Volume 23 — Washington Reports

<p>DISMISSAL OF APPEAL — CESSATION OF CONTROVERSY.</p> <p>Where it appears on the face of the records that the appellant had an appealable interest in the controversy at the time the judgment appealed from was entered against him, the appeal will not be dismissed because a contingency could happen which would determine the controversy, since the presumption is that appellant’s interest continues until his rights are finally determined; and this presumption can be overcome only by an affirmative showing, appearing either upon the face of the record or by extrinsic evidence, that such interest has ceased to exist.</p> <p>STREET RAILWAYS-FRANCHISES — EXTENSION OF.</p> <p>An ordinance of the city of Seattle providing for the grant of a franchise to construct and operate lines of street railway upon various streets of the city and authorizing for that purpose the acquisition of any portion of street railway lines upon any of such streets, which lines so acquired shall be equivalent to new construction, and providing for the surrender of the franchises of any existing line, which may be acquired by the grantees under the proposed franchise, does not constitute such an extension of existing franchises as to come within the inhibition of art. 4, § 20, of the city charter of Seattle, which provides that when any right, privilege or franchise has been granted and has been accepted, the city council shall not extend the time for which such right, privilege or franchise is granted until within three years of the expiration of the time for which such right, privilege or franchise is granted.”</p> <p>SAME — WHEN NOT EXCLUSIVE.</p> <p>The city of Seattle has power to grant a franchise for a street railway along a street upon which there is a street railway operated under an existing franchise, when art. 4, § 22, of its charter provides that “no exclusive franchise or privilege shall be granted for the use of any street, alley or highway or other public place or any part thereof,” and all ordinances granting franchises prior to the adoption of such charter provide that the franchises thereby granted shall not be deemed exclusive.</p> <p>SAME — SURRENDER OF FRANCHISE.</p> <p>Under art. 4, § 1, of the charter of the city 6f Seattle,, vesting all legislative power in the mayor and city council, and under art. 4, § 18, sub-div. 9, of said charter, empowering the city council “to authorize or prohibit the locating and constructing of any railroad or street railroad in any street, alley or public place of the0 city,” and “to provide for the alteration, change of grade or removal thereof,” the mayor and city council are vested with the absolute control of the city’s interests in the franchises, and, in the absence of express provision in the charter forbidding it, are empowered to accept the surrender of any franchises by the owners thereof.</p> <p>SAME — CONSOLIDATION OF EXISTING LINES — MONOPOLIES—CONSTITUTIONAL LAW.</p> <p>An ordinance granting a franchise for the construction and operation of a system of street railways, which authorizes the grantees to acquire existing railway lines and surrender their franchises, for the purpose of operating a new system under the proposed franchise, does not violate art. 12, § 22, of the state constitution forbidding monopolies and trusts, by reason of the fact that portions of the existing lines in operation, and which may be absorbed under the proposed ordinance, are parallel and competing lines, which the grantees of the new franchise would thus be enabled to combine and consolidate.</p> <p>ORDINANCES — PRESUMPTION IN FAVOR OF.</p> <p>The presumption respecting ordinances passed by a municipal corporation is that all the provisions of such ordinances are within the powers of the charter which authorizes them, which presumption continues until the contrary is shown.</p> <p>SAME.</p> <p>If an ordinance be lawful upon its face, — that is, passed in due form of law and within the scope of the powers of the city council, — the courts will presume, in the absence of proof of fraud, that the ordinance is what it purports to be, and will determine its validity from its prescribed terms, rather than by inquiry into the motives of the members of the council and of its beneficiaries.</p> <p>SAME — PUBLICATION—CONFORMITY TO PARTICULAR PROVISIONS UNDER GRANT OF POWERS.</p> <p>Under the provisions of the charter of the city of Seattle empowering it to grant franchises for the construction of street railways; and under art. 4, § 23, of the charter, requiring notice of any application for such franchises to be published for ten days, offering to grant same to the person or corporation who will pay the highest percentage of gross receipts annually; and under art. 4, § 13, which provides that “no bill for the grant of any franchise shall be finally passed within thirty days after its introduction, nor until it has been published in the official newspaper of the city at the expense of the applicant for ten days daily,” the general requisites applicable to the passage of ordinances must give way to the particular provisions which the charter makes applicable to ordinances granting franchises, and consequently the passage of such an ordinance is valid, although it has been published for the required number of days without containing the names of the actual grantees of the franchise nor the amount bid by them therefor.</p> <p>GRANT OF FRANCHISE — -PROVISIONS FOR COMPULSORY ARBITRATION-CONSTRUCTION.</p> <p>A provision in a franchise for a street railway granted by the city of Seattle, to the effect that if any dispute shall at any time arise between the grantees or their successors and their employees, as to any matter of employment or wages, such dispute shall be submitted to arbitration, to which employers and employees shall be parties and entitled to be heard, and any award when made shall be binding and conclusive on all parties thereto for the period of one year from its date, is a sufficient compliance with the charter requirement (art. 4, § 23) which provides that “it shall he the duty of the city council to incorporate in every such franchise * * * efficient provisions for the compulsory arbitration of all disputes arising between the grantee-therein and his or its successors or assigns and his, its or their employees as to any matter of employment or wages.”</p>

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

<p>SALES — DELIVERY—WHEN TITLE VESTS IN PURCHASER,</p> <p>Where a contract is to sell for cash on delivery, and delivery of the goods is made unconditionally, without fraud or mistake, the title of the goods becomes vested in the purchaser, notwithstanding the cash has not in fact been paid.</p> <p>SAME — STOPPAGE IN TRANSITU — CESSATION OF RIGHT.</p> <p>Where the seller of goods consigned them to the purchaser, shipping them by boat under the ordinary shipping receipt, and the goods were taken in charge at their destination by a wharfinger, who was independent of both the carrier and the purchaser, and who delivered the key of his warehouse to the foreman of the purchaser with instructions to take goods, indiscriminately from the entire shipment, whenever he might desire to use them, the goods were thereby delivered into the actual possession of the purchaser to such an extent as to end the seller’s right of stoppage in transitu, although the freight and storage charges on the goods had not been paid and only a small portion of the goods had been removed by the purchaser from the warehouse.</p> <p>TRIAL-TAKING CASE FROM JURY — APPEAL-OBJECTIONS NOT RAISED BELOW.</p> <p>Where defendant on the trial challenged the legal sufficiency of the evidence, on the ground that there was no question to go to the jury, and the court agreed with defendant that it was its duty to decide, as a matter of law, the effect of the evidence, but in so deciding directed a verdict for plaintiff, defendant cannot on appeal urge the objection that there was a question • of fact for the jury involved in the evidence, and that it was error for the court to decide the case as a question <jl law only.</p> <p>MISCONDUCT OF JUDGE — COMMENT ON FACTS.</p> <p>The action of the court in taking the examination of a witness out of the hands of the attorneys, with the remarks that “you gentlemen have been at this thing around here of market value long enough. I am going to ask the question which I think he ought to answer,” and that “this court and jury have got something to do besides sitting here and have counsel beat around the bush,” is such a comment as to constitute error.</p>

<p>ACTION ON FOREIGN JUDGMENT-JURISDICTION OE COURT RENDERING JUDGMENT-JUDICIAL NOTICE.</p> <p>Where an action is brought in this state upon a judgment for alimony rendered in another state, the courts of this state will take judicial notice of the local laws of such state, and that they confer jurisdiction upon the court from which the record comes to render the judgment sued upon.</p> <p>SAME — JURISDICTIONAL FACTS — PLEADING.</p> <p>In an action upon a judgment of another state, rendered by a court of general jurisdiction, it is unnecessary to allege jurisdictional facts, since any want of jurisdicition affecting the validity of the judgment is a matter to be set up by answer.</p> <p>•UJDGMENTS — AWARD OF ALIMONY IN GROSS — FINALITY OF DECREE.</p> <p>A judgment in divorce proceedings awarding alimony in gross, which, by statute, is made a general lien on the realty of the judgment debtor, as in the ease of other judgments, constitutes a final judgment of that state, although the court rendering it may, on the application of either party, make such alteration from time to time as to the' allowance of alimony as may be proper, to which the courts of other states are required, by the constitution of the United States and the act of congress pursuant thereto, to give full faith and credit.</p> <p>GARNISHMENT-GARNISHEE’S CONTROL OF PROPERTY-SAFE DEPOSIT BOXES.</p> <p>A corporation which conducts a safe deposit vault business by renting to individuals boxes in the vault which can only be opened by the use of two keys — one a master’s key, in the possession of the corporation and the other a private key, in the possession of the renter of the box — is subject to garnishment in an action against the latter, under Bal. Code, § 5404, which provides that “should it appear from the garnishee’s answer or otherwise that the garnishee has in his possession or under his control, or had when the writ was served, any personal property or effects of the defendant liable to execution, the court shall render a decree requiring the garnishee to deliver up to the sheriff on demand such personal property or effects or so much of them as may be necessary to satisfy the plaintiff’s claim.</p>

<p>MUNICIPAL CORPORATIONS-TAXING POWER-LICENSING AUCTIONEERS.</p> <p>An ordinance of the city of New Whatcom charging auctioneers a license fee of $25 per day for selling stocks of merchandise, passed in pursuance of the general law authorizing cities of the third class “to license for purposes of regulation and revenue all and every kind of business,” and “fix the rate of license tax upon the same,” is valid as an exercise of the taxing power granted by such charter, even if it cannot be upheld as a legitimate exercise of the power to regulate business, on the ground that it is unreasonable and prohibitive in its nature.</p> <p>TAXATION — REASONABLENESS—PRESUMPTIONS.</p> <p>A tax will not be deemed oppressive and unreasonable, so as to constitute confiscation rather than taxation of property, merely from the amount of tax levied, since every presumption is in favor of its validity.</p> <p>SAME-UNIFORMITY-REGULATION OF BUSINESS.</p> <p>The constitutional provision requiring uniformity and equality in taxation applies to taxes upon property, but has no application to taxes upon trades, professions or occupations.</p> <p>SAME-UNIFORMITY AS TO CLASS-GRADUATED LICENSE FEES.</p> <p>An ordinance providing for the licensing of auctioneers and providing for different license fees for the sale of different kinds of goods is not objectionable on the ground of being ununiform as to class, since it is within the discretion of the city council to classify single kinds of business in accordance with the different character and kind of property sold and graduate the license tax thereon.</p>

<p>TIDE LANDS-SALE-RIGHTS OE LESSEE.</p> <p>A lessee of tide lands who holds same under Laws 1897, p. 243, § 23, which provides “that lands held under lease shall not be offered for sale or sold except to the lessee if the lessee shall keep his lease in good standing,” but who waives such limitation in his favor and applies to the commissioner of public lands for the sale of his leased premises at public auction, cannot, where the lands are struck off to a higher bidder than himself, come in afterwards and secure a preference right of purchase by tendering the amount of the highest bid, by reason of a provision in his lease “that the tide lands herein shall not be offered for sale except upon application of the lessee, who shall have preference right to re-lease or to purchase at the highest rate bid,” since there was no authority of law for the insertion in his lease of such a clause, which, in its very nature, is inconsistent with a sale at public auction.</p>

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

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

<p>STREETS-COMMON LAW DEDICATION.</p> <p>The platting by an owner of a tract of land showing an extension of a street through the tract, and the acceptance and approval of the plat by the city council, the body vested by the charter with authority over the city highways, followed by a petition of the owner and others for the improvement of the street thus shown by the plat to be extended through his land, which the council caused to be improved in accordance with the petition, show such an intent on the part of the owner to devote his land to a public use and such an acceptance by the public as to constitute a common-law dedication.</p> <p>SAME-REVOCATION OE DEDICATION.</p> <p>The fact that such dedication was not thereafter recognized by the owner, and the land was subsequently conveyed by him, without reservation, to a grantee who subsequently laid off the tract under a new plat, would not affect the right of the city to collect assessments against the lots under the original plat for the improvement of the street attempted to be extended in front of them.</p> <p>STREET IMPROVEMENTS — REGULARITY OE PROCEEDINGS-ESTOPPEL.</p> <p>Where a person has signed a petition for an improvement, which can only be paid for by means of an assessment upon contiguous property, he and his grantees are estopped from contesting the validity of the assessment, especially after the work has been completed and accepted by the proper authorities.</p> <p>SAME-VALIDITY AS AGAINST GRANTEES.</p> <p>Where there was a valid assessment against land appearing of record at the time the grantees acquired title, and of which they must be deemed to have had constructive notice, they must be held to have received the benefits resulting from the improvement and to have taken the land subject to the consequent burden.</p> <p>SAME — ENFORCEMENT OE ASSESSMENT — RECOVERY OE INTEREST AND PENALTY.</p> <p>In an action by the city of Seattle to enforce collection of an assessment for a street improvement, where the assessment proceedings were not entirely regular, the plaintiff is not entitled to a judgment for interest and penalties, accruing hy reason of the non-payment of such assessment, but is merely entitled to judgment for the assessment alone, under the terms of its charter (Laws 1885-86, p. 243, § 10), which provide that in such actions the plaintiff is entitled to a decree in its favor notwithstanding any defect, informality or irregularity in the proceedings; but, if defects, informalities or irregularities prejudicial to the party objecting appear, the court may disallow any part or the whole of plaintiff’s costs or allow costs to the defendant; and, in case of the regularity of the proceedings, the plaintiff shall be entitled to the fuil amount of the assessment with interest at the rate of ten per cent, per annum, and five per cent, additional as penalty and damages for delay.</p>

<p>ACTION BY COUNTY AGAINST COUNTY COMMISSIONERS-AUTHORITY OP PROSECUTING ATTORNEY.</p> <p>A prosecuting attorney has no authority to institute an action in the name of the county against the county commissioners to restrain them from bonding certain warrant indebtedness of the county..</p>

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

<p>ASSESSMENT EOR STREET IMPROVEMENT-VALIDITY — ESTOPPEL OE PROPERTY OWNER.</p> <p>In an action involving the validity of an assessment for a. street improvement, the property owner is estopped to raise the-objection that the assessment was not restricted to the benefits received, when, after notice of the levy and an opportunity to-object, he failed to urge such objection before the city counciL prior to its confirmation of the assessment.</p> <p>SAME-ILLEGAL CHARGES-TENDER OE PROPER AMOUNT DUE.</p> <p>In an action to enjoin the collection of an assessment for a street improvement, plaintiff is not entitled to judgment from, the fact that interest and penalties were illegally charged against the property, when he has made no offer to pay that portion, of the assessment properly chargeable against him.</p>

<p>SPECIFIC PERFORMANCE-COMMUNITY PROPERTY — WIFE NECESSARY PARTY.</p> <p>In an action to compel the specific performance of a contract for the conveyance of land, which is presumptively community property, and nothing is shown to overcome that presumption, the wife is a necessary party defendant.</p> <p>SAME-CONTRACT FOR SALE OF LAND — AGENT’S AUTHORITY.</p> <p>Under an authority given an agent to sell real estate, there is. no power conferred on him to enter into a contract for a conveyance; and, under such circumstances, his contract for the sale of the land cannot he specifically enforced against his principal.</p> <p>PRINCIPAL AND AGENT-AUTHORITY OF AGENT-RATIFICATION.</p> <p>A letter by a land owner to a real estate broker agreeing to sell certain lots for $1,500, written and mailed after the broker had sold the lots for $2,100, without knowledge of that fact by his principal, does not amount to a ratification of the sale, since there was lacking the necessary element of a full understanding of the situation on the part of the principal.</p>

<p>APPEAL-AGREED STATEMENT OF FACTS-OMISSIONS FROM RECORD.</p> <p>The fact that a statement of facts does not include certain exhibits and depositions introduced in evidence, which omission is apparent on the face of the record, is not ground for striking the statement, when it appears from the judge’s certificate that the facts included are “such thereof as the parties have agreed to be all that are material.”</p> <p>COUNTIES-RECORDS-PAROL EVIDENCE OF PROCEEDINGS.</p> <p>Although Bal. Code, § 356, requires all the proceedings of a board of county commissioners to be recorded in a book kept for that purpose, yet proceedings which are not so recorded may be proved aUunde the record, in the absence of any statute making such record the only evidence of the board’s proceedings.</p> <p>SAME — DISALLOWANCE OF CLAIM — ACTION AGAINST COUNTY.</p> <p>The action of a board of county commissioners in asserting that they would not allow a bill which had been presented to them, and that they would not put anything on record allowing or rejecting the bill constitutes such a rejection thereof as would warrant the claimant in commencing an action to- enforce its collection, under the terms of Bal. Code, § 359, which provides for action against the county within three months after any claim may have been presented and disallowed in whole or in part by the board of county commissioners.</p>

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

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

<p>EXECUTORS AND ADMINISTRATORS-DISTRIBUTION OE ESTATE — ■ NECESSITY EOR DECREE.</p> <p>Where all the debts against a decedent’s estate have béen either satisfied or barred, and all expenses of administration paid, and the administrator and the heirs have agreed among themselves to abandon the probate proceedings, and the realty-belonging to the estate has been distributed by agreement among the heirs according to their several interests, that portion of the estate must be presumed as having been fully administered, and an administrator de bonis non cannot subsequently take possession of the realty and proceed to administer thereon because of the failure of the former administrator to procure a decree of distribution through the proper court, since under Bal. Code, § 4640 et seq., title vests in the heirs immediately on the death of the ancestor, without any necessity for an order of court, subject only to the debts against the estate, family allowance and expenses of administration.</p> <p>SAME-EXECUTION AGAINST HUSBAND-SAXE OE INTEREST IN COMMUNITY ESTATE-RIGHTS OE PURCHASER.</p> <p>Where the interest of the husband in realty acquired by the community composed of himself and wife, was levied upon and sold under a judgment for a debt incurred by him after the death of his wife, which sale was acquiesced in by him and subsequently upheld by the court, in an action by the purchaser to quiet title against the wife’s heirs, wherein the purchaser was awarded the husband’s interest in such realty, the purchaser must be deemed to have succeeded to all the rights of the husband in the realty to such an extent as to vest him with an interest therein sufficient to warrant his right to question the attempted exercise of dominion thereover by an administrator de bonis non of the wife’s estate.</p>

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

<p>APPEAL — RECORD—NOTICE OF APPEAL — PRESUMPTIONS.</p> <p>When it is manifest from the entire record that notice of appeal has been duly given in open court, the fact that the clerk’s entries recite that appellants gave notice in open court that they “intended to appeal” will be presumed as inadvertently entered.</p> <p>SAME.</p> <p>The presumption arises from the fact that entry of a notice of appeal has been made that the clerk was directed by the court to make it, and it is unnecessary for the record to recite that the clerk was so directed.</p> <p>EXCEPTIONS — SUFFICIENCY OF.</p> <p>An exception to findings of fact, specifying them by number, is a sufficient compliance with the statutory requirement (Bal. Code, § 5052) that a party excepting must specify the part or parts excepted to; and the fact that the party excepting used the word “objection” instead of “exception,” is immaterial, when the context makes it evident that he was urging an exception to the findings..</p> <p>SAME.</p> <p>Where exceptions to findings of fact and conclusions of law were duly made in open court and taken down by the court stenographer, but through oversight were not filed or noted o’fi the margin or at the foot of the decision by the judge, as required by Bal Code, § 5052, it is within the power of the court, by nunc pro tunc order, to direct their filing and attaching to the findings as of the date of the findings.</p> <p>ASSIGNMENTS OF ERROR.</p> <p>An assignment of errors is sufficient when there can be gathered therefrom the points upon which the appellant relies for a reversal.</p> <p>FINDINGS BY COURT-CONCLUSIVENESS.</p> <p>Although the evidence may be conflicting, the findings of the trial court will not be allowed to control, when they are opposed by a clear preponderance of the evidence, or where the overwhelming weight of the evidence is in favor of the appellant.</p> <p>CONTRACTS — MUTUAL ASSENT NECESSARY.</p> <p>A proposition by appellant that, if respondent and a third party would buy certain mining claims and allow him a fourth interest therein, he would give respondent a fourth interest in all other claims located by him, would not constitute a contract until assented to by such third party; and, where a claim was located by appellant between the date of his proposition and the date of its acceptance and execution by the parties to whom it was made, respondent would not be entitled to any interest therein.</p>

<p> Original Application for Writ of Review. </p>

<p>Appeal' from Superior Court, Skagit County. — Hon. Jesse P. Houses, Judge.</p>

<p>EXCEPTIONS TO FINDINGS — SUFFICIENCY.</p> <p>The evidence upon wMcb findings of fact were based will not be reviewed upon appeal, where tbe exception taken to tbe findings is a general one, applying to all of them, instead of particularly specifying tbe ones which are erroneous.</p> <p>ATTOENEY AND CLIENT-VIOLATION OF TEUST.</p> <p>The fact that an attorney, while conducting litigation respecting certain land in behalf of a client, buys up the tax titles against such land, would not constitute a violation of his duty as attorney, and evidence thereof is irrelevant in a proceeding instituted by the client for the purpose of having the court remove the attorney from further acting in that capacity.</p> <p>SAME-CHANGE OE ATTORNEY-COMPENSATION.</p> <p>Under Bal. Code, § 4769, which permits a change of attorneys in an action, upon the order of the court, in an application therefor by the client, but requires the charges of such attorney to be paid before any change can be made, the conclusion of law by the court that the client may discharge the attorney upon payment to him of $300 attorney’s fees, and moneys advanced by him as costs, is warranted, where the findings of fact show that there was no contract between them as to the amount of compensation to be paid, that $300 was a reasonable compensation for the services rendered, and that certain sums had been expended by the attorney in behalf of his client as advanced costs.</p> <p>SAME.</p> <p>The mere fact that an attorney and client differed as to the kind or amount of compensation to be paid for services rendered, and that the attorney refused to proceed with the case until compensated according to his claims, and that, upon the trial of the question of compensation in a proceeding brought for the removal of the attorney the finding of the court was that there was no such contract for compensation as the attorney claimed, would not establish unfaithfulness to his client in the discharge of his duties as attorney, so as to occasion ground for his summary removal and for his deprivation of lien for services rendered. ,</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>Appeal from Superior Court, Spokane County — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Chehalis Couuty.— Hon. Oliver V. Linn, Judge.</p>

<p>PUBLIC NUISANCE-ABATEMENT.</p> <p>A public nuisance can be abated only by a public officer, except where the party who desires to abate it has some special interest in the abatement which is different from and greater than the interest of the community.</p> <p>NON-NAVIGABLE STREAMS.</p> <p>An unmeandered fresh-water river averaging in width about forty feet, and in depth about four feet during high water and two feet during low water, in some places during the low stage being as shallow as six inches, and which has never been navigated except by row boats of ordinary size, run up and down the 'river by persons fishing for pleasure, is a non-navigable stream.</p> <p>SAME-RIGHTS OF RIPARIAN PROPRIETOR — RIGHT OF FISHERY.</p> <p>The riparian proprietor upon the banks of a non-navigable, fresh-water stream, owns the exclusive right of fishery in the waters flowing opposite his land, as far as the middle of the stream.</p> <p>SAME-BIGHT TO FENCE.</p> <p>One who owns both banks along a non-navigable stream has title also to the land in the bed of the stream, and may lawfully place a fence across a stream thus flowing through and over his land.</p>

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

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

<p>NAVIGABLE WATERS — BOOMING LOGS — DAMAGES.</p> <p>In an action by a riparian proprietor along the banks of a navigable or floatable stream to recover damages for injuries incurred through the act of the defendants in obstructing the stream while booming logs, so as to cause the water to rise and flood his lands, it is unnecessary to allege in the complaint that the injury was caused by the negligence or want of care of defendants, since it is immaterial in such a case whether or not' there was negligence on the part of defendants.</p> <p>SAME — DEFENSES.</p> <p>In an action for damages for obstructing a river with logs, and for an injunction to restrain the further commission of such acts, it is not a defense to set up that defendants have expended large sums in improving the channel of the river, and have better adapted it for the drainage of the adjoining lands, since benefits cannot be set off in such a case against damages sustained.</p> <p>SAME-EVIDENCE.</p> <p>Where the rights of defendants extend only to rafting logs down a river and not to booming them, evidence of where it would be most convenient for them to boom them is immaterial in an action to enjoin such use.</p> <p>SAME-INJUNCTION.</p> <p>Where it appears that the injury to a riparian proprietor from the booming- of logs on a navigable river will be a continuing one, the court is warranted in controlling such improper use of the river by a perpetual injunction.</p>

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

<p>PLEADING-STRIKING OUT IMPERTINENT ISSUES.</p> <p>The action of tbe court in striking out portions of a reply which are not pertinent to the issues raised by the complaint and answer is not error, even if the portions stricken are in response to impertinent matters alleged in the answer.</p> <p>CUSTOMS — EXCLUSION BY CONTRACT.</p> <p>In an action for the price of cattle sold by plaintiff to defendants, in whicn plaintiff alleges a contract for delivery at one point and the defendants allege delivery was to be made at another point, where it was agreed the cattle were to be weighed, evidence of custom is inadmissible for the purpose of showing that, where cattle were sold to be weighed at a designated point, title to the cattle was considered as not passing to the buyer until they had been weighed, since the pleadings show that the point of delivery was a matter of express contract between the parties.</p> <p>SAME-PROOF OF USAGE-OPINION EVIDENCE.</p> <p>The existence of a custom cannot be established by the ' mere opinions of witnesses, but must be proved as any other fact.</p> <p>SALES-DELIVERY — INSTRUCTIONS.</p> <p>In an action to recover the price of cattle sold, in which the point of delivery was an issue, as the cattle were lost between the point of embarkation and the point of destination, an instruction which charges the jury that plaintiff cannot recover unless he prove that the cattle were not only delivered to the defendants at the point of embarkation, but that at the time of such delivery, the title thereto vested in the defendants, or, in other words, that they became the absolute owners of the cattle at that point, is erroneous, since proof of absolute delivery would be proof of transfer of title, while the instruction given would lead the;, jury to believe that something more was required.</p>

<p>JUDGMENTS-REVIVAL-CONSTITUTIONALITY OE STATUTE.</p> <p>It being apparent that the legislative intent in enacting the statute of March 6, 1897 (Laws 1897, p. 52) “relating to the duration of judgments and repealing §§ 462 and 463, volume 2, Hill’s Code of Washington,” was to deprive a judgment creditor of all remedy — either common law or statutory — in the 'matter of revival of judgments, and all the provisions of the act being connected together as a uniform piece of legislation on that one subject, the act must be construed as void in toto, as to existing .judgment creditors, when one section thereof has been declared unconstitutional in so far as that class of creditors is concerned.</p> <p>•SAME.</p> <p>Conceding that § 1 of the act of March 6, 1897, which provides that “After the expiration of six years from the rendition of any judgment it shall cease to be a lien or charge against the estate or person of the judgment debtor,” is not open to objection on the same ground as the balance of the statute, because it deals with the judgment itself and not with the remedy to enforce its obligation, the section must be held unconstitutional on the ground that it destroys the obligation of existing contracts and amounts to legislative confiscation; and hence, where an action for revival of an existing judgment was brought within six years from date of rendition, no limitation is imposed upon the right to introduce the judgment in evidence, where the trial does not occur until the lapse of a greater period than six years after its rendition.</p> <p>INTEREST — RATE ON JUDGMENTS — EFFECT OF CHANGE OF LAW.</p> <p>Where a promissory note was executed drawing interest at the rate of one per cent, per month, without any provision therein for interest after maturity, and such note has been placed in judgment, without any recital as to the amount of interest it should draw, the judgment would draw interest at the legal rate specified by statute, and this rate would vary from time to time with any alterations in the legal rate made by statute.</p> <p>SAME.</p> <p>The provision in the interest laws of 1895 and 1899 (Laws 1895, p. 350, § 6; Laws 1899, p. 130, § 8) that nothing therein contained should be construed as affecting any contract or obligation made or entered into prior to the taking effect of the act, applies only to contracts and obligations between parties, and not to rights or obligations arising by operation of law.</p>

<p>EVIDENCE-VARYING ESCROW AGREEMENT-ADMISSIBILITY OE PAROL.</p> <p>Where a written agreement of escrow is neither ambiguous nor uncertain, but is sufficient to show the intent of the parties and a complete agreement in itself, parol evidence of a verbal contemporaneous agreement whose effect would be to modify and vary its terms is inadmissible, even if the evidence tends to prove an independent, collateral agreement, if such oral contract would entirely change the scope and meaning of the writing.</p> <p>SALES-TIME AND PLACE OE DELIVERY.</p> <p>Where goods are sold without any place of delivery being agreed upon a tender of delivery at the place where the goods are when sold is sufficient, but to be effective must be made within a reasonable time.</p>

<p>PUBLIC LANDS — SIMULTANEOUS ENTEY — AWABD OE ENTEY TO ONE EOE JOINT BENEFIT — WAIVES.</p> <p>Where in a contest over the right to enter a certain forty acres of public land it is held by the land department that the entries of both contestants were simultaneous, that each was entitled to share therein, and that entry should be allowed in the name of one on his agreeing to convey to the other a certain portion thereof, the one to whom entry is granted is constituted, in effect, a trustee for the other, and bound to carry out the trust; and the fact that the cestui que trust prosecuted an appeal from the decision and refused, pending such appeal, to accept and sign an agreement in writing presented to him by the entryman, which provided for conveyance of such portion after the latter perfected title, would not constitute a waiver of the rights given under the ruling of the land department.</p>

<p>TAXATION — SHAKES OF STOCK.</p> <p>All the property of domestic corporations in this state, other than banking, being assessable for taxation as the property of the corporation itself, the shares of stock therein held by individual shareholders cannot be assessed against them personally.</p>

<p>Appeal from Superior Court, Columbia County.— Hon. Melvin M. Godman, Judge.</p>

<p>WILLS — LATENT AMBIGUITY- — ADMISSIBILITY OP PAROL EVIDENCE TO EXPLAIN.</p> <p>Where a will is certain in its terms as to the property devised, the character of the uevise, and the person of the devisee, extrinsic evidence is not admissible to change or add to its terms; and the mere fact that the testator failed to dispose of all of his realty oy will would not create such an ambiguity as to warrant the introduction of parol testimony to show his intent to devise the omitted land to the person to whom the adjoining tract had been devised.</p>

<p>PRINCIPAL AND SURETY — LIABILITY OP SURETIES-GOVERNMENT CONTRACT-PROTECTION OP MATERIAL MEN AND LABORERS.</p> <p>Where a bond has been given by a contractor engaged in the construction of a public work for the United States, in accordance with me provisions of the act of Congress of August 13, 1894, entitled “An act for the protection of persons furnishing materials and labor for the construction of public works,” parties who supplied the contractor with materials or labor have a right of action on the bond against the sureties, irrespective of any right of the government under the bond, although the sureties may have undertaken the contract after its abandonment by their principal and may have expended in its completion, in excess of the contract price, a sum amounting to more than the penal obligaron of the bond.</p>

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

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

<p>GARNISHMENT — PETITION TO QUASH-RIGHT TO JURY TRIAL.</p> <p>Where a writ of garnishment has been issued upon a judgment, the filing of a complaint in intervention by the judgment debtor, which is equivalent to a petition to the court to recall and quash the writ of garnishment, raises a question for the court, and not for a jury, to determine whether sufficient grounds exist for the exercise of such a power.</p> <p>ATTORNEY AND CLIENT-RATIFICATION OF UNAUTHORIZED ACTS-SATISFACTION OF JUDGMENT.</p> <p>Although the action of an attorney in recalling a writ of execution upon a judgment, and in accepting a quantity of brick to be applied in satisfaction thereof, in case judgment on appeal should be sustained against the judgment debtor, may have been in excess of his authority, yet the action of his client, who, with full knowledge of all the facts, subsequently sues him for the value of the brick, amounts to a ratification of his action and constitutes a satisfaction of the judgment to the extent of the value of the brick.</p> <p>INCONSISTENT REMEDIES-ELECTION.</p> <p>The election of a client to sue her attorney to recover from him the value of a quantity of brick he had taken in satisfaction of a judgment obtained for her, in which action she recovered judgment against her attorney, precludes her from pursuing a further remedy by garnishment upon her original judgment.</p>

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

<p>GARNISHMENT-JURISDICTION — VENUE.</p> <p>Under tbe statute relative to garnishments (Laws 1893, p. 95), the garnishment issue is auxiliary to the main action and is properly heard where the main action is tried.</p> <p>SAME.</p> <p>Bal. Code, § 4854, which provides that actions against a corporation shall be brought in the county where it has an office for the transaction of business, is applicable to original actions, and does not relate to garnishment proceedings in which the corporation is made a garnishee defendant.</p>

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

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

<p>HIGHWAYS-ESTABLISHMENT BY LEGAL PROCEEDINGS-SUFFICIENCY OF PETITION.</p> <p>County commissioners cannot acquire jurisdiction for the establishment of a road, upon a petition which is not sufficiently definite to apprise a surveyor of the location of the proposed road, nor give notice to the land owner of the attempt to subject his land to a public easement..</p> <p>SAME — DEDICATION.</p> <p>The fact that the owner of land permitted without objection its use as a highway by those having occasion to so use it would not show a dedication, in the absence of an intention to dedicate the land to public use.</p> <p>SAME-PRESCRIPTION — INTERRUPTION BY LAND OWNER.</p> <p>Where the owner of land erects and closes gates, though not keeping them locked, across a road through his premises used by the public, before the acquisition of a prescriptive right by the public to such road, such act is an assertion by the owner that its uninterrupted use as a highway is denied to the public, and such interruption in its general, continuous, adverse and exclusive use by the public destroys any prescriptive rights that may have begun to accrue.</p> <p>SAME-LEGAL PROCEEDINGS AS BASIS OE PRESCRIPTIVE RIGHT-DEVIATION.</p> <p>A prescriptive right to a public road cannot be founded on an attempt to establish the road by legal proceedings, when the road as surveyed for that purpose runs from 250 to 400 feet distant from the traveled road.</p>

<p>INJUNCTION — WHEN LIES — RESTRAINING WRONGFUL LEVY.</p> <p>Injunction will lie to restrain proceedings under an execution improvidently issued, or wrongfully levied, when that affords a more complete and speedy remedy than that afforded by an action at law.</p> <p>JUDGMENT OF JUSTICE OF PEACE-TRANSCRIPT IN SUPERIOR COURT-EXECUTION.</p> <p>An execution against personal property may be issued out of the superior court, upon a judgment rendered before a justice of the peace, when certified to, and filed with, the clerk of the superior court, since, under the provisions of Bal. Code, § 5136, it is declared that “upon such filing said judgment shall become to all intents and purposes a judgment of said superior court,” and § 5192, Id., declares that execution may issue on any judgment given or entered in any court of record.</p> <p>SAME — CONSTITUTIONAL LAW — TITLE OF ACT.</p> <p>A provision in an act on the subject of filing transcripts in the superior court of judgments rendered in the courts of justices of the peace, is not without the title of an act “Relating to liens of judgments on real estate,” when the act refers to the official code and legislates upon the same subject matter therein contained in relation to judgments in courts of record.</p>

<p>ASSAULT WITH INTENT TO KILL-SUFFICIENCY OF INFORMATION.</p> <p>An information which charges that defendant “wilfully, unlawfully, purposely and feloniously, and of his deliberate and premeditated malice, with intent to kill and murder” another, “ an assault did make in and upon the person of” the other, “with a deadly weapon,” without alleging a present ability to carry into execution the attempt, as in a simple assault, sufficiently charges the crime of assault with intent to commit murder, since § 6848 Bal. Code, provides that words used in an information must be construed according to their legal meaning, when they are defined by law, and § 7055, Id., defines “assault” as “an attempt in a rude, insolent and angry manner, unlawfully to touch, strike, beat or wound another person, coupled with a present ability to carry such attempt into execution.”</p>

<p>HABEAS CORPUS-CUSTODY OE CHILDREN-JUDGMENT-APPEALABLE ORDER.</p> <p>In an application for a writ of habeas corpus by a father to recover the custody of children who had been surrendered by the mother to defendant for the purpose of having him provide homes for them, an order of the court directing defendant to make application under the provisions of the statute for the disposition of said children, being advisory merely, is not an appealable order.</p>

<p>Appeal from Superior Court, Jefferson County. — IJon. James Gf. Me Clinton, Judge.</p>

<p>CONTRACT TO CLEAR LAND-LIEN — BIGHTS OE CONTEACTOB.</p> <p>One who clears land under a contract with the owner is entitled to a lien thereon, under the provisions of Bal. Code, § 5902, which declares that any person who at the request of the owner of any real property clears the same has a lien thereon for the labor performed, and under Id., § 5911, which recognizes the right of contractors to such liens, after satisfaction of the prior claims of laborers, material men and sub-contractors.</p> <p>SAME-CONTEMPLATION OF PARTIES TO CONTRACT.</p> <p>Where one is entitled to a lien under the law, his right is not lost by reason of the fact that he did not have it in mind at the time he agreed to perform the labor.</p> <p>DEMAND BEFORE SUIT-SUFFICIENCY.</p> <p>Where, under plaintiff’s contract with defendant, he was to be paid for certain labor in specific chattels, a demand on his part sufficient to sustain an action for the value of such labor is established by evidence showing that by the direction of defendant he went to the place where such chattels were, and told the custodian who had them in charge that he had come for them.</p> <p>EVIDENCE-ADMISSIBILITY OF PAROL.</p> <p>In an action upon a written contract for labor whereby plaintiff was to be paid “in cows at $50 per head,” parol evidence is admissible for the purpose of showing defendant’s admissions as to the kind of cows called for by the contract and also to show the kind alleged to have been tendered.</p>

<p>Appeal from Superior Court, Thurston County. — Hon. Oliver V. Linn, Judge.</p>

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

<p>Appeal from Superior Court, Garfield County. — Hon. Melvin M. Godman, Judge.</p>

<p>ATTACHMENT-ACTION ON NOTE BEFORE DUE-DISSOLUTION OF WRIT —EFFECT.</p> <p>Where an action has been commenced upon a promissory note before maturity and the property of the maker attached, under Code Proc., § 290, which provides that an action may be commenced and the property of the' debtor may be attached previous to the time when the debt becomes due, when nothing but time is wanting to fix an absolute indebtedness and when the debtor is about to dispose of his property with intent to defraud his creditors, a dissolution of such attachment causes an abatement of the action, and plaintiff is not entitled to judgment therein, even though his note matures before hearing upon the motion to dissolve the attachment.</p> <p>SAME-APPEALABLE ORDER.</p> <p>An order dissolving a writ of attachment is reviewable on appeal, when it is in effect a dismissal of the action, and amounts to a final judgment.</p>

<p>NEGLIGENCE-EXCAVATION IN HIGHWAY-PERSONAL INJURIES — PLEADING AND PROOF.</p> <p>In an action to recover damages for injuries received as a result of defendant’s negligence in making an excavation across a public highway, wherein the complaint alleges “there was no railing or other protection to guard persons against the danger of falling into said excavation; that the same was left open and wholly unprotected; and plaintiff, relying upon the fact that said crossing should be in a safe condition for travelers, and the night being so dark that plaintiff was unable to discern the unsafe condition the same was in, was, without fault on his part, precipitated and thrown down into said excavation,” the action of the court in rejecting evidence that defendant maintained no light at the excavation, based on the want of an allegation to that effect in the complaint, is erroneous, since the negligent act, the doing of which occasioned the injury, is alleged in the complaint, and it is unnecessary to plead the evidentiary matter setting out the facts constituting the negligence.</p> <p>SAME.</p> <p>Irrespective of the rule permitting proof of negligent acts under a general allegation of negligence, a complaint which alleges that plaintiff was precipitated into an excavation left open and unprotected through defendant’s negligence, and that the night was so dark plaintiff was unable to discern its unsafe condition, and a denial of such allegations in the answer, raise an issue as to whether or not the defendant maintained lights at the excavation.</p> <p>APPEAL — PRESUMPTIONS IN AID OF JUDGMENT — ERROR.</p> <p>The rule that every intendment will be brought to bear in aid of the judgment is inapplicable in cases where a legal error has been committed by the court in denying or invading the rights of a litigant, and gives way to the rule that error, having been committed, will be presumed prejudicial, unless it affirmatively appears from the record to the contrary.</p> <p>SAME.</p> <p>Error of the court in rejecting evidence in plaintiff’s favor cannot be deemed harmless, in aid of a judgment in defendant’s favor in an action of negligence in which the defense of contributory negligence was set up, when the rejected evidence related to a material circumstance upon Which the jury might base its finding as to contributory negligence.</p> <p>TRIAL-EXCLUSION OP EVIDENCE-WAIVER OP ERROR.</p> <p>Where evidence offered by plaintiff was erroneously rejected by the court on the ground that it did not respond to the complaint, the abandonment by plaintiff of a subsequent motion to amend the complaint so as to allege the facts deemed necessary to make the evidence admissible, because the court would allow the amendment only on the .condition of a continuance being granted to defendant, does not constitute a waiver of plaintiff’s right to urge the error in the rejection of the evidence, when he withdrew his motion to amend on the express condition that no rights were lost to him under the exceptions which he had taken to the ruling against the offered evidence.</p>

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

<p>MASTER AND SERVANT-INJURY TO EMPLOYEE AFTER CLOSE OP WORK — LIABILITY OF MASTER.</p> <p>Where one is employed as a day laborer to lay track for a street railway company under a contract at so much per day and his transportation to and from his place of labor, at the cessation of his day’s work, he is no longer in the employ or under the control of his employer, and if he is injured while returning home on the company’s car at the close of his day’s work, by reason of the negligence of any of the company’s employees, the company is liable therefor, as the doctrine of the exemption of liability of a master to a servant for the acts of a fellow servant is inapplicable in his case, since at the time of the injury he was not acting in the service of his master.</p> <p>STREET RAILROADS-COLLISION — NEGLIGENCE.</p> <p>Where two cars meet in a head-end collision, on a single-track railway, it is negligence, which, in the absence of other showing, must be assumed as caused by the company’s employees in charge of the cars, who allowed them to come into collision, and hence imputable to their employer.</p> <p>PLEADING-DEMURRER — IMPERTINENT ANSWER.</p> <p>When the plaintiff has set up a contract in his complaint which has been answered by a general denial, it is competent for the defendant to put in evidence any material matter to defeat the alleged contract, and it may show a different contract; hence an affirmative defense setting up a different version of a contract than that alleged in the complaint cannot he construed as adding more than a general denial already made, and hence is properly demurrable.</p> <p>CONTRACT TOR TRANSPORTATION — LIMITATION OP CARRIER’S LIABILITY-WHEN ADMISSIBLE IN EVIDENCE.</p> <p>In an action by one injured while traveling upon an employee’s ticket to recover damages on account of defendant’s negligence, where it is an issue as to whether the contract for transportation was an unconditional one between the parties, a condition on the back of the ticket book, signed by the plaintiff, whereby he agreed to assume all risk for any injury or loss to him while using it, is admissible in evidence as a circumstance tending to show that his contract for transportation was a conditional one.</p> <p>SAME-PUBLIC POLICY.</p> <p>A contract agreeing to exonerate a carrier from responsibility for loss or injury received while riding on a free pass as an employee of the carrier is not void as against public policy.</p> <p>EVIDENCE-OPINIONS AS TO PHYSICAL CONDITION.</p> <p>In an action for personal injuries the testimony of those acquainted with plaintiff, as to his physical condition before and after the accident, is admissible.</p> <p>DAMAGES-EARNING CAPACITY.</p> <p>In an action for damages for injuries occasioned by the negligence of defendant, it is admissible for plaintiff to show what wages would be open to him in a business he understood, though he had not followed it for three years, but which he would have the right and ability to resume, were it not for the injuries he had received.</p>

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

<p>TRIAL-JUDICIAL COMMENT ON EVIDENCE.</p> <p>Remarks of the court as to facts in the case, addressed not to the jury, but to counsel, in passing upon propositions of tbe latter for the introduction of testimony, or in reply to suggestions concerning testimony, are not in violation of art. 4, § 16, of tbe constitution, wbicb prohibits judicial comment on tbe facts, especially when tbe court cautions tbe jury to pay no attention to what passes between him and counsel.</p> <p>ASSAULT WITH DEADLY WEAPON-REJECTION OE EVIDENCE-HARMLESS ERROR.</p> <p>In the prosecution of a police officer for shooting the prosecuting witness, whom be was pursuing in an attempt to make an arrest, where the defense was that be did not shoot at such person with intent of bitting him, but shot at the sidewalk to frighten him and be must have been struck by a glancing ball, it is harmless, if error at all, for the court to refuse the admission in evidence of a cartridge similar to the one wbicb defendant bad fired, for the purpose of showing that a ball propelled by such a charge of powder as the cartridge contained would have inflicted greater injury than that suffered by the prosecuting witness, if it bad not been impeded in its course by striking some solid substance, when the defendant has already testified that the revolver “shoots almost like a rifle,” and that in tests made by him, a shot from it when loaded with such a cartridge would penetrate a two and one-half inch fir plank at a distance of 150 feet, and then go about half a mile further.</p> <p>SAME-EVIDENCE-CHARACTER.</p> <p>In the prosecution of a police officer for shooting a suspected person whom be was attempting to arrest, it is not competent to prove defendant’s reputation as a careful, conservative, and conscientious peace officer in tbe community in whicb be resides, since defendant’s character as an individual, and not as a peace officer, was involved in tbe offense charged against him.</p> <p>INSTRUCTIONS-MISLEADING STATEMENTS-CONSTRUCTION AS A WHOLE.</p> <p>Where the instructions, as a whole, clearly and correctly state the law of the case to the jury, the fact that a sentence is so obscure as to be capable of two constructions does not constitute prejudicial error, when it is manifest from other portions of the instruction what meaning should be attached to it.</p> <p>SAME-RELEVANCY TO EVIDENCE.</p> <p>In the prosecution of a police officer for shooting a person whom he suspected of having committed a crime and whom he was attempting to arrest, an instruction by the court on the right to arrest without warrant is not erroneous on the ground of being inapplicable to the evidence in the case.</p>

<p>STATE SCHOOL FUND — APPOBTIONMENT-COUNTT INDEBTEDNESS TO STATE-BIGHT OF STATE TO DEDUCT.</p> <p>The fact that the school fund of a county is indebted to the state on account of taxes levied and collected does not justify the state auditor in deducting any portion of such indebtedness from the amount of the warrant he is required by law to draw in favor of the school fund of any county, when the superintendent of public instruction has apportioned the state school fund to the respective counties and reported same to the state auditor, with direction to issue warrants to the treasurers of the various counties for the respective amounts, due them thereunder.</p>

<p>EVIDENCE-VARIATION OF WRITTEN CONTRACT BY PAROL-WHEN ADMISSIBLE.</p> <p>Although parol evidence is inadmissible to vary or contradict the terms of a written instrument, it is admissible for the purpose of showing that such written instrument never became operative as a contract, because of a separate oral agreement constituting a condition precedent to the attaching of any obligation thereunder.</p> <p>APPEAL-ERRONEOUS INSTRUCTIONS-EXCEPTIONS.</p> <p>Error of the court in giving an instruction cannot be urged on appeal unless exception was taken thereto.</p> <p>SAME-REQUESTED INSTRUCTIONS — WAIVER OF ERROR.</p> <p>Where an erroneous charge is given to the jury as requested by appellant, he cannot urge the error as prejudicial.</p> <p>PREPONDERANCE OF EVIDENCE-QUESTION FOR JURY.</p> <p>The verdict of the jury will not be disturbed on appeal, if there is substantial evidence supporting it, since it is a question for the jury to determine on which side the evidence preponderates.</p>

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

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

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

<p>PROHIBITION, WRIT OF-WHEN LIES-LEASE OF HARBOR AREAS.</p> <p>Prohibition Will not lie to restrain the board of state land commissioners from discharging the administrative duties imposed upon them in the leasing of the harbor areas of the state under the provisions of Laws 1897, p. 255, § 53.</p>

<p>PUBLIC LANDS-CONTESTS — BINDINGS BY LAND OBBICE-CONCLU-SIVENESS.</p> <p>Where the Issuance of a patent in favor of one of two parties has been determined after a contest involving questions of fact -within the jurisdiction of the land department, the validity of the patent should be upheld in the courts, unless there is an affirmative finding by the land department of such facts as would enable a court to declare as a matter of law that the department’s determination upon the facts was erroneous.</p>

<p>MASTER AND SERVANT-JOINT ACTION AGAINST FOR NEGLIGENCE-VERDICT FOR SERVANT-LIABILITY OF MASTER.</p> <p>In an action against a master and servant jointly to recover damages, -where the negligence of the servant is the gist of the cause of action, and the master could be rendered liable only on' the theory of respondeat superior, judgment against the master is erroneous when the verdict and judgment in the action exonerate the servant as being free from negligence.</p> <p>SAME — APPEAL.</p> <p>Where one judgment is entered against the master and another in favor of the servant, in an action against them jointly to recover damages on account of the negligent act of the servant within the scope of his employment, and the judgment in favor of the servant is allowed to remain unappealed from and unreversed, the supreme court on appeal from the judgment against the master is warranted, upon its reversal, in directing judgment to he entered in favor of the master, since the judgment in favor of the servant stands as a conclusive bar against recovery from the master.</p> <p>SAME.</p> <p>In an action against a master and servant, for the wrong of the servant, in which the verdict finds the master guilty of negligence and makes no reference to the servant, the ruling of the court in construing the verdict as a finding in favor of the servant is action adverse to the plaintiff rather than to the master, and the latter may avail itself of the judgment in favor of the servant based upon such verdict, even if it did not except to the verdict nor the court’s construction thereof.</p>

<p>SPECIAL AND GENEEAL VEEDICT-EFFECT OF INCONSISTENCY-ACTION BY LANDLOED FOE POSSESSION AND DAMAGES — WHEN PEEMATUBELY BROUGHT.</p> <p>Where the special verdict of the jury shows that plaintiff was not entitled to possession of premises until the 1st day of November, it will control a general verdict in his favor, upon an action instituted the 16th day of October to recover possession and for damages, and warrant the court in granting a new trial for the reason that the action had been prematurely brought.</p> <p>SAME-MATERIALITY OF SPECIAL VEEDICT.</p> <p>Where plaintiff's right to have premises vacated by a tenant prior to the expiration of the lease is conditioned upon a sale of the premises and thirty days’ written notice to the tenant to remove therefrom, a special verdict by the jury that plaintiff was entitled to possession of the premises on a certain date, is not immaterial and a mere conclusion of law, when the notice to the tenant required him to surrender possession “within thirty days from date, or as soon thereafter as you have completed the harvesting of your crop,” and the jury, in answer to another interrogatory, have found that the tenant finished harvesting his crop on the day prior to the one on which they find plaintiff’s right of possession to accrue.</p> <p>LANDLORD AND TENANT-WAIVER OF NOTICE TO QUIT.</p> <p>Where defendant is entitled to thirty days’ written notice to vacate premises, a letter from him refusing to vacate and advising plaintiff’s attorneys that the sooner they start action the better it will suit him, does not constitute a waiver of the notice required to be given under his lease.</p>

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

<p>BILLS AND NOTES-EXTENSION OF TIME-CONSIDERATION.</p> <p>An agreement to extend the time of payment of a promissory note is not supported by a valid consideration, where the maker agrees to pay a lower rate of interest than that provided in the note, from the date of its execution up to the time of extended payment, while the note required no interest between date of execution and maturity, when the sum which the maker thus agrees to pay in consideration of extension is less than what is actually due on the note at the time of the agreement.</p>

<p>BES JUDICATA — DECREE OF FORECLOSURE-CONCLUSIVENESS AS AGAINST BREACH OF CONTRACT FOR MORTGAGE.</p> <p>A decree of foreclosure is not res judicata of an issue of breach of contract on the part of the mortgagee in failing to loan the full amount stipulated for hy the mortgagor, though such issue may have been tendered in the foreclosure suit and its acceptance refused hy the mortgagor, since the mortgagor’s right to damages is not material to the mortgagee’s right of foreclosure.</p> <p>BREACH OF CONTRACT — DAMAGES.</p> <p>In an action for damages for breach of contract on the part of a mortgagee in retaining a portion of the loan agreed upon, whereby the mortgagor was unable to pay a loan theretofore made upon the property, the only damages recoverable are the excess in interest charges the mortgagor was compelled to pay between the time of execution of his note to the mortgagee and its maturity. ■</p> <p>REQUESTED INSTRUCTIONS-PERTINENCY.</p> <p>It is error to refuse a requested instruction, when it is fairly within the issues, and there is evidence tending to prove the contention of the party requesting the instruction.</p>

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

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

<p>EES JUDICATA — ADMISSIBILITY OE EVIDENCE TO SHOW WHAT CONCLUDED BY EORMEB JUDGMENT.</p> <p>Where a judgment in a former action is pleaded as an estoppel in a subsequent action between the same parties involving the same subject matter, and the record does not disclose upon which of several issues the case was litigated and decided, extrinsic evidence is admissible for the purpose of establishing that the former action was determined upon an issue which is not involved in the subsequent action.</p>

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

<p>PLEADING-CONCLUSION OE LAW-HOW CORRECTED.</p> <p>The objection that some of. the allegations in a complaint, are conclusions of law must be reached by motion and will not render the complaint subject to demurrer for want of facts, if the insufficiency pertains to the form rather than to the substance of the complaint, and if substantial facts constituting a cause of action can be inferred by reasonable intendment from the matters which are set forth.</p> <p>LANDLORD AND TENANT-ACTION FOR POSSESSION-SUFFICIENCY OF COMPLAINT — ALLEGATIONS AS TO TITLE.</p> <p>In an action by a tenant against a sub-tenant of premises, it is sufficient for the plaintiff to allege that he is the lessee of the premises, without deraigning his title.</p> <p>SAME-TERMINATION OF TENANCY.</p> <p>Under the rule that, as against demurrer, every reasonable' intendment and presumption is to be made in favor óf the pleading, an allegation in a complaint that “said lease began and ended on the first day of each and every calendar month” is equivalent to an allegation of monthly tenancy, beginning on the first of each calendar month; and the allegation as to time of ending is mere surplusage.</p> <p>SAME-NOTICE TO QUIT-SUFFICIENCY.</p> <p>Where notice to quit has been served on a tenant more than twenty days prior to the expiration of his monthly tenancy, as required by statute, the fact that the notice gives him all of the first day of the succeeding month in which to vacate does not vitiate the notice, when the statute does not require the notice to specify that the tenant must remove on the day his tenancy is concluded.</p> <p>INSTRUCTIONS — REFUSAL OF REQUEST-HARMLESS ERROR.</p> <p>The refusal of the court-to give a requested instruction upon the matter of nominal damages is not prejudicial error, when the jury finds only nominal damages in favor of plaintiff.</p> <p>UNLAWFUL DETAINER-ACTION BY SUCCEEDING LESSEE.</p> <p>Where a tenant refuses to give up possession at the expiration of his term, an action may be maintained against him by a lessee whose term immediately follows.</p> <p>APPEAL-HARMLESS ERROR-LEADING QUESTIONS.</p> <p>Allowing or refusing leading questions is not generally a ground for reversal, unless there appears to be a clear abuse of discretion.</p> <p>EVIDENCE-HEARSAY.</p> <p>The testimony of a witness, who claimed to have served a notice on defendant, that he consulted an attorney and ascertained the attorney’s opinion as to the proper method of serving the notice is hearsay evidence and not testimony as to attending circumstances, and its admission was prejudicial error, when the service of such notice was an issue in the case.</p>

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

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

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