Volume 26 — Washington Reports

<p>NEW TRIAL — EXTENSION OF TIME FOR APPLICATION-REPEAL BY IMPLICATION.</p> <p>Laws 1897, p. 13, which requires a motion for a new trial to be filed within two days after verdict rendered does not repeal by implication, so far as motions for new trial are concerned, Laws 1893, p. 414, § 24, which provides that “the court may enlarge or extend the time, for good cause shown, within which, by statute, any act is to be done, proceeding had or taken, notice of paper filed or served, or may, on such terms as are just, permit the same to he done or supplied after the time therefor has expired,” and consequently the action of the court on the day following the rendition of a verdict, in granting an extension of twelve days’ time in which to file a motion for a new trial, was not erroneous.</p>

<p>APPEAL — BRIEFS-OMISSION OF FINDINGS-IIOW CURED.</p> <p>The supreme court rule (Rule 8, subd. 5), which requires that, in all equity causes and actions at law tried by the court without a jury, the party appealing shall print in his brief the findings of fact, with exceptions thereto, and the requested findings, with the exceptions, in case any error shall he based thereon, is sufficiently complied with by the insertion of such matters in the reply brief.</p> <p>SAME — EXCEPTIONS TO FINDINGS-SUFFICIENCY.</p> <p>An exception to findings of fact, specifying them by number, is a sufficient compliance with the statutory requirement (Bal. Code, § 5052) that a party excepting must specify the part or parts excepted to.</p> <p>SAME-SUPERSEDEAS BOND-SUFFICIENCY.</p> <p>In computing the amount necessary for a supersedeas bond on appeal by defendants, there should he excluded from the computation tbe sum deposited by them in court by way of tender and subsequently adjudged and paid to plaintiff, and tbe supersedeas bond consequently need only be in double the amount of the recovery against them as that constitutes the real subject of controversy.</p> <p>LABORER’S LIEN ON LAND BENEFITED BY STREET IMPROVEMENT-CONSTITUTIONALITY.</p> <p>Bal. Code, § 5902, which gives a lien upon real property to any person who, at the request of the owner, clears, grades, fills in or otherwise improves any street or road in front of or adjoining the same for labor performed or materials furnished for such purpose, is not unconstitutional on the ground of depriving the owner of his property without due process of law.</p> <p>SAME- — LIEN NOTICE-SUFFICIENCY OF ALLEGATION OF EMPLOYMENT.</p> <p>A lien notice which states that the lienor performed labor at the request of another is equivalent to saying that he was employed by the other, and is sufficient under Bal. Code, § 5904, which provides that the claim of lien shall state “the name of the person by whom the laborer was employed.”</p> <p>STREET IMPROVEMENTS-WORK DONE BY PRIVATE CONTRACT — INTERPRETATION.</p> <p>Where a contract was made between abutting property owners and a contractor for the improvement of a certain street, “according to the plans and specifications of the city engineer,” the fact that the specifications were drawn up on a printed form used by the city in advertising for proposals for the improvement of streets, would not constitute portions of such printed form, other than that providing for the working details, a part of the contract, and consequently the contractor would not be bound by provisions therein forbidding the assignment of his contract without the consent of the board of public works, and providing liquidated damages for failure to complete the work within a designated time.</p> <p>SAME-COUNTERCLAIM FOR DAMAGES.</p> <p>Where a contract for improving a street provided that waste material might be deposited on abutting property, as might be permitted by owners thereof, a property owner may counterclaim for damages when the waste was not deposited as directed by him, but was heaped up, together with stumps, in one pile on his property.</p> <p>SAME-LIQUIDATED DAMAGES.</p> <p>Although a contract for a street improvement provides for its completion by a given date, damages by reason of failure to perform are not recoverable, in the absence of a provision for liquidated damages, or where no facts are pleaded and proved showing the accrual of injury, because of such iailure.</p> <p>SAME-METHOD OF PAYMENT-ALTERATION OF CONTRACT.</p> <p>A contract for the improvement of a street which provided that each property owner was to pay “in proportion to his ownership and interest in the property abutting and’ proximate to said street” as the same shall be distributed by the city engineer, was not altered by the subsequent interlineation of the words “each party thereto to pay only such part'of the total cost as his front footage has to the total frontage improved in said street.”</p> <p>SAME — COST-EXCESS PAYMENT BY ONE OWNER "WILL NOT BENEFIT ANOTHER.</p> <p>The fact that one abutting property owner by mistake paid more than his share of the cost of a street improvement would not inure to the benefit of other property owners liable for the cost of such improvement, and permit them to deduct a proportionate part of such excess payment from the assessments properly chargeable against them.</p> <p>TENDER — EFFECT-IIOW FAR ADMISSION OF CONTRACT SUED ON. ■</p> <p>Where, in an action on contract, the defendant pleads and makes good in court a tender for a portion of the sum claimed by plaintiff, he thereby admits only that a contract of the general nature pleaded was entered into and the amount due thereon to the extent of the tender, but he is not precluded thereby from showing damages as an offset or counterclaim against the sum demanded by plaintiff, nor estopped from asserting that there were other provisions of the contract than those pleaded by plain-tin:.</p> <p>SAME-WHAT SHOULD BE INCLUDED — COST OF FILING LIEN NOTICE.</p> <p>A tender made before the bringing of action for the enforcement of a lien need not include the cost of filing the lien notice, since it is only in the event of the lienor’s prevailing in case of a suit that he is entitled to recover the cost of filing such notice.</p>

<p>JUDGMENT — -ASSIGNMENT—SUBSEQUENT ACTION BY JUDGMENT CRED-ITO» ON APPEAL BOND.</p> <p>A judgment creditor has no right of action upon an appeal bond, which had been given as collateral security for the judgment, when, without the consent of the judgment debtor, -he has assigned the judgment itself to another, while reserving to himself all the rights under the appeal bond, since the assignment of the judgment carries the appeal bond as incident to it, even though the assignor and assignee may have agreed otherwise.</p>

<p>WILLS — CONSTRUCTION'—GOVERNED BY SITUS OF REALTY.</p> <p>A devise of real property is governed by the law of its situs, and not by that of the testator's domicile.</p> <p>SAME-STATUTE OF USES-APPLICATION TO CHARITABLE TRUSTS.</p> <p>The statute of uses (27 Hen. VIII., ch. 10), which provides that title conveyed in trust passes no estate to the trustee, but vests at once in the cestui que trust, has no application to a devise for public charitable uses.</p> <p>SAME — CHARITABLE USES — DEVISE FOR SECTARIAN SCHOOL.</p> <p>A bequest was for charitable uses, where the devise was to trustees, in trust “for the proposed Congregational Academy, in or near the city of Spokane, Washington, contemplated to be started and equipped by or under the auspices of the Congregational Churches,” and, in case it should not be incorporated, then the property should go to the same trustees, “in trust for such other charitable purpose and uses as they may see fit.”</p> <p>SAME — UNCERTAIN CHARITABLE PURPOSE — EFFECT OF DESIGNATION OF TRUSTEES.</p> <p>A devise of property to certain trustees, giving them power to use the bequest for such charitable purposes and uses as they in their discretion may see fit is not void on the ground of uncertainty or indefiniteness either as to the objects to be accomplished or as to the beneficiary.</p> <p>TRUSTS — JURISDICTION OF EQUITY.</p> <p>Courts of equity take cognizance of trusts for charitable uses under their inherent, original jurisdiction of all trusts, regardless of whether the statute of charitable uses, known as.43 Eliz. ch. 4, has been specifically adopted.</p>

<p>APPEALABLE OBDEB — QUASHING EXECUTION SALE.</p> <p>An order setting aside an execution levy and sale is an order made after judgment affecting a substantial right, and is therefore appealable under Bal. Code, § 6500, subd. 7.</p> <p>SAME — LIMITATION ON BIGHT OP APPEAL-WHEN BEGINS TO BUN.</p> <p>Under Bal. Code, § 6502, which provides that an appeal from any order, other than a final order, must be taken “within fifteen days after the service of a copy of such order, with written notice of the entry thereof, upon the party appealing,” the fifteen day limitation does not begin to run until compliance with the statutory requirement of service of such written notice, irrespective of the fact of the appellant’s having actual knowledge otherwise of the entry of the order.</p> <p>EXECUTION SALE- — PETITION TO SET ASIDE-IRREGULARITIES CURED BY CONFIRMATION.</p> <p>Where an execution sale has been confirmed without objection, the courts cannot take jurisdiction of a petition to quash and set aside the execution levy and sale, although attended by such irregularities as confusion between the dates of the sale notices and the date of sale, the sale of the land as an entirety without being offered in parcels, and its sale for a larger amount than was actually due.</p>

<p>PLEADING-DEPARTURE — CURED BY AMENDMENT.</p> <p>The fact that plaintiff’s reply showed a departure from his complaint as originally filed cannot be urged as error, where the lower court authorized the complaint to be amended on the trial to correspond to the evidence, whereby the objection of departure in the pleadings was at the same time eliminated.</p> <p>WITNESSES-TRANSACTIONS WITH DECEDENT-PARTIES IN INTEREST-HUSBAND AND WIPE.</p> <p>Under Bal. Code, § 5991, which provides that in an action where the adverse party sues as administrator of a deceased person, then a party in interest 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, a wife cannot testify to such transactions or statements between her husband and a deceased person, although made or done in her presence, where community interests are involved «n the result of the action.</p>

<p>PLEADING-STJPPICIENCY OP COMPLAINT-ACTION POE DIVISION OP PEOPITS.</p> <p>A complaint alleged that plaintiff invested funds for defendant’s testator in real estate under an agreement that the decedent should sell upon plaintiff’s advice, and plaintiff should have one-half of the net profits arising from the transactions; that decedent refused to sell a portion of the real estate when advised by the plaintiff and ■ that plaintiff’s share of the profits thereon would have been $9,050; that plaintiff performed other services for decedent of the reasonable value of $400 per annum, from January 1, 1887, to January 1, 1893; that on or about June 1, 1889, plaintiff and decedent had an accounting, whereby the latter agreed to convey or bequeath to the former a certain piece of real estate of the value of more than $12,000; that the decedent failed to either convey or bequeath said realty, wherefore plaintiff demands judgment for $11,850. Held, that the action was not one upon an account stated, and was proof against demurrer on the ground of not stating facts sufficient to constitute a cause of action, since it stated facts showing a contract for a division of profits, rather than an oral contract for the conveyance of realty.</p> <p>SAME — DEMURRER-SPECIFICATION OF GROUNDS.</p> <p>A demurrer for want of facts will not reach the objection that two causes of action have been improperly joined.</p> <p>SAME — OVERRULING DEMURRER-HARMLESS ERROR.</p> <p>The fact that a demurrer on the ground that the action was not commenced within the time limited by law was overruled was harmless error, when it appeared from the reply and the evidence that it could not have been sooner brought because the defendant resided in another state.</p> <p>EVIDENCE — RECITALS IN DEEDS AS TO CONSIDERATION-CONCLUSIVENESS.</p> <p>In an action to recover a division of profits upon the purchase and sale of real estate, the recitals in the deeds covering the purchase and sale of such realty must be held conclusive of the amounts given and received, when not shown to be incorrect or disputed by other evidence.</p> <p>SAME-TRANSACTIONS WITH DECEASED PERSON.</p> <p>The statute (Bal. Code, §5991) forbidding a party in interest to testify as to transactions had by him with, or statements made to him by, a deceased, person, was not transgressed in an action for a division of profits arising from investments in real estate under a contract with a deceased person, where the plaintiff did not testify to conversations or transactions with such decedent, but confined his testimony to his inspection of certain lots when alone, stating their value at the time he saw them, and that deeds were afterward made for such property to the deceased.</p> <p>SAME — CHALLENGE TO LEGAL SUFFICIENCT.</p> <p>Although the evidence in an action based upon a contract giving plaintiff one-half of the net profits arising from real estate investments was hardly sufficient to permit the jury to determine the net profits, a challenge to the legal sufficiency of the evidence was properly overruled, where the evidence showed that defendant admitted more than three years after the dealings between him and plaintiff were closed that plaintiff’s share was for an amount in excess of that for which suit was brought.</p> <p>NEW TRIAL-MISCONDUCT OF JURY-IMPEACHMENT OF VERDICT.</p> <p>A motion for new trial on the ground of the misconduct of the jury was properly denied where it was based upon the affidavit of one of the jurors that the jury reached its verdict by a certain method of calculation, even though he did not join therein, since such alleged misconduct inheres directly in the verdict itself, and one of the jurors cannot be heard to impeach the jury’s verdict.</p>

<p>Appeal from Superior Court, King County. — Hon W. R. Bell, Judge.</p>

<p>CONTEMPT-SUFFICIENC Y OP AFFIDAVIT CHARGING CONTEMPT.</p> <p>Under. Bal. Code, §5801, which provides that, when a contempt is not committed in the immediate presence of the court, the facts constituting the contempt must be shown by an affidavit presented to the court, the court cannot assume jurisdiction of a contempt proceeding upon an affidavit reciting that a certain newspaper contained statements showing that defendant was guilty of the contempt charged.</p>

<p>JUDGMENTS- — PRIORITY OP LIENS — SALE ON EXECUTION — DISPOSITION OP SURPLUS PROCEEDS.</p> <p>Under tbe statutes of this state authorizing judgment liens upon tbe debtor’s real estate, giving them priority according to their entry, providing for the sale of such real estate on execution to satisfy any judgment against him and providing for the disposition of the proceeds of such sale, the holder of a junior judgment lien cannot hy garnishment obtain priority over an intermediate judgment in the surplus money left after a sale to satisfy the senior judgment, since such money stands in place of the realty, and is subject to the judgment liens in the order of their original priority, notwithstanding the provisions of Laws 1889, p. 88, § 6, subd. 5, authorizing the payment to the judgment debtor of any proceeds remaining after the satisfaction of a judgment.</p>

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

<p>STREET IMPROVEMENTS-CONTRACT EOR PAYMENT-INTEREST ON WARRANTS-MANDAMUS.</p> <p>Where an ordinance providing for a street improvement created a special fund out of which the warrants drawn in favor of the contractor for the work should be paid; and the contract between the' city and the contractor stipulated that warrants drawn thereon to the amount of the contract price were to be received in payment, but that the assessment should not become due prior to two years and one-half after the completion of the improvement; and an assessment roll was duly made and approved by the city fixing the date of delinquency on the assessments for such improvement at a period nearly two and one-half years subsequent to the completion of the improvement, mandamus would not lie to compel payment of interest from the local improvement fund upon warrants issued against it and presented prior to the date of delinquency of the special assessment levied for the creation of such fund, since interest thereon would not begin to run until such delinquency.</p>

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

<p>WILLS-TRUST IMPOSED OX EXECUTORS-JURISDICTION OF SUPERIOR COURT.</p> <p>Where by the terms of a will the executors are constituted trustees for the purpose of managing the estate without the intervention of the probate court, marshal its assets and devote the proceeds in the interest of a specified beneficiary, the superior court has jurisdiction on its equity side, and not in probate, of an action instituted by the cestui que trust against the trustees for an accounting and for their removal.</p> <p>SAME-ACTION AGAINST TRUSTEES-PLEADING-DEMURRER.</p> <p>Where trustees named by a will accept the trust thereunder directing them to convert the testator’s estate into money with all convenient and judicious speed and marshal all the assets of the estate into a fund, which shall be annually tendered to the city of Seattle for the purpose of constructing a public hall, if the city shall accept same and contribute an equal amount, a complaint against the trustees for an accounting and their removal is proof against general demurrer, when it alleges that they have failed and refused for a period of more than nineteen years to dispose of the property of the estate and marshal its assets, have mismanaged such moneys as they have received and are inactive and negligent in the discharge of their trust.</p> <p>SAME.</p> <p>In such ah action, it is unnecessary that the complaint allege that the city has been, or is, ready to contribute to a public hall or that it is injured by the delay, since such a state of facts would afford no excuse for non-performance of the duties of the trust.</p> <p>ACTION BY CITY — AUTHORITY OF ATTORNEY TO SUE — PRESUMPTIONS.</p> <p>The authority of the corporation counsel of a city to bring suit in its behalf will be presumed, in the absence of proof to the contrary, and it is unnecessary that such authority should appear upon the face of the complaint.</p>

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

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

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

<p>Appeal from Superior Court, Walla Walla County.— EL’on. Thomas H. Brents, Judge.</p>

<p>ABATEMENT OF ACTION-PENDENCY OF APPEAL-CUSTODY OF MINOR CHILD-JURISDICTION OF SUPREME COURT.</p> <p>Where an appeal has been taken from an order of the court modifying a divorce decree so as to award the custody of the minor child to the mother, and the appeal is pending undisposed of, the fact of such appeal may be set up by plea in abatement in a subsequent action by the father in which he seeks to have the custody of the child awarded to him, since Bal. Code, § 6515, provides that upon an appeal being effectuated the supreme court acquires jurisdiction of the subject matter of the controversy for all necessary purposes.</p> <p>SAME.</p> <p>Although a decree disposing of the custody of a minor child does not have the force of res judicata but is subject to modification whenever the interests of the child demand it, yet where an appeal has been taken to the supreme court that court alone possesses the sole power to make orders with reference to the custody of the child, and applications therefor should be addressed to that court when changed conditions require a change during the pendency of the appeal.</p>

<p>TIDE LANDS - SALE BY STATE - CONSTRUCTION OF CONTRACT ■ — • INCLUSION OF LANDS WITHIN GOVERNMENT SURVEY.</p> <p>A purchaser from the state of tide lands described as lying in front of, adjacent to, or abutting on a lot as surveyed and platted by the general government does not thereby acquire title to tide lands within the meandered calls of said lot, but only in front of, or abutting on, or adjacent thereto.</p> <p>QUIETING TITLE-INQUIRY INTO PLAINTIFF’S TITLE.</p> <p>Although possession of plaintiff is sufficient under the statute to warrant an action to quiet title, yet where, in addition to possession, he shows the title under which such possession is claimed, the court is then required to pass upon the validity of his title, and thus on the lawfulness of his possession.</p> <p>SAME-WHEN DEFENDANT’S TITLE IMMATERIAL.</p> <p>Where, in an action to quiet title, plaintiff has failed to establish his own title, it is unnecessary to inquire into the validity of defendant’s title.</p>

<p>CONTINUING ALIMONY — REDUCTION TO GROSS SUM — FORECLOSURE OF LIEN.</p> <p>A decree for continuing monthly alimony awarded the wife for the support of minor children upon granting her a divorce, which made such award a lien upon certain described premises, may be foreclosed upon the failure of the husband to make any of such payments, the value of such continuing alimony reduced to a gross sum and the premises sold to satisfy the lien.</p> <p>SAME-ATTORNEY FEES.</p> <p>Where there was no provision in a decree awarding divorce and alimony authorizing the enforcement of a lien for attorney fees upon foreclosure of the lien for alimony, plaintiff in such a case would be entitled only to the statutory attorney fee authorized by Bal. Code, § 5165, which allows to the prevailing party certain sums by way of indemnity, which are termed costs.</p>

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

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

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

<p>HIGHWAYS-ESTABLISHMENT BY PBESCEIPTION-SUFFICIENCY OF EVIDENCE.</p> <p>In an action to restrain defendants from obstructing a public highway the court was warranted in finding the establishment by prescription of a road forty feet in width, when it appeared from the evidence that the road had been used by the public for over twenty years, during more than ten of which the land on which it was located was public land of the United States; that the road as used was wide enough for two or three wagons to pass abreast; that there had been variations of a few feet from time to time in the road as traveled; and that the road had not been fenced by defendants until after the prescriptive rights of the public had become matured.</p> <p>SAME- — PUBLIC USER-WIDTH OF ROAD.</p> <p>The act of the court in decreeing the estahlishment by prescription of a highway forty feet in width was not erroneous, where the law fixed the maximum width of county roads at sixty feet and the minimum width at thirty feet, since an.easement, when acquired hy user, cannot he limited to the actual beaten path, hut may be as broad as the public require for passing as well as for traveling in one direction.</p>

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

<p>Appeal from Superior Court, Kittitas County. — lion. Fbank H. Rudicin, Judge.</p>

<p>CHATTEL MORTGAGES-FORECLOSURE BY NOTICE-AUTHORITY OF CONSTABLE.</p> <p>A constable lias no authority to foreclose a chattel mortgage by notice and sale under the terms of Bal. Code, §§ 5871, 5872, which provide that such mortgages may be foreclosed by the service of the prescribed notice by the “sheriff or other proper officer”, and that “such notice shall be sufficient authority for the officer to take such property into his immediate possession.”</p> <p>PLEADING — CONVERSION-COUNTERCLAIM-DEFECTIVE PLEA CUBED BY ADMISSION OF EVIDENCE.</p> <p>In an action for conversion founded on the defendant’s unlawful seizure and sale of plaintiff’s goods under a chattel mortgage, an answer setting up by way of counterclaim the plaintiff’s indebtedness for which the mortgage was security cannot be urged as error after judgment, where no demurrer was interposed to such answer and evidence in support of its allegations had been introduced without objection. ■</p>

<p>Appeal from Superior Court, Whatcom County. How. Hibam E. Hadley, Judge.</p>

<p>APPEAL-INSUFFICIENCY OF BOND.</p> <p>On appeal from a money judgment for the sum of $1,400, an appeal bond in the sum of $3,200, conditioned to pay all costs and damages that may be awarded against the appellant 'on the appeal not exceeding $200, and to satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court shall make or order to be rendered by the superior court, fully complies with the requirements of Bal. Code, §§ 6505, 6506, on the subject o'f appeal and supersedeas bonds.</p> <p>SAME-STATEMENT OF FACTS-BY WHOM TO BE SETTLED.</p> <p>The fact that a statement of facts was settled and certified by the judge who presided at the trial after his term of office had expired would not be ground for striking the statement, where it was subsequently settled and certified within the statutory time by the judge of the court.</p> <p>WRONGFUL INJUNCTION-ACTION FOR DAMAGES-PARTIES PLAINTIFF.</p> <p>Where an injunction was wrongfully sued out against a judgment creditor and a sheriff, to restrain the sale of real estate upon execution, an action for damages is maintainable by the judgment creditor alone, without the necessity of joining the sheriff as a party plaintiff.</p> <p>SAME-ATTORNEY FEES-WHEN RECOVERABLE.</p> <p>Attorney fees are recoverable as an item of damages in an action on the case for damages for the wrongful suing out of an injunction, when the language of the complaint is so strong that, as against demurrer, it must be held that the effect of the pleading is to tender the issue of malice and want of probable cause.</p> <p>SAME-LIABILITIES INCURRED BUT NOT PAID.</p> <p>In an action for damages for the wrongful suing out of an injunction, attorney fees and expenses are recoverable, when a liability therefor has been incurred, although such expenses may -hot have been paid.</p> <p>SAME-FORM OF ATTACK AGAINST INJUNCTION.</p> <p>Where a demurrer to an injunction in the federal court challenged its jurisdiction and reached the injunction as effectively as a motion to dissolve would have done, attorney fees are recoverable for services rendered in the presentation of the demurrer, the same as upon a former motion to dissolve; but attorney fees for services upon a trial on the merits after the overruling of the demurrer are not recoverable.</p>

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

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

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

<p>JUDGMENTS ■ — • ENTRY WHAT CONSTITUTES.</p> <p>Where a copy of a judgment is filed with the clerk on the day of its rendition, though not spread on the journal until several days thereafter, such filing must be construed as the date of entry, under Bal. Code, § 4722, which provides that the clerk shall keep a journal in which he shall record the daily proceedings of the court and enter all orders and judgments, and § 5115, which provides that judgments shall be entered on the day when given, unless otherwise specified, and § 5119, which provides that “all judgments shall be entered by the clerk, subject to the direction of the court, in the journal.” (Anders, J., dissents) .</p>

<p>Appeal from Superior Court, Thurston County. — Hon. Thomas Cabeoll, Judge.</p>

<p>Appeal from Superior Court, Thurston County.' — Hón. Thomas Carroll, Judge.</p>

<p>PERSONAL INJURIES TO MINOR CHILD — ACTION FOE LOSS OF SERVICES-EVIDENCE-MENTAL CONDITION.</p> <p>In an action by a father to recover for loss of services of his minor child resulting from personal injuries caused by defendant’s negligence, testimony of a physician as to such minor’s mental condition occasioned by such injuries is admissible as a proper subject for consideration in determining his future earning capacity.</p> <p>SAME-EXTENT OF INJURIES.</p> <p>The testimony of the mother of a minor child, who had been injured through defendant’s negligence, as to his condition when she first saw him shortly after he was hurt, is admissible in an action to recover for loss of his services, for the purpose of showing the jury the nature and extent of his injuries.</p> <p>SAME-VALUE OF SERVICES.</p> <p>In an action for loss of services of a minor child his mother is competent to testify as to the value of his past earnings and also as to what they would be worth as he advanced in years, since the value of the minor’s earning power is not a subject to be settled by expert testimony.</p> <p>SAME.</p> <p>In an action for loss of services of a minor child, evidence as to the cost and expense of keeping him in school and of clothing him is not admissible for the purpose of reducing defendant’s liability for the full value of such services.</p> <p>SAME-CROSS-EXAMINATION.</p> <p>Where a witness has testified that she knew the value of the services of her minor child, in an action for their loss, it is not error to admit her testimony as to what the value was prior to permitting adverse counsel to cross examine her as to her sources of knowledge, since that is a matter that might be developed on her general cross-examination.</p> <p>NEGLIGENCE-QUESTION FOR JURY.</p> <p>Defendant is not entitled to a non-suit in an action for damages as the result of his negligence, whereby personal injuries were caused by heavy planks slipping from the noose by which they were held while being lowered from a high building, although the evidence tends to show that the accident was due to the careless manner in which the knot was tied around the planks and that this had been done by parties for whom defendant was not responsible, when on the other hand there is evidence showing that defendant was superintending the lowering of the planks, and that the knot became loosened by reason of the manner in which the planks were permitted to strike against intervening telephone wires.</p> <p>JOINT TORT FEASORS — SETTING ASIDE VERDICT AGAINST ONE-EFFECT UPON LIABILITY OF OTHERS.</p> <p>The action of the court in setting aside a verdict and dismissing an action against one of two joint tort feasors cannot be urged as error by the other defendant, since each tort feasor is severally liable for the whole damage.</p>

<p>WILLS-PROBATE OF FOREIGN WILLS ■ — ■ VENUE.</p> <p>Under Bal. Code, § 6087, which provides for the probate of wills in the county in which any part of a testator’s estate may be, although he was not a resident of the state nor died therein, it is not necessary that a will executed in a foreign country by a person domiciled there should be first proved in such foreign country according to the laws prevailing there in order to entitle it to probate in this state.</p> <p>SAME-CONTEST-RIGHT TO JURY TRIAL. .</p> <p>Proceedings to contest a will are in their nature equitable, and trial by jury of issues of fact therein is not a matter of right.</p>

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

<p>EXECUTORS AND ADMINISTRATORS-COMPENSATION.</p> <p>The refusal of the court to allow an administrator his full claim for services in the management of two estates jointly is warranted, where it appears that he was the administrator of the estates of both the ancestor and the sole heir, that both estates comprised the same property, that the same services were rendered and the same accounting had in both of them, and that upon the final settlement of the ancestor’s estate he had been fully compensated for all his services rendered up to that date.</p> <p>SAME.</p> <p>The fact that the court in allowing an adminstrator the statutory compensation for services fails to include the real property of the estate as a basis from which to estimate -commissions upon the amount of the estate accounted for is not error, in the absence of any showing as to the value of the land.</p>

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

<p>MUNICIPAL CORPORATION-CONSTITUTIONAL LIMITATION ON INDEBTEDNESS-EXEMPTION OE EXPENSES NECESSARY TO MUNICIPAL EX-</p> <p>ISTENCE.</p> <p>Warrants issued by a city for necessary expenses in maintaining the existence of the municipality are valid, although the city may at the time have been indebted in excess of the constitutional limitation of 1% per centum of its taxable property, and such warrants are entitled to payment out of available funds in the order of their issuance.</p>

<p>EMINENT DOMAIN-STRUCTURES IN STREETS-DEPRIVATION OF ABUTTING OWNER OF EIGHT, AIR AND ACCESS-COMPENSATION.</p> <p>One’s right to light and air and access necessary to the use and possession of a lot abutting on a public street is property, within the meaning of art. 1, § 16, of the constitution, which provides that “no private property shall be taken or damaged for public or private use without just compensation having been first made or paid into court for the owner;” and, under this constitutional provision, it would be error of the court to permit him to be deprived thereof upon the giving of a bond by the appropriator to pay all damages the property owner might sustain.</p> <p>WRIT OF REVIEW — WHEN LIES INADEQUACY OF APPEAL.</p> <p>The extraordinary remedy of writ of review will lie, although there may be a remedy by appeal, where such remedy by appeal is neither speedy enough nor adequate to preserve the fruits of the litigation when won, under the constitutional and statutory provisions which confer jurisdiction on the supreme court to issue such writs when ixecessary to the complete exercise of its appellate and revisory jurisdiction, and for the purpose of correcting any erroneous or void proceeding, when there is no appeal, nor in the judgment of the court any plain, speedy and adequate remedy at law.</p> <p>SAME.</p> <p>The action of the trial court in dissolving an injunction against the erection of a high trestle for street car purposes upon the street in front of one’s premises, on condition that the appropriator give bond to pay the owner all damages, is reviewable by writ of review, even though the court might on appeal order the destruction of the trestle, since the damage would have been sustained by the erection and maintenance of the structure for a limited time, and the owner thereby delayed in receiving the compensation guaranteed to him by the constitution in advance of any appropriation of his property.</p>

<p>EQUITABLE ASSIGNMENT-ORDER UPON CITY FOR FUNDS DUE UNDER CONTRACT FOR PUBLIC WORKS.</p> <p>Where a contractor for the construction of water works for a city gives an order upon the city for the payment to a third person of a certain sum out of any moneys due or to become due under his contract with the city, such order, when filed with the proper accounting officer of the city, constitutes an equitable assignment of any of the funds in the possession of the city belonging to the contractor.</p> <p>SAME-ACTION ON-SUFFICIENCY OF COMPLAINT.</p> <p>In an action upon such equitable assignment, the complaint is proof against general demurrer, when it sets up the written order, which in itself imports a consideration, supported by the averment that it was given in payment for labor performed by plaintiff; and that it was delivered to the comptroller of the city and payment demanded, but that said officer retained the order and subsequently settled with the maker thereof in full, without paying plaintiff any part of the sum due him.</p> <p>SAME-RELIEF IN ACTION AT LAW.</p> <p>Under the system of code procedure, whereby the distinction between actions at law and suits in equity is abolished, an action at law is maintainable upon an equitable assignment.</p> <p>PARTIES-OBJECTIONS TO DEFECT OF PARTIES-WHEN RAISED.</p> <p>A defect of parties defendant cannot be urged as a ground of objection to the introduction of testimony at the trial.</p>

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

<p>COURTS-EXTRA TERRITORIAL JURISDICTION.</p> <p>A court of one state has no jurisdiction of an action whose subject matter involves primarily the right of possession of a mining claim in another state, although the necessary parties are before it, where tne possession is not incidental to the enforcement of a contract, or of a trust, or of relief from fraud, since it is only in cases involving equitable principles that a court can adjudicate upon property lying beyond its territory or jurisdiction.</p>

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

<p>CORPORATIONS-IN SOLVENCY-FRAUDULENT EXECUTION SALE-PURCHASE BY DIRECTOR ■— ACTION TO SET ASIDE-SUFFICIENCY OF COMPLAINT.</p> <p>An alleged fraudulent sale on execution of the real estate of an insolvent corporation to one of its directors and officers will not be set aside upon a complaint attacking it, where it appears from the complaint itself not only that the sale was duly confirmed by the court, without anything negativing plaintiff’s knowledge of the fraud at the time of the confirmation, but that plaintiff as a judgment creditor had received the proceeds of the sale and thereby in effect affirmed its validity.</p> <p>SAME.</p> <p>A complaint in an action asking a personal judgment against a director and officer of an insolvent corporation, on the ground that he had procured a fraudulent sale on execution of the corporate realty to himself at a grossly inadequate price, does not state facts sufficient when the complaint alleges that he still holds the property so purchased by him for the benefit of himself and his associates, since the proper remedy in such case, where the director has not converted the corporate property to his own use or diverted it to other uses than the payment of corporate debts, would be an action to set aside the transfer.</p> <p>FRAUDULENT CONVEYANCES — RIGHT OF LIEN HOLDER TO COMPLAIN.</p> <p>One who holds a judgment lien upon real property cannot complain of a fraudulent conveyance of the premises, since it is necessarily made subject to his lien, which remains unimpaired, even though the transfer is fraudulent as to other creditors.</p> <p>SAME-TRANSFER OF CORPORATE ASSETS TO DIRECTOR-LIABILITY OF</p> <p>GRANTEE.</p> <p>Where the personal property of an insolvent corporation has been transferred to a director for the purpose of placing it beyond the reach of creditors, a judgment creditor is entitled to recover its value from the grantee.</p>

<p>APPEALABLE ORDER-RULING ON DEMURRER. An order sustaining a demurrer is not an appealable one.</p>

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

<p>APPEAL-STATEMENT OF FACTS-TIME OF FILING.</p> <p>A statement of facts will be stricken on appeal where it was not served within thirty days after the entry of judgment, and no extension of time had been granted appellant therefor.</p> <p>SAME-DISMISSAL-NOTICE OE APPEAL PKIOK TO JUDGMENT.</p> <p>W-here notice of appeal in a criminal action is given upon the denial by the court to grant a motion for a new trial and before tne entry of judgment, the appeal must be dismissed, as not having been taken from an appealable order.</p>

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

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

<p>MUNICIPAL CORPORATIONS NEGLIGENCE ■— OPENING IN SIDEWALK -EVIDENCE.</p> <p>In an action against a city to recover for injuries received by falling into an open cellar way in a sidewalk, which gave access to the basement of a building, it was not error to exclude evidence of the fact that there were a large number of such cellar-ways in the city.</p> <p>SAME-VARIANCE.</p> <p>In an action against a city for damages brought by husband and wife for injuries to the wife, the claim for damages filed with the city council, as required before the bringing of an action, is admissible, although verified by the wife alone.</p> <p>SAME-ORDINANCES.</p> <p>In an action based on a city’s negligence in allowing a cellar way to remain open and unguarded, an ordinance regulating the construction and safeguarding of such cellar ways is admissible in evidence as a declaration of the city concerning a matter involved in the action.</p> <p>SAME —■ INSTRUCTIONS.</p> <p>A charge to the jury that if there was an ordinance in force providing that cellar ways on streets or sidewalks should be protected, then it was the duty of the city to require the same to be so protected as to be safe against injury to a person traveling thereon, is not erroneous on the ground of conveying the idea of a duty superadded to that imposed by the common law.</p> <p>SAME-RELEVANCY OE EVIDENCE TO ISSUES.</p> <p>In the trial of an action upon a complaint alleging that the city “carelessly and negligently allowed and permitted a cellar way to be and remain open” in one of its public streets, negligence in the manner of lighting the opening is admissible, as the charge of negligence is broad enough to cover that as well as the act of permitting the cellar way to remain open.</p> <p>SAME-INSTRUCTIONS-RELEVANCY.</p> <p>Under such, issues, an instruction was properly refused, which charged that if the fall was caused by darkness, or arose from any other cause than the existence of an open cellar way, the verdict should he.for defendant.</p> <p>SAME-CONTRIBUTORY NEGLIGENCE.</p> <p>An instruction defining contributory negligence is not objectionable, when it charges the jury that the term means “any negligence upon the part of the person injured which proximately or naturally contributed to his injury.”</p> <p>SAME-QUESTION FOR JURY.</p> <p>Plaintiff’s knowledge of the defective condition of the cellar way, previous to the accident, is a question for the jury, since it is only present knowledge of the unsafe condition of the street, which affords a complete defense for injuries received.</p>

<p>FRAUDULENT CONVEYANCES-SUFFICIENCY OF EVIDENCE.</p> <p>The verdict of a jury finding that an assignment of a claim due was made with intent to defraud the creditors of the assign- or will not be disturbed, although there is no direct evidence thereof, if such intent may reasonably be inferred from the circumstances surrounding the transaction.</p>

<p>CRIMINAL LAW-INCOMPETENCY OF PROSECUTING WITNESS.</p> <p>On an appeal in a criminal case, the testimony of the prosecuting witness cannot be considered, where the record shows' that on the same day the verdict was returned he was duly adjudged to be an insane person, since the presumption arises that he was in the same condition on the witness stand and therefore incompetent as a witness.</p> <p>ROBBERY-EVIDENCE--DECLARATIONS AS RES GESTAE.</p> <p>The declaration of a person alleged to have been robbed, made almost immediately after the time of the alleged offense, is competent as a part of the res gestae.</p>

<p>TAXATION-FORECLOSURE OF DELINQUENCY CERTIFICATE-PAYMENT OF PRIOR TAXES-LOCAL ASSESSMENTS. I</p> <p>Laws 1899, p. 302, § 20, which requires the holder of a general tax delinquency certificate to “pay all taxes that have accrued on the property” before he shall be entitled to judgment foreclosing his lien, does not require the payment of street assessments but refers merely to the general taxes, and special taxes assessed in the same manner as general taxes, in the absence of express provisions in the general revenue law clearly showing an intention to include local assessments within its operation; inasmuch as the basis of the forms of assessment is entirely distinct, and the legislature itself has interpreted the revenue law í>y recognizing general tax liens as paramount to local assessments, by the provision in Laws 1899, p. 80, § 11, that a deed upon foreclosure and sale for street assessment liens in cities of the first class shall convey the entire title, “stripped of all prior liens or claims, excepting unpaid installments and general taxes.”</p>

<p>TAXATION ■ — ■ EQUALIZATION — NOTICE SERVICE BY MAIL TIME.</p> <p>Where the notice required by Bal. Code, § 1714. to be given a property owner of a proposed increase by the boall-d of equalization in his assessment is sent by mail, such notice is governed by Id., § 4891, which provides that in case of the service of notice by mail the time of service shall be double thatl required in a case of personal service. (Lewis v. Bishop, 19 Wash. 312, affirmed.)</p> <p>SAME-INSUFFICIENCY OF SERVICE.</p> <p>Under Bal. Code, § 1714, subd. 3, which authorizes the board of equalization to raise an assessment “after at least five days’. notice shall have been given in writing to the ownér or agent” of the property to be affected, a notice • requiring| the property owner to appear before the board “within five days from the date of this notice” is insufficient. ¡</p> <p>SAME.</p> <p>The fact that the board of equalization does not act upon a property owner’s assessment until more than fijve days have elapsed after notice'to him would not cure the service of inadequate notice upon him, since the statute contemplates a notice to the property owner with a date certain, fixed for his appearance more than five days after the service of the notice.</p>

<p>Appeal from Superior Court, King County. — Hon. G. Meade Emory, Judge.</p>

<p>APPEAL DISMISSAL- — DELAY IN PILING BRIEFS AND TRANSMITTING RECORD.</p> <p>An appeal will not be dismissed merely for delay in serving and filing briefs or in tbe transmission of the record to .the supreme court within the time limited by law, when there is no showing of prejudice to respondents by reason of the delay.</p> <p>MANDAMUS-ADDITIONAL LEVY OF TAXES-PERFORMANCE OF DUTY PRESCRIBED.</p> <p>Where bonds have been issued by a city under an act which authorized such issuance and prescribed the city’s duty to levy each year a tax sufficient to meet the interest on the bonds as it accrued, the city cannot be compelled by writ of mandate to levy a tax sufficient to cover all the delinquent interest installments due on such bonds, when the city has each year levied a tax sufficient in amount to pay such interest installments but has failed to collect all the taxes levied for that purpose.</p> <p>MUNICIPAL CORPORATIONS •— WATER WORKS BONDS-PAYMENT OF INTEREST-TAX LEVY.</p> <p>Laws 1889-90, p. 521, providing for the issuance of bonds tc pay for water works and requiring the levy of a tax each year “sufficient to pay the interest on said bonds as the same accrues,” is a special provision providing for the levy of a tax for the purpose only of paying for water works, and is not affected by Laws 1889-90, p. 190, § 128, which provides that “nothing in this chapter contained shall be construed to prevent any city having a bonded indebtedness, contracted under laws heretofore passed, from levying and collecting such taxes for the payment of such indebtedness and the interest thereon as are provided for in such laws, in addition to taxes herein authorized to be levied and collected,” since such section must be read in connection with § 117 of the same act prescribing the purposes for which taxes may be levied, and which makes no provision whatever for taxation for water works purposes.</p> <p>SAME-IMPLIED DUTY • — • MANDAMUS.</p> <p>The duty of a municipality to pay its indebtedness, and to discharge obligations incurred by the issuance of bonds, implied from the act under which they are authorized, would not warrant the issuance of a writ of mandate to compel the levy of an additional special tax therefor, where the city had already fully performed its duty as prescribed by statute by making a levy every year, even if such levies proved inadequate by reason of failure to fully collect same.</p>

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

<p>INTOXICATING LIQUORS-INSPECTORS-CONSTRUCTION OP STATUTE.</p> <p>Bal. Code, §2927, which was passed in the year 1860, when the cities of the then territory were in an embryonic stage, provides that “It shall be the duty of the county commissioners of each county to appoint at least one suitable person for each village or neighborhood where spirituous liquors are sold in less quantity than a gallon, whose duty it shall be to inspect all liquors,” to be so sold. Held that the word “village” in such statute should he construed to cover a city, where the village subsequently assumed the proportions of a city, and there is no later statute making it clearly appear that a city is exempted from the provisions of the earlier statute.</p> <p>SAME-OMISSION OP STATUTE PROM CODE — EPPECT.</p> <p>The omission of the statute now known as § 2927, Bal. Code, from the Code of 1881 did not effect its repeal, since § 3320 of the Code of 1881 specially provided that “all acts or parts of acts of a general nature, in force at the commencement of the 8th biennial session of the legislative assembly, and not repealed shall be, and the same are hereby continued, in full force and effect, unless the same be repugnant to the act upon the same subject matter, passed or revised at the 8th biennial or present extra session of the legislature,” and the statute in controversy was in effect at the time specified, was not repealed, and was not repugnant to any act passed during the sessions mentioned.</p> <p>SAME-REPEAL BY IMPLICATION.</p> <p>Bal. Code, § 2927, was not repealed by implication by the act (Laws 1899, p. 183) entitled “an act to provide against the adulteration of food,” § 2 of which provides that “the term ‘food’ as used herein shall include all articles used for food or drink by man, whether simple, mixed or compound,” since the legislative interpretation of the term “drink” as used therein is defined by a later statute (Laws 1901, p. 194) as not including liquors containing two per cent, or more of alcohol.</p> <p>SAME.</p> <p>Bal. Code, § 2927, being an act authorizing county commissioners to provide for the inspection of liquors, with a view to the prohibition of the sale of such as are impure, is not repealed as to incorporated cities by subsequent legislation which gives them the power to regulate the traffic in intoxicating liquors within their limits, since the. power .conferred upon cities in this respect relates more especially to what are usually termed “police powers,” which must be exercised consistently with the general laws of the state, one of which is that only pure liquors shall be sold. (Fullerton, J., dissents.)</p> <p>SAME-ABROGATION OF STATUTE BY NON-USER.</p> <p>Non-user of a statute will not effect its abrogation, unless its obsoleteness is in some way recognized by subsequent legislation.</p>

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

<p>JUDGMENTS • — • ACTION ON DOMESTIC JUDGMENT-LIMITATIONS.</p> <p>Bal. Code, § 4798, which fixes a limitation of six years upon the commencement of “an action upon a judgment or decree of any court of the United States or of any state or territory within the United States,” is applicable to domestic, as well as to foreign, judgments.</p> <p>SAME-ACCRUAL OE RIGHT OE ACTION.</p> <p>The right of action upon a judgment in this state begins to run from the date of its rendition and is not postponed until the expiration of the period in which execution may issue.</p>

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

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

<p>UNLAWFUL DETAINER-EVIDENCE-ABSTRACT OF TITLE-ADMISSIBILITY.</p> <p>The fact that Bal. Code, § 5150, requires plaintiff in an action of unlawful detainer to incorporate an abstract of title in his complaint would not make a certified abstract admissible in evidence for the purpose of proving title, since Id., § 6046, does not permit public records to be proved by the certificate of any other person than the officer having such record in his possession.</p> <p>SAME PLEADING ADMISSIONS ■ — ■ FAILURE TO DENT ABSTRACT.</p> <p>The failure of defendant in an action of unlawful detainer to deny the paragraph of the complaint setting up an abstract of plaintiff’s title is not an admission of its truth, where the answer denies plaintiff’s title or right to possession, since such answer necessarily denies the abstract, which merely shows the chain of title under which plaintiff claims.</p> <p>SAME-CONFESSION AND AVOIDANCE-BURDEN OF PROOF.</p> <p>In an action of unlawful detainer where the gist of the pleadings is an assertion of title in plaintiff and an answer of title in the United States, with the defendant in possession as a homesteader, the admission by defendant, that a patent had been issued by the United States to plaintiff’s grantor, but that said patent was null and void, would not -constitute a plea of confession and avoidance and throw the burden of proof on defendant, since the effect of such answer is merely a denial of plaintiff’s title.</p>

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

<p>JUDGES-CORRECTION OF ERRONEOUS DECISION BY SUCCESSOR IN OFFICE.</p> <p>Erroneous decisions made by a judge in an action are properly correctible by his successor in office, where the action was not heard and determined prior to the succession to office .of the later incumbent.</p> <p>APPEAL — OBJECTIONS NOT URGED BELOW.</p> <p>Where objection was not raised in the lower court that defendant had no right to interpose by answer the same defense that had been overruled on demurrer, it cannot be urged on appeal.</p> <p>FINDINGS OF FACT AND CONCLUSIONS OF LAW-SEPARATE STATEMENT.</p> <p>Under Bal. Code, § 5029, which provides that, in giving the decision in an action tried by the court, the facts found and the conclusions of law shall be separately stated, it is sufficient, where the findings and conclusions are placed under one cover, if they are separately and specifically set forth under their appropriate headings.</p> <p>LIMITATIONS-ACTION ON DOMESTIC JUDGMENT.</p> <p>Actions on domestic judgments fall within the provision of Bal. Code, § 4798, which limits actions on judgments of any state or territory to a period of six years after the accrual of a cause of action.</p>

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

<p>LIMITATION OF ACTIONS-FORECLOSURE OF MORTGAGES ■ — • ABSENCE OF MORTGAGOR FROM STATE-SUBSEQUENT PURCHASER.</p> <p>The absence from the state of the mortgagor of lands will not suspend the running of the statute of limitations as to a foreclosure of the mortgage lien thereon, where the mortgaged premises have passed to a subsequent grantee, who has remained continuously within the state.</p> <p>SAME-ESTOPPEL.</p> <p>A subsequent grantee of mortgaged premises, who has neglected to put his deed of record until after the bringing of action against the mortgagor for foreclosure, is estopped from setting up the bar of the statute of limitations, where the mortgagee had no notice, actual or constructive, of the conveyance, and had postponed suit because of the absence of the mortgagor from the state, during which period the bar of the statute had been suspended as to such mortgagor.</p>

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

<p>STATUTES-AMENDMENT-CONSTITUTIONAL LAW.</p> <p>Under art. 2, § 37, of tbe state constitution, which provides that “no act shall ever be revised or amended by mere reference to its title, but the act revised or the section amended shall be set forth at full length,” § 1 of the act of March 11, 1897 (Laws 1897, p. 93), which provides that “there shall be exempt from execution and attachment to every householder in the state of Washington personal property to the amount and value of one thousand dollars, in addition to the property exempt under § 486 ■of volume 2 of Hill’s Statutes and Codes of the State of Washington,” is unconstitutional on the ground that it amends an existing statute by ingrafting into it an additional provision which ¡alters its scope and effect, and fails to set forth the statute in full as amended.</p>

<p>DEATH BY WRONGFUL ACT-ACTION BY WIDOW AND CHILD-LIMITATIONS.</p> <p>Under Bal. Code, § 4828, which allows the heirs or personal representatives of one whose death is caused by the wrongful act or neglect of another to maintain an action for damages against the person causing death, and under Bal. Code, § 4800, which limits the commencement of actions for any injury to the person or rights of another to a period of three years after the cause of action shall have accrued, the widow and minor children of one whose death is caused by the wrongful act of another have a right of action therefor which may be commenced at any time within three years from the injury.</p>

<p>LIMITATION OF ACTIONS- — - ABSENCE FROM STATE-PLEADING.</p> <p>Under Bal. Code, § 4808, which suspends the running of the statute of limitations during defendant’s absence from the state, where an allegation of non-residence of the defendant is denied in the answer and an affirmative defense set up that defendant was a resident during all the time from the incurring of liability up to the commencement of the action, an issue of fact is raised by such answer, and the sustaining of a demurrer thereto is erroneous.</p>

<p>APPEAL-DISMISSAL-DELAY IN PILING TRANSCRIPT.</p> <p>An appeal will not be dismissed on tbe ground that appellant had filed his brief before filing his transcript, contrary to the provision of Laws 1901, p. 29, § 2, which requires the transcript to be ccitified and filed at or before the serving and filing of appellant’s opening brief, where the motion is not made until after the record has .been supplied.</p> <p>LIMITATION OF ACTIONS-FORECLOSURE OF MORTGAGE-BAR OF STATUTE AS TO EXECUTION PURCHASER.</p> <p>Partial payment by a mortgagor on his mortgage indebtedness will not extend the statute of limitations as against a judgment creditor of the mortgagor who has bought in the mortgaged premises under execution sale and thereby become vested with such an interest in the land as to deprive the mortgagor of the right by any act or stipulation to extend the limitation upon the mortgagee’s right of foreclosure, even though the mortgagor at the time of such partial payment may have had the right of redemption against the execution sale.</p>

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

<p>FRAUD — FIDUCIARY CAPACITY-PRINCIPAL AND AGENT.</p> <p>The fact that a sale had been ultimately effected through a broker who had originally written to the vendor, who was a non-resident, offering to find a purchaser for his property, would not establish a fiduciary relation between the vendor and broker, when the evidence shows that the vendor dealt with such broker at arm’s length, treating him as a possible purchaser instead of agent, and constituting a local bank his agent to close with such broker on specified terms.</p> <p>SAME-SURETY.</p> <p>An indorser or surety upon a promissory note does not occupy such a fiduciary relation towards the payee as to require him to make full disclosure to the payee of the value of the securities held by him for the payment of the note.</p> <p>SAAIE — INADEQUATE PRICE-RESCISSION.</p> <p>Mere inadequacy of consideration will not afford cause for rescission of a contract on the ground of fraud, where the parties have dealt at arm’s length, with avenues of information open to the one claiming fraud, and where the agreement is entered into after the exercise of the independent judgment of each of the parties.</p>

<p>TAX SALES-REDEMPTION-SURRENDER OF CERTIFICATE-ASSIGNMENT-NOTICE TO CITY.</p> <p>Under § 121 of tbe charter of the city of Tacoma, which provides that upon redemption of lands sold by the city for taxes the treasurer shall “pay over the amount received for such redemption to the purchaser or his assigns upon an order from the city controller on surrender of the certificate' of purchase,” the city controller is bound to take notice of the possibility of an assignment of the certificate of purchase and to require its surrender, and where the redemption money is paid to the original purchaser, the city is liable therefor to his assignee, irrespective of any agreement between assignor and assignee.</p> <p>SAME — -PAYMENT OF REDEMPTION MONEY TO PURCHASER- — ACTION BY ASSIGNEE OF CERTIFICATE-LIMITATIONS.</p> <p>Where money paid for redemption from a tax sale is received by the city for the purchaser, under a charter provision that it would “pay over the amount received for such redemption to the purchaser or his assigns upon an order from the city controller on surrender of the certificate of purchase,” right of action against the city for payment of such redemption money to the -holder of the certificate of purchase would not accrue until demand upon the city, and consequently the limitation on right of action would not begin to run until the date of such demand.</p>

<p>MANDAMUS-TO SHERIFF-ENFORCING RETURN OF EXECUTION.</p> <p>Mandamus will not lie to compel a sheriff to make return of an execution, where he has been ordered by the court to withhold its return pending the final determination of another action involving property affected by the lien of the judgment upon which the execution had issued.</p>

<p>PLEADING-VARIANCE-NEW TRIAL.</p> <p>The action of the court in giving judgment for defendants because of variance between the pleadings and proof of plaintiffs being erroneous, under Bal. Code, §§ 4949, 4950, which provide that in case of variance the court may order the pleading to be amended upon such terms as shall be just, if the adverse party has been misled, or may order an immediate amendment without costs, when the variance is not material, it was proper for the court to correct its ruling by granting a new trial upon motion therefor.</p>

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

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

<p>Appeal from Superior Court, Skagit County. — ITon. Jesse P. Houser, Judge.</p>

<p>PABOL LEASE-STATUTE OE EBAUDS.</p> <p>The fact that Bal. Code, § 4568, provides that “leases may be in writing or print, or partly' in writing and partly in print, and shall be legal and valid for any term or period not exceeding one year, without acknowledgment,' witnesses, or seals,” does not change the rule that leases for the period of one year are not within the statute of frauds.</p>

<p>Appeal from Superior Court, King County. — Hon. Jesse P. Houser, Judge.</p>

<p>CONTRIBUTORY NEGLIGENCE ■ — • WHEN QUESTION EOR JURY.</p> <p>The question of contributory negligence is properly one for the jury, where reasonable men may fairly arrive at different conclusions from the state of facts proven.</p> <p>MASTER AND SERVANT-ACTION BY SERVANT EOR PERSONAL IN-</p> <p>JURIES ■— VARIANCE.</p> <p>In an action for negligence in which the complaint alleges that “the first mate gave the order to the deck hands to take in the gang plank; that before said deck hands could get to the sides of said gang plank to lower the same to the deck as was customary, without warning said officer untied the rope which held said gang plank to the dock,” causing it to slide and occasion the injury complained of, evidence that the captain blew a short blast of the whistle, which means to take in the gang plank, and that the mate, without any warning, let the plank go so that it came down on plaintiff, constitutes but an immaterial variance, since the order was given the mate to give to the crew, and was so understood and acted upon by them.</p> <p>SAME- — ■ VICE PRINCIPAL ACTING AS EELLOW SERVANT-LIABILITY OE</p> <p>MASTER EOR NEGLIGENCE.</p> <p>The failure of a vice principal to warn the servant of impending danger known to him, but not to the servant, will render the master liable for injuries resulting in consequence, though the vice principal at the time may be performing the duty of a fellow servant instead of a duty pertaining to his employment as a vice principal.</p> <p>SAME —• INSTRUCTIONS.</p> <p>In an action by a deck hand to recover for injuries received by reason of the negligence of the first mate of a vessel, an instruction that the mate was a vice principal and not a fellow servant with the plaintiff, was proper, where it was alleged and admitted by the pleadings that the mate was authorized by defendant to hire and discharge the deck hands, with authority to superintend and direct them in and about the work for which they were employed.</p>

<p>Appeal from Superior Court, King County. — Hon. C-. Meade Emory, Judge.</p>

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

<p>LANDLORD AND TENANT-UNLAWFUL DETAINER-ACTION BY LANDLORD AFTER LEASE TO THIRD PARTY.</p> <p>A landlord may maintain an action of unlawful detainer against a tenant holding over, although the landlord may have leased the premises to other parties (Capital Brewing Co. v. CrosHe, 22 Wash. 269, distinguished).</p> <p>SAME-MONTHLY TENANCY-WHAT CONSTITUTES.</p> <p>Under Bal. Code, § 4569, which provides that “when premises are rented for an indefinite time, with monthly . . . rent reserved, such tenancy shall be construed to be a tenancy from month to month,” an agreement by a landlord to an assignment of a parol lease for an indefinite period, under which rent was payable monthly; would not create other than a monthly tenancy, where the landlord merely agreed that the assignment was “all right as long as she pays her rent and keeps a straight house.”</p> <p>PARTIES-MISNOMER-WAIVER OF ERROR.</p> <p>The misnomer of defendant is immaterial, where she answers and defends without objection, and judgment is entered against her under her true name.</p>

<p>MORTGAGES-PERSONAL JUDGMENT AGAINST MORTGAGOR-RES JUDI-CATA AS TO FORECLOSURE.</p> <p>The fact that a personal judgment on notes secured by mortgage has been rendered would not constitute such judgment res judicata in a subsequent action for the foreclosure of the mortgage lien for the purpose of recovering that portion of the original debt which remained unpaid under such personal judgment.</p> <p>SAME-STATUTE OF LIMITATIONS-WHEN BEGINS TO RUN.</p> <p>In an action for the foreclosure of a mortgage, where the debt had been merged in a personal judgment on the notes secured by the mortgage, the running of the statute of limitations would not commence with the date of such judgment, but at the date of the maturity of the original debt as described in the mortgage.</p> <p>SAME.</p> <p>Where mortgaged premises have been conveyed to a subsequent grantee, payments made by the mortgagor on the mortgage indebtedness will not extend the running of the statute of limitations as against such subsequent grantee without his consent.</p> <p>SAME.</p> <p>Where a subsequent grantee of mortgaged lands has been compelled to redeem a portion thereof from execution sale under a personal judgment against the mortgagor upon the notes secured by the mortgage, such involuntary payment would not operate to extend the statute of limitations as against an action of foreclosure upon the mortgage indebtedness remaining unpaid.</p> <p>LIMITATIONS-EEFECT OE PARTIAL PAYMENTS B,Y CO-OBLIGOR.</p> <p>Payments made by one obligor will not extend the statute of limitations as against a co-obligor who has not consented thereto.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tallmaw, Judge.</p>

<p>GARNISHMENT-CORPORATIONS — SOTEICIENCY OR EVIDENCE.</p> <p>Where the evidence in a garnishment proceeding against a mining corporation showed that it was indebted to the judgment debtor in the sum of $120, that the judgment debtor was one of the three incorporators of the corporation and as such was entitled to a large block of stock, which, by mutual agreement, had not been issued, but was pooled with the holdings of the other incorporators, that a verbal agreement had been made by the judgment debtor with another incorporator to allow the latter to hold his stock and retain a lien thereon until an indebtedness due from the former had been paid, but that this agreement was not known by the secretary of the corporation or by any one until after the institution of the garnishment proceeding, it is sufficient to warrant the denial of motions for non-suit and for new trial.</p> <p>SAME-LIABILITY OE STOCK EOR DEBTS OE STOCKHOLDER.</p> <p>Under Bal. Code, §§ 5398, 5406-5408, recognizing the right of a judgment creditor to garnishee a corporation in which the judgment debtor is the owner of shares and providing how such shares may be sold and the effect of such sale, such shares may be sold on execution to the extent of the judgment debtor’s interest, although held either under a pledge or a pooling agreement.</p>

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

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

<p>Appeal from Superior Court, King County. — Hon. G. Meade Emory, Judge.</p>

<p>APPEAL-STAY BOND-STOTEICIENCY.</p> <p>An appeal bond which, is conditioned that appellants “shall pay all costs and damages that may be awarded against them on such appeal or dismissal thereof, not exceeding the sum of $200; and shall perform and satisfy any judgment which said court may make or order to be made or rendered by the superior court in case said judgment is affirmed,” is clearly conditioned both as an appeal and a stay bond, and is insufficient when the penalty is not in a sum double the amount of the judgment, and $200 additional.</p>

<p>Appeal from Superior Court, King County. — Hon. Ekank H. Rudkin, Judge.</p>

<p>Appeal from Superior Court, Whatcom County.- — Hon. William Hickmae-Moore, Judge.</p>

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

<p>LABOR LIENS ON LOBS-FORECLOSURE-EIGHT TO COSTS.</p> <p>In an action to foreclose laborers’ liens on logs, an allowance by the court of costs of suit and attorney’s fees to plaintiffs is erroneous, if there is no finding of demand for payment of claims prior to suit, or of reasonable ground on plaintiff’s part for believing that defendants would attempt to defraud them or prevent the collection of their claims, since Laws 1899, p. 143, provides that in such actions no costs shall be allowed to lien holders unless demand has been made for payment of the lien claim before commencement of suit, or unless the court shall find that tne claimants at the time of bringing suit had reasonable ground to believe that the holders of such logs were attempting to defraud the claimants or prevent the collection of such lien.</p>

<p>ELECTIONS-INFLUENCING VOTERS-SUFFICIENCY OF EVIDENCE.</p> <p>In a prosecution for corruptly influencing a voter, under Bal. Code, § 7421, wliicli prohibits the attempt to influence any person, directly or indirectly, by menace or other corrupt means,-in giving or refusing to give his vote, the conviction of defendant is warranted, where the evidence shows that the defendant, who was a judge of election, gave a slip of paper to a voter at me latter’s request, indicating that the voter was “all right,” upon the surrender of which slip of paper to a third person outside the polls a sum of money was given to the voter, and that the defendant was with the voter in the voting booth at the time the latter marked his ballot, at the voter’s request for instructions in regard thereto, but defendant did not ask the voter to vote any particular ticket, merely telling him that an “X” at the top of the national ticket voted the whole ticket, and showing how to mark the ballot in order to vote the ticket from governor down; there being no evidence of any relationship or conspiracy between the defendant and the person giving the voter money, or that the voter knew the object of the slip of paper at the time he procured it, his actions in the matter being at the request of parties not in collusion with defendant, but who were attempting to discover corruption in the election.</p>

<p>SCHOOL LANDS-GRANT FROM UNITED STATES-ACTION BY STATE FOR POSSESSION.</p> <p>Tinder the settled policy of our national government from its inception in granting to the various states and territories sections 16 and 36 of the public lands in each township for common school purposes, and indemnity lands in case such sections had been settled upon prior to the survey by bona fide settlers, the grant contained in § 10 of the act enabling the territory of Washington to set up a state government must be construed as including such indemnity lands as had been selected under prior acts of congress, although specifically naming no other sections than those numbered 16 and 36, but providing that “where such sections, or any parts thereof, have been sold or otherwise disposed of by or under the authority of any act of congress, other lands equivalent thereto, ■ in legal subdivisions of not less than one quarter section, and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said state for the support of common schools;” and under such grant the state is vested with an equitable title to such indemnity lands selected by it as will warrant it in maintaining the statutory action for possession under Bal. Code §§ 5500, 5508, against an intruder uiereon.</p>

<p>TRIAL-INSTRUCTIONS-CONSTRUCTION AS A WI-IOLE.</p> <p>Although detached expressions in the courts’ charge to the jury, if considered as independent expressions, may be technically erroneous, yet when the instructions as a whole fairly state the law and do not mislead the jury, there is no prejudicial error.</p> <p>SAME-REPLEVIN-INSTRUCTION AS A WHOLE.</p> <p>In an action to recover possession of an engine which plaintiffs claimed to have loaned a logging company, but which defendants claimed had been supplied to such company under a written contract which provided, in consideration of certain agreements,, that plaintiffs should furnish such company all necessary supplies, such as provisions, meats, hay, feed, and all other necessaries required to carry on the logging business except horses, mules and cattle, an instruction that the jury’s verdict should be in favor of defendants, if they believed from the evidence that the written contract had never been abrogated and that the ownership of the engine vested in the logging company, was proper where the evidence showed that the parties to such written contract had furnished axes, saws, grindstones, peevies, chains and wire cable thereunder, and it was proper to leave it to the jury to determine whether the engine had been furnished in the same way. same —</p> <p>Where there was evidence that a partnership had expressly assumed to pay an indebtedness on a logging 'outfit belonging to one of the partners and used by the copartnership, an instruction is not misleading as intimating that one partner can take partnership property to pay his individual debts, because it charges the jury that if they believe a certain engine became the property of the partnership and that the latter, by its managing partner, transferred it to another in consideration of an antecedent debt, who in turn transferred it to defendants upon their promise to pay therefor, then their verdict should be for defendants.</p> <p>SAME-COMMENT ON EVIDENCE.</p> <p>In an action involving the title to a certain engine claimed by defendants under a written contract and by plaintiffs by virtue of a subsequent abrogation thereof by parol agreement, an instruction which charges the jury that “where it has once been established that there has been a contract of agreement between two or more individuals, and the same is sought to be avoided by any parol agreement, that the written agreement is the best evidence,” should not be held as prejudicial error on the ground of being a comment on the evidence, where the correctness of the written instrument is not disputed by any evidence, but in fact fully conceded, and the only object of the parol evidence was to show that the subject matter in controversy was not included in the terms of the written agreement.</p> <p>SAME-PREPONDERANCE OE EVIDENCE.</p> <p>An instruction charging the jury to find in a certain way unless the contrary. “shall be established by a preponderance of the evidence satisfactory to your minds,” in effect tells the jury that, if they “believe” from a preponderance of the evidence, they should so find, and such charge is not mislea'ding on the ground of telling the jury that more than a preponderance of evidence is required.</p> <p>SAME.</p> <p>The use of the term “fair preponderance” in referring in an instruction to the preponderance of evidence necessary to justify the finding of the jury is not misleading.</p> <p>SAME-INTERPRETATION OE WRITTEN CONTRACT-WHEN QUESTION</p> <p>EOR JURY.</p> <p>An instruction that all contracts, whether written or oral, that have been introduced in this case, are before the jury for their consideration and interpretation, is not erroneous on the ground of violating the rule that contracts are to be construed by the court, where the evidence shows there are disputes as to the intentions of the parties to the written agreement, and questions of rescission by disputed oral agreements.</p> <p>SAME-BURDEN OE PROOE.</p> <p>Where plaintiffs by both their pleading and proof in an action of replevin allege and show that a demand had been made, an instruction that the burden of proof is on them to show that fact is not erroneous, even though demand was unnecessary, owing to the fact that defendants were claiming the property in controversy as their own.</p> <p>SAME.</p> <p>Where under the isssues tendered by plaintiffs they had made proof of demand, though in fact it was unnecessary, an instruction that the burden of proof is on them to show demand is cured by a subsequent charge that “the plaintiff need not prove a demand, provided the defendants are proven by a preponderance of the evidence to be claiming the property as their own.”</p> <p>SAME-PRESUMPTION AS TO CONTINUANCE OE PARTNERSHIP.</p> <p>Where a partnership agreement containing no limitation as to time is in evidence, an instruction by the court that the agreement is presumed to continue until competent proof of its dissolution is proper.</p>

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

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

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

<p>. Appeal from Superior Court, Snohomish County. — Hon. John C. Denney, Judge.</p>

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