Volume 24 — Washington Reports

<p>ASSIGNMENT-MONEYS RETAINED ON GOVERNMENT CONTRACT-BREACH BY CONTRACTOR-COMPLETION BY SURETIES-RIGHTS OE ASSIGNEE.</p> <p>An assignment by a contractor of all moneys due or to become due under his contract for a public building, under which twenty per cent, of the moneys earned from time to time was to be retained by the government until the completion and acceptance of the work, passed to the assignee the equitable title in such twenty per cent., and the assignee was entitled thereto as against the sureties on the contractor’s bond, by whom the work had been completed after the default of the contractor.</p> <p>SAME-PAYMENT TO SURETIES-ASSUMPSIT BY ASSIGNEE AGAINST SURETIES.</p> <p>Where moneys due under a government contract were paid to the sureties on the contractor’s bond, who had completed the work on his default, rather than to an assignee to whom they were payable under an assignment by the contractor, of which all parties had notice, an action will lie directly against the sureties by the assignee to recover such moneys, although there is no privity of contract between them, under the rule that where one receives money under such circumstances as make it against conscience that he retain it, even though. he has received it under a claim of right, an action for money had and received will lie at the instance of the party to whom it rightfully belongs.</p>

<p>\ppeal from Superior Court, King County.; — Ron E. I). Benson, Judge.</p>

<p>FALSE PRETENSES-DEFENSES • — ■ PARTNERSHIP.</p> <p>An executory contract for the division of profits on the sale of goods does not constitute a partnership, so as to exonerate from the crime of larceny one of the parties thereto who fraudulently obtains such goods from the other party by false pretenses.</p> <p>SAME-AGENCY.</p> <p>A person who by false and fraudulent pretenses obtains the goods of another cannot escape liability for his crime on the ground that he acted merely as an agent in procuring possession of the goods for his principal.</p>

<p>APPEAL-DISMISSAL-CESSATION OF CONTROVERSY.</p> <p>An appeal from an order sustaining a demurrer to a cross complaint which seeks to enjoin one of the parties thereto from prosecuting another action involving the same subject matter should be dismissed on the ground of cessation of the controversy, where it appears that, prior to the sustaining of the demurrer, the two actions had been consolidated and would be tried as one cause.</p> <p>SAME-ANTICIPATION OP ERROR-PRESCRIBING RULES POR TRIAL COURT.</p> <p>The supreme court will not lay down rules for the lower court in anticipation of error on the trial of a cause, but will confine itself to the review of errors, when committed.</p>

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

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

<p>CRIMINAL'LAW-MANSLAUGHTER-SUFFICIENCY OF INFORMATION-ALLEGATIONS SETTING UP CRIMINAL ABORTION.</p> <p>Under Bal. Code, § 7042, wbicb provides that every person who shall unlawfully kill any human being without malice, involuntarily, but in the commission of some unlawful act, shall be deemed guilty of manslaughter, an information charging manslaughter is sufficient thereunder, although it sets up facts constituting the offense of producing a miscarriage, the punishment for which is provided in Bal. Code, § 7068, when such facts are pleaded only for the purpose of charging the killing as having been done in the commission of a prohibited offense and there is no punishment provided in the statute against producing miscarriages Where death results from the commission of such acts.</p> <p>SAME-EVIDENCE-DECLARATION AS RES GESTAE.</p> <p>In a prosecution for causing death by producing a miscarriage, declarations of the deceased, while preparing to leave home, that she was in trouble and was going to another city to be treated by defendant, are admissible in evidence as verbal acts, explanatory of what she was doing and of her purpose, and as part of the res gestae of one portion of the entire transaction, when restricted by the court as competent only to explain the purpose of the deceased in leaving home, and as characterizing her act of going, and explanatory of the nature, character and object of that act.</p> <p>EVIDENCE-DYING DECLARATIONS — 1 IN EXTREMIS.</p> <p>The fact that dying declarations were made two days prior to the death of the person making them would not render the declarations inadmissible in evidence, since the rule requiring it to be shown that the declarations were made while the declarant was in extremis does not require that the declarant be actually breathing her last, when making them, but the rule is satisfied where it is shown that the declarant died in the course of the illness from which she was suffering at the time they were made, and that the illness from which she was suffering was the direct and proximate result of the original injury which the declarations tend to illustrate.</p> <p>SAME — ’SENSE OF IMPENDING DEATH.</p> <p>Dying declarations are admissible in evidence when the court is satisfied from all the facts and circumstances shown that they were made under the sense of impending death, notwithstanding declarant may not have said in specific terms that she was without hope of recovery, or was dying, or going to die, or could not live any longer.</p> <p>NEW TRIAL-NEWLY DISCOVERED EVIDENCE-DILIGENCE.</p> <p>A defendant convicted of manslaughter as the result of an abortion procured by him was properly denied a new trial on the ground of newly-discovered evidence, because of lack of reasonable diligence on his part in procuring the evidence earlier, when it appeared that the newly-discovered evidence was that of a nurse whom defendant had employed to care for the deceased, that he had been at liberty all the time prior to trial and knew the whereabouts of the nurse, but had never sought and questioned her as to her knowledge concerning matters that would be subject to inquiry at his trial.</p> <p>CRIMINAL LAW-INSTRUCTIONS-LIABILITY OE PHYSICIANS EOB GROSS NEGLECT.</p> <p>In a prosecution for manslaughter as the result of a criminal abortion, where the evidence tends to show that the physician had neglected to take proper sanitary precautions in the care of the deceased, a charge to the jury that “when a physician undertakes to attend a sick person, the law imposes upon him the duty of directing the sanitary conditions surrounding the patient, of prescribing the proper medicines and the times and manner of taking, and whatever other appliances and operations necessary to the restoration of health,” is applicable to one phase of the case, but does not undertake to define the degree of care and skill required of a physician; and such charge is not misleading when the instructions elsewhere charge the jury as to the criminal liability of a physician for wilful and felonious neglect of a patient.</p>

<p>JUDGMENTS-REVIVAL OE LIEN-CONSTITUTIONAL LAW.</p> <p>The act of March 6, 1897 (Laws 1897, p. 52), relating to the duration of judgments and repealing the existing law which permits the renewal of judgments is unconstitutional and void as to judgments rendered prior to its passage.</p>

<p>BOBBERY-SUFFICIENCY OF INFORMATION — OWNERSHIP OF PROPERTY TAKEN.</p> <p>An information charging tbe crime of robbery.is insufficient when it fails to allege ownership of the property taken in some one, other than the defendant.</p> <p>SAME-CONVICTION OF LESSER OFFENSE-INSTRUCTIONS.</p> <p>Under an indictment or information charging robbery, the defendant may be convicted of the lesser offense of larceny, and, where the evidence tended to show a larceny rather than a robbery, it was error for the court, upon a prosecution for robbery, to refuse to instruct on the crime of larceny as included within the charge of robbery.</p>

<p>CONSTITUTIONAL LAW-EXCLUSIVE PRIVILEGES.</p> <p>Where a municipality has not by ordinance or contract attempted to give an exclusive right to the use of its streets to a telephone company to whom it had granted an easement therein, its refusal to grant the same rights to another telephone company, under its charter (Bal. Code, §739, subd. 7), empowering it to authorize or prohibit the use of electricity in or upon any of its streets, would, not raise any question as to the violation of art. 1, § 12, of the state constitution, which provides that “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, ¿privileges or immunities which, upon the same terms, shall not equally belong to all citizens or corporations.”</p> <p>SAME-SELF-EXECUTING PROVISIONS.</p> <p>Art. 12, § 19, of the state constitution, which declares the right of any corporation or individual to construct and maintain lines of telegraph and telephone upon the streets and highways within the state, that such lines shall be common carriers, and that the right of eminent domain is extended to them, is not self-operative, but by its own terms imposes the duty on the legislature of providing by general law reasonable regulations to give effect to the section, and hence confers no power to use the streets and highways other than as the legislature may provide.</p> <p>MUNICIPAL CORPORATIONS-USE OF STREETS BY TELEPHONE LINES —- POWER OF CITY TO REFUSE-CONSTRUCTION OF STATUTE.</p> <p>There being no restriction on the legislative control of streets and highways contained in art. 12, § 19, of the constitution, which declares the right of individuals and corporations to maintain lines of telegraph and telephone within the state, the provision in Bal. Code, § 4369, the statute passed pursuant to such constitutional declaration, “that where the right-of-way, as herein contemplated, is within the corporate limits of any incorporated city, the consent of the city council thereof shall be first obtained before such telegraph or telephone line can be erected thereon,” is valid, and amounts to an authorization to the council to refuse, as well as consent, to such use of the streets, and is not intended as an authorization of power merely to prescribe reasonable and proper regulations for the construction and operation of such lines, inasmuch as the power of regulation and control is amply conferred by Bal. Code, § 739, subd. 7.</p>

<p>Appeal from Superior Court, Clallam County. — Hon. James Gr. Me Clinton, Judge.</p>

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

<p>CRIMINAL LAW — MISDEMEANOR — PROSECUTION BY INFORMATION — GROUNDS FOR.</p> <p>The rule governing in ease of prosecutions by information for felony, that the information need not allege the grounds justifying procedure in that form rather than by indictment, but that defendant must urge objections because of the absence of grounds for the filing of an information prior to his plea thereto, is applicable also in prosecutions for misdemeanor by information.</p> <p>SAME-SELLING LIQUOR TO MINOR — SUFFICIENCY OF INFORMATION.</p> <p>An information which charges that defendant “did wilfully, unlawfully and knowingly sell and give intoxicating liquor,” to a minor, sufficiently charges that defendant had knowledge of the minority of the purchaser, and the word “knowingly” is not referable to the act of selling the liquor alone, but imports knowledge of the thing done as well as an evil intent or bad purpose in doing such thing.</p>

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

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

<p>MASTER AND SERVANT-ASSUMPTION OP RISKS.</p> <p>Where an engineer in charge of the operation of the power house of a cable railway was killed by falling into the winder wheel while oiling the bearings, the facts that there were no guard rails around the wheel, that the hutment on top of which he was compelled to walk in that work had a defective place in it rendering the surface uneven, and that the part of the house where the wheel was located was so insufficiently lighted that he was compelled to carry a candle while oiling, would not warrant a recovery by his family against the company, when the condition of the place was open - and apparent, and the engineer had. accepted the employment after full examination thereof, and had continued in the employment with knowledge of its unsafe character.</p>

<p>CONTRACT OF EMPLOYMENT-ACTION FOR BREACH-DAMAGES.</p> <p>Where an action for breach of a contract of employment was commenced during the term of employment contracted for, but not tried until after the expiration of such term of employment, the plaintiff is entitled to recover the same damages that he would have been entitled to had the action been commenced after the expiration of the term.</p> <p>TRIAL — REFUSAL OF REQUESTED INSTRUCTIONS — HARMLESS ERROR.</p> <p>The refusal of the court to give pertinent requested instructions is not error, when the court’s instructions in its own language are substantially the same as those requested by appellant.</p>

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

<p>MORTGAGE FORECLOSURE'-REDEMPTION PERIOD-OCCUPATION OP PREMISES BY DEBTOR-CONSTITUTIONAL LAW.</p> <p>Laws 1899, p. 93, § 15, which provides that in case of the sale on execution of any homestead occupied for that purpose, the judgment debtor shall have the right to retain possession thereof during the period of redemption without accounting for issues or value of- occupation is unconstitutional as to foreclosure sales under mortgages executed prior to its passage, when the law in force gave the purchaser on foreclosure sale the right of possession from the day of sale.</p>

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

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

<p>CORPORATIONS-FRANCHISE-WHAT CONSTITUTES.</p> <p>The right given, by statute to form boom companies for the purpos'e of improving floatable streams, operating booms therein, and charging tolls for logs boomed, constitutes a franchise to any company organized and operated thereunder, although the right possessed by such company may not be an exclusive one.</p> <p>TAXATION-CORPORATIONS - EIGHT TO TAX FRANCHISE-NOT AFFECTED BY LICENSE FEES.</p> <p>The annual license fee of ten'dollars imposed by statute upon corporations doing business in this state, is merely an excise upon the right of the corporation to exist and does not supersede the right to tax the franchise of the corporation.</p> <p>SAME-ASSESSMENT-OBJECTIONS TO VALUATION —■ TIME AND PLACE TO URGE.</p> <p>A corporation cannot complain of the' arbitrary valuation placed upon its franchise by the assessor, where it has made no application to the board of equalization for a reduction of the valuation placed upon its personal property.</p>

<p>DIVORCE-SERVICE BY PUBLICATION-AFFIDAVIT-SUFFICIENCY.</p> <p>Under Bal. Code, § 4877, authorizing summons by publication in actions for divorce, when defendant cannot be found in the state, upon the filing of an affidavit by plaintiff or his attorney, stating he believes defendant is not a resident of the state, and alleging the existence of one of the cases specified in the statute in which publication is permissible, the affidavit in support of service by publication is sufficient, although it states conclusions instead of probative facts, and although it makes no reference to the property of the parties, since the disposition of the property is a mere incident of the divorce and follows from the action itself.</p> <p>PLEADING-AMBIGUITY-CONSTRUCTION.</p> <p>Where the language of an affidavit is capable of two constructions, that which is plainly consonant with common sense and the actual facts must be adopted.</p> <p>SAME —SUMMONS-DESCRIPTION OF PROPERTY INVOLVED.</p> <p>Where a summons by publication in an action for divorce notifies defendant that one of the objects of the action is to procure “the equitable distribution to plaintiff of the property, real and personal, of plaintiff and yourself,” it is sufficient to notify the defendant that the disposition of his separate property, as well as that of the community, is contemplated, since the court has jurisdiction in divorce to dispose of all the property of the parties described in the complaint.</p>

<p>PLEADING AND PROOF-VARIANCE-MATERIALITY.</p> <p>Where the complaint in an action upon an accident policy to recover ror the death of the insured alleged that he fell and bruised his left side, directly over the heart, and died as a direct result of such injury, and a bill of particulars filed in connection with such complaint alleged that the death of the insured was caused by the injuries to his side, and the character of the injuries causing his death were described as being a bruise and injury upon the side directly over the heart, causing a malignant growth of spleen and fatty degeneration of the heart, the ultimate fact alleged is that the death was caused by the injury to his side, and the pleader’s conclusion that the injury produced malignant growth of spleen and fatty degeneration of the heart, while the evidence showed that the injury produced inflammation of the pericardium instead, would constitute but an immaterial variance, which could not have misled the defendant to its prejudice.</p> <p>VERDICT —■ INCONSISTENCY BETWEEN GENERAL AND SPECIAL.</p> <p>Where a complaint, in addition to containing sufficient facts to state a cause of action, includes in its allegations immaterial statements, which amount to nothing more than the pleader’s conclusion from the facts stated, a special verdict finding against him on such immaterial allegations cannot be held as inconsistent With a general verdict in his favor. ■</p>

<p>FRAUDULENT CONVEYANCES — ACTION TO CANCEL — SUFFICIENCY OF EVIDENCE.</p> <p>In an action to set aside a fraudulent conveyance, a finding of fraud is not supported by the evidence, when it appears therefrom that the grantor, about a year prior to the institution of a suit against him to enforce a stock subscription, left the state, leaving no property therein subject to execution, other than the lands in controversy, which he at that time conveyed to another in trust for a third person, but had continued for some time after, the transfer to receive rents from a tenant on the premises, when the cestui que trust testified that he paid a valid consideration for the land, specifying the manner of payment, which was corroborated both by the grantor and the trustee, and there were no facts or circumstances in evidence impeaching the veracity of the witnesses who denied the fraud.</p>

<p>BILLS AND NOTES — PLEADING — ALLEGATION OF CONCLUSIONS-WAIVER OF DEMAND AND NOTICE.</p> <p>An allegation in a complaint upon a promissory note against an indorser thereof that at the time of indorsement “he waived demand and notice” is not such a conclusion of law as to render the complaint demurrable for want of facts, since such allegation is one of the facts, although the facts stated may embody a conclusion as well.</p> <p>SAME-PROOF ADMISSIBLE UNDER GENERAL DENIAL.</p> <p>In an action against an indorser upon a promissory note, in which the complaint alleges waiver by defendant of demand and notice, the defendant may, under the general denial, prove that the waiver was not upon the note at the time of its indorsement by him, since it is necessary on plaintiff’s part to prove his averment of waiver, and the general' denial puts in issue all the material allegations of the complaint.</p>

<p>RECEIVERS-PLURALITY OF PUNDS-PAYMENT OP CLAIMS-PLEADING -SUFFICIENCY OP PETITION.</p> <p>Where a receiver áppointed to take charge of the' partnership, community, and individual estate of an insolvent, and authorized to first pay all the firm and community liabilities out of the partnership and community property before applying any balance thereof to the satisfaction of the insolvent’s individual debts, is sought to be restrained by a firm creditor from paying a creditor of the separate' estate out of the funds arising from the community estate, a cross petition of the individual creditor fails to state facts sufficient when it alleges that $30,000 had been realized from the insolvent’s separate estate and applied in discharging liens against the community realty and in paying the expenses of the receivership, nearly all. of which expenses had been connected with the administration of the partnership estate, when there is no allegation that the money was not properly so applied under the decree, nor any allegation of unauthorized diversion of funds from one class of claims to the other, nor any allegation that there is any money in the receiver’s hands, derived from the individual estate, sufficient to pay any part of the cross petitioner’s claim.</p> <p>SAME —ALL FUNDS AVAILABLE FOB RECEIVEBSHIP EXPENSES.</p> <p>Where hut one receivership has been created to take charge of the firm, community, and individual estate of an insolvent, funds derived from any of such estates are available for payment of the expenses of the receivership, although the decree provided for payment of each class of creditors primarily from the corresponding class of funds.</p> <p>SAME — ’ BENTS FROM COMMUNITY REALTY — LIABILITY FOE DEBTS OF ONE SPOUSE.</p> <p>Where a decree of the court appointing a receiver directs him to take charge of the community estate of an insolvent and apply the proceeds thereof to the satisfaction of community debts, such a specific lien is created against the property as to render the rents collected therefrom by the receiver community funds.</p> <p>SAME — SUPERSEDING PBIOE OEDEBS BY FINAL DECREE.</p> <p>Where the court in an Insolvency proceeding has rendered a final decree fixing the claims of all the various classes of creditors, marshalling and listing all the assets in the receiver’s hands, and directing a sale thereof and the payment of the various claims according to their character out of the various kinds of property, consisting of partnership, community, and individual assets of the insolvent, such final decree supersedes a prior one in the cause, wherein the receiver was ordered to pay petitioner’s claim “out of any money available in his hands so to do.”</p>

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

<p>FISHERIES-FISHING SITE-ABANDONMENT-RIGHT OF RE-LOCATION.</p> <p>Laws 1897, p. 218, § 7, which provides that, if the holder of a fishing license, who has indicated a location for his trap or pound net by driving piles and posting his license number, “fails to construct his appliance during the fishing season covered by his license, such location shall be deemed abandoned,” does not preclude one who has abandoned a fishing site from re-locating thereon for the next fishing season, when no other person has acquired a prior claim thereto between the time of his abandonment and his re-location.</p> <p>SAME-PRIORITIES.</p> <p>Under Laws 1897, p. 218, § 7, which provides “that any person or corporation, after having obtained a license as provided for in this act, shall indicate locations for traps or pound nets made under such license, by driving at least three substantial piles thereon, which must extend at least ten feet above the surface of the water at high tide, one of said piles to be driven at each end of the location claimed, and upon said terminal piles there must be posted the license number,” the plaintiff, who on the afternoon of March 16th placed temporary poles on the beach while the tide was out and posted his license number thereon, and three days later drove substantial piles farther out, did not thereby acquire a superior right over defendant, who, on the evening of March 16th, posted its license number on its own piles already on the site, when the defendant had on the morning of that day been engaged at the site in making tests of the course of the tides by means of lines and floats, preparatory to fixing a pound net at that place, — the acts of the defendant thus being as effective as those of the plaintiff to indicate an intention to make a fishing location on the site, and the defendant being actually first in time to indicate its intention and also to literally comply with the statute.</p> <p>SAME —■ INDICATING LOCATION STATUTORY REQUIREMENTS.</p> <p>The act of a locator of a fishing site' in posting its license number upon its own piles, driven upon the site in prior years, constitutes a literal compliance with the requirement of the statute that locations for pound nets shall be indicated “by driving at least three substantial piles thereon,” and posting the license number upon the terminal piles, since the statute does not require the act of. driving the piles and the act of posting notices thereon to he concurrent.</p>

<p>TRESPASS RESULTING IN CONTINUED NUISANCE-ACTION FOR DAMAGES —• LIMITATIONS.</p> <p>Where a city in the improvement of a street constructed a bulkhead so negligently that it gradually gave way and encroached upon the premises of an adjoining lot owner to such an extent as to cause injury to a house situated thereon, the trespass constitutes an injury in the nature of a continuing nuisance, for which the party injured may recover accrued damages as often as he brings action therefor, and is not restricted to a single action to recover present and prospective damages; and hence the statute of limitations would not begin to run from the inception of the injury.</p>

<p>MUNICIPAL CORPORATIONS-DEFECTIVE STREET-ABSENCE OF RAILING -NEGLIGENCE.</p> <p>Where a city maintains a street, elevated from three and one-half to six feet above the adjacent land, without a guard rail to protect teams from shying off the roadway in case of fright, it is liable for negligence when a gentle horse, driven with ordinary care by an experienced driver, becomes frightened at the sight and noise of escaping steam blown off at that point of the street through pipes passing thereunder from an electric power house operated by the city, and backs the buggy to which it is harnessed off the roadway, causing serious injuries to the driver.</p> <p>SAME — ’ INSTRUCTIONS REASONABLE AND ORDINARY CARE.</p> <p>An instruction which charges a jury that the law imposes on municipalities the duty of ordinary care in maintaining their streets in safe condition for ordinary travel is not erroneous on the ground that the law merely requireá the exercise of reasonable care in such cases, since there is no distinction between ordinary care and reasonable care.</p> <p>ACTION FOR PERSONAL INJURIES-PERMANENCY OF INJURY-PLEADING AND PROOF.</p> <p>The admission of testimony by physicians that plaintiff in an action for personal injuries would probably never recover his health again was not erroneous, under a complaint alleging that he would be incapacitated from doing his work for the period of two years, when the complaint further alleges that plaintiff was permanently injured and would continue to suffer for the remainder of his natural life great bodily pain and mental anguish. ■</p> <p>SAME-ARGUMENT OF COUNSEL.</p> <p>In an action to recover damages for personal injuries, a statement by counsel that plaintiff “tells you the truth when he tells you he will not be able to get married, and I submit the proof shows that he is incapacitated from contracting the marriage relation,” would not be prejudicial error, on the ground of improper argument of counsel, when the record shows that the statement was warranted by the testimony of plaintiff.</p>

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

<p>CONVERSION-LIMITATION OF ACTIONS.</p> <p>Where one rightfully in the possession of another’s goods ■wrongfully pledged them to a third party, who afterwards sold them in satisfaction of the pledge, the limitation upon the owner’s right of action against the pledgee for conversion began to run from the time of the pledgee’s acquisition of the goods and not from the time of sale.'</p> <p>SAME-PLEADING STATUTE OF LIMITATIONS-SUFFICIENCY OF ANSWER.</p> <p>An answer, in an action for conversion of plaintiff’s goods, which alleges that “For further and affirmative answer to said complaint, defendant says that more than three years elapsed between the accruing and commencement of plaintiff’s alleged cause of action,” while defective as a plea of the statute of limitations, is yet sufficient to put the plaintiff on notice that the statute would be relied on as a defense, and, where not moved against in the lower court by demurrer or motion, will, on appeal be considered as amended, under Bal. Code, §§ 4957, 6535, since no substantial right of the plaintiff was affected by its defectiveness.</p>

<p>CARRIERS-FAILURE TO CARRY PASSENGERS TO DESTINATION —: ACTION FOR DAMAGES-NEW TRIAL-VERDICT CONTRARY TO INSTRUCTIONS.</p> <p>In an action against a carrier for damages for failure to transport plaintiff to a destination contracted for, the refusal of the court to grant a new trial on the ground that the verdict in plaintiff’s favor was contrary to the instruction of the court, was not error, where the court charged that it was plaintiff’s duty, in case of the inability of the carrier to transport him, either to finish the journey himself or return to the point of embarkation, if either was reasonably practicable, and that he could not recover for loss of time or sickness if he remained unnecessarily at the point where the carrier left him, since the question of whether it was reasonably practicable for plaintiff to return to the point of embarkation or continue to the point of destination was submitted to the jury and by their verdict they found that it was not practicable for him to do either.</p> <p>SAME-INSTRUCTIONS.</p> <p>Where a transportation company agreed .to carry plaintiff to Dawson City by way of the Yukon river, and failed to perform its contract, but, after its failure to carry him further than Port Yukon, the captain of the steamer represented that he would take him down the river seventy miles, where there was a cabin suitable for occupancy and a good place to cut wood for the winter; and plaintiff was put ashore at that point on condition that he would cut wood for the defendant, and there contracted a cold and severe sickness, permanently impairing his health, by reason of the fact that the cabin was not in a habitable condition, it was not error for the court in an action by him for damages to refuse to charge that plaintiff’s sickness was not, under the testimony in the ease, such a result of any failure of the defendant to carry him to Dawson as would entitle him to reimbursement, since it was for the jury, and not the court, to say whether, under the testimony, the plaintiff’s sickness was the result of defendant’s failure to carry him to Dawson.</p>

<p>PLEADING-AMENDMENT OE COMPLAINT ON TRIAL.</p> <p>In an action to quiet title in which the defendants had set up the defense that the taxes on the land in controversy had been paid by them, it was not an abuse of discretion for the court to permit the plaintiff on the trial to amend her complaint by interlineation so as to show payment of taxes for certain years by her grantor.</p> <p>EVIDENCE-'OBJECTION TO ADMISSION-TIMELINESS.</p> <p>The refusal of the court to strike the testimony of a witness, on the ground that it related to transactions with a deceased person and that the witness was disqualified under Bal. Code, § 5991, as being a party in interest, was not error, where the testimony was admitted without objection, the witness subjected to a rigid cross-examination on the matters involved, but no examination made as to his alleged interest and no opportunity afforded him for explanation, and the motion to strike his testimony was not interposed until some days following its admission.</p> <p>PAROL-ADMISSIBLE TO IDENTIFY DESCRIPTION IN DEED.</p> <p>Under the rule that parol evidence is admissible to identify the property described in and conveyed by a deed, in order to ascertain to what property the particulars of description in the deed apply, it is permissible to prove by parol that a tract of land described in a deed as “lot 6” was intended to include an unnumbered fractional lot adjoining.</p>

<p>NEW TRIAL —■ ABUSE OF DISCRETION.</p> <p>The action of the trial court in granting a new trial cannot be considered as an abuse of discretion, when there was a substantial conflict in the testimony, and there is nothing in the record disclosing that the new trial was granted because of a misconception of the law applicable to the case.</p>

<p>HIGHWAYS — PRESCRIPTIVE EIGHT — INTERRUPTION OF USE BY PUBLIC.</p> <p>A title by prescription to a highway did not inure to the benefit of the public from the fact that the public had been permitted for a number of years to travel a road across private premises, and that that portion of the road had been worked by the county during the absence of the owner, when there were distinct acts on the part of the owner, prior to the maturing of a prescriptive right, indicating an intention not to dedicate a highway, such as maintaining gates across the road, and posting notices thereon that it was private property, and demanding that the gates be kept shut.</p> <p>SAME —■ LAYING OUT VALIDITY.</p> <p>■ The fact that viewers appointed by the county commissioners to survey a road in pursuance of a petition therefor continue the survey beyond the limits set by the petition would give no authority to the county to establish a road beyond the point named in the petition.</p>

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

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

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

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

<p>ARSON —■ VALIDITY OF STATUTE-PLURAL SUBJECTS EMBRACED IN ONE ACT.</p> <p>Laws 1895, p. 173, defining the crimes of arson and attempted arson ,and providing a punishment for each, does not violate art. 2, § 19, of the constitution, which provides that “No bill shall embrace more than one subject,” since arson and attempted arson are sufficiently connected to permit legislation with reference thereto to be embodied in one act.</p> <p>JUROR-QUALIFICATIONS-SERVICE ON JURY WITHIN PREVIOUS YEAR.</p> <p>Bal. Code, § 4748, which makes service upon a jury within the previous year a ground for challenge, does not render one incompetent to serve as a juror, in the absence of a challenge.</p> <p>NEW TRIAL —■ DISCRETION OF COURT-FALSE ANSWERS BY JUROR. ■</p> <p>The refusal of the court to grant a new trial on the ground that a juror had testified falsely on his voir dire as to having formed an opinion of guilt previous to the trial cannot be regarded as an abuse of discretion merely from the fact that two persons make affidavit thereto in opposition to the .affidavit of the juror alone.</p>

<p>SUBMITTED QUESTION'S-FAILURE OF JURY TO ANSWER- — -RIGHT OF COURT TO DETERMINE.</p> <p>The failure of a jury in an equity case to answer a question submitted by the court for their investigation as to the facts will not preclude the court from proceeding, upon the testimony adduced, to make findings of fact and conclusions of law in reference to the subject covered by such question.</p>

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

<p>JURISDICTION OF STATE COURTS-QUESTIONS INVOLVING TITLE TO PUBLIC LANDS.</p> <p>The superior court of this state has jurisdiction, in the absence of any statutory enactment to the contrary, to determine questions between Indians regarding. Indian lands within the state, which have been allotted under the treaties and statutes of the United States.</p> <p>QUIETING TITLE-RIGHT OF OCCUPANT TO MAINTAIN ACTION.</p> <p>Any person in possession of land, although not the owner of the fee, may maintain an action for the purpose of quieting his title thereto, so as to avoid any uncertainty in his holding, under Bal. Code, § 5521, which provides that any person in possession of real property may maintain a civil action against any person claiming an interest in said real property, or any right thereto, adverse to him, for the purpose of determining such claim, estate or interest,</p> <p>PUBLIC LANDS-ALLOTMENT TO INDIANS-NATURE OE TITLE-RIGHT OE INHERITANCE.</p> <p>Under the sixth article of the treaty of 1854 with the Nisqually and other tribes (10 U. S. St. at Large, 1044), which provides that the president may assign to each Indian family of two, one quarter section of land, to each family of three and not exceeding five, one half section, and to larger families, more in proportion, if such Indians will locate on the same as a permanent home; may issue patent therefor conditioned against power of alienating the lands; and may cancel the assignment in case such family neglect to occupy and till a portion of the assigned lands, nothing passes by patent except the right of possession and occupancy of the lands described, but the absolute fee remains in the government, and hence, upon the death of tne wife, no rights would pass by inheritance to the children of the wife by a former marriage, where an assignment of a quarter section had been made to her husband as the head of a family composed of himself and wife, and the land granted to him as the head of said family and to his heirs.</p>

<p>WILLS-CONSTRUCTION-DEATH OF DEVISEE.</p> <p>Under Bal. Code, § 4608, which provides that “Every devise of land in any will shall be construed to convey all the estate of the devisor therein, unless it shall clearly appear by the will that he intended to convey a less estate,” a will must be construed as passing an absolute fee-simple title to the devisee named, instead of a life estate, when the will devises “the balance of my property, real and personal, to my cripple son, Charles. ... In case of his death it is my desire that my sole property shall be applied to the school fund of Wilbur,” since, in the absence of a clear intent to convey a less estate, it must be construed that the testator had reference to the possibility of the devisee’s death before his own.</p>

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

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

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

<p>FOREIGN CORPORATIONS-SERVICE OF SUMMONS-AGENTS WITHIN THE STATE.</p> <p>Under Bal. Code, § 4854, which provides that an action against a corporation may be brought in any county where the corporation has an office for the transaction of business, or any person resides upon whom process may be served against the corporation, and Id. § 4875, subd. 9, which provides that if suit be against a foreign corporation doing business within the state, summons may be served on any agent of the corporation, service of process issued out of the superior court of Clarke county upon a purser and a wharfinger in the employ of a foreign corporation is sufficient, where the company was operating a line of steamers on the Columbia river, which, under the charge of the purser, received and discharged freight and passengers at Vancouver, landing regularly at the wharf there for that purpose, and hence making the wharf an office in this state for the transaction of such business.</p> <p>ADMISSION OF EVIDENCE-HARMLESS ERROR.</p> <p>Error in permitting the husband to testify that the value of the loss of his wife’s services by reason of her sickness occasioned through the act of defendant was $2,000, instead of requiring the witness to state the facts and circumstances of the injury, for the purpose of allowing the jury - to determine the amount, was harmless, where the verdict rendered was for $600.</p> <p>NON-SUIT-SUFFICIENCY OF EVIDENCE.</p> <p>Refusal to grant a non-suit is not error, when there is evidence, though conflicting, sufficient under the allegations of the complaint to sustain the verdict.</p> <p>EXCESSIVE DAMAGES.</p> <p>In an action to recover damages against a navigation company for breach of a contract of carriage, and for injuries arising from the negligent and wrongful and forcible landing by defendant of an aged woman at a wrong destination, and the carelessness of defendant’s agents in the manner of putting her off upon a barren island, exposed to the inclemency of stormy weather, from which they failed to rescue her b.ut allowed her to make her way home as best she could, which she did after two days’ travel, incurring sickness and great bodily discomfort from her exposure, a verdict for $600 does not indicate passion or prejudice on the part, of the jury.</p>

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

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

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

<p>INFANTS-VAGRANCY-COMMITMENT TO REFORM SCHOOL-SUFFICIENCY OF EVIDENCE .</p> <p>The commitment of boys between the ages of eight and fifteen years to the reform school on the ground of vagrancy, under Bal. Code, § 2724, is unwarranted, when there was no testimony before the court showing they were guilty of vagrancy, or mendicancy, or incorrigibility, or had been convicted of crime, and the testimony introduced showed merely that the house in which they lived was very dirty, the mother being dead and the father away at work most of the day; that the hoys were not clothed as well as some other boys in the community, but that they had plenty to eat; that on one occasion they had, with some other boys, broken into a house in the neighborhood, but there was nothing in the testimony showing how long before; and when the testimony in their behalf showed that they attended school regularly, were not of quarrelsome dispositions, and were regarded by some of the witnesses as good boys.</p>

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

<p>HOMICIDE —■ IDENTIFICATION OF BODY-CONCLUSIVENESS OF JURY’S FINDING.</p> <p>In a prosecution for murder, in which the identity of the dead body is a question in issue, for the reason that the flesh of its face had been eaten away beyond recognition, the' verdict of the jury establishing identity of the body with that of the alleged murdered man is conclusive on the appellate court, when it appears that the deceased was last seen alive near the point where the body was discovered, that the body , corresponded with that of deceased in stature, size and hair, that the clothing on it was similar to that worn by deceased when last seen alive, and that a button on the shirt was identified by a witness as having been given by him to deceased some months before.</p> <p>SAME-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.</p> <p>In a prosecution for murder, the jury is not warranted in finding defendant guilty, when the evidence shows that deceased was last seen alive rowing his boat in the direction of defendant’s shack, that ten days later his overturned boat was found adrift and two days subsequently his body was found partially embedded in the sand on the beach, about a mile and a half from defendant’s shack; that by reason of decomposition and the feeding of crabs and gulls on the exposed portions of the face and neck it was difficult to tell whether violence had been used against deceased, but some of the persons witnessing the body were under the impression that the throat had been cut; that the defendant and deceased had theretofore had some slight quarrel over trivial matters, but there was no proof of bad blood between them; and there were no indications of the use of violence in or about the shack or the deceased’s boat, nor was there any evidence of blood upon the clothing or boat of deceased, or upon the clothing or person of defendant nor upon the contents of his shack.</p>

<p>TIDE LANDS-FIRST AND SECOND CLASS-CONSTRUCTION OF STATUTE.</p> <p>Under Laws 1897, p. 248, § 39, which provides that tide lands of the first class shall comprise tide lands “within or in front of the limits of any incorporated city or town, or within two miles thereof on either side,” and all tide lands not included in the above class shall be known as second class, the term “in front of the limits of any incorporated city” must be construed as referring to only such lands as lie adjoining and in front of the limits of a city; and the term “within two miles thereof on either side” should be construed as referring to such tide lands as are located, by measurement along the general direction of the city shore line, within a distance of two miles from either of its two boundary lines which extend inland from such shore line.</p>

<p>Appeal from Superior Court, Cowlitz County. — Hon. Abkai-iam L. Miller, Judge.</p>

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

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

<p>Appeal from Superior Court, Spokane County. — Hon. A. G. Kbli.am, Judge pro tern.</p>

<p>CRIMINAL LAW-SUFFICIENCY OF INFORMATION-DATE OF OFFENSE. >•</p> <p>The failure to allege the exact date of the commission of a crime is not ground of demurrer against an information, where a date within the statute of limitations is alleged’ as the time of its commission.</p> <p>SAME-DEFENDANT AS WITNESS-FORMER CONVICTION.</p> <p>In a prosecution for horse stealing, it is error to compel defendant, who had offered himself as a witness, to testify that he had once before been convicted of horse stealing, since the tendency of such testimony would be to prejudice the jury, and the demands of the statute permitting conviction of a crime to be shown to affect the credibility of a person offered as a witness are met by proof of the conviction, without unnecessary parade before the jury that defendant had at one time been guilty of the exact crime for which he is at the time on trial.</p> <p>SAME-EVIDENCE-SIMILAR OFFENSE.</p> <p>In a prosecution of defendant for horse stealing, it is error to admit testimony showing that he had stolen another horse at about the same time with the one for whose theft he was standing trial, where the two transactions are not so woven together as to constitute interdependent crimes, but the sole effect of the testimony would be to establish the bad character' of defendant and prejudice the jury against him.</p>

<p>LIS PENDENS-UNLAWFUL PILING-CANCELLATION-APPEALABLE ORDER.</p> <p>A Us pendens notice can properly be filed only when there is an action pending involving the land covered by the notice, and the filing of such notice by one of the parties to an action after it has been determined against him constitutes a cloud upon his adversary’s title, which he has a right to have removed; hence an order of the court refusing to act upon his motion for its cancellation is an order affecting a substantial right and therefore appealable.</p>

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

<p>DISMISSAL OF ACTION-FAILURE TO PROSECUTE-PENDENCY OF DEMURRER.</p> <p>The refusal of the court to dismiss an action for want of prosecution is not error, while a demurrer to the complaint is pending and undetermined.</p> <p>LIMITATIONS-SUSPENSION OF STATUTE-ABSENCE FROM STATE.</p> <p>The running of the statute of limitations is suspended during such time as plaintiff is incapacitated from bringing his action by reason of the absence of the defendant from the state.</p> <p>SAME-ACTION ON DEFICIENCY JUDGMENT-WHEN STATUTE COMMENCES TO RUN.</p> <p>Where the entry of a deficiency judgment was made within six years of action thereon, it is not barred (conceding the six years’ limitation is applicable to domestic judgments), although judgment of foreclosure upon which the deficiency judgment was based may have been entered more than six years prior to the commencement of action upon the deficiency judgment.</p> <p>ACTION ON JUDGMENT-EVIDENCE-AUTHENTICATION OF RECORD.</p> <p>The clerk of the court being the custodian of its records, according to the statutes, a judgment record offered in evidence, certified by the clerk, is sufficient without any certificate of the judge that the clerk is the custodian of the records.</p> <p>SAME- JOINT JUDGMENT-ACTION AGAINST ONE DEBTOR.</p> <p>Under the rule that action upon a joint judgment may be maintained against one of the judgment debtors alone, the introduction in evidence of a record showing a judgment against defendant and another, while the complaint states a cause of action against defendant alone, does not constitute a failure of proof.</p> <p>-NON-JOINDER OB DEFENDANTS-TIMELINESS OF OBJECTION.</p> <p>Where there is' a defect of parties defendant, objection on that ground should be raised before trial in order to be available on appeal.</p> <p>APPEAL-FINDINGS OBJECTIONABLE IN FORM-WAIVEB OB ERROR.</p> <p>Failure to except in the trial court to the form of the findings or conclusions of the court constitutes a waiver of error therein.</p>

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

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

<p>WRIT OF REVIEW-WHEN LIES-INADEQUATE REMEDY BY APPEAL.</p> <p>Where a remedy by appeal would be of no avail to one ousted from office by a judgment of the superior court, by reason of the fact that his right to the office would terminate before a hearing could be had on appeal, the supreme court has jurisdiction by writ of review to examine and correct the action of the lower court.</p> <p>COUNTY OFFICERS-TERM OF OFFICE-EXTENSION OF TERM.</p> <p>Where a county superintendent of schools was elected to office under a statute which provided that his “term of office shall begin on the second Monday in January next succeeding his election and continue for two years and until his successor is elected and qualified” and during his term the law was so changed as to make the term “begin on the first Monday in August next succeeding his election,” such county superintendent is entitled to hold the office until the qualification of his successor for the term beginning in August, although thereby his term is made greater than two years, since under the provisions of the statute whereby he holds office he was to continue therein for more than two years, in case his successor was not elected and qualified, and consequently the statute deferring the beginning of his successor’s term from January to August would not be in violation of art. 11, § 8, of the constitution, which prohibits the extension of the term of any county officer beyond the period for which he was elected.</p> <p>SAME.</p> <p>The fact that the incumbent has held office for two terms, and that the constitution (art. 11, § 7) declares that “no county officer shall be eligible to hold his office more than two terms in succession,” is immaterial, since his term does not end until his successor is elected and qualified.</p> <p>SAME-FAILURE TO GIVE NEW BOND-EFFECT.</p> <p>The fact that an incumbent of a county office failed to give a new bond after the expiration of the two years would not disqualify him for the office, since Bal. Code, § 1518, makes the old bond sufficient, during the time such officer shall continue to hold such office.</p>

<p>MORTGAGES- — RECORD INDEX CONSTRUCTIVE NOTICE.</p> <p>A mortgagee of the “Scandinavian Free Church” is not chargeable with notice of a prior mortgage made by the same corporation, when it was’ executed under the name of “Scandinavian Congregational Church,” and indexed under that name in the mortgage records of the county.</p> <p>SAME-EXISTING EQUITIES-NOTICE OE ASSIGNEE.</p> <p>A bona fide assignee of a mortgage for value, although assigned to him after its maturity, is not chargeable with the knowledge of his assignor as to the existence of a prior mortgage, since the rule that the assignee of a mortgage takes it subject to existing equities applies to such equities only as exist between the mortgagor and mortgagee and not to those existing between the mortgagee and third persons.</p>

<p>MANDAMUS-WHEN LIES •— REMEDY BY APPEAL.</p> <p>The refusal of the superior court of one county to assume jurisdiction of a cause sent to it on a change of venue amounts to a final order of dismissal of the cause, which, being reviewable on appeal, precludes the supreme court from affording a remedy by writ of mandate to compel the lower court to entertain jurisdiction. ,</p>

<p>CRIMINAL LAW-EXAMINATION OE JURORS-IMPRESSION OE GUILT.</p> <p>Where a juror states on his voir dire that he has no opinion as to the guilt or innocence of accused, but that he has some slight impression on the subject from having heard the case discussed by persons who did not claim to know the facts, ana that such impression would readily yield to testimony, he is not disqualified on the ground of actual bias.</p> <p>SAME- — DIFFERENCE BETWEEN OPINION AND IMPRESSION.</p> <p>When an attorney in examining a juror as to his qualifications states that there is no difference between having an opinion and an impression as to defendant’s guilt or innocence, it is a misstatement of the law, and it is not error for the court to interfere with the examination for the purpose of correcting the statement and instructing the juror to the contrary.</p> <p>SAJ^E-PREJUDICE-DRUNKENNESS.</p> <p>In examining a juror as to whether or not he was prejudiced against the defenses of drunkenness and insanity, a question to the juror as to which side he would find on, if the evidence as to drunkenness should be equally balanced, was properly excluded, on the ground that it presented a question of law, upon which it was the court’s duty to instruct the jury.</p> <p>SAME-HARMLESS ERROR.</p> <p>The refusal of the court to permit counsel to ask a juror whether he would look upon the defense of intoxication with any degree .of disfavor, if error at all, was cured by permitting counsel subsequently to propound the question, “should the defense consist in part of emotional or hereditary insanity, aggravated, inflamed, and rendered acute by the excessive use of intoxicating liquors, would you regard that kind of defense with any disfavor or prejudice”?</p> <p>SAME —■ HEREDITARY INSANITY.</p> <p>Although a juror, when asked if he had any prejudice against the defense of drunkenness or insanity, answered that to a certain extent he had, yet his exclusion on the ground of prejudice was properly denied, when his examination, taken as a whole, merely shows that he did not approve of drunkenness, and, in answer to questions by tbe court, he said that he could give that defense due effect and pass upon it the same as he would any other defense, and that it would not require any different evidence to prove it than would any other defense.</p> <p>SAME.</p> <p>Where one of the defenses in a criminal case was hereditary insanity, a juror was not disqualified by reason of stating he did not believe in hereditary insanity, when his examination as a whole showed that he did not mean to take that position, but that the defense would have to be proven before he would believe it.</p>

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

<p>DIVORCE-- CRUEL TREATMENT-PLEADING-CONCLUSIONS.</p> <p>A complaint for divorce on the ground of cruel treatment is demurrable for want of facts when the allegations that defendant is quarrelsome and vicious in disposition and murderous in threats against plaintiff and his mother are mere conclusions, without any specification of what defendant’s acts or threats were, or how or when made, and when in none of the allegations setting up cruel treatment is there any specification of such facts as tend to establish injury to the health or person of plaintiff.</p> <p>SAME-- INABILITY TO LIVE TOGETHER.</p> <p>Under Bal. Code, § 5716, which provides that “a divorce may be granted upon application of either party for any other cause deemed by the court sufficient, and the court shall be satisfied that the parties can no longer live together,” the mere fact that plaintiff believes he and defendant. can no longer live together affords no legal cause for divorce.</p> <p>SAME- — ■ SUFFICIENCY OF EVIDENCE-NON-SUIT.</p> <p>In an action for divorce on the ground of cruel treatment, plaintiff should be non-suited, where his testimony shows that he was fully acquainted with the character of defendant prior to marriage, that he had failed to provide for her, that they lived together only about five months after marriage, that he •abandoned her within one week after the birth of their child, and that her threats against his life and that of her child were called forth by his refusal to live with her again.</p>

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

<p>BONDS-ACTION EOE BEEACH-WHETHEE DAMAGES LIQUIDATED OE IN NATUEE OE PENALTY.</p> <p>A bond in the sum of $3,000, conditioned that the obligor shall build or cause to be built upon certain premises within a given time a house which shall cost not less than $2,000, and that he will pay all liens or incumbrances thereon which may be, or threaten to become, prior to a mortgage thereon in favor of the obligee, contemplates that the sum named in the bond shall be in the nature of a penalty and not liquidated damages.</p> <p>SAME-WHEN GIVEN AS GUAEANTY — LIABILITY AETEE EXHAUSTION OE PBIOE SECUEITY.</p> <p>Where a bond conditioned that the obligor will build a house of an agreed value upon mortgaged premises within a stipulated time is given as additional security for the mortgage thereon, in an action on the bond for breach of the condition to build the obligee is not entitled to other than nominal damages, when the mortgaged premises have not been sold under foreclosure and the amount of deficiency determined. ,</p> <p>APPEAL-EEFUSAL TO ALLOW NOMINAL DAMAGES-HAEMLESS JEBBOB.</p> <p>Although error may have been committed in giving defendant judgment on the pleadings, in an action for damages for breach of a bond, when the pleadings show plaintiff entitled to nominal damages, yet the cause should not he reversed merely that nominal damages may be assessed, as no substantial right is affected by the error.</p>

<p>UNLAWFUL DETAINEE-WHEN CAUSE OF ACTION ARISES.</p> <p>Under Bal. Code, §5527, which provides that a tenant of real property is guilty of unlawful detainer, when he, having leased real property for an indefinite time, with monthly rent reserved, continues in possession thereof after the end of any such month, in cases where the landlord, more than twenty days prior to the end of such month, shall have served notice requiring him to quit the premises at the expiration of such month, an action of unlawful detainer will lie against a tenant from month to month, who continues in possession after the end of a month, when notice to quit had been given to him more than twenty days prior thereto. , .</p>

<p>Appeal from Superior Court, Pacific County. — Hon. Henby S. Elliott, Judge.</p>

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

<p>WATERS AND WATERCOURSES-DIVERSION FOR MUNICIPAL PURPOSES-RIGHTS OF RIPARIAN PROPRIETOR.</p> <p>The right which a lower riparian proprietor has to the usual' and undiminished flow of the water in the stream running through' or by his land is property, of which he cannot he deprived without the exercise of the power of eminent domain and" the payment of just compensation, even where the upper proprietor is a municipal corporation which seeks to divert the-waters for a necessary public use.</p>

<p>CRIMINAL LAW-PREMATURE ARRAIGNMENT AND PLEA-HARMLESS ERROR.</p> <p>Error of tbe court, if any, in arraigning defendant in a criminal prosecution and compelling him to enter his plea before procuring counsel is cured by the subsequent action of the court, after the appointment of counsel, in allowing the plea to be withdrawn and the validity of the information to he attacked by demurrer and motion to quash.</p> <p>SAME' — PROSECUTION BY INFORMATION.</p> <p>While certain facts must exist in order to warrant prosecution by information, it is not necessary that the existence of such facts should appear upon the face of the 'information.</p> <p>SAME — CONTINUANCE — ■ DISCRETION OP COURT.</p> <p>The refusal of the court to grant a continuance in a criminal prosecution does not show an abuse of the discretion vested in it, when it appears that several of the witnesses, including those absolutely necessary to the defense, for whom the continuance was asked, were present at the trial, and that other witnesses were obtained from localities where the witnesses lived who were mentioned in the affidavit for continuance, and who testified substantially to all that it was claimed in the affidavit the witnesses desired would testify to.</p> <p>JUROR-VOIR DIRE-RIGHT OF COURT TO PUT LEADING QUESTIONS.</p> <p>The fact that the court, for the purpose of passing upon the qualifications of a juror who has been challenged, asks him the leading question, “Would you not obey the instruction of the court as to the law in the case”? would not constitute error.</p> <p>SAME COMPETENCY — BIAS.</p> <p>A juror is not chargeable with bias or implied bias when he states on his examination that he would require no greater evidence to convict a man of murder in the first degree where the penalty is death than he would where the penalty is imprisonment in the penitentiary.</p> <p>SAME-IMPRESSIONS ACQUIRED BY READING NEWSPAPER.</p> <p>In a prosecution for murder, when the fact of killing was not denied, but the defense was based on drunkenness and insanity, a juror was not shown to be disqualified from the fact that he had read a newspaper account of the killing, but did not know who was charged; that he had no opinion as to the guilt or innocence of the accused; that what he read was a, mere matter of news and he did not know whether the newspaper account was true or not, but he believed from the account the person ■ whose name was given in the paper was the person who killed deceased, and thaif it would take considerable evidence to change his mind.</p> <p>SAME-RELATIONSHIP BETWEEN ATTORNEY AND JUROR.</p> <p>The fact that the attorney for the prosecution trades with a juror, and that the latter has a high-opinion of him as a man, and would go to him if he should become involved in litigation, but has never consulted him as an attorney, is not a disqualification of the juror, under Bal. Code, § 4984, which provides that a challenge for implied bias may be taken when it appears that the juror and the- attorney are standing in the relation of attorney and client.</p> <p>WITNESSES-EXPERTS-'COMPETENCY.</p> <p>The action of the court in overruling an objection to the competency of a witness as an expert upon questions of insanity is not error, when the record shows that, although the witness stated he did not like the word “expert” and did not call himself an expert, yet he was a practicing physician; that he had examined people a great many times and even deprived them of their liberty in an asylum by his knowledge of insanity, though not assuming to be a specialist on that subject.</p> <p>SAME — -COMMENTS BY COURT ON QUALIFICATIONS.</p> <p>Comments by the court upon the qualifications and competency of a witness offered as an expert do not constitute error, when the comments were made in answer to objections by the attorneys, in passing upon the qualifications of the witness.</p> <p>SAME-HYPOTHETICAL QUESTIONS — HARMLESS ERROR.</p> <p>Where objection was made that a question propounded to a witness was not a hypothetical question, because not based upon the evidence in the case, the ruling by the court that it was a question for the jury and not the court to decide, if error, was without prejudice, when it plainly appeared from the record that the question was founded upon the testimony.</p> <p>HOMICIDE- — -MURDER IN FIRST DEGREE-WHEN QUESTION FOR JURY.</p> <p>Where the testimony of eye witnesses to a homicide tends to show malice, premeditation and deliberation on the part of the accused, it is proper for the court to refuse to take from the consideration ■ of the jury the question of murder in the first degree.</p> <p>ARGUMENT OF COUNSEL •— REFERENCE TO MATTERS NOT IN EVIDENCE — WHEN PROPER.</p> <p>It is not improper for the attorney for the state, in his closing argument to the jury, to advert to matters that the defendant’s attorney in his opening statement claimed they would prove, and call attention to the fact that no evidence had been introduced upon those points.</p> <p>SAME-INSTRUCTING JURY AGAINST IMPROPER ARGUMENT.</p> <p>Where the court informs the jury that the remarks of counsel are not proper, it is equivalent to an order withdrawing the remarks from their consideration, and no error can be based upon the improper argument.</p> <p>BAILIFFS-IN CHARGE OF JURY-RECITALS OF RECORD.</p> <p>Where the record shows that the jury retired in charge of a sworn bailiff, it is a sufficient showing that the bailiff was sworn to take charge of the jury in accordance with the statute.</p> <p>SAME MISCONDUCT ■— REMOVING JURY FROM ONE ROOM TO ANOTHER.</p> <p>The taking a jury from one part of a court house to a more comfortable room in the same building, after they had agreed on their verdict, but before it was received, doe's not constitute such a separation of the jury as to be misconduct on the part of the bailiff.</p>

<p>JUDGMENTS-VACATION-EES JUDICATA.</p> <p>One who has attacked a judgment by motion to vacate, and has failed to prosecute an appeal from the denial of his motion, cannot subsequently maintain an action to cancel the judgment, since his remedy was by appeal, and the question of the validity of the judgment is res judicata.</p> <p>SAME-DISCRETION OE COURT.</p> <p>Where the appellate court is not in possession of all the circumstances surrounding the case upon which the lower court acted in refusing to vacate a judgment, there is no ground for its interference with the action of the lower court, since the question of the vacation of a judgment is so largely a matter of discretion, that the. orders of the lower court therein will not be reversed, unless it plainly appears that the discretion has been abused.</p>

<p>STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER-WHEN CONSTITUTES ORIGINAL PROMISE.</p> <p>A promise by a debtor to pay the debt of his creditor to a third party, made in consideration of receiving credit upon his own indebtedness, is an original promise, and not within the statute of frauds. ,</p>

<p>LOGS AND LOGGING-EIGHT OP LIEN-WAIVER BY CONTRACT.</p> <p>Where a laborer employed in getting out saw logs entered into an agreement whereby the employer was not to pay therefor until he had sold the logs to some mill and received the proceeds of. the sale, the laborer thereby waived his statutory right of lien by his contract to give his employer the absolute possession and power of disposal of the logs.</p>

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

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

<p>' MASTER AND SERVANT-DEFECTIVE MACHINERY-INJURY TO SERVANT -CONTRIBUTORY NEGLIGENCE.</p> <p>In an action to recover for personal injuries, the refusal of the court to instruct the jury to find for defendant, on the ground of plaintiff’s contributory negligence, was proper when the evidence showed that plaintiff, while tending the separator of a threshing machine had the engine stopped so that he could remove and substitute concaves in the cylinder of the separator and straighten the teeth on such concaves; that while he had his hands in the cylinder engaged in such work the engine, owing to its leaky, defective and worn out condition, which was unknown to plaintiff, but of which defendant had knowledge, started - automatically after it had been stopped by the engineer, communicating power to the separator and causing the cylinder to revolve, whereby plaintiff’s hands were so badly lacerated that amputation was necessary; that there would have been no opportunity for the cylinder to be set in motion, if plaintiff had removed the pin holding together the knuckles of two sections of a revolving tumbling rod, which was used to communicate power from the engine to the separator, but it was never customary to disconnect the separator from the source of power in that way; that the cylinder could have been held from turning by the insertion of an iron bar so as to eateh its teeth, but such a method was not customary as it was necessary to slowly turn the cylinder when examining whether its teeth and those of the concaves interfered; and that the evidence as to defendant’s having instructed plaintiff to use an iron bar for the purpose of holding the cylinder was conflicting.</p> <p>INSTRUCTIONS-WITHDRAWAL OF REQUEST FOR WRITTEN INSTRUCTIONS -EFFECT.</p> <p>Where appellants did not ask for written instructions, nor join respondent in his request therefor, the appellants cannot urge the objection on appeal that they had no knowledge of respondent’s having withdrawn his request for written instructions, and that they relied on the instructions being given in that form, and not orally.</p> <p>SAME — LENGTH OF — DISCRETION OF COURT.</p> <p>The length of the instructions given by the court to the jury is a matter within its discretion, and error cannot be predicated thereon, as long as the instructions given contain correct statements of the law as applied to the particular case.</p>

<p>MASTER AND SERVANT-SAFE PLACE TO WORK-ASSUMPTION OF RISKS.</p> <p>Where it was the custom in a store building having an elevator running from the basement to the second floor for any of the employees, without the ringing of a bell, to move same at his own convenience by pulling a rope, an employee whose business it was to make use of such elevator must be held as having assumed the risk of his employment, and where, while engaged on one floor in loading the elevator, he backed into the open shaft and fell to the basement by reason of the elevator having been moved without warning, by another employee, he cannot recover for his injuries.</p>

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

<p>LANDLORD AND TENANT-ACTION FOR POSSESSION-PLEADING-AMENDED ANSWER — DEPARTURE.</p> <p>In an action by the owners of premises to recover restitution and damages for detention, in which defendant pleaded a surrender and cancellation of an outstanding unexpired lease held by another, and that thereupon plaintiffs entered into an express agreement with him, whereby he was to have possession of the premises described for a period of one year, the filing of an amended answer by defendant, after issue joined, setting up certain facts by way of an equitable estoppel does not amount to an abandonment of the original defense and such a departure as to take plaintiffs by surprise, when the second answer is, in effect, an extended explanation of the particular manner in which the defendant came into possession of the premises, and the reasons for entering into the contract.</p> <p>SAME-VERBAL LEASE-ESTOPPEL.</p> <p>Where one of the owners of premises refers an applicant for a lease thereof to another of the owners, with the statement that the latter had the management of the property, and whatever arrangement was made with the latter would be satisfactory, and such applicant, relying upon the representation of both such owners as to the latter having full power and authority to make the lease, enters into a- verbal lease of the premises with the latter, and expends money in their improvement, the owners are estopped to deny the validity of the lease.</p>

<p>MASTER AND SERVANT-ASSUMPTION 03? RISK-APPARENT DANGERS-CONTRIBUTORY NEGLIGENCE.</p> <p>An employee, injured by tbe the giving way of a tie of a trestle and being precipitated into the water beneath, is chargeable with contributory negligence, where defendant was engaged in repairing the trestle by drawing new piles, laying new stringers and ties, where necessary, and laying new rails; and, in order to drwe new piles, the ties had been cut out at intervals, a fact which was known to all the workmen, and was a danger that was apparent and against which the foreman had frequently warned the workmen; and the injury to plaintiff was the result of his having stepped upon one of these shortened ties, while engaged in the work of pulling and gathering the spikes which held the rails to the ties.</p>

<p>APPEAL-DISMISSAL — RESUMPTION OF JURISDICTION BY TRIAL COURT.</p> <p>Where a motion by appellants to dismiss their own appeal was filed on June 26th, with respondent’s permission to have the motion acted on at once indorsed thereon, and notice was served on the parties that the motion was granted, though a formal dismissal of the appeal was not made by the supreme court until September 14th, the trial court again acquired jurisdiction of the cause so as to make its orders entered therein on the 30th of June legal.</p> <p>FISHING SITE-ABANDONMENT •— RELOCATION.</p> <p>The failure of a locator- of a fishing site to construct a trap thereon during the fishing season covered by his license, under Laws 1897, p. 214, § 7, does not constitute such an abandonment of the location as to disqualify the licensee for relocating the same for the next fishing season.</p>

<p>MINES AND MINERALS-LOCATION OF CLAIMS-MARKING BOUNDARIES • — -REASONABLE TIME.</p> <p>Under U. S. Rev. St. §§ 2320, 2324, -which provide that “no location for mining claim shall he made until the discovery of the vein or lode within the limits of the claim located,” and that “the location must be distinctly marked on the ground so that its boundaries may be readily traced,” the locator of a -mining claim is entitled to a reasonable time in which to mark the boundaries of his claim after its discovery.</p> <p>SAME.</p> <p>Where the locators of a mining claim posted notices showing the direction and extent of their claim, but did not mark the boundaries on the ground until eight days thereafter, during which interval conflicting claims were filed by other locators who were aware of the prior location, the failure to mark the boundaries of the claim on the ground for eight days after discovery was not an unreasonable time, when the locators' were compelled by lack of provisions to go to the nearest station where a supply could be procured, and did so, in the belief that they had a reasonable time to complete their location of their claim, one corner of which was almost inaccessible, owing to the roughness of the country.</p>

<p>STREET IMPROVEMENTS —■ REASSESSMENT OBJECTIONS ESTOPPEL.</p> <p>Where a city council has regularly reassessed abutting property for street improvements, and has given notice to property owners to file objections to such assessment, within a certain time, as required by statute, an owner who fails to so object cannot afterwards dispute the validity of the assessment in an action to remove the cloud on his title created by a sale of the property upon foreclosure of the assessment lien.</p> <p>SAME- — CONSTITUTIONALITY OE STATUTE.</p> <p>Laws 1893, p. 226, providing for the re-assessment of property “with reference to the benefits received,” where the original assessment for street improvement has been declared invalid, complies with the doctrine that assessments for public improvements must be tested by the benefits conferred, and hence is not unconstitutional on the ground of authorizing the taking, under the guise of taxation, of private property for public use without compensation.</p>

<p>CHATTEL MORTGAGES-PRIORITIES-CREDITORS-INCUMBRANCES.</p> <p>Under Bal. Code, § 4558, which provides that “a mortgage of personal property is void as against creditors of the mortgagor, or subsequent purchasers and incumbrances of the property for value and in good faith, unless it is accompanied by the affidavit of the mortgagor that it is made in good faith, and without any design to hinder, delay, or defraud creditors, and it is acknowledged and recorded,” one performing labor for the mortgagor with actual knowledge of the existence of an unrecorded chattel mortgage is a creditor and entitled to priority over the mortgagee, even though he may have filed a subsequent lien against the property under the provisions of the employee’s act of 1897 (Laws 1897, p. 55), since the fact that lienors, who at one time were, creditors, have seen fit to accept the benefit of the law in relation to the enforcement of their claims does not take them out of the category of creditors and place them in that of incumbrancers; the statute contemplating by the term “incumbrancers,” those who acquire that position by means of contractual relations and not by operation of law.</p> <p>EMPLOYEES’ LIENS —■ CLAIM FOR LABOR OF OTHERS.</p> <p>One who has a contract with an employer to do certain labor for him is not deprived of the right of lien given by Laws 1897, p. 55, to employees, from the fact that he hired help to assist in the performance of the labor, paying therefor at his own expense, when such hired labor in no wise changed the contract price or the relations between the employer and the lienor.</p> <p>PARTIES-INFANCY-WAIVER OF OBJECTION.</p> <p>The objection that parties to an action are minors, who appear without guardians ad litem., cannot be raised by the adverse party after pleading to the merits.</p>

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

<p>APPEAL-FINDINGS OF TRIAL COURT-CONOLUSIVENESS.</p> <p>In cases tried hy the lower court without a jury, where exceptions to the findings and conclusions have been duly taken and the facts have been brought to the supreme court hy a certified bill of exceptions or statement of facts, it is the province of the supreme court to examine the facts de novo and determine the case hy the record, under Bal. Code, § 6520, and hence, in cases of conflicting testimony, the findings of the trial court are not as conclusive as .the verdict of a jury, although there may he substantial testimony supporting them.</p>

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

<p>CORPORATIONS-RECEIVER-ACTION BY CREDITOR ON STOCK SUBSCRIPTIONS-AMENDMENT OF COMPLAINT.</p> <p>Where, pending an action at law by a creditor to recover -upon an unpaid subscription to the capital stock of a corporation, there being no disclosure of other creditors or of any inadequacy of assets at the institution of the action, a receiver is appointed in a subsequent action on the ground of the corporation’s insolvency,' the action of the court in allowing, the creditor to continue her action for the benefit of all the creditors and ordering the proceeds of the judgment obtained by her to be disbursed by the receiver, was not erroneous, although the court did not direct amendments of the pleadings or a formal substitution of the receiver.</p> <p>CORPORATE STOCK — PAYMENT IN PROPERTY.</p> <p>Where property is given in payment of a subscription to the capital stock of a corporation, the property must be worth in cash the amount of the subscription for which it is offered; and the estimate of value placed upon such property by the stockholders is not conclusive on the courts.</p>

<p>TAXATION-ILLEGAL ASSESSMENT-REMEDY BY INJUNCTION.</p> <p>The courts of this state have power by injunction to restrain the enforcement of an illegal tax upon real property and to remove the apparent lien created by the invalid levy.</p> <p>SAME-PLACE OF TAXATION-PERSONAL PROPERTY OF CORPORATION.</p> <p>Section 9 of the act of March 15, 1893 (Laws 1893, p. 327), which provides that personal property pertaining to the business of a manufacturer shall be listed in the town or place where his business is carried on, must be construed in connection with other sections of the same act which require corporeal personal property to be assessed in the school district and road district in which it is actually situated at the time the assessment is made, and hence a milling corporation which has its office and part of its personal property within the corporate boundaries of a town cannot be assessed for municipal taxation upon its corporeal personal property which is situated just beyond the corporate limits of the municipality.</p>

<p>FISH AND FISHERIES-LOCATION OF TRAPS-SALE- CAVEAT EMPTOR -EIGHTS OF PURCHASER.</p> <p>Where plaintiff purchased at a receiver’s sale one of two fish traps owned ana operated by defendant, with actual knowledge that the two locations were within the lateral limits allowed by statute, the rule of caveat emptor applies, and plaintiff having purchased with knowledge of the defect must be satisfied therewith, and is not entitled to enjoin defendant from operating its remaining trap within the statutory distance of 2,400 feet from the one purchased by plaintiff, but its remedy is restricted to restraining defendant from moving its trap location closer than it was at the time of sale.</p>

<p>Appeal from, Superior Court, Wahkiakum County.— Hon. Henby S. Elliott, Judge.</p>

<p>APPEAL-STFEFICIENCy OE EVIDENCE.</p> <p>Where there is substantial evidence upon which to base a verdict, the verdict will not be disturbed on appeal on the ground of the insufficiency of the evidence.</p>

<p>Appeal from Superior Court, Lewis County. — Hon. Heyby S. Elliott, Judge.</p>

<p>CRIMINAL LAW-CIRCULATING INDECENT PICTURE-SUFFICIENCY OF INFORMATION.</p> <p>An information which alleges that defendant “knowingly”1 distributed a certain indecent picture sufficiently charges knowledge on his part of the indecency of the picture.</p> <p>SAME-INSTRUCTIONS.</p> <p>Where the information charged defendant with knowledge of the indecency of a picture circulated by him, an instruction by the court that “The sole questions for the jury to determine are, Did the defendant knowingly distribute the picture as charged in the information? and was this picture indecent?” are sufficiently specific as to the law of the case.</p> <p>SAME-EVIDENCE OF USAGE,</p> <p>In a prosecution for distributing an indecent picture, where the statute makes the jury the sole judges as to whether or not the matter circulated is obscene and' indecent, testimony as to the use of similar pictures in commerce and trade is incompetent.</p> <p>SAME-ACCUSED AS WITNESS-REMARKS OF COUNSEL.</p> <p>. Where a defendant charged with distributing an indecent picture offered himself and was sworn as a witness, but gave no testimony because the questions asked by his counsel were not admitted, it is not error for the prosecution to refer in argument to his offer to testify and make the comment that he made no denial of the indecency of the picture.</p> <p>SAME-INSTRUCTIONS AS TO CREDIBILITY.</p> <p>Where a defendant is sworn as a witness in his own behalf, it is not error for the court to charge that the testimony of the defendant should be weighed as that of any other witness, even though he did not testify because of the refusal to admit the testimony which his counsel endeavored to elicit and the denial of the right of cross examination on the part of the state.</p>

<p>REQUESTED FINDINGS-INCONSISTENCY.</p> <p>The rule which declares it error for the court to make inconsistent findings has no application where a party to an action presents a request to the court in the alternative for two sets of findings, which are inconsistent in some particulars, for it is not objectionable to present findings covering different phases of the case which the testimony may support.</p> <p>NOTICE OF APPEAL-PROOF OF SERVICE-SUFFICIENCY.</p> <p>Under the statutes of this state governing appeals, it is unnecessary that proof of service of a notice of appeal should show where it was served, since service may, by statute, be made either within or without the state, and written admission of service is sufficient, without stating the place and manner of service, as is required in proof of service of summons.</p> <p>EVIDENCE-1 TRANSACTIONS WITH DECEASED PERSON-ADMISSIBILITY.</p> <p>Bal. Code, § 5991, which provides that no person offered as a witness shall be excluded from giving evidence by reason of his interest in the event of the action, as a party thereto or otherwise, provided, that in an action or proceeding where the adverse party sues or defends as deriving right o'r title by, through, or from any deceased person, then a party in interest or to the record shall not be admitted to testify in his own behalf as' to any transaction had by him with, or any statement made to him by, any such deceased person, has no application where the person offered as a witness was merely a party to the original contract with the deceased person, but is not a party to the suit, either directly or indirectly, and not bound in any way by the judgment in the particular proceedings in which the testimony of such witness is offered.</p> <p>SAME-COMMUNICATIONS BETWEEN HUSBAND AND WIFE-PRIVILEGED CHARACTER.</p> <p>8emMe, that Bal. Code, § 5994, which provides that neither a husband nor wife shall, during marriage or afterwards, without the consent of the other, be examined as to any communication made by one to the other during marriage, is restricted to confidential communications, induced by the marital relation, and not to conversations relating to matters of business since it must be interpreted in conjunction with Bal. Code, §§ 4504, 4505, which provide that contracts may be made by a wife and liabilities incurred, and the same may be enforced by or against her, to the same extent and in the same manner as if she were unmarried, and actions may be instituted by one spouse against the other to establish whether the real estate conveyed to either is community or separate property.</p> <p>SAME-OBJECTION TO ADMISSION OF HUSBAND’S DECLARATIONS-SUFFICIENCY.</p> <p>An objection that' transactions and conversations between husband and wife were inadmissible in evidence on the ground of being incompetent, irrelevant and immaterial, is insufficient to afford ground on appeal to urge the specific objection that the matters testified to were inadmissible as being privileged communications, which one spouse is forbidden, under Bal. Code, § 5994, to divulge without' the consent of the other.</p> <p>HUSBAND AND WIFE-SEPARATE CHARACTER OF PROPERTY-SUFFICIENCY OF EVIDENCE.</p> <p>In an action where the issue was as to the community or separate ownership of real estate, the evidence was sufficient to establish the wife’s separate ownership therein, when it appeared that her husband had declined to purchase the lots in dispute from a would-be vendor, but referred the vendor to his wife as having money to invest; that the wife bought the lots with $1,000 in money given her by her son out of the proceeds of her former husband’s estate and with $700 given her by her then husband, and built thereon houses costing $5,000 with money also given her by her husband; that the husband acquired considerable real estate after marriage, but this was the only parcel directly conveyed to the wife; that he always referred to it as her property 'and she dealt with the agents who had charge of it, receiving the rents herself and arranging for repairs.</p>

<p>PLEADING-BILL OF PARTICULARS-ACTION FOR PERSONAL INJURIES -DAMAGES.</p> <p>In an action by husband and wife to recover damages for injuries received by the wife through defendant’s negligence, an instruction which submits to the jury the question of compensation for the suffering endured by the wife is prejudicial error, where, under a bill of particulars filed by plaintiffs, the items of damages claimed under the complaint are restricted to medical attendance, medicines and supplies, and time in attending to, nursing, and caring for the wife.</p> <p>SAME — STATEMENT VOLUNTARILY FURNISHED TO ADVERSE PARTY-EFFECT.</p> <p>The fact that a bill of particulars furnished upon the oral request of counsel for the adverse party, was not filed before trial, nor referred to at the time of trial is immaterial, since parties voluntarily furnishing a statement of items under their claim for damages are hound by it as fully as though furnished under the order of the court.</p> <p>TRIAL-FAILURE TO OBJECT TO TESTIMONY- ERRONEOUS INSTRUCTIONS-ESTOPPEL TO URGE ERROR.</p> <p>In an action by husband and wife to recover for injuries to the wife, in which a bill of particulars restricted the damages to medical attendance, medicines and the husband’s claim for services in attending upon his wife, although the complaint had alleged the pain and suffering of the wife, the fact that evidence of the wife’s pain and suffering was admitted without objection by defendant would not estop it from urging objection to the error of the court in submitting to the jury the question of compensation for her pain and suffering, since such testimony was competent in support of the husband’s claim for money expended and services made necessary by such suffering.</p> <p>MEASURE OF DAMAGES-HUSBAND’S LOSS OF TIME NURSING WIFE.</p> <p>Where a husband seeks to recover for his services in attending his wife on account of injuries received through defendant’s negligence, the measure of his damages is not the amount of money he might have made if he had pursued his own vocation during the time he was so employed, hut his damages would he measured by the value of the services of a competent nurse for the time the husband was so engaged.</p>

<p>JUDGMENTS-CESSATION OF LIEN-REVIVAL-RIGHTS OF INTERVENING PURCHASERS.</p> <p>Under Code Proe., § 460, which provides that the real estate of a judgment debtor shall be held and bound to satisfy any judgment for the period of five years from the date of its rendition, and that the lien of the judgment on such real estate shall continue only five years, commencing from the date on which the judgment was rendered, and under § 463. id., which provides that a revived judgment shall be and continue a lien upon real estate of a judgment debtor for a period of five years from and after the date of the order of revival, in like manner with the original judgment, but that no judgment should be revived unless proceedings therefor should be commenced within six years after the date of its rendition, the act of revival does not make the lien continuous, where application therefor is not made until after the expiration of the' five years; and, where the lien has ceased, prior to the order of revival, it cannot be revived so as to affect the rights of a purchaser who had acquired title subsequent to the original judgment, but such after acquired title gains priority over the judgment during the interval -between the cessation and revival of the judgment lien.</p> <p>SAME-RES JUDICATA-MATTERS CONCLUDED.</p> <p>An action seeking the foreclosure as a mortgage of a deed absolute on its face would not be barred on the ground of res judücata by the fact that, in a prior action between the same parties involving the same premises, the plaintiff herein being a subsequent grantee and defendant a prior judgment creditor, judgment had been rendered decreeing plaintiff’s conveyance subject to the lien of the prior judgment, and authorizing the judgment creditor to sell on execution all of the interest of plaintiff’s grantor in the premises, when the court in the prior action expressly found that the conveyance to the plaintiff in this action had been made subsequent to said judgment, but for a valuable consideration, and there was no finding or adjudication upon the question of the fraudulent character of the conveyance, though alleged and denied in the prior action, such issue not being material to the controversy therein.</p>

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

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

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

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