Volume 25 — Washington Reports

<p>INJUNCTION-RESTRAINING EXECUTION SALE OF HOMESTEAD-LIABILITY OF CREDITOR’S ATTORNEY.</p> <p>In a complaint by a wife to restrain the judgment creditor cf her husband and his attorney from selling the community real property upon a judgment for the separate debt of the husband, the complaint states no cause of action against the attorney, when it alleges that he has made various attempts to collect the judgment by attempted levy upon property which he knew was not subject to the judgment, 'and that, actuated by malicious motives, he had been perniciously active in the matter.</p> <p>PLEADING-AMENDMENT OF COMPLAINT-ABUSE OF DISCRETION.</p> <p>The fact that the court permits plaintiff to amend her complaint a number of times does not establish in itself an abuse of the discretion given the court in such matters.</p> <p>SAME-DEPARTURE.</p> <p>The fact that plaintiff, in an amended complaint adds what she calls “a supplementary amendment,” stating that at a time subsequent to the commencement of the action plaintiff and her husband had selected a homestead in the premises in controversy and filed notice thereof pursuant to the provisions of the act of March 13, 1895, does not constitute a departure, where the original complaint had set up a claim of homestead, by alleging that the premises were then, and for more than ten years last past had been, the homestead of the husband and wife.</p> <p>ACTION BY WIFE .CLAIMING HOMESTEAD-NECESSARY PARTIES.</p> <p>Under Bal. Code, § 4826, which provides that when the action concerns the wife’s right or claim to the homestead property, she may sue alone, a wife may maintain an action in her'own name to restrain the sale of the community realty in which she and her husband claim the right of homestead.</p> <p>HOMESTEAD —• MORTGAGE BY DEED ABSOLUTE ON FACE-EFFECT.</p> <p>An absolute deed of conveyance of real property does not debar the grantor from setting up a claim of homestead therein, when the deed was intended merely as a mortgage.</p> <p>SAME-TIME OF SELECTION.</p> <p>Laws 1895, p. 109, which defines a,homestead and provides for the manner of selecting the same does not affect prior existing statutes relating to homesteads, which provide that a debtor may select a homestead at any time before sale on execution.</p>

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

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

<p>CREDITOR’S BILL-FRAUDULENT CONVEYANCES-ADEQUATE REMEDY BY LAW.</p> <p>The remedy by creditor’s bill in equity to set aside fraudulent conveyances and subject real estate to sale free from any cloud occasioned by such conveyances is not abolished by the enactment of statutes in aid of executions on judgments at law, but the judgment creditor is entitled in such cases to maintain proceedings on the equitable side of the court, whenever his complaint shows that the relief which the law affords would not be full and adequate.</p>

<p>CORPORATIONS-INSOLVENCY-FRAUDULENT PREFERENCE OF CREDITORS.</p> <p>Where, at the time of the execution of a mortgage by a corporation to secure its indebtedness to one of its creditors, the total indebtedness of the corporation did not exceed sixty-six per cent of a conservative valuation of the corporate assets, and the corporation, at the date of the execution of the mortgage, was doing business, with its affairs in equally as good condition as at any time during its existence, and with every indication of their continuance in the same condition, and it in fact continued to do business for several months thereafter, when it finally became insolvent, such mortgage will not be set aside at the suit of a receiver, on the ground of its being a fraudulent preference by an insolvent corporation.</p>

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

<p>PUBLIC LANDS — ■ CANCELLATION OP ENTRY-NOTICE TO TRANSFEREE OP ENTRYMAN.</p> <p>Under the rules of the land department of the federal government, the eaj parte cancellation of an entry of public land is invalid, where the entryman had transferred his rights therein to another and the government had actual notice of the transfer but failed to give the transferee notice of the proceedings for cancellation.</p> <p>SAME — -TIMBER LANDS CONSTRUCTION OP STATUTE.</p> <p>Under 20 St. at Large, 89, which provides for the sale of public lands, “valuable chiefly for timber, but unfit for cultivation,” a ruling by the commissioner of the general land office that lands which were chiefly valuable for timber at the time of entry, but which could be cultivated after the removal of the timber, were not purchaseable under the act, was erroneous.</p>

<p>MORTGAGES-ASSIGNMENT-ILLEGAL CANCELLATION OE MORTGAGE-SUBSEQUENT INCUMBRANCES.</p> <p>A bona fide assignee of a note secured by mortgage was not estopped, by tbe subsequent act of bis assignor in cancelling tbe mortgage of record, from asserting tbe validity of sucb mortgage against a subsequent incumbrancer for value and in good faith, who took a mortgage of the same premises from the same mortgagor, in reliance upon the cancellation of the prior mortgage, and in ignorance of its actual assignment, when it was not requisite under the recording acts in force at the time that the assignment of a mortgage be made a matter of record.</p> <p>SAME — RIGHTS OF ASSIGNEE.</p> <p>Where the 6ona fide purchaser of a note secured by mortgage assigns same after maturity, the assignee is not subject to defenses that could not have been urged against his assignor, merely from the fact that his purchase was made after maturity.</p> <p>SAME-TAXES-PAYMENT BY JUNIOR MORTGAGEE-LIEN.</p> <p>A junior mortgagee who pays the taxes on the mortgaged property for the purpose of protecting its lien, and without knowledge of the existence of a prior mortgage thereon, is entitled to have the sum paid for taxes declared a lien superior to that created by the prior mortgage.</p>

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

<p>IRRIGATION DISTRICTS — CONTRACT FOR CONSTRUCTION OF DITCH-INTERPRETATION- SUSPENSION OF WORK-RECOVERY OF INSTALLMENTS DUE.</p> <p>Under a contract for the construction of an irrigation ditch, thirty miles in length, for which the contractor was to be paid at an agreed rate for excavation and materials, payment to be made monthly to the extent of ninety per cent, of the value of the work done, as estimated by the engineer in charge, “provided that if said contractor completes said work and estimates on the same are returned sooner than the funds from the sale of bonds reaches the treasurer of said district, then whatever estimate would have otherwise been payable . . . shall not be payable until the funds arising from the sale of bonds are in the hands of said treasurer to meet the same,” the contractor is not required to complete the work before being entitled to maintain an action for any installment due him, but where, after having earned a monthly installment, he waits a reasonable time for the defendant to sell its bonds and pay him the compensation due, and defendant neglects and refuses to raise moneys from the sale of its bonds, he is warranted in suspending work and bringing an action for the recovery of the pro tanto amount due under his contract.</p> <p>SAME-REFUSAL TO APPROVE ENGINEER’S ESTIMATE-EFFECT.</p> <p>A contractor is not debarred from maintaining an action to recover compensation due him under the estimates returned by the engineer in charge of the work, by the fact that such estimates had never been approved by the board of directors of defendant corporation, as the contract required, when it appears that the refusal of the board to act upon the estimates was purely arbitrary.</p> <p>SAME DIRECTORS ■— POWER TO AUTHORIZE SUSPENSION OF WORK.</p> <p>Under Bal. Code, § 4176, which provides that the board of directors of corporations organized for irrigation purposes shall have power to make and execute all necessary contracts, and perform all such acts as shall be necessary to fully carry out the purposes of their charter, such board have power to make an agreement with a contractor that a contract lawfully entered into by them for the construction of an irrigating ditch may be annulled and work thereunder suspended.</p> <p>SAME-CONTRACTS-CONSIDERATION.</p> <p>An agreement for the abandonment of a contract needs no new or independent consideration to support it.</p>

<p>TAXATION-OCEAN-GOING TUGS.</p> <p>Ocean-going tugs, though registered at a foreign port and owned by a foreign corporation, are taxable under the laws of this state, when their situs is actually in this state.</p> <p>ASSESSORS-TITLE TO OEFICE-COLLATERAL ATTACK.</p> <p>The right of an assessor to his office cannot be collaterally attacked in an action to enjoin the collection of taxes levied upon property assessed by him.</p>

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

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

<p>CLAIM AGAINST COUNTY-PRESENTATION-WAIVER OF OBJECTION.</p> <p>The objection that plaintiff failed to present his claim against the county to the board of county commissioners for allowance or rejection, prior to bringing action thereon, as the statute requires, cannot be raised for the first time on appeal, but, when not urged in the trial court, will be presumed to have been waived by the county.</p> <p>CONVERSION-SALE OF PROPERTY FOR ILLEGAL TAXES-LIABILITY OF COUNTY AND OFFICERS.</p> <p>Where a county treasurer, in an action in his own name and in that of the county to enforce the collection of a tax upon a stock of merchandise, procures the appointment of a receiver, whose actions he directs and controls, both the county and the treasurer are liable for all damages suffered by the defendant therein, by reason of the void and illegal acts of the receiver.</p>

<p>SCHOOLS-COMPULSORY EDUCATION-REFUSAL TO PLACE CHILD IN SCHOOL —• CONTEMPT OF COURT.</p> <p>Under the school law of 1897, as amended in 1899, which provides that it shall be the duty of parents and guardians of children between the ages of eight and fifteen years to send them to school at least three months in each year; that any parent or guardian who, after notification hy the county superintendent, refuses or neglects to send such child to school, shall, upon complaint of such superintendent, be summoned before the judge, who shall have power to issue an order commanding the parents to place the child in school, or appear before him and show cause for refusal so to do; and that any person summoned before a superior judge to answer why he has not kept such child in school, who fails to give satisfactory cause for refusal to comply with the law relating to school attendance, shall be guilty of a misdemeanor and fined; no authority is vested in the superior judge to adjudge such parent or guardian guilty of contempt for failure to comply with an order to place .a child in school, since the only penalty the statute imposes is to declare the ofíense a misdemeanor punishable by fine.</p> <p>SAME-PENALTY-NOT EMBRACED IN TITLE OP ACT.</p> <p>Under § 19, art. 2, which provides that no. bill for an act of the legislature shan embrace more than one subject, whicn must be expressed in the title, a section in the school law defining a misdemeanor and providing for its punishment is illegally embraced within an act entitled “an act to establish a general and uniform system of public schools in the state of Washington.”</p>

<p>MUNICHPAL CORPORATIONS-DEFECTIVE SIDEWALK-ACTION FOE INJURIES -EVIDENCE OF OTHER DEFECTS.</p> <p>In an action to recover for personal injuries caused by the defective condition of a sidewalk, evidence of other 'defects in the same sidewalk of long standing and in close proximity to the defect which was the actual cause of the injury is admissible for the purpose of showing notice to the city of the general defective condition of the street, and as tending to show notice of the particular defect involved.</p> <p>SAME-NEGLIGENCE-CONSTRUCTIVE NOTICE OF DEFECT-QUESTION FOR JURY.</p> <p>The question of whether a city was constructively charged with notice of a defect in a sidewalk, whereby plaintiff was injured, was properly submitted to the jury, when it appeared from the evidence that the defect had existed for a period variously estimated by witnesses at from three to seven days, that the street was a much traveled one by reason of the vicinity of a school building and several churches, and that the walk at the point where the injury occurred was elevated on stringers some ten or twelve inches above the ground, and was used for a crossing for teams, for which purpose tnere had been constructed and in existence for a long time an approach for a wagon driveway.</p>

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

<p>ARBITRATION-FINALITY OF AWARD-REVIEW BY COURTS.</p> <p>Where parties to a dispute agree to submit their differences to arbitration, under the provisions of the statutes applicable thereto, and, by the terms of their submission of the controversy to arbitration, agree to be bound by its results, the award made by the arbitrator is final, and not reviewable by the courts, in the absence of any showing of misconduct or corruption on his part.</p>

<p>APPEAL-BOND-OBJECTIONS TO SURETIES-NEW BOND-TIME OF PILING.</p> <p>Where objection is made to the sufficiency of the sureties upon an appeal bond, and a day is set for their .examination, but they fail to appear and justify on said day, the appellant is warranted, under Bal. Code, § 6510, in filing within five days thereafter a new bond with new sureties.</p> <p>SAME-EXTENSION OF TIME FOE FILING OF STATEMENT-BY WHOM GRANTABLE.</p> <p>Under Bal. Code, § 5062, which provides that the time for filing a statement of facts may be extended “by an order of the court or judge wherein or before whom the cause is pending or was tried,” where there are several judges presiding over the superior court of a county, any one of such judges may enter an order extending the time for filing a statement of facts, although the cause was tried before another judge of that court.</p> <p>PRINCIPAL AND AGENT-RESCISSION OF CONTRACT-AUTHORITY-INTEREST OF AGENT.</p> <p>Where a corporation has not authorized the rescission of a contract entered into by its president in its behalf, such president has no authority to rescind, even though the contract may have been made by him under a general authority to enter into such contracts without submitting the same to the board of directors; and especially is this so where his own private interest would be advanced by the rescission at the expense of his principal.</p>

<p>APPEAL-STATEMENT OP PACTS-SERVICE ON ATTORNEY.</p> <p>Under Bal. Code, § 4889, which provides the manner of making service of notices necessary in the conduct of actions, and declares that the services may be personal or by delivery to the party or attorney on whom service is required to be made, or it may be as follows: “If upon an attorney, it may be made during his absence from his office by leaving the papers with his clerk therein, or with a person having charge thereof; or, when there is no person in the office, by leaving it between the hours of six in the morning and nine in the evening in a conspicuous place in the office,” service of a proposed statement of facts on appeal, made upon a clerk, is insufficient, when the attorney himself is present in the office.</p> <p>CITY PRINTING-WRONGFUL AWARD-INJUNCTION-SUFFICIENCY OF COMPLAINT.</p> <p>In an action of injunction to compel a city to award its public printing to plaintiff and to prohibit its publication in a newspaper to which the city had awarded the contract, the complaint states a cause of action when it alleges that the city called for bids for city printing under the terms of its charter which required the city council to designate as city official newspaper that newspaper whose owner offered the lowest proposals; that_plaintiff filed a bid to do the city printing for 21 cents per inch for the first insertion, and 20 cents per inch for each subsequent insertion; that the bid accepted by the city from plaintiff’s competitor was for 35 cents per inch for the first insertion, and 30 cents per inch for subsequent insertions, measurement to be by nonpareil type, matter set solid; that plaintiff’s bid was rejected on the ground that it was indefinite, but plaintiff alleges it was made in view of a general existing custom that city printing was measured in nonpareil type, matter set solid, and that this fact was well known to the city council before it made its award; that the award to plaintiff’s competitor will cost the city about $2,800 more than if the award should be made to plaintiff; that plaintiff is a taxpayer, and that the city council wantonly, with intent to defraud the plaintiff and all other taxpayers of said city, attempted to award said printing to plaintiff’s competitor.</p>

<p>PARTNERSHIP-FRAUD OF PARTNER-FALSIFYING ACCOUNTS ■— ACCOUNTING.</p> <p>In an action for an accounting brought by one partner against a copartner who has falsified the accounts of the firm and misappropriated funds, the defrauded member of the firm is entitled to a judgment for one-half the sum, with interest thereon, that the court finds the firm has been damaged by reason of the misconduct of the defendant and the misappropriation by him of the funds of the firm, where defendant’s services, as well as those of plaintiff, were of appreciable and substantial value to the firm over and above the damages the firm sustained by reason of his misconduct.</p> <p>SAME-DESTRUCTION OF ACCOUNTS-EVIDENCE-AMOUNT MISAPPROPRIATED -BASIS OF ESTIMATING.</p> <p>Where one partner falsifies the accounts and spoliates the records of the firm, evidence of the earning capacity of the firm is admissible for the purpose of supplying a basis upon which to estimate the damages of the partner who asks an accounting.</p> <p>APPEAL-WHEN INTERLOCUTORY ORDERS REVIEW ABLE.</p> <p>Alleged error of the court in overruling a motion to dissolve an attachment is reviewable on appeal from the final judgment, although not designated in the notice of appeal pursuant to the provisions of Bal. Code, § 6503, which requires the appellant to designate from what order or judgment the appeal is taken, since the case is governed hy § 6500, subd. 1, which provides that, when the appeal is from any final judgment entered in the action, an appeal from such judgment brings up for review any order made in the action, either before or after judgment, in case the record shall show such order sufficiently for the purposes of a review thereof.</p> <p>ATTACHMENT-DISSOLUTION OF WRIT-RES JUDICATA AS TO OTHER GROUNDS.</p> <p>Under Bal. Code, § 5359, which authorizes the issuance of successive writs of attachment, and § 5380, which provides for the amendment of the affidavit for the writ, in case of any defect which can be amended so as to show that a legal cause for the attachment existed at the time it was issued, the dissolution of an attachment on one ground is not res judicata when a new or amended affidavit sets up an entirely new ground for the writ.</p> <p>SAME-CONCLUSIVENESS OF COURT’S FINDING ON FACTS.</p> <p>Where the statute authorizes the trial court to determine the facts on a motion to discharge a writ of attachment, every presumption must be in favor of the conclusion reached by that court, unless the contrary clearly appears.</p>

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

<p>HIGHWAYS-ESTABLISHMENT BY COUNTY COMMISSIONERS-REVIEW ON APPEAL.</p> <p>The matter of establishing a road being by Laws 1895, p. 82, left wholly to the discretion of the board of county commissioners, and their action in that respect being the exercise of quasi legislative authority, the refusal of the board to establish a road upon petition therefor does not present a question which the superior court can review on appeal, since that court cannot take cognizance of eases requiring the exercise of other than purely judicial power. (Hull v. Stephenson, 19 Wash. 572, distinguished).</p>

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

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

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

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

<p>Appeal from Superior Court, Spoltaue County. — Hon. 'Leaudeb H. Pbatheb, Judge.</p>

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

<p>APPEAL-RECORD-PLEADINGS IN FORMER ACTION • — ■ JUDICIAL NOTICE.</p> <p>Where judgment on the pleadings has been rendered upon an answer of former adjudication, which was not traversed, the plaintiff cannot, on appeal, have the pleadings in the former case certified by the clerk to the supreme court, for consideration by that court in passing upon the contention that the causes of ‘action were different, when such pleadings had not been put in evidence in the trial court.</p> <p>JUDGMENTS- — -RES JUDICATA — -WHEN DISMISSAL OPERATES AS BAB.</p> <p>A judgment dismissing an action for damages after the introduction of plaintiff’s testimony, based on the ground of plaintiff’s contributory negligence, is a judgment on the merits and not one for failure of proof, and stands as a bar to any subsequent action between the same parties for the same cause of action.</p>

<p>COUNTY OFFICERS-SALARIES-MEASUREMENT BY POPULATION-FEDERAL CENSUS AS EVIDENCE.</p> <p>Under art. 5, § 11, of the constitution, which requires the legislature, by general laws, .to regulate the compensation of county officers, in proportion to their duties, and for that purpose to classify the counties by population; and under Laws 1889-90, p. 302, classifying counties, which puts those having between 14,000 and 16,000 population in the thirteenth class; and under Laws 1895, p. 409, which fixes the annual salary of county clerks in counties of the thirteenth class at $1,500; it is the duty of the county commissioners, in the absence of any law ■ pointing out how population should be ascertained, to determine the fact by proof, and for this purpose the most recent federal census is competent evidence; hence mandamus will lie to compel the proper officers to allow the claim of a county clerk for an increase in compensation, where the proof shows that, prior to his term of office, the federal census of 1900 showed that his county had been raised to a class entitling its officers, under the law, to a higher rate of compensation. (Fullerton and Mount, JJ., dissent).</p>

<p>HOMICIDE-DEATH WARRANT-EFFECT OF AMENDMENT OF STATUTE.</p> <p>Mandamus will lie to compel a superior court to issue a death warrant in accordance with existing law, although before such death warrant can be carried into execution, the.existing law will have been superseded by a later enactment which will go into effect in the period intervening between the application for the death warrant and the date fixed for the execution. (Fullerton, J., dissents).</p> <p>STATUTES-CONSTRUCTION PRIOR TO TAKING EFEECT.</p> <p>The courts will not pass upon the operation and effect of legislative enactments prior to their going into effect. (Hadley and White, JJ., dissent).</p>

<p>JURY-COMPENSATION-ATTENDANCE UPON COURT.</p> <p>Under tbe statute (Bal. Code, § 1609) allowing jurors a certain per diem for each, day’s attendance on a court of record, jurors are not entitled to compensation for Saturdays, where the court has excused them from Friday evening until Monday morning, for the purpose of hearing motions, although such jurors could not have known prior to Friday evening whether or not they would be called for jury duty the following day, and those jurors living at a distance were unable to reach home and return during the time for which they were excused and were therefore compelled to remain in town even if not on jury duty.</p>

<p>STATES AND STATE OFFICERS — -PAN-AMERICAN EXPOSITION COMMISSION -BOARD OF WOMEN MANAGERS-DUTIES-RIGHT TO SHARE IN APPROPRIATION.</p> <p>Under Laws 19ul, p. 129, § 3, which provides that the expenses incurred by the honorary members of the board of women managers of the Pan-American Exposition, “appointed from this state to attend said exposition, and who will work in conjunction with the commissioners to be appointed in collecting and caring for art in needlework, etc., and other exhibits to be displayed at said Pan-American exposition,” be paid out of the fund appropriated by said act, the commissioners appointed to prepare an exhibit for this state cannot by dispensing with an exhibit of art in needlework deprive said honorary members of the right to work in conjunction with the commissioners in regard to “other exhibits,” nor of the right to share in the appropriation therefor.</p> <p>SAME-EXPENDITURE OF APPROPRIATION-VOUCHERS.</p> <p>Section 3 of the act of March 15, 1901, which provides that the expenses incurred by the two honorary members of the board of women managers of the Pan-American Exposition appointed from this state shall “be paid out of said fund to be hereafter appropriated, and the auditor is hereby instructed to draw his warrant upon the treasurer for all expenses actually incurred upon the presentation of the proper vouchers therefor,” is a complete provision in itself for the payment of such expenses, and the other sections of said act which provide that the appropriation shall be expended for expenses incurred by the commissioners “upon vouchers approved by the commissioners,” or “upon the requisition of the state commission,” approved by the state auditor, are inapplicable to the expenses of said members of the hoard of women managers. (Mount, J., dissents).</p>

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

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

<p>Appeal from Superior Court, King County. — Hon. Roger S. Greene, Judge pro tem.</p>

<p>MUNICIPAL CORPORATIONS-LAYING WATER MAINS-ASSESSMENT ACCORDING TO BENEFITS.</p> <p>Under the laws of this state, which authorize cities to make local improvements and pay therefor by assessment upon the property specially benefited, and under Laws 1899, p. 234, which recognizes the laying of a'water main to be a local improvement in the same class as the grading of á street, the city of Seattle has power, under its charter passed in conformity .to such general laws, to create a local assessment district for the purpose of laying a water main and charge the cost thereof against property owners according to benefits to their real property in such-district.</p> <p>SAME-LOCAL IMPROVEMENT BONDS-POWER TO ISSUE FOR LAYING WATER MAIN.</p> <p>Laws 1899, p. 234, which authorizes the issuance and sale of bonds by cities to pay for local improvements is. applicable to the city of Seattle, by way of amendment to. the powers conferred by the general incorporation law under which it had been incorporated; and under that act and the provision of the Seattle charter adopted pursuant thereto (Seattle charter, art. 8, §11, subd. 1) which recognize water mains as in the nature of local improvements, the city of Seattle has power to provide" for the payment of the expense of laying water mains by the issuance of local improvement bonds.</p> <p>SAME-CONSTITUTIONAL LIMIT OF INDEBTEDNESS.</p> <p>The provision of the state constitution (art. 8, § 6) which authorizes cities to become indebted in excess of the limitation upon general municipal indebtedness, for the purpose of supplying such cities with water, artificial light and sewers, cannot be construed as a prohibition upon the method of payment for water mains other than out of a general fund for that purpose nor as a limitation on the legislative power to vest corporate authorities with power to make local improvements by special assessment.</p> <p>SAME-INAPPLICABLE TO LOCAL ASSESSMENT DISTBICTS.</p> <p>The limitation in art. 8, § 6, of the constitution against cities incurring an indebtedness for water, artificial light, and sewers in excess of the five per cent.' additional to the amount allowed for general municipal indebtedness has no application to indebtedness by local assessment districts in the laying of water mains, in which the cost is chargeable against the property benefited.</p>

<p>MORTGAGE FORECLOSURE — -EVIDENCE ADMISSIBLE UNDER ISSUES.</p> <p>Where tbe only question in issue is tbe right of plaintiff to foreclose a mortgage against a decedent’s estate, plaintiff cannot predicate error on the ground of the court’s refusal to admit in evidence a letter from the executor, showing presentation and allowance of plaintiff’s claim; nor upon the refusal to admit in evidence the order directing notice to creditors; nor upon the refusal to admit the last will and testament of deceased, as tending to show that the lands mentioned in the will were cnarged with the payment of plaintiff's claim.</p>

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

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

<p>TRIAL-CROSS-EXAMINATION- INTERRUPTION BY COURT.</p> <p>The interruption by the court of a cross-examination cannot he alleged as error, when there is no showing that the court refused to allow counsel to proceed therewith, or that exception was taken hy counsel to the action of the court in that regard.</p> <p>MODIFICATION OF JUDGMENT-PROCEDURE-WAIVER OF INFORMALITY.</p> <p>Objection cannot he urged on appeal that an application for the modification of a judgment was made upon motion and affidavits, where the parties in effect treated the motion and affidavits of plaintiff as a petition for modification and defendant’s affidavit as an answer thereto, and testimony was taken hy both parties on the facts thus presented, without any objection being raised at the time.</p> <p>DIVORCE-CUSTODY OF MINOR CHILD-MODIFICATION OF DECREE.</p> <p>A court may modify its decree awarding the custody of an infant child, made in a divorce proceeding, although the time for appeal has expired, when it is shown that new circumstances and conditions have arisen which require a modified decree to meet the new conditions.</p>

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

<p>CRIMINAL LAW-CHANGE OF VENUE-AMENDMENT OF INFORMATION.</p> <p>Under Bal. Code, ■§ 4860, which provides that the court to which a change of venue is taken has the same jurisdiction over the action transferred as if it had been originally commenced therein, an information is amendable by the prosecuting attorney, on leave of the court of another county to which the prosecution had been transferred.</p> <p>CONFESSIONS-STATEMENTS MADE ON PRELIMINARY EXAMINATION — ADMISSIBILITY IN EVIDENCE.</p> <p>Testimony of the accused, amounting to a voluntary confession, given on his preliminary examination, may be introduced in evidence on his trial, under our statute (Bal. Code, §6942), which provides that such confession may be given as evidence against the accused, “except when made under the influence of fear produced by threats.”</p>

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

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

<p>DEFAULT JUDGMENT-VACATION-DISCRETION OF COUBT.</p> <p>The action.of the trial court in vacating a default judgment is not an abuse of discretion, when done upon a showing that defendant’s attorney had erroneously noted the day of service as being one day later than the actual day; that he attempted to serve a demurrer upon plaintiff upon the last day, as he understood it to be from his notation, and was informed that a default had been taken the preceding day; and that while proceeding to the court house to ascertain the condition of the record, he was passed by plaintiff’s attorney in a conveyance, who thereby reached the court house before him and in the meantime procured the1 entry of a default and judgment against him.</p>

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

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

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

<p>MORTGAGES-FORECLOSURE OF ASSESSMENT LIENS-FAILURE TO. MAKE MORTGAGEE Á PARTY-RIGHT OF REDEMPTION.</p> <p>Where a mortgagee has not been made a party to an action foreclosing a street assessment lien against the mortgaged premises as the statute, authorizing such foreclosure requires, his rights as mortgagee are not barred by reason of the sale of the premises under the assessment proceedings, but his right to redeem from the assessment lien continues as though he occupied the position of a junior mortgagee as against the lien holder occupying the position of a senior mortgagee.</p> <p>SAME-</p> <p>' In’ such a case, the fact that the mortgagee had instituted foreclosure proceedings and bought in the mortgaged premises at a sheriff’s sale under the decree, without making the holder of the assessment lien a party to his action, would not affect such mortgagee’s right to redeem from the assessment lien.</p> <p>SAME-LIMITATION ON RIGHT TO REDEEM. ■</p> <p>Since the right of a junior mortgagee to redeem accrues at thé same time as his right to foreclose, the right of redemption is governed by the statute of limitations which provides that an action upon a contract in writing, or liability express or implied arising out of a written agreement, may be commenced within six years after the cause of action shall have accrued, and hence a mortgagee who had not been made a party to the foreclosure of a street assessment lien would be entitled to redeem from the sale thereunder at any time within six years after the maturity of his mortgage.</p> <p>SAME — REDEMPTION PROM MORTGAGEE IN POSSESSION- — ACCOUNTING.</p> <p>One who occupies the ¡position of a mortgagee in possession of the mortgaged premises is accountable, upon redemption thereof, for nothing more than the actual rents and profits received, and the reasonable value of the use of that part of the premises occupied by him, when there has been no wilful default or gross negligence on his "part in the' management of the property, less such sums as were necessarily expended by him for the preservation and maintenance of the property.</p>

<p>CRIMINAL LAW-SEPARATION OF JUEY-CONSENT OF ACCUSED.</p> <p>Under Bal. Code, § 6947, which provides that “juries in criminal cases shall not be allowed to separate, except by consent of the defendant and the prosecuting attorney,” it is reversible error for the court to ask defendant, in the presence of the jury, after the trial had proceeded two days without separation, and the case was almost ready to submit, if he would consent to one of the jurors returning home because of the sickness of his child, to which separation defendant was thus compelled to consent, for fear of prejudicing his case in the mind of said juror.</p> <p>SAME-MISCONDUCT OE JUKY.</p> <p>A juror who has testified on his voir dire examination that he did not know defendant, and that he could fairly and impartially try the case, free from bias, is guilty of such misconduct as to entitle defendant to a new trial, where, after retirement to the jury room, he makes statements to his fellow-jurors of facts not in evidence against defendant, and asserts his belief in his guilt because he knew him to be a member of a gang of toughs.</p>

<p>Appeal from Superior Court, Walla Walla County.' — ■ Hon. Thomas TI. Brents, Judge.</p>

<p>APPEALABLE ORDER — REFUSAL TO VACATE JUDGMENT AFTER AFFIRMANCE.</p> <p>Tbe action of the lower court in overruling a motion to vacate a final judgment, after its affirmance on appeal to the supreme 'court, is not an appealable order, under Bal. Code, § 6500, subd. 7, which provides that any party aggrieved may appeal from any final order made after judgment which affects a substantial right, since such second appeal would not raise any questions not passed upon, or which might have been passed upon, in the original appeal.</p> <p>SAME-JURISDICTION OF LOWER COURT TO MODIFY JUDGMENT AFTER AFFIRMANCE.</p> <p>Where a judgment of conviction has been affirmed on appeal and the lower court directed to carry out the judgment inflicting the death penalty, an order of the lower court overruling exceptions taken to its order for the issuance of the death warrant is not appealable.</p>

<p>BREACH OF CONTRACT- — -LIQUIDATED DAMAGES.</p> <p>Where the owners of adjoining lands, which are protected against overflow from high tides hy means of dikes and dams, enter into an agreement whereby one of the owners contributes a sum of money toward the construction of a dam on the condition that certain dikes owned by the others are not to he cut, leveled, or damaged in any way, and in case they should be-such sum was to he refunded to him, such sum must he regarded as a stipulation for liquidated damages to which he would he entitled on the breach of the contract.</p>

<p>APPEAL-DISMISSAL FOR FAILURE TO FILE BRIEF.</p> <p>Where an appellant to whom no extension of time has been .granted neglects to serve and file his brief in the cause within ninety days after filing his notice of appeal, his appeal will be •dismissed upon the motion of an adverse party.</p> <p>SAME — DEPOSIT OF MONEY IN LIEU OF BOND •— CONCLUSIVENESS OF CLERK’S CERTIFICATE.</p> <p>Although an appellant may have deposited a bank check instead of cash with the clerk of the superior court in lieu of an appeal bond, a certificate by the clerk to the effect that the appellant had deposited the required sum in gold coin is conclusive ■of the fact that money was deposited as required by the statute.</p> <p>RIGHT OF ADMINISTRATION UPON DECEDENT’S ESTATE-PRINCIPAL CREDITORS.</p> <p>Bal. Code, § 6141, awarding the right to administer upon a •decedent’s estate in certain contingencies to one or more of the principal creditors, contemplates only such creditors as were in existence prior to the decedent’s death and would not include a creditor for the funeral expenses, since § 6333, Id., specially protects the holder of such a claim by .making it the first one payable out of the funds of the estate.</p> <p>•SAME.</p> <p>In a contest among creditors for the administration of an estate valued at $250,000, where the claims of all the creditors except one were for sums less than $100, and that one’s claim was for $60,000, there could be but one principal creditor, within the contemplation of Bal. Code, § 6141, awarding administration '“to one or more of the principal creditors,” if there are no relatives or next of kin.</p> <p>SAME-WAIVER OF EIGHT-POWER OF COURT TO APPOINT STRANGER TO ESTATE.</p> <p>Where one or more of the principal creditors of a decedent’s ■estate waive their right to administration in writing, the court may appoint any person, not a creditor, even if other creditors ■exist, to administer upon the estate, under Bal. Code, § 6141, which provides that “if there be no relatives or next of kin, or if the heirs or one or more of the principal creditors, in writing, waive their right to administration, or if there be no principal creditor or creditors, then the court or judge 'may appoint any suitable and competent person to administer upon such estate.”</p>

<p>MUNICIPAL CORPORATIONS — DEFECTIVE WALKS QUESTION FOR JURY.</p> <p>In an action for personal injuries received from a fall upon a sidewalk, the question of the city’s negligence was properly submitted to the jury, where there was evidence tending to show that the sidewalk was full of holes caused by the decay of the materials of which it was constructed and that plaintiff’s fall ■was caused by her stepping into one of these holes, although the evidence showed that on the day preceding the accident a fall of slushy snow occurred, which froze hard during the night, leaving the walk in a very slippery condition, and there was. evidence from which it might he inferred that the icy condition of the walk was the cause of the accident.</p>

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

<p>INSURANCE-POLICY ISSUED TO MORTGAGEE — -EFFECT OF ALIENATION BY MORTGAGOR.</p> <p>"Where a policy of fire insurance was issued to a mortgagee, “loss, if any, payable to the mortgagee as interest may appear,” and the policy provides that if with the consent of the company an interest under the policy shall exist in favor of a mortgagee, -the conditions contained in the policy “shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended thereto,” the rights of the mortgagee under the policy would be unaffected by the act of the owner in violating the conditions in the policy against alienation and subsequent insurance, when such conditions were not attached to or written upon that part of the contract in the policy giving the mortgagee an interest thereunder (Anders, J., dissents).</p>

<p>TRIAL--NON-SUIT-SUFFICIENCY OF EVIDENCE.</p> <p>In an action to recover damages for defendant’s breach of a contract of maintenance, plaintiff should be non-suited, when his complaint alleges that, by the terms of the contract between them, plaintiff agreed to convey to defendant certain land “by good and sufficient deed,” and that “said land was duly conveyed as per said agreement,” and the deed offered in evidence showed that the land was presumptively community property, without any joinder by the wife in its conveyance.</p> <p>LAWS OF FOREIGN STATE — PRESUMPTIONS.</p> <p>In the absence of pleading and proof that the laws of a sister state are different from our own, they will be presumed to be the same.</p>

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

<p>JUDGMENT AGAINST MINORS — VACATION- — PROCEDURE.</p> <p>Under Bal. Code, § 5153, subd. 8, which provides that a judgment may be modified or vacated for error therein shown by a minor within twelve months after arriving at full age, and un,der § 5157, Id., which provides that “in such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service and mode of return, and the pleadings shall be governed by the same principles, and issues be made up by tbe same form, and all tbe proceedings conducted in the same way, as near as can be, as in original action by ordinary proceedings, except that the facts stated in the petition shall be deemed denied without answer, and defendant shall introduce no new cause, and the cause of the petition shall alone be tried,” it is not required that the petitioner shall file his motion or petition in the original case, nor is any statutory form of procedure prescribed by such sections which must be strictly pursued.</p> <p>SAME-PARTIES.</p> <p>In an action by a minor within one year after attaining majority to vacate a judgment, a sister affected by the same judgment, but who was past the age when she could maintain the like kind of action, and against whom no relief was sought, is not a necessary party to the action seeking to open up the judgment.</p> <p>PROCESS — SERVICE UPON GUARDIAN OP MINORS-NUMBER OP COPIES NECESSARY.</p> <p>Service of one copy of summons upon the father, in an action in which his three minor children were defendants, was sufficient, where a copy was left with each of the minors, since the object of the service is.notice, and one copy served on the father would answer that purpose as well as an increased number of copies.</p> <p>WILLS-FAILURE TO MENTION CHILDREN-ADMISSIBILITY OP EVIDENCE TO SHOW TESTATOR’S INTENT.</p> <p>In an action by a minor within one year after arriving at the age of majority to vacate a judgment awarding all the property of plaintiff’s deceased mother to her surviving husband, under a will which failed to mention the children of the testator, the complaint states a cause of action when it alleges that the will made no provision for any of the children, and that oral evidence was received by the trial court for the purpose of showing an intention to omit them, since the admission of such evidence to vary the will constituted error of the trial court.</p>

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

<p>PLEADING — DUPLICITY-ELECTION OF DEMEDIES — ACTION AGAINST CORPORATION.</p> <p>Where a plaintiff brings suit upon an express contract alleged to have been made with him by a corporation, the fact that he also alleges, by way of ratification and estoppel, the acts of the corporation in accepting and retaining the benefits flowing from such contract would not render his complaint faulty on the ground of duplicity, and subject to a motion for an election of remedies, when there are no specific allegations concerning ratification, acquiescence, or estoppel, and nothing in the complaint to indicate that plaintiff was seeking to recover on those grounds.</p> <p>CORPORATIONS-ACTIONS FOR BREACH OF CONTRACT-AUTHORITY OF OFFICER — NON-SUIT.</p> <p>One seeking to enforce the liability of a corporation on a contract alleged to have been made by it should not he non-suited for failure to show that the contract was authorized by the corporation, when the evidence shows that it was entered into on behalf of the corporation by its secretary and treasurer, who also at the time occupied the position of general and financial manager of the company, and was entrusted by the board of trustees with the general management of its affairs, since the relations of such officer to the corporation and its course of dealing through him raised a question for the jury to determine whether he was authorized to make the contract in controversy.</p> <p>SAME —FAILURE TO DELIVER STOCK — MEASURE OF DAMAGES.</p> <p>In an action for damages for breach of contract to deliver shares of stock, a verdict based on evidence showing the actual selling price of the stock about the time of plaintiff’s demand for its delivery could not be deemed as awarding excessive damages.</p>

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

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

<p>CORPORATIONS •— ACTS OF TRUSTEES-WHEN VOIDABLE AT SUIT OF STOCKHOLDER.</p> <p>The action of a majority of a board of trustees is voidable upon the complaint of a stockholder, where the vote of a trustee interested adversely to the corporation was necessary to effect such action; and Bal. Code, § 4257, which provides that “a majority of the whole number of trustees shall form a board for the transaction of business and every decision of a majority of the persons duly assembled as a board shall he valid as a corporate act,” is inapplicable in such cases, since the policy of the law forbids a trustee to assume a double function where there are adverse interests to he considered.</p> <p>SAME-ACTS IN EXCESS OF CORPORATE POWERS-VOIDABLE, ALTHOUGH AUTHORIZED BY MAJORITY OF STOCKHOLDERS.</p> <p>The articles of incorporation of a corporation constitute a contract entered into by all the stockholders, whose terms cannot be abrogated without the consent of all; hence a lease of the corporate property authorized by a majority vote of the stockholders is voidable at the suit of a non-consenting stockholder, where the articles of incorporation contain no express power to make such lease.</p> <p>SAME — CAPITAL STOCK-OWNERSHIP BY ANOTHER CORPORATION.</p> <p>One corporation cannot acquire the right to purchase and hold stock in another corporation merely by expressing such power in its articles of incorporation, where such ownership of other corporate stock is not expressly authorized by statute.</p>

<p>ATTORNEY AND CLIENT-LIEN UPON PAPERS-WAIVER.</p> <p>Under Bal. Code, § 4772, which provides that an attorney has a lien for his compensation upon the papers of his client, which have come into his possession in the course of his professional employment, no right of action is given the attorney to enforce such lien, hut he is merely entitled to retain such papers until paid, and where he parts with possession, even that right is waived and relinquished.</p> <p>MORTGAGES-ASSIGNMENT — NOTICE.</p> <p>Under Bal. Code, § 4565, which provides that any person to whom any real estate or chattel mortgage is given, or any person to whom such mortgage has been assigned and who has recorded the assignment in the office of the county auditor wherein such mortgage is of record, may satisfy and discharge the same of record, a purchaser is not required to make inquiry beyond the records of the county auditor’s office, and where without notice of an outstanding unrecorded assignment he purchases the mortgaged property for a valuable consideration on the faith of a satisfaction by the mortgagee on the records, he obtains a clear title thereto.</p>

<p>APPEAL-SUFFICIENCY OF EVIDENCE.</p> <p>The findings of the trial court will not be disturbed, where the evidence is conflicting, unless clearly contrary to the weight of the evidence.</p> <p>TIDE LANDS-OYSTER BEDS-IMPLIED LICENSE TO CULTIVATE-</p> <p>ABANDONMENT.</p> <p>The fact that plaintiffs had planted and cultivated oysters upon public lands for a number of years under an implied license, would give them no right to restrain defendant from going into possession of such oyster bed under deed from the state, when plaintiffs’ possession and occupation had been abandoned at the time of the sale by the state, to defendant.</p>

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

<p>CONTEMPT • — • LEGALITY 03? COM3MITMENT.</p> <p>Under Bal. Code, §5798, subd. 5, which provides that disobedience of any lawful judgment, decree, order or process of the court shall be deemed a contempt of court, and Id., § 5801, which provides that, where a contempt is not committed in the immediate presence and view of the court, “before any proceedings can be taken therein, the facts constituting the contempt must be shown by an affidavit presented to the court,” the court has no authority to punish defendant for contempt in refusing to apply money in his possession towards the satisfaction of a judgment, as ordered by the court in supplemental proceedings, where the fact of such refusal is brought to the attention of the court by the return of the sheriff and not by way of an affidavit.</p> <p>SAME — REVIEW IN HABEAS CORPUS PROCEEDINGS.</p> <p>Although the court in proceeding in a contempt matter without having the facts constituting it shown by affidavit may be merely erroneously exercising jurisdiction, rather than acting without jurisdiction, yet the legality of the order of commitment may be inquired into by writ of habeas corpus, under Bal. Code, § 5826, which restricts courts or judges from inquiring into the legality of any judgment or process whereby the party is in custody for any contempt of court; but provides that an order of commitment as for a contempt upon proceedings to enforce the remedy of a party, shall not be included in the restrictions upon such inquiry.</p>

<p>TAXATION PAYMENT BY JUDGMENT LIENOK TAX LIENS.</p> <p>Laws 1897, p. 175, § 82, which provides that “any person who has a lien, by mortgage or otherwise, upon any real property upon which the taxes have not been paid, may pay such taxes and the interest, penalty and costs thereon,” for which he shall have a lien collectible “as a part of and in the same manner as the amount secured by the original lien,” is applicable to holders of general judgment liens as well as to holders of specific liens.</p> <p>SAME--WHEN EQUITABLE LIEN ARISES THROUGH PAYMENT OE TAXES.</p> <p>Where a judgment creditor in good faith pays the delinquent taxes against his debtor’s land, in the belief that he has a lien against the premises, and is protecting himself against a paramount claim, he is entitled to an equitable lien as against a mortgagee for the sums expended for taxes, with interest thereon.</p> <p>J UDGMENTS — LIEN-REVIVAL.</p> <p>Under Code Proc., §§ 462, 463, which provide that the lien of a judgment continues for five years from the date of its rendition, and that proceedings to revive the lien may be instituted within six years from the date of judgment, the judgment lien terminates at the expiration of five years from its date of rendition, and becomes inoperative for any purpose unless revived within the succeeding year, when the lien again begins to operate from the date of revivor.</p> <p>SAME — EXPIRATION OF LIEN PENDING EXECUTION SALE — EFFECT.</p> <p>An execution sale upon a judgment whose lien has expired is void, even if the execution had been issued prior to the expiration of the lien.</p>

<p>DESCENT AND DISTRIBUTION — FUNERAL EXPENSES — WHEN CHARGED UPON DECEDENT’S ESTATE.</p> <p>Funeral expenses constitute a debt against a decedent, within the contemplation of Laws 1895, p. 197, which provides that “no real estate of a deceased person shall be liable for his debts unless letters testamentary or of administration be granted within six years from the date of the death of such decedent.”</p> <p>SAME — STATUTE OF LIMITATIONS.</p> <p>Under Laws 1895, p. 197, § 1, which provides that when a person dies seized of lands, his title shall vest immediately in his heirs or devisees, subject to his debts, family allowance, expenses of administration, etc., and under •§ 3 of the act, which provides that such real estate shall not be liable for the. decedent’s debts, unless letters testamentary or of administration he granted within six years after his death, the real estate of a decedent is charged with such debts only in case letters were issued within the period of limitation, and where more than six years have elapsed before the issuance of letters the real estate cannot he charged with said debts.</p>

<p>PROHIBITION, WRIT OF-WHEN LIES-JURISDICTION OF TRIAL COURT -UNAFFECTED BY PREMATURE APPEAL.</p> <p>Probibition will not lie to restrain tbe superior court from further proceeding in an action to condemn a stream as a right of way for logging purposes, on the ground of a removal of the cause from the jurisdiction of the trial court by appeal, where the appeal was from an order overruling a demurrer to the petition, although such demurrer raised the question of public use, and Laws 1901, p. 213, provide that “either party may appeal from the order of the court adjudicating or refusing to adjudicate that the contemplated use of the property sought to be appropriated is really a public use,” since the ruling was simply upon the demurrer (which was not an appealable order), and was not an adjudication upon the facts, from which latter character of order only would an appeal lie. (Anders and White, JJ., dissent).</p> <p>CERTIORARI-WHEN LIES-ADEQUATE REMEDY BY APPEAL.</p> <p>Certiorari will not lie to bring up for review the action of the lower court in permitting parties to a condemnation suit for right of way to make use thereof without first making compensation to the owners, since there is an adequate remedy by appeal from the judgment in the condemnation proceedings.</p>

<p>LARCENY — OBTAINING MONEY THROUGH DISHONEST GAMBLING GAME -INSTRUCTIONS.</p> <p>In a prosecution for larceny for obtaining the money of the prosecuting witness by artifice in a game of poker, where it appeared from the evidence that the other players in the game were confederates and that they so manipulated the cards as to give such witness no chance of winning, but he was induced by one of the confederates to bet his money on his hand under the assurance that he held the winning one, all the confederates knowing what such witness had in his hand, a requested instruction was properly refused, where the court was asked to charge that if the jury found the prosecuting witness “engaged in a game of cards, and intended to bet and win or lose his money bet, as money is usually lost or won at cards, and allowed the money to be taken from the table without objection on his part, because he had lost the bet, you will find the defendant not guilty, whatever the character qf the game may have been.”</p>

<p>FISHERIES-TRAPS — DEPTH OF WATER-CONSTRUCTION OF STATUTE.</p> <p>Laws 1899, p. 194, §.l, which provides that it shall be unlawful for any person to construct, operate, and maintain in any of the waters of the state, “at a greater depth than sixty-five feet at low tide,” any pound net or trap for the purpose of catching salmon or other food fishes, was intended by the legislature, in view of all the provisions of the act, to prohibit the construction of such fishing appliances in waters of greater depth at low tide than sixty-five feet.</p> <p>SAME-EVIDENCE OP DEPTH — GOVERNMENT TIDE TABLES.</p> <p>The tide tables prepared by the United States government for the use of navigators on the waters of Puget Sound are competent evidence for the purpose of finding by their aid the depth of the water at a given time and place, under normal conditions, in order to determine whether a fish trap had been constructed in waters of greater depth than sixty-five feet at low tide, in contravention of the act (Laws 1899, p. 194), relating to the protection and propagation of food fishes.</p> <p>SAME — INJUNCTION AGAINST MAINTENANCE-SUFFICIENCY OF FINDINGS.</p> <p>A judgment enjoining the maintenance and operation of a fish trap hy defendants is supported hy a finding of the court that such trap interfered with the common right of fishery as regulated hy the statutes of the state; that it is an infringement upon the location of plaintiff and materially injures and damages the plaintiff, and is, as to it, a nuisance in fact, since such finding is sufficient to show special injury, warranting plaintiff in maintaining injunction against defendants in its own name.</p>

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

<p>Appeal from Superior Court, Garfield County. — Hon. Chester H Miller, Judge.</p>

<p>ACTION AGAINST UNDISCLOSED PRINCIPAL — NON-SUIT.</p> <p>In an action against an undisclosed principal upon a contract for the sale of land, plaintiff should he non-suited, where the evidence shows the contract was executed in the name of an alleged agent, as if the latter were the owner; that the contract in nowise disclosed the relation of principal and agent; that nothing was shown indicating that plaintiff believed he was dealing with an agent, nor tending to show a mutual mistake in .-so drawing the contract, nor a ratification by the principals, with full knowledge of the material facts respecting the unauthorized acts of the alleged agent.</p>

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

<p>NEW TRIAL-INSUFFICIENCY OF EVIDENCE.</p> <p>Where the verdict of a jury in an action to recover the purchase price on a sale of goods is against defendant • in such a sum as not to conform to the facts under either the plaintiff’s or the defendant’s theory of the case, the defendant is entitled to a new trial on motion therefor.</p>

<p>MORTGAGE FORECLOSURES-TRIAL OF TITLE — DECREE FINDING TITLE IN HUSBAND — CONCLUSIVENESS AS TO WIFE’S INTEREST.</p> <p>Under the rule that questions of paramount title cannot be tried in suits for foreclosure of mortgages; a wife is not bound by a decree in a foreclosure proceeding which finds that her husband was the sole and separate owner of the property and that she had no interest therein, even though she was made a party to the suit because of having joined in the execution of the note, was personally served, and made defendant therein.</p>

<p>JUDGES PRO TEMPORE-JURISDICTION IN TRIAL OF CAUSES — POWER TO DETERMINE MOTION FOR NEW TRIAL.</p> <p>Under Bal. Code, § 4676, which provides that a case may be tried by a judge pro tempore when the parties to the cause have agreed thereto in writing, a judge pro tempore may be appointed upon the written stipulation of the parties to hear and determine whatever remains to be done in a case, even after verdict, such as the determination of questions raised by motion for new trial, and the entry of judgment upon the verdict theretofore rendered.</p> <p>SAME-WHEN AUTHORIZED TO SETTLE STATEMENT OF FACTS.</p> <p>A judge pro tempore has power to settle the statement of facts in a case, where he was the presiding judge at the time of its trial and has been duly appointed judge pro tempore after the expiration of his term, for the purpose of trying whatever remains to he done in the case.</p> <p>APPEAL — REVIEW OF MOTION FOR NEW TRIAL — • INSUFFICIENT RECORD.</p> <p>Alleged error of the trial court in overruling a motion for a new trial will not be considered on appeal, where there is no statement of facts in the record.</p>

<p>1NTOXICATING LIQUORS — INJURIES FROM SALE — LIABILITY OF LESSOR —RIGHT OF ACTION AGAINST TENANT.</p> <p>Where a lessor of premises has been compelled to pay a judgment for damages against him by reason of the injuries resulting from the sale by his tenant of intoxicating liquors on the leased premises, under Bal. Code, §§ 2945, 2947, which provide that the owner or lessor of premises wherein intoxicating liquors are kept for sale shall be severally and jointly liable with the person selling for injuries to person or property or means of support caused to another by reason thereof; and any owner or lessor of real estate, who shall pay any money on account of such liability, for any act of his tenant, may, in a civil action, recover of the tenant the moneys paid, a lessor who has been compelled to pay a judgment against himself for the act of a tenant has no right of action against his tenant, when the latter had not been made a party to the original action fixing the liability of the lessor.</p>

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

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

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

<p>APPEAL-SUPERSEDEAS BOND — SUFFICIENCY.</p> <p>A judgment in favor of defendant for costs upon the dismissal of plaintiff’s action is a judgment for money, and a supersedeas bond upon appeal therefrom need only be in a sum double the amount of such costs, in addition to the $200 penalty required in the appeal bond, under Bal. Code, § 6506, which provides that the penalty of an appeal bond shall not be less than $200, and, in order to effect a stay of proceedings, where the appeal is from a final judgment for the recovery of money, it shall be in a penalty double the amount of the damages and costs recovered in such judgment.</p> <p>PLEADING-BREACH OF WARRANTY OF TITLE — IMMATERIAL AVERMENTS.</p> <p>In an action for the breach of a covenant of title, in a warranty deed, the action of the court in striking from the complaint, on motion of defendant, the words, “and claimed to own and held itself out as the owner of all the lands to deep water,” was not erroneous, when such stricken matter referred to claims made by defendant a year prior to the execution of the deed, since the intention of the parties must be gathered from the deed itself, when there is no ambiguity in its terms.</p> <p>VENDOR AND PURCHASER — WARRANTY OF TITLE — LIABILITY OF VENDOR OF STATE LANDS.</p> <p>Where a grantor conveys a tract of land by metes and bounds, with full covenant of warranty of title, he is bound by his covenant as to the whole tract, although a portion of it was openly, plainly, visibly and notoriously tide land, claimed by the state, and from which the grantee was subsequently evicted by the state under claim of paramount title.</p> <p>SAME-COVENANT AGAINST PERSONS-WHEN INCLUDES STATE.</p> <p>A grantor who warrants his title generally against “all persons whatsoever” is liable thereon, although the outstanding paramount title rests in the state instead of in a person.</p> <p>SAME — ACTION FOR BREACH-WHAT CONSTITUTES EVICTION.</p> <p>When the paramount title is in the state and the covenantee in a deed from a private grantor is ordered by the state to either vacate or to purchase the land, and he accordingly purchases from the state in order to protect improvements made by him while in possession under his grantor’s deed,' the purchase must be considered such an eviction as to constitute a breach of the covenants of title and for quiet enjoyment.</p> <p>SAME — LIMITATION S.</p> <p>The statute of limitations will not begin to run against an action for breach of covenants of warranty of title and for quiet enjoyment until the eviction of the grantee.</p>

<p>Apj>eal, from Superior Court, Pierce County. — Hon. Oliver V. Linn, Judge.</p>

<p>COUNTIES-BOARD OF COMMISSIONERS — POWERS-ESTABLISHMENT OF COUNTY ROADS.</p> <p>Under Bal. Code, §§ 3771-3782, prescribing the method of procedure for the establishment of roads by the county commissioners, and providing that a petition therefor must be presented by householders residing in the vicinity of the proposed road setting forth its terminal points, its course and width; that viewers shall be appointed to view, lay out and survey the same as nearly as practicable in accordance with the petition, and make report thereon to the board; that the board must thereupon order a hearing, of which notice must he given to those interested in the lands to he taken, and that the board shall thereafter declare “whether the road shall be established in accordance with the report of the viewers, or otherwise, or at all,” the county commissioners have no authority upon the hearing of an adverse report thereon by the viewers, to order the establishment of a road along another route and reaching a different terminal than the one viewed, surveyed and reported upon by the viewers.</p>

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

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

<p>REPLEVIN-NOT MAINTAINABLE AGAINST ONE IN ADVERSE POSSESSION WHO SEVERS LOGS EROM REALTY.</p> <p>The owner of lands, who is not in possession thereof, cannot maintain replevin for the recovery of saw logs severed from the land by one in adverse possession thereof under claim of right.</p>

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

<p>JUDGMENTS ■— VACATION-PROCEDURE — JOINDER OF CAUSES.</p> <p>The fact that the proper procedure for the vacation of a judgment upon the grounds stated in Bal. Code, § 4953, is by motion, while the procedure prescribed for the vacation of judgment for one of the causes provided in Id. § 5153 is by petition, would not preclude the applicant from presenting by way of petition his demand for relief, based upon a joinder of the causes of action provided for under those two sections of the Code.</p> <p>SAME-NECESSITY OF VALID DEFENSE-HOW DETERMINED.</p> <p>Bal. Code, § 5158, which provides that a judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action- in which the judgment was rendered, does not contemplate a trial upon the merits, but merely that the court shall find that the facts alleged constitute a defense to the cause of action upon which the judgment is founded and that there is substantial evidence in support thereof.</p>

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

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