not misled or surprised thereby.</p> <p>CORPORATIONS-EVIDENCE OF CORPORATE EXISTENCE.</p> <p>Where the corporate existence of plaintiff is not specifically denied in the answer, the fact of incorporation as alleged in the complaint may be prima facie established by the introduction in evidence of a certificate of the county auditor showing such fact, under Bal. Code, § 4252, which provides that “a copy of any certificate of incorporation, . . . certified by the auditor of the county in which it is filed, . . . shall be received in all the courts and places as prima facie evidence of the facts therein stated.”</p> <p>TRIAL-DIRECTION OF VERDICT.</p> <p>A court is not justified in taking a. case from the jury and directing judgment when there are doubtful questions of fact to be determined, but is authorized so to do only when the facts are so clearly established that the court can see, as matter of law, what the verdict and decision should be.</p> <p>BONDS — PENALTY IN FIXED SUM — WHEN SURETY LIABLE IN EXCESS.</p> <p>Although the liability of a surety may be restricted to a penalty in a fixed sum, yet judgment is warranted in excess of that sum, when it appears that the excess is occasioned by the addition of interest upon the amount for which the surety was in default.</p> <p>APPEAL.</p> <p>After a respondent has once interposed a motion to dismiss an appeal .and affirm the judgment of the lower court, which motion has been duly considered and denied by the supreme court, he cannot later interpose a like motion in the same case as to a portion of the appellants, whose rights had been inadvertently overlooked in rendering judgment on appeal, but who are entitled to the benefits flowing from the appeal, equally with their co-appellants, whose rights had been specifically adjudicated.</p>

<p>CONSTITUTIONAL LAW-IMPAIRING OBLIGATION OP CONTRACTS — DUE PROCESS OP LAW.</p> <p>Where the franchise granted by a city to a water company to supply water is not exclusive, the subsequent erection and operation of a water plant by the city in the same territory, under powers granted it by the legislature, does not constitute an impairment of the obligation of a contract nor a taking of private property without due process of law.</p> <p>MUNICIPAL CORPORATION S — CHARTER POWERS — SEANT ÓF FRANCHISE TO SUPPLY WATER — -POWER OF CITY TO COMPETE- — ESTOPPEL.</p> <p>Where a city is empowered to supply itself with water, either by granting the right to any person or corporation or by erecting and maintaining a water system itself, or by purchasing or condemning any existing system, and there is no restriction on the city’s employing any or all methods, the power granted is not in the alternative; and the grant of a franchise to a corporation to supply water would not estop the city from afterwards building and operating its own works in competition.</p>

<p>BIGHT TO JURY TRIAL-INJUNCTION.</p> <p>An action for the purpose of enjoining a public nuisance, in which no damages are alleged or sought, is of an equitable nature, in which a jury trial is not demandable as of right.</p> <p>PUBLIC NUISANCE-REMEDY OF PRIVATE PERSON.</p> <p>Where the only means of ingress to, and egress from, the lands of a private person in order to reach a market for the products of his farm and nursery is a public highway, the obstruction of such highway is of such special injury to him, as to authorize his maintaining an action to enjoin it as a public nuisance, under Bal. Code, § 3093, which provides that “a private person may maintain a civil action for a public nuisance, if it is specially injurious to himself, but not otherwise.”</p> <p>HIGHWAYS-ESTABLISHMENT ON PUBLIC LAND BY PRESCRIPTION.</p> <p>Under Rev. St. U. S., § 2477, granting right of way over government lands for the construction of highways, the establishment of highways over public lands by prescription is authorized, wherever such method is recognized in any state or territory as a mode for the establishment of public highways.</p>

<p>Appeal from Superior Court, Obelialis County. — Hon. Charles W. Hodgdon, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thomas Carroll, Judge.</p>

<p>JUDGMENT-SATISFACTION — WHEN SURETY ENTITLED TO.</p> <p>Where execution has been issued upon a judgment, lands levied upon and sold thereunder, the execution returned by the sheriff as paid, and the sale confirmed by the court, a surety of the principal defendants is entitled to have the judgment satisfied and discharged as to him, regardless of any arrangement between the plaintiffs and principal defendants whereby the sale is not to be regarded as a satisfaction of the judgment.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. James A. Williamson, Judge.</p>

<p> Original Application for Prohibition. </p>

<p>STATE PRINTING BOARD — POWER OVER APPROPRIATIONS BY LEGISLATURE.</p> <p>Laws 1893, p. 214, providing for a state printing board and granting such board full power to adopt such rules and regulations for the transaction of its business as it may deem necessary, does not contemplate that such board shall have power to direct the funds from which printing bills shall be paid; hence, a rule adopted by them to the effect that all hills for printing for institutions located outside the capital shall oe paid from the maintenance fund of such institutions is an unwarranted exercise of legislative power, where such power has not been delegated to the board by statute.</p>

<p> Original Application for Prohibition. </p>

<p> Original Application for Mandamus. </p>

<p>APPEAL-SUPERSEDEAS AGAINST WRIT OF RESTITUTION-CESSATION OF CONTROVERSY.</p> <p>Under Bal. Code, §§ 5546-5548, providing for appeals in actions of unlawful detainer, and that, if defendant appeals, he may have a stay of proceedings pending appeal, upon filing a bond therefor, which will stay all proceedings in the case, suspend any writ of restitution, and permit the defendant to remain in possession of the premises, until the determination of the appeal, it is the duty of the judge to fix the amount of a supersedeas bond staying the issuance and service of the writ of restitution, even if it appear from the pleadings in the case that the contract under which, defendant claims possession has expired prior to his application for the stay of the writ. (Dunbar and Fullerton, JJ., dissent.)</p>

<p>ASSIGNMENT OF ERRORS-SUFFICIENCY.</p> <p>An assignment of errors in appellant’s brief, that the lower court erred in giving and in refusing certain instructions, is sufficient, without assigning as error that the lower court denied a motion for a new trial based on the errors alleged.</p> <p>NEGLIGENCE — EVIDENCE-—SUBSEQUENT REPAIRS.</p> <p>The fact that a city filled up an excavation in a sidewalk after an accident occurred there cannot be considered by the jury in passing upon the question of the city’s negligence in permitting the sidewalk at that point to remain in a dangerous and unsafe condition.</p>

<p>MANDAMUS-WHEN LIES.</p> <p>Mandamus will not lie to compel the state land commission to sell certain tide lots to one who has been adjudged by the superior court as having the preference right of purchase, when there is pending before the court an undetermined motion to vacate the judgment upon.which the application for the writ is based.</p>

<p>NEGLIGENCE-REMOVAL OF OBSTRUCTIONS FROM HIGHWAY.</p> <p>Where through the negligence of defendant obstructions were placed in a highway, which were subsequently removed by employees of defendant and the road supervisor, and so negligently placed beside the highway as to fall and injure one below, the defendant cannot shift responsibility from itself to the county, on the ground that it was the duty of the county to clear the highway and that it was the act of the supervisor and not of its employees which was the proximate cause of the injury.</p> <p>SAME — CONCURRENT CAUSE.</p> <p>If defendant places a log on the side of a hill in such an insecure way that it could be dislodged by a landslide, at a place where he has knowledge that such slides are apt to occur, and the log is dislodged as the immediate result of a land slide and falls, causing injury, the concurring act of defendant would render him liable for the injury caused.</p> <p>INSTRUCTIONS — FAILURE TO GIVE — HARMLESS ERROR.</p> <p>Error cannot be. predicated upon the failure of the court to instruct upon matters in issue, when no proper instructions on the point are requested.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. W. H. H. Kean, Judge.</p>

<p>EXECUTORS AND ADMINISTRATORS-PRESENTMENT 0E CLAIMS-CONTINGENT AND UNMATURED CLAIMS.</p> <p>Under the statutes of this state governing claims against decedents’ estates, action on any claim is barred, if it has not been presented to the executor or administrator within one year after published notice of the appointment of such personal representative, although such claim at the time within which it should have been presented may not have been due, or may in fact have been wholly contingent.</p>

<p>MECHANICS’ LIENS — BUILDING ON LEASED PREMISES-WHEN LESSEE AGENT OP OWNER.</p> <p>Where a lessee of lands is accorded the privilege of erecting a building thereon, which shall become the property of the lessor on the termination of the tenancy, but the privilege is wholly optional with the lessee, and no enforceable contract exists whereby he is required to build, the fee cannot be subjected to mechanics’ liens incurred by the lessee, as the lessee can in no sense be held to be the agent of the owner, under the statutory provision (Bal. Code, § 5900) that every person performing labor upon, or furnishing material to be used in, the construction of buildings has a lien thereon, whether performed or furnished at the instance of the owner of the property or his agent; and that any person having charge of the construction, alteration or repair of any property subject to lien shall be held to be the agent of the owner for the purpose of the establishment of the liens. (Kremer v. Walton, 11 Wash. 120 and 16 Wash. 139, distinguished.)</p> <p>SAME — STATUTES—REPEAL.</p> <p>Laws 1893, ch. 24, p. 32 (Bal. Code, §§ 5900-5918), being a complete act upon the subject of liens of mechanics and material men, and providing in § 2 that if the person causing the construction, alteration or repair of any building own less than a fee simple in such land, then only his interest therein is subject to the lien, and the repealing clause being to the effect that all acts or parts of acts in conflict with its provisions are thereby repealed, it must be construed that the act of 1893 works a repeal of Gen. Stat. § 1671, which provides that should the owner of any land desire to prevent the lien from attaching, he may do so by giving notice in writing, posted in some conspicuous place upon said land or improvement, to the effect that he will not be responsible for said improvement.</p>

<p> Original Application for Prohibition. </p>

<p>MANDAMUS-WHEN ISSUES-REMEDY BY APPEAL.</p> <p>The action of the superior court in dismissing an appeal from the board of state land commissioners, although made more than ninety days after the submission of the question to the court for decision, contrary to the provisions of Bal. Code, § 4675, is reviewable on appeal, and therefore mandamus will not lie to compel the court to redocket the cause with a view to a retrial in said court.</p>

<p> Original Application for Prohibition and Mandamus. </p>

<p>Appeal from Superior Court, Spokaue County. — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Clarke County. — Hon. Abraham L. Miller, Judge.</p>

<p>APPEAL — REVIEW OE ORDER GRANTING NEW TRIAL.</p> <p>The action of the superior court in granting a new trial will not he reviewed on appeal, when the record does not disclose the grounds upon which the action of the court was based.</p>

<p>JUDGMENT — MOTION TO VACATE — NOTICE.</p> <p>Where plaintiff dismisses his action, through mistake or inadvertence, he cannot afterwards, upon three days’ notice, bring the defendant again into court, upon a motion to vacate the order dismissing the cause and for the reinstatement of the cause.</p> <p>EMINENT DOMAIN-APPROPRIATION OP COMMUNITY REALTY — PARTIES.</p> <p>Where community property is sought to be condemned for use as a public highway, the wife, as well as the husband, is a necessary party to the proceedings before the county commissioners, for the reason that, under the procedure provided by Laws 1895, p. 85, §§ 11, 13, if the husband alone was a necessary party, he might be enabled to alienate the land sought to be condemned without the knowledge or consent of his wife.</p>

<p>COUNTIES-ACTIONS AGAINST — PRESENTMENT OP CLAIMS — TORTS.</p> <p>No action can be maintained against a county, whether upon a demand arising in tort or upon a claim arising out of contract, unless the same has first been presented to the county commissioners for rejection or allowance, under the provisions of Bal. Code, § 5674, allowing suits against counties; of § 359 requiring presentment of claims to county commissioners before suit; of § 393 requiring “all claims, demands and accounts against the county” to be presented to the county commissioners for their examination and allowance; and of § 342, subd. 6, which makes it the duty of the county commissioners to have the care and management of the county funds and business.</p> <p>PAYMENT OP TAXES UNDER DURESS — LIABILITY OP TREASURER.</p> <p>The fact that the county treasurer was joined with the county as plaintiff in an action seeking to enforce the collection of a tax, which was paid by the defendant under duress and compulsion, would not subject the treasurer to personal liability in an action to recover back the money so paid, since, under Bal. Code, § 342, subd. 6, which provides that all actions for and on behalf of the county must be prosecuted in its name by the county commissioners, the treasurer was not a necessary party to the original action and consequently was not chargeable with any duress exercised upon defendant therein.</p> <p>(Gordon, C. J., dissents.)</p>

<p>Appeal from Superior Court, Liueolu County. — Hon. Charles H. Weal, Judge.</p>

<p>Appeal from Superior Court, Whatcom County. — Hon. Hiram E. Hadley, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.</p>

<p>CITY MARSHAL-TERM OF OFFICE-STATUTES — REPEAL BY IMPLICATION.</p> <p>Laws 1895, p. 351, which provides that in all cities of the third and fourth classes the marshal shall be elected by the city council, and shall hold office for one year, does not, in view of the scope shown by its title, “An act providing for the election of city marshal in cities of the third and fourth classes,” work a repeal or an amendment of Laws 1893, p. 103, in any particular beyond the manner of election of the city marshal; that portion of the act of 1893 prescribing the term of office of city officers continuing in force, and making the term of the marshal, as well as that of the other officers, begin the first Tuesday in January next succeeding the day of his election.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thomas Carroll, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leander H. Prather, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Orange Jacobs, Judge.</p>

<p>Appeal from Superior Court, Clallam County. — Hon. James G. McClinton, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Charles H. Neal, Judge.</p>

<p>Appeal from Superior Court, Okanogan County.- — Hon. Charles H. Neal, Judge.</p>

<p>Appeal from Superior Court, Jefferson County.- — Hon. James G-. McGlinton, Judge.</p>

<p>Appeal from Superior Court, Island County. — Hon. James G. McClinton, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Snohomish County. — Hon. Prank . T. Reid, Judge.</p>

<p>Appeal from Superior Court, Snohomish County. — Hon. Frank T. Reid, Judge.</p>