Volume 28 — Washington Reports

<p>Appeal from Superior Court, Spokane County. — Hon-. George W. Belt, Judge.</p>

<p>VENDOR AND PURCHASER-WHAT ARE APPURTENANCES-HOP PRESS.</p> <p>Under an agreement to convey a certain tract of land “together with the appurtenances,” the purchaser cannot recover damages from the vendor for failure to deliver a hop press as appurtenant to the premises, although used in connection therewith, where it was not attached to the building, but was placed in a room just high enough to receive it, through an opening in the upper floor which had been subsequently floored over, and which could again be ripped open to permit the removal of the hop press without causing material injury to the building.</p>

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

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

<p>STATUTES-CONSTITUTIONALITY OF CURATIVE ACT.</p> <p>It is within the power of the legislature to enact a statute authorizing the making of an assessment to cover the cost of work done on a public improvement under a void law.</p> <p>DAMAGES —• CONSTITUTIONAL LAW-ASSESSMENT AGAINST SCHOOL LANDS.</p> <p>That part of § 8 of the act of 1895 (Bal. Code, § 3762), concerning the payment of benefits for drainage ditches which provides that “when an assessment shall be apportioned against any school lands of the state, the county shall pay the same out of its general fund and have a lien on the proceeds of the sale of such lands” for its reimbursement, is unconstitutional on the ground that funds raised by taxation for general county purposes cannot be applied to the payment of assessments for local improvements, and on the further ground that the proceeds of the sales of school lands cannot be diverted from the permanent and irreducible common school fund.</p> <p>SAME.</p> <p>Although school lands benefited by the construction of a ditch cannot be rendered liable for the payment thereof, such benefits cannot be charged up against private property, and, in such cases, the assessment should be levied against the school lands, leaving it to the state to provide therefor by proper legislation.</p> <p>SAME-INVALIDITY OF PORTION OF ACT-EFFECT.</p> <p>An act providing for the construction of ditches for agricultural, sanitary, and domestic purposes is not unconstitutional by reason of the invalidity of a portion of the act providing for the assessment of school lands to help pay therefor, when the act, after the exclusion of such void portion, is sufficient in itself to constitute a complete law, capable of being executed without any dependence upon the rejected portion.</p> <p>SAME-DUE PROCESS OF LAW.</p> <p>The act of 1895 (Bal. Code, §§ 3755-3762), providing for the payment of expenses theretofore incurred in the construction of ditches is not subject to the objection that it deprives the landowner of property without due process of law, because no provision is made in the act in positive terms for contesting the assessments imposed by the county commissioners, since the act itself provides that in a suit to enforce the lien the property owner might set up any matter respecting the amount or legality of the assessment, and in addition an ample remedy for reviewing the proceedings of the board of commissioners is provided by writ of certiorari under the general laws of the state.</p> <p>SAME-COUNTY COMMISSIONERS-PRESUMPTIONS AS TO IMPARTIALITY.</p> <p>The fact that county commissioners are to disburse moneys in a ditch fund under their control in the way pointed out by law, on the happening of certain events determined by' them judicially would raise no presumption that they would not be an impartial tribunal.</p>

<p>PLEADING-AMENDMENT AT TRIAL.</p> <p>The action of the court in permitting plaintiff at the close of the testimony to amend her complaint so as to correspond to the proof was not error, where defendant’s answer theretofore filed had negatived the truth of the matters set up in the amendment and evidence upon both sides had been directed to that issue.</p> <p>WORK AND LABOR-CONTINUOUS CONTRACT-LIMITATIONS.</p> <p>Where services are rendered under a. contract for an indefinite time, with no period of payment specified, the employment is a continuous one a&d the statute of limitations will not begin to run against an action to recover compensation until the services are ended. (Ah How v. Furth, 13 Wash. 550, followed.)</p> <p>SAME-TRIAL-CROSS-EXAMINATION.</p> <p>In an action by plaintiff to recover for services rendered about the house and farm of her brother, with whom she lived for a number of years after attaining majority, where she had testified that during a portion of the time a renter had charge of the cows and was supposed to do the milking, but that she sometimes voluntarily helped him, it was not error for the court to exclude cross-examination as to whether the work she did by way of milking the cows while a renter had charge was voluntary on her part and not required by her brother.</p> <p>SAME-SERVICES BY SISTER FOR BROTHER-IMPLIED CONTRACT-QUESTION FOR JURY.</p> <p>Where domestic services are rendered by one member of a family to another, it is not necessary in an action to recover compensation to prove the terms of a direct and positive contract, hut proof may be made of words and conduct of the parties and of circumstances from which the inference may follow that there was an understanding the services were not to be gratuitous; and it is for the jury to say from such evidence whether there was in fact such an understanding or agreement.</p> <p>SAME-TIME OF BEGINNING SERVICES-EVIDENCE.</p> <p>In an action by a sister to recover for services rendered her brother after she had attained her majority, where the evidence showed she had been living with him prior thereto as a member of his family, and she had testified to a conversation had with her brother on the subject of services soon after the date of her majority, but was unable to fix the date certainly, and on cross-examination did not, in terms, deny that it might have been some months later, it was for the jury to say, in view of all the testimony, whether an understanding existed that she was to receive compensation from the time she was twenty-one years of age.</p>

<p>Appeal from Superior Court, Spokane County.- — -Hon. George W. Belt, Judge.</p>

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

<p>Appeal from Superior Court, Thurston County.— Hon. Mason Irwin, Judge.</p>

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

<p>Appeal from Superior Court, Spokane County. — Hon. George A. Joiner, Judge.</p>

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

<p>Appeal from Superior Court, Walla Walla County. — ■ Hon. Abraham L. Hiller, Judge.</p>

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

<p>On Petition for Rehearing.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. George W. Belt, Judge.</p>

<p>MECHANICS’ LIENS-PLEADING-DEPARTURE.</p> <p>In an action to foreclose a lien for materials furnished under contract for the construction of a house, in which the answer sets up the contract in haec verba and alleges a breach of the conditions thereof, the fact that the reply admits the contract as set forth in the answer and sets up matter in avoidance of the alleged breach does not constitute a departure, since the facts alleged in the reply do not show a different contract from that set up in the complaint, and evidence of facts alleged, in the reply could be received under the allegations of the complaint.</p> <p>SAME-VARIANCE.</p> <p>Where a complaint alleges that a contract for furnishing materials for the construction of a building was fully performed by the delivery of the materials and the actual use thereof in the building, any showing of an extension of time for the delivery of the materials would not amount to a failure of proof under the allegations of the complaint, but would be no more than an immaterial variance.</p> <p>SAME-COMPLAINT-PERFORMANCE OF CONTRACT-- ALLEGATION OF SATISFACTION.</p> <p>In an action upon a contract for furnishing materials fora building, which provided that they should be of a quality satisfactory to the owner, an allegation in the complaint that, the materials were received and used by the owner is equivalent to an allegation of satisfaction.</p> <p>SAME — -ACCEPTANCE OF MATERIALS.</p> <p>Where the owner of premises does not object to the materials furnished for the construction of a building thereon, or condemn them, as provided in the building contract, hut allows them to be used in the building, he cannot thereafter refuse to pay therefor on the ground that they are inferior and unsatisfactory.</p> <p>SAME-ARBITRATION-NECESSARY BEFORE SUIT.</p> <p>Where a building contract gives the owner the right to fix and determine the amount of damages sustained by reason of the contractor’s delay in the construction of a building, and, if the contractor dissents therefrom and they cannot agree, the matter should he submitted to arbitrators, the failure of the > contractor to submit the dispute to arbitrators will entitle the owner to set off the amount of damages fixed by himself in an action brought by the contractor to recover on the contract.</p>

<p>NEW TEIAL--ACCIDENT AND SUEPEISE-BESIDENCE OE WITNESS-SUFFICIENCY OE SHOWING.</p> <p>In an action by a trustee in bankruptcy to recover possession or the value of certain promissory notes held by defendant and alleged to be the property of the bankrupt, the defendant answered that it had received the notes from one Fleming for collection. In his reply plaintiff set up that said Fleming’s title was without consideration and for the purpose of defrauding the creditors of the bankrupt. The deposition of Fleming, taken in Canada, gave his residence as “Pittsburg, Massachusetts.” Before trial plaintiff submitted written interrogatories to defendant asking for the place of residence and postoffice address of said Fleming, to which defendant answered that it did not know. More than a year before trial defendant’s attorneys had received an affidavit showing Fleming’s true residence, but had mislaid it and could not find it until the day after the trial. On the trial plaintiff proved there was no such place as Pittsburg, Massachusetts, and upon argument suggested that the postoffice address and place of residence were being concealed in order to prevent plaintiff from procuring testimony in support of the issue of fraud. The jury found for plaintiff. Held, that it was error to grant defendant a new trial on the ground of accident and surprise and newly discovered evidence, since it must have been apparent from plaintiff’s written interrogatories to defendant, that the matter of residence must have been regarded by plaintiff as material for some reason, and was sufficient notice to put it on inquiry to inform itself, though not put in issue by the pleadings.</p> <p>SAME-DISCEETION OF TEIAL COUET-EEVIEW ON APPEAL.</p> <p>An order granting a new trial, although 'a matter resting largely in the sound discretion of the trial court, is reviewable on appeal; and its reversal is authorized when it is granted on the ground of accident or surprise, and it appears that the surprise was due to neglect or inattention on the part of the party surprised, and that he had not used all reasonable efforts to overcome the evidence which worked the surprise.</p>

<p>MERGER —■ CONVEYANCE TO MORTGAGEE-INTERVENING LIENS.</p> <p>A merger of the legal and equitable title does not follow from the conveyance of mortgaged premises to the mortgagee, either when there are outstanding intervening interests, or when it is the intention of the parties that no merger shall be accomplished by the transfer.</p>

<p>APPEALABLE ORDER — -VOLUNTARY DISMISSAL OF ACTION.</p> <p>An order granting plaintiff’s motion for the voluntary dismissal of Ms action is an appealable one, where prior to such dismissal he has obtained an order of the court vacating a decree of foreclosure and sale thereunder in the same action, since the dismissal was a final order to the extent of entitling'defendants to a review of the errors alleged in setting aside the decree.</p> <p>JUDGMENT-WANT OP JURISDICTION-VACATION.</p> <p>Where a decree of foreclosure against community property was rendered upon service on one spouse only, it was made without jurisdiction over the community and the court had inherent power to vacate it on motion, irrespective of the lapse of time.</p> <p>SAME-SUFFICIENCY OF SHOWING.</p> <p>A motion to set aside a judgment for want of jurisdiction being a direct attack, it is not necessary that lack of jurisdiction appear from an inspection of the record, but it is sufficient if it is brought to the attention of the court dehors the record.</p> <p>SAME.</p> <p>Where an affidavit in support of a motion for vacation of a judgment stated facts showing that the trial court had rendered a void decree, the truth of which was confessed by demurrer, it was the duty of the court to clear its record.</p> <p>SAME-POWER OE COURT TO CORRECT JUDGMENT.</p> <p>Bal. Code, § 4953, which provides that “the court may, in the furtherance of justice, and on such terms as may be proper, amend any pleadings or proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, and may, upon like terms, enlarge the time for answer or demurrer,” is broad enough to include a proceeding to set aside a void judgment instituted by the person in whose favor the judgment was rendered, where the invalidity was due to the failure to include proper parties.</p> <p>SAME — ■ EX PARTE ORDERS.</p> <p>Where a judgment has been vacated and the case re-established, it is within the power of the court to dismiss the action on plaintiff’s motion, without notice to defendants, where the latter are not claiming any affirmative relief.</p> <p>SAME-NOTICE OE MOTION-TIME NECESSARY.</p> <p>Upon motion to set aside a void judgment, twenty days’ notice is not necessary, as in applications under Bal. Code, § 5157, for the vacation of judgments, but it is sufficient if three days’ notice is given to the adverse party.</p> <p>SAME-SERVICE OE MOTION TO VACATE ON ATTORNEYS.</p> <p>Service of a motion to vacate a void judgment may be made upon the attorneys of the adverse party in the original action, since an attorney’s authority to represent his client does not cease until a judgment not subject to vacation has been recovered.</p> <p>SAME-MOTION TO VACATE-LACHES.</p> <p>The failure of plaintiff to move to set aside a void decree of foreclosure obtained by her against community property, until after she had attempted by strict foreclosure to cut off the right of redemption of the spouses not made parties to the original foreclosure, would not render her guilty of laches, where the action of strict foreclosure, though not a proper remedy, was begun as soon as she learned that the defendants in the original action had spouses who were not made parties, and, upon a determination of that suit against her, it was immediately followed by motion for the vacation of the decree and the dismissal of the original action.</p> <p>DEMAND EOR COST BOND-VOLUNTARY DISMISSAL BEFORE COMPLIANCE -EFFECT.</p> <p>The fact that defendants had demanded a cost bond from a non-resident plaintiff, under Bal. Code, § 5186, which provides that, in such cases, “all proceedings in the action shall he stayed until a bond, executed by two or more persons, be filed with the clerk,” would not operate as a stay against a voluntary dismissal by plaintiff of the action, where she had failed to file the bond.</p> <p>ORDER FOR COSTS-WAIVER OF PAYMENT.</p> <p>The action of the court in allowing plaintiff to dismiss his action after procuring the vacation of a decree therein, without the payment of the costs and attorney’s fee ordered paid to defendants when the court vacated the decree, does not constitute error, where the plaintiff deposited the money therefor with the clerk of the court, and afterwards withdrew it from the registry of the court and tendered it to defendants, but defendants at all times refused to accept it.</p>

<p>HUSBAND AND WIFE-SEP ABATE PROPERTY-ACTION BY WIFE TO RECOVER MONEY LOANED-NON-SUIT.</p> <p>In an action by a wife to recover money loaned a non-suit, either on the ground that the money was community property, or that the money borrowed was paid to plaintiff’s husband, was erroneous, where the evidence showed that when the wife first came to the state ten years before she owned as separate property $1,000 in cash which she let her husband use in the transaction of business for the benefit of the community; that $200 of this sum was repaid to her some three years subsequently, and that about five years subsequent to such repayment, the husband handed her $1,200, which he had received on a sale, and told her to keep out what was coming to her; that she took $800, and of this sum loaned $500 as her separate property to defendant with her husband’s knowledge and consent, $370 of which had been repaid by defendant; that $2,350 was paid by defendant to her husband for the husband’s interest in certain milk business, and that the bill of sale included a release for work, wages and money loaned, but that the wife refused to sign same, although the balance of the money claimed by her from defendant was left in his attorney’s hands to repay her if she would sign the bill of sale.</p> <p>SAME-COMMUNITY PROPERTY-EARNINGS OE WIEE-ACTION TO RECOVER- — HUSBAND NECESSARY PARTY.</p> <p>The earnings of the wife being community property whose management and control is vested in her husband, under the statutes of this state, a mere general agreement that the wife’s earnings shall be her separate property is not sufficient to constitute a gift, and hence in such a case the husband must be joined as plaintiff in an action by the wife to recover.</p>

<p>INSOLVENT CORPORATIONS ■— ASSETS AS TRUST FUND.</p> <p>' The assets of an insolvent corporation constitute a trust fund for the benefit of all its creditors.</p> <p>SAME-DISSOLUTION OF ATTACHMENTS-RECORD ON APPEAL.</p> <p>The dissolution of attachments against a corporation and the appointment of a receiver therefor on the ground of its insolvency and that its assets should be treated as a trust fund for all creditors, will not be disturbed on appeal, when the answer denying the insolvency had not been filed at the time of hearing. upon the motion for dissolution and the record contains no statement of facts or bill of exceptions showing what evidence was before the court.</p> <p>APPEAL-RECORD-CONTRADICTION BY APPELLANT.</p> <p>Where appellants bring up a record on appeal they cannot contradict it in the supreme court by affidavits.</p>

<p>APPEAL-AMOUNT IN CONTROVERSY-ACTION AT LAW-ENFORCEMENT OF PARTIAL ASSIGNMENT.</p> <p>The assignment of part of a claim for a .pecuniary demand being a legal assignment, enforcible at law under the provisions of our Code, which declare (Bal. Code, § 4835) that any assignee of choses in action for the payment of money may maintain an action in his own name, notwithstanding the assignor may have an interest in the things assigned, and which require all parties interested to be joined (Id. § 4833), and that where a party who should be a plaintiff refuses he may be made a defendant, no equitable feature is presented from the mere fact that an . assignee attempts to enforce the assignment of a part of a claim, and hence the supreme court cannot take jurisdiction of an appeal in such a case, where the amount in controversy is less than $200.</p>

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

<p>JUDGMENT LIEN-PROCEEDINGS TO REVIVE-LIMITATIONS-DATE OF RENDITION.</p> <p>Where a nunc pro tunc order modifying a judgment in the supreme court against sureties upon an appeal bond was made as of the daté of the judgment on the bond originally rendered, the period of limitation for purposes of revival of such judgment, as permitted by Code Proe., § 463, which provides that “no judgment shall be revived or continued unless proceedings for such revival or continuance shall be commenced within six years from the date of its rendition,” begins to run from the date of rendition of the judgment and not from the date of its modification.</p>

<p>FISHING-LOCATION OF TRAPS-ASCERTAINMENT OF END PASSAGEWAY —- CONSTRUCTION OF STATUTE.</p> <p>Laws 1899, p. 197, § 4, provides that, between all pound-net traps constructed in the waters of Puget Sound, there shall be an end passageway of at least 600 feet, and a lateral passageway of at least 2,400 feet, and that “for the purpose of determining end passageway a line shall be drawn parallel to the general direction of the shore line for one-half mile on either side of a proposed location, which parallel line ° shall intersect the outer end of any location tneretofore made, . . . and a new location shall be driven at least six hundred feet distant at right angles from such base line.” The defendant located its trap in the vicinity of plaintiff’s trap by the following method:</p> <p>(1) It first ascertained the general course its trap would point when driven, and ascertained where a line would intersect the shore if projected along that course from the trap to such shore;</p> <p>(2) it ascertained the general direction of the shore for one-half mile on each side of the point of intersection; (3) it then drew a line parallel with the general direction of the shore, causing such line to intersect the outer end of the plaintiff’s trap; (4) it then measured at a right angle from the last mentioned line to the nearest point of its trap location, being its inner end or end nearest plaintiff’s trap. The end passageway, measured in this manner, was 620 feet. Held, that defendant’s trap did not encroach upon the plaintiff’s location, inasmuch as the method of measurement was correct under the statute.</p> <p>STATUTES-MISCHIEVOUS RESULTS-DUTY OF COURTS.</p> <p>The fact that the application of the provisions of a statute will lead to absurd, incongruous, or even mischievous results will not warrant the courts in refusing to give it effect, where it violates no principle of fundamental law.</p>

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

<p>MINING LEASE-BREACH OE CONTRACT-MEASURE OE DAMAGES.</p> <p>The measure of damages for breach of a contract of lease of mining property through the abandonment of the premises by the lessee prior to the expiration of the lease because it could not be profitably mined would be compensation for whatever loss the lessor could be shown to have sustained by reason of the non-performance of the contract, where the property leased was a partially developed mine, which the lessee was to develop and operate during a tenancy of five years, providing necessary machinery therefor, which was to be paid for out of the profits and become the property of the lessor at the end of the term, and the net profits be divided between them; and, it being apparent that the real consideration for the lease was the expectancy of both parties that the mine could be worked at a profit, there could be no recovery by the lessor for failure to develop the mine or furnish the stipulated machinery, when the lease was abandoned because of the worthlessness of the ores.</p>

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

<p>COUNTERCLAIM-INTERPOSITION TO MORTGAGE FORECLOSURE.</p> <p>Under Bal. Code, § 4913, subd. 1, which provides that a counterclaim may he set up “in an action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, or connected with the subject of the action,” defendant may, in an action for the foreclosure of a mortgage, counterclaim for damages suffered by reason of the occupation and use of the premises by plaintiff prior to foreclosure, since the realty upon which the mortgage lien is sought to he enforced is connected with the subject of the action, within the purview of the rule that statutes authorizing counterclaims should he liberally construed.</p> <p>MORTGAGES-DEFAULT IN INTEREST-ELECTION TO FORECLOSE-LIMITATIONS.</p> <p>A stipulation in a mortgage that upon default in the payment of interest the right of foreclosure should immediately accrue would not set the statute of limitations running from the date of such default, where the default had not been claimed by the mortgagee.</p> <p>JUDGE PRO TEMPORE-FAILURE TO SWEAR-OBJECTION NOT URGED BELOW.</p> <p>An objection that the judge pro tem. who tried the cause was *»ot sworn cannot he urged on appeal when not raised below by seasonable objection.</p>

<p>CHARITABLE TRUSTS-CEMETERY-POWER OP TRUSTEES TO SELL.</p> <p>Where a donor deeds lands for cemetery purposes to a hoard of trustees who had been selected for that purpose by town trustees, to take title in behalf of the town in the name of such board and to perfect their organization for the management of the cemetery grounds as they deem best, the conveyance reciting that the grantee should be such board, “their successors and assigns,” there is implied authority in the deed for such trustees to sell portions of the land and apply the proceeds to the betterment of the remainder for the purposes of the original grant, and its terms negative the presumption of any intention to require that the whole tract should be retained in specie.</p> <p>SAME-EXECUTION OP TRUST — -PRESUMPTION PROM ACQUIESCENCE.</p> <p>Where portions of a tract donated for charitable purposes were alienated by the trustees about two years after the conveyance of the land to them, and such alienation silently acquiesced in for a period of fourteen years by all parties interested in the trust, the presumption is that such manner of executing the trust was confirmed thereby, when it appears that the sales were made in good faith, and the proceeds were used in carrying on t.he trust, apparently for the benefit of the trust.</p>

<p>MINES AND MINERALS • — • TAXATION DESCRIPTION 03T PROPERTY.</p> <p>A description of mining property upon the assessment list for taxation as “Eureka District Gold Mining Company, Survey 420,” cannot be regarded as too vague and uncertain for purposes of identification, where that is the description contained in the patent subsequently issued for the property, which was a group of several mining claims, but treated by its owners as a consolidated claim.</p> <p>SAME-ACTION TO ENJOIN TAX- — PLEADING.</p> <p>An allegation in the answer of defendants not denied in plaintiff’s reply, that the description of mining property employed by the assessor was the same as that contained in the patent therefor, taken in connection with evidence that the assessor procured from the land office a list of all claims for which receipt had issued and. used such description in listing plaintiff’s property, is sufficient to establish the finding that the description corresponds to that in the United States patent for the property, although patent'therefor was not in fact issued until some six months subsequent to the date of assessment.</p> <p>SAME.</p> <p>The term “Eureka District Gold Mining Company Survey” is sufficient to identify property as being the subject of a government mineral survey, when that description was applied to the survey of record in the land office and afterwards inserted in the patent, which conveyed a number of claims'as having been grouped under one survey.</p> <p>SAME-METHOD OP ASSESSMENT.</p> <p>Under Bal. Code, § 1699, which provides that the assessor shall list all property according to the largest legal subdivision, as near as practicable, unless otherwise ordered by the board of county commissioners, it was not error to list a group of mining claims as a consolidated claim, according to the government description, when no order had been made by said board directing the property to be listed by smaller legal subdivisions.</p> <p>SAME-SEGREGATION OP REAL AND PERSONAL PROPERTY.</p> <p>Where the owner of mining property, when before the board of equalization, made no demand for a segregation of the personal property from the real estate assessment, it cannot subsequently, in an action to enjoin the collection of the tax, be heard to say that a substantial right affecting the validity of the tax had been invaded.</p> <p>SAME- — -INCLUSION OP IMPROVEMENTS IN VALUATION OP REALTY.</p> <p>Under Bal. Code, § 1698, which provides that “in valuing any real property on which there is a coal or other mine, or stone or other quarry, the same shall be valued at such a price as such property, including the mine • or quarry, would sell at a fair, voluntary sale for cash,” it was proper for the assessor to value as part of the real estate of mining property improvements thereon consisting of tunnels running through the land for mining purposes and buildings upon the land for use in connection with the operation of the mine.</p> <p>SAME-REQUIREMENTS OF CONSTITUTION.</p> <p>Such provision is not a violation of art. 7, §§ 2, 3, of the constitution, which require uniformity in the rate of taxation, and that the same methods shall be employed for assessing corporate property as are provided for assessing individual property.</p> <p>SAME-UNIFORM TAXATION.</p> <p>The fact that Bal. Code, § 1698, makes the rule for valuing mining property at the price which it would bring at “a fair, voluntary sale for cash,” while the rule for other property is stated to be the “value at which the property would be taken in payment of a just debt from a solvent debtor,” would not violate the constitutional requirement (art. 7, §2) of uniformity in the rate of taxation on all property according to its value.</p> <p>SAME — -ASSESSOR’S METHOD OF COMPUTING VALUATION.</p> <p>¡The method employed by the assessor in getting at the valuation of mining property fixed by him in his assessment is immaterial, if in fact the conclusion arrived at was the result of his honest judgment as to its value, considered with reference to the property itself, after an examination thereof.</p> <p>SAME-PROPERTY OMITTED FROM ASSESSMENT-EFFECT.</p> <p>The omission by the assessor of about 3,000 mining claims in the county from his assessment, would not invalidate his assessment of other mining property, even if such omission arose from a misapprehension of the law or from a mistake of fact.</p>

<p>DISMISSAL OP APPEAL-SUFFICIENCY OF BOND- — FAILURE OF SURETIES TO JUSTIFY. '</p> <p>An appeal will be dismissed where the sureties upon the appeal bond have failed to comply with the order of the court to appear and justify as to their sufficiency, and no new bond has been filed by the appellant.</p>

<p>Appeal from Superior Court, Snohomish County.— Hon. Joi-ln 0. Denney, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Geokge W. Belt, Judge.</p>

<p>JUDGMENTS-COLLATERAL ATTACK-JURISDICTION-RECITALS 03? DECR33E.</p> <p>A judgment cannot be collaterally attacked on the ground of want of jurisdiction over the person of the defendant, where the court had jurisdiction of the subject matter, and its decree, as well as tne recitals of the court records, adjudged that jurisdiction of the person had been properly acquired.</p> <p>SAME • — • FRAUD IN PROCUREMENT.</p> <p>The fact that a judgment was procured by fraud cannot be shown in any collateral proceeding by a party to the record in the action wherein such judgment was rendered.</p> <p>SAME-COLLATERAL ATTACK ON DIVORCE DECREE-ACTION FOR SEPARATE MAINTENANCE.</p> <p>An action is a collateral attack upon a decree of divorce, when its purpose' is not simply to annul such decree, but its primary object is to secure separate maintenance or • an interest in the property of the former spouse, and, as a mere incident thereto, it is sought to have the original judgment declared of no effect (White, J., dissents).</p> <p>SAME-VACATION-LIMITATIONS.</p> <p>An action for the vacation of a judgment, based upon fraud practiced by the prevailing party, when not brought within one year after rendition, as required by Bal. Code, §§ 5153, 5156, may be maintained by suit in equity, where not discovered until the expiration of the right to resort to the statutory remedy, in which case the action is barred, if not brought within three years after discovery, under Bal. Code, § 4800, which provides that an action for relief upon the ground of fraud must be brought within three years, but the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud.</p> <p>SAME-RES JUDICATA.</p> <p>An order dismissing a petition to vacate a judgment is final and appealable, and hence res judicata of the matters set up in the petition.</p> <p>DIVORCE-VACATION OE DECREE EOR ERAOD-ESTOPPEL.</p> <p>Where a former wife had knowledge for thirteen years of a decree of divorce obtained by her husband, and of his marriage with another, who was continually recognized as his wife and by whom he had children, and had brought an action upon first discovering the divorce for an adjustment of property rights between them from their marriage until their divorce, she is estopped to maintain that she did not discover the fraud practiced in obtaining the divorce until six months prior to action by her for separate maintenance, since she had the means of discovery of the fraud for a period of thirteen years, and might, by the exercise of reasonable diligence, have sooner discovered it.</p>

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

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

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

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

<p>SCHOOL DISTRICTS-ISSUANCE OF BONDS-NOTICE OF ELECTION-SPECIFICATION OF INTEREST RATE.</p> <p>The fact that notice of election for the purpose of authorizing the issuance of bonds by a school district arbitrarily fixed the rate of interest at four per cent., instead of leaving the rate open to competition, would not invalidate the election; since under Laws 1897, p. 401, § 117, the issuance of such bonds, bearing a rate of interest not exceeding ten per cent, per annum, is authorized, and under Id., § 118, it is provided that notices of election to determine the question of issuing bonds “shall state amount of bonds proposed to be issued, time they are to run, and purpose for which the money is to be used,” but it is nowhere required that the matter of interest shall be submitted to popular vote, and hence the statement of rate of interest in the election notice was an immaterial matter, not binding on the board, nor invalidating the election.</p> <p>SAME-SALE OF BONDS-CALL FOR BIDS-SUFFICIENCY.</p> <p>Under Laws 1897, pp. 402, 403, §§ 119, 120, which provide that the county treasurer, where an issue of bonds has been authorized by popular vote of a school district, must make a call for bids wherein he shall ask “bidders to name price and rates of interest at which they will purchase such bonds;” and such bonds shall be sold to the person making the most advantageous offer, the failure of the treasurer in his notice to require bidders to name a rate of interest at which they would be willing to purchase the bonds, would be, in the absence of bad faith or oppression, but a mere irregularity not affecting the validity of the bonds, where the bids were otherwise within the statutory limitations, and the one accepted was for the face of the bonds, with a premium which, in effect, decreased the interest rate named by the school district. {Dunbar, J., dissents.)</p>

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

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

<p>APPEAL •— SUPERSEDEAS BOND SUFFICIENCY.</p> <p>Where a judgment required a party to pay a certain sum of' money and costs, and, further, to perform certain acts within a period of thirty days, or in default of such performance, a money judgment in certain sums would.be awarded against the party, on .appeal therefrom a supersedeas bond fixed by the court in a sum larger than double the amount of the money judgment and $200 •additional, but less than double the amount conditionally required to be paid, is sufficient, under Bal. Code, § 6506, which •provides that the appeal bond shall be in a penalty of not less than $200 in any case, and, “in order to effect a stay of proceedings, the bond, where the appeal is from a final judgment for the .payment of money, shall be in a penalty double the amount of the damages and costs recovered in such judgment, and in other cases shall be in such penalty, not less than two hundred dollars, and •sufficient to save the respondent harmless from damages by reason •of the appeal, as a judge of the superior court shall prescribe.”</p>

<p>APPEALABLE ORDER-INJUNCTION-SUSTAINING DEMURRER TO COMPLAINT.</p> <p>An order sustaining a demurrer to a complaint in injunction is a final order and hence appealable, when the plaintiff refuses to plead further, though the effect of the court’s ruling is the denial of a temporary injunction, since the matter determined is the sufficiency of the complaint and not the necessity for the issuance of a restraining order.</p> <p>SURFACE WATERS-DRAINAGE FROM HIGHER TO LOWER GROUND-REMEDY OF LOWER PROPRIETOR.</p> <p>When surface water is collected and discharged upon adjoining lands in quantities greater than, or in a manner different from, the natural flow, a liability accrues for the injury occasioned thereby, and where the injury is a continually recurring one, incapable of being compensated in damages, injunction is the proper remedy.</p> <p>SAME-ENJOINING UNNATURAL FLOW OF SURFACE WATERS-SUFFICIENCY OF COMPLAINT.</p> <p>In an action to enjoin the discharge of drainage upon plaintiff’s premises, a complaint is good, as against demurrer, for the purpose of showing more than a natural surface flow from defendant’s premises upon those of plaintiff, when it alleges that “the defendants have said two buildings so erected and situate on their said premises that the drainage from said two buildings is discharged upon plaintiff’s said above-described premises.”</p>

<p>APPEAL-STATEMENT OE FACTS-CERTIFICATION BY JUDGE PRO TEM-PORE AFTER SUCCEEDING TO OFFICE.</p> <p>The fact that a statement of facts was certified hy one of the judges of the superior court, while the action was tried by such judge as a judge pro tempore, before he succeeded to the office, would not he ground for striking the statement, since it fully meets the requirement of having been certified by the judge who tried the cause.</p> <p>SAME-CONTENTS OF BRIEFS.</p> <p>The failure of appellant to comply with the requirements of rule 8 of the supreme court respecting the contents of briefs may be cured by the filing of new briefs fully complying therewith.</p> <p>PRINCIPAL AND AGENT — APPARENT AUTHORITY OF AGENT — QUESTION FOR JURY.</p> <p>Where an agent is put in charge of the business of a principal, with power to sell its goods, collect for the same, make purchases of other dealers when it is necessary to fill orders calling for goods that may not be in the stock of which he has charge, it is a question for the jury to determine, in an action by the principal to recover the amount of checks claimed to have been wrongfully negotiated by such agent, whether or not the agent had apparent authority to pay for the goods so purchased, even by indorsing for that purpose checks payable to his principal.</p> <p>CORPORATIONS-ULTRA VIRES-WHEN CANNOT BE INVOKED.</p> <p>The doctrine of ultra vires cannot be invoked for the purpose of permitting a corporation to recover money paid by it for the purchase of goods beyond the scope of its charter powers, when it had received and appropriated such goods to its own use.</p> <p>CONVERSION OF BANK CHECKS-INSTRUCTIONS.</p> <p>In an action for the recovery of the amount of certain bank checks payable to the order of the plaintiff, and alleged to have been wrongfully indorsed in its name and delivered to defendant, who in turn indorsed them and collected the proceeds, an instruction that the defendant’s liability was limited by the rule of law applicable to intermediate indorsers, was erroneous.</p> <p>SCOPE OF AGENT’S AUTHORITY-EVIDENCE.</p> <p>Where the extent of an agent’s authority is one of the issues in an action, it may be shown by any competent evidence, although the party sought to be charged had no knowledge thereof.</p> <p>SAME-ADVERTISEMENTS OF PRINCIPAL’S BUSINESS.</p> <p>In such a case, certain advertisements of the principal’s business contained in a city directory, set in display type, in which the agent is described as the local manager of the principal, is admissible in evidence, not as showing the agent’s actual authority, but as a circumstance tending to show that the principal had permitted him to hold himself out to the public as possessing the authority usually given to agents occupying similar positions.</p>

<p>MASTEB AND SERVANT-WHEN FELLOW SERVANT BECOMES VICE PRINCIPAL.</p> <p>Where the foreman of a shipyard in charge of the construction of a vessel was compelled, by reason of the location and distance of the winch used in raising timbers, to employ an intermediary for the purpose of signalling the men in charge of the winch, in respect to paying out or taking in the rope for the purpose of hoisting or lowering timbers, the fact that such intermediary was a ship carpenter, taken from his work and used to transmit the foreman’s signals, would make him for the time being, while discharging that duty, a vice principal, and injuries resulting to another ship carpenter on account of his negligence, while in the performance of a duty devolving upon the master, could not be chargeable to the act of a fellow servant.</p> <p>SAME-INJURIES TO SERVANT-MASTER’S DUTY-INSTRUCTIONS.</p> <p>In an action to recover for the death of a ship carpenter caused by the falling of a cant timber upon the staging where he was at work, an instruction that “whatever was necessary or needful or useful in order to raise the cant in an ordinarily safe manner, and consistent with the care and caution necessary to render safe and free from danger the workmen engaged in it, are instrumentalities or appliances, within the meaning of the law, whether the same be ropes, engines, platforms or staging, or servants; and it is the duty of the master/to furnish all such necessary instrumentalities and appliances, whether ropes, machinery, staging or servants, and that they shall be reasonably suitable and competent,” is not erroneous on the ground of making the master an insurer of the servant’s carefulness, while the law requires only reasonable care in their selection and retention, where other instructions given told the jury that it was the duty of the master to provide all necessary appliances, including servants, and that they were to be reasonably suitable and competent, and that the master had discharged his duty in this respect when he had exercised reasonable care to provide such.</p> <p>SAME-RELEVANCY OF INSTRUCTIONS TO PLEADINGS.</p> <p>Such instruction is not erroneous on the ground of tending to confuse and mislead the jury because outside of the issues, in that there is no claim in the pleadings that the injured party had been required to work with an incompetent fellow servant, since the carelessness and negligence of the vice-principal in the arrangement of his appliances is fully alleged.</p> <p>•SAME • — ■ INSTRUCTIONS ON QUESTION OE NEGLIGENCE ■— HARMLESS ERROR.</p> <p>Where there was no evidence of negligence on the part of deceased an instruction was nothing more than harmless error, when it charged the jury that “mere negligence on the part of the deceased ... is not sufficient to prevent recovery . . . for injury caused by the negligence of the defendant.”</p> <p>SAME-QUESTION EOR JURY.</p> <p>In an action to recover for the death of an employee caused by the negligence of defendant, a question for the jury is presented, although there was no direct evidence that the accident was caused by the' fouling of a rope, when the evidence tends to show that deceased was killed by a heavy cant striking the platform upon which he was working in the construction of a vessel, that the cant had hung suspended for awhile, and then came down with a rush; that it was controlled by a rope attached to a donkey engine, and that this rope was made of two ropes tied in a knot, instead of being spliced together; that there was a possibility of the knot catching on the wharf or on one of the shores which braced the vessel; that the men at the engine kept paying out rope attached to the cant in response to signals until quite a good deal of slack had piled up on the wharf; that the cant would not come down and that the foreman took hold of a fall rope and surged upon it with all his weight, when the cant suddenly fell with a crash, causing the injuries complained of.</p>

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

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

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

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

<p>CARRIERS-DELIVERY OP GOODS-PRODUCTION OP BILL OP LADING REQUISITE.</p> <p>Under both commercial usage and the statute of this state, where a carrier issues a bill of lading for goods delivered to it for shipment, it should demand and receive the bill of lading before delivery in order to avoid liability; and even its delivery of the goods to a consignee designated in the bill of lading will not exonerate it from liability unless such delivery be made upon the production of the bill of lading.</p> <p>SAME-INDORSEMENT OP BILL OP LADING.</p> <p>Under Bal. Code, § 3600, which provides that “when a bill of lading or warehouse receipt is made to ‘bearer,’ or in equivalent terms, a simple transfer thereof by delivery conveys the same title as an indorsement,” the power of indorsement is not restricted to the consignee, but the carrier who has delivered such a bill of lading to the shipper is conclusively charged with knowledge of the fact, and of its negotiability both by custom and statute.</p>

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

<p>Appeal from Superior Court, Jefferson County. — Hon. George C. Hatch, Judge.</p>

<p>BILLS AND NOTES ■— BAD FAITH OF PURCHASER-INSUFFICIENCY OF EVIDENCE.</p> <p>Bad faith on the part of the purchaser of a promissory note against which the maker had a valid defense is not shown by evidence that it was purchased at a heavy discount, without inquiry of the maker, whom the purchaser knew to be perfectly solvent, when it appears that inquiry was made of the payee as to the consideration for the note; that the payee was in need of money; that the note, though held at the time in this state, was payable at Cape Nome, Alaska, of whose inaccessibility for half the year the court would take judicial notice; and that the note was purchased three months before maturity without notice of any infirmity in the instrument.</p> <p>SAME-’PURCHASE AT DISCOUNT-AMOUNT OP RECOVERY.</p> <p>Under Laws 1899, p. 350, § 57, which provides that the holder of a negotiable instrument may enforce payment for the full amount against all parties liable thereon, recovery upon a promissory note by the purchaser thereof is not limited to the amount paid for the note.</p>

<p>Appeal from Superior Court, Spokane Co-unty. — Hon. Lean deb H. Prather, Judge.</p>

<p>Motion to Recall Remittitur.</p>

<p>APPEAL ■— AMOUNT IN CONTROVERSY-REDUCTION OF AMOUNT BY WAIVER-EFFECT.</p> <p>In an action on an injunction bond to recover damages in the sum of $260, the action of plaintiffs before resting their case, in waiving all claims for attorney fees, which one paragraph of their complaint had claimed as an item of damages in the sum of $100, thereby reduced the amount in controversy to $160, and hence judgment therein would not be appealable, under the constitutional provision restricting the appellate jurisdiction of the supreme court in actions for the recovery of money to cases where the amount in controversy exceeds the sum of $200.</p>

<p>PLEADING — QUESTION OF LIMITATIONS NOT RAISED BY GENERAL DEMURRER.</p> <p>A demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action would not present the objection that it appears upon the face of the complaint that the action is barred by the statute of limitations.</p> <p>BILLS AND NOTES-NEGOTIABILITY-CONTINGENT PAYMENT BEFORE MATURITY-EFFECT.</p> <p>A promissory note agreeing to pay the person therein named a specified sum absolutely and at all events four years after a certain date, or before, is negotiable, although it contains the provision that “if we sell or remove the timber that we have bought on said Johan Joergenson’s [payee] homestead claim, before the expiration of said four years, then this note shall be paid at the times of such sale or removal of said timber,” since such provision does not change or destroy the maker’s absolute liability to pay at the time designated; nor would the fact of the note’s becoming payable prior to the time of absolute payment, upon the happening of a certain event, affect its negotiability.</p> <p>SAME-DAYS OF GRACE-ACCRUAL OF CAUSE OF ACTION.</p> <p>Under Bal. Code, § 3655, allowing three days’ grace upon negotiable promissory notes, action upon such instrument cannot be maintained before the expiration of the last day of grace, and hence the bar of the statute of limitations will not begin running until the expiration of the period of grace.</p>

<p>Appeal from Superior Court, ' King County. — Hon. Arthur E. Grieein, Judge pro tern.</p>

<p>PLEADING-OBJECTIONS RAISED BY DEMURRER-FAILURE TO ALLEGE CORPORATE CAPACITY OF DEFENDANT.</p> <p>A general demurrer to a complaint in an action against a corporation will not raise the objection that it fails to allege the incorporation of the defendant company.</p> <p>SAME-AVERMENT OF SEPARATE CAUSES OF ACTION BY REFERENCE.</p> <p>The objection that a complaint, for portions of its second, third and fourth causes of action, alleges that certain paragraphs of the first cause of action are repeated and made a part of the succeeding causes set forth cannot be raised by demurrer.</p> <p>MECHANICS’ LIENS ■— JUDGMENT ON PLEADINGS-INCLUSION OF CONTIGUOUS PREMISES.</p> <p>In an action for the foreclosure of mechanics’ liens, where a complaint alleges the furnishing of labor and materials for the improvement of a designated mining claim, and then adds it' is contiguous to and adjoining another designated claim held nd operated by defendant as a group, and that the materials so furnished were for the development of both lodes which were held by defendant as constituting one mine, a decree including both mining claims is warranted in giving judgment on the pleadings, where there is no denial of the allegations of the complaint.</p>

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

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

<p>Appeal from Superior Court, Yakima County. — Hon. Ralph ICyuppman, Judge pro tem.</p>

<p>Appeal from Superior Court, Jefferson County. — Hon'. George C. Hatch, Judge.</p>

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

<p>MORTGAGE-FORECLOSURE ON PART OF PROPERTY-WAIVER OF LIEN. ON BALANCE.</p> <p>Where one holding a mortgage upon two distinct tracts of realty foreclosed as against one of them only, it was a waiver of his right to enforce the mortgage lien against the other tract, even if the omission was unintentional on his part, due to the fact that he was ignorant that the mortgagor had won a contest in the United States land office involving the title to such omitted tract.</p>

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

<p>NEGLIGENCE-ELEVATION OE SIDEWALK ABOVE ADJOINING LOT-ABSENCE OE GUARD RAIL- — LIABILITY OE LAND OWNER.</p> <p>' Tbe fact that an opening had been allowed to remain in the fence or guard rail between the sidewalk and defendants’ lot, which was below the grade of the street, and that this opening had been used at one time by tenants of defendants, would not render defendants liable for injuries received by plaintiff in stepping off the walk at that point, when it does not appear that the opening was made by the owner, nor was in use for ingress and egress at the time of the accident, nor that the premises had been leased for such, a use, nor that the opening was in a more dangerous condition by reason of having been once used as a passage way.</p> <p>SAME-DUTY TO MAINTAIN BARRIERS.</p> <p>Where the public authorities elevate a street and sidewalk above the level of abutting lands, the abutting owner is under no obligation to erect or maintain barriers between such highway and his land to prevent travelers from falling therefrom onto his lands; nor liable for injuries received from such a fall by reason of the absence or faulty construction of barriers.</p>

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

<p>CONTEMPT-APPEAL-EIGHT OP APPELLANT TO SUPERSEDEAS-MAN-DAMUS TO COMPEL COURT TO EIX BOND.</p> <p>On an appeal from a judgment for contempt, which is permitted the party in contempt by Bal. Code, § 5811, the appellant is entitled to all the provisions of the law governing appeals, including the right to a stay of execution pending his appeal; and, where the court refuses to fix a supersedeas bond for the purpose of staying its judgment of contempt, it may be compelled so t'o do by writ of mandamus.</p>

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

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

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

<p>APPEAL-SUFFICIENCY OF EXCEPTIONS.</p> <p>Where no formal findings of fact and conclusions of law were made by the trial court, the exception of plaintiff to a dismissal of her action, and to the judgment reciting that she had not sustained the allegations of her complaint, sufficiently pointed out the claim of errors for the purpose of review on appeal.</p> <p>DIVORCE-GROUNDS-CRUEL TREATMENT.</p> <p>A wife is entitled to a divorce on the ground of cruel treatment, where her husband compels her by force to submit to sexual intercourse while pregnant and suffering from morning sickness, the effect of which was to make her very sick at the time, and to undermine her health.</p> <p>SAME —• SUFFICIENCY OF EVIDENCE.</p> <p>The wife’s testimony as to enforced sexual intercourse during pregnancy, though denied by the husband, was sufficiently corroborated to be deemed established, where it appeared that the wife was in fairly robust health at the time of marriage, that she left her husband considerably broken in health, but rapidly recovered her normal condition as soon as she got away from him; that, though the wife was soon to become a mother and was penniless, the husband made no offer of aid or support; and that he had contradicted every witness in the ease who testified to his conduct towards his wife.</p> <p>SAME-BEMANDIN6 CAUSE EOR FURTHER EVIDENCE.</p> <p>Where the supreme court cannot, owing to the state of the record before it, make an award affecting the property of the parties to a divorce suit, on reversing the decree of the lower court refusing a divorce, it will remand the case to the lower court for the purpose of hearing further testimony on the question of property, with instructions to make such provision for the wife and minor child as may seem meet and equitable.'</p>

<p>APPEALABLE ORDER-ORDER DIRECTING RETRIAL ON FAILURE OF JURY TO AOREE.</p> <p>An order of the court discharging a jury for failure to agree and referring the case back for notice on the assignment list for a retrial thereof, is not the granting of a new trial, and hence not appealable under Bal. Code, §6500, which authorizes appeal from an order granting a new trial.</p>

<p>APPEAL-CESSATION 03T CONTROVERSY.</p> <p>Where the officers of a city against whom a peremptory writ of mandate had issued, requiring them to issue liquor licenses to plaintiffs, comply with such order after taking an appeal therefrom, it amounts to a voluntary satisfaction of the judgment, inasmuch as the appeal itself, under Bal. Code, §6505, operated as a stay of execution, without the requirement of a bond from the city; and hence respondents are entitled to a dismissal of the appeal on the ground of a cessation of the controversy.</p>

<p>SUNDAY LAWS-POLICE POWER.</p> <p>The enactment of Sunday laws, requiring the cessation of labor on the score of the physical and moral well-being of society, is an appropriate exercise of the police power of the state.</p> <p>SAME-PROHIBITION OE BUSINESS-CONSTITUTIONAL LAW-DUE PROCESS.</p> <p>Bal. Code, § 7251, which provides that it shall be unlawful for any person to open on Sunday any shop, store or building, or place of business whatever, for the purpose of trade or sale of goods, wares and merchandise, is a legitimate exercise of the police power, and does not violate the constitutional prohibition against depriving a person of his property, without due process of Taw, nor is it an invasion of his constitutional right to the enjoyment of life, liberty and property.</p> <p>SAME-DISCRIMINATION BETWEEN CLASSES OE BUSINESS.</p> <p>The proviso to Bal. Code, § 7251, excepting from the operation of the statute hotels, drug stores, livery stables and undertakers does not violate the constitutional prohibition against the passage of laws granting to one class of citizens privileges or immunities which shall not equally .belong to all citizens, since there is no restriction on any person engaging in the excepted lines of business and thus obtaining equal advantages with all others engaged therein {Tacoma v. Krech, 15 Wash. 296, overruled) .</p>

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

<p>PLEDGE OF BUILDING AND LOAN ASSOCIATION SHARES-CANCELLATION OF CERTIFICATE-ACTION BY PLEDGEE.</p> <p>A pledgee of shares of stock in a building and loan association, which have been called in, paid off, and canceled without notice to him or a demand for the surrender of the certificate held by him in pledge, has a right of action against the association for the damages suffered by him in consequence of the destruction or conversion of such shares.</p> <p>SAME-NOTICE OF PLEDGE.</p> <p>A corporation which pays off shares of stock to the holder thereof as shown on its books, without the return of the certificate issued to him, does so at its peril, since, under Bal. Code, § 4264, which provides that any stockholder may pledge his stock hy a delivery of the certificate, but may, nevertheless, represent the same at all meetings and vote as a stockholder, it is unnecessary for the pledgee to notify the corporation of the pledge nor contemplated by the statute that' the pledge be shown on the corporate books by a transfer of the stock.</p> <p>SAME-MEASURE OF DAMAGES.</p> <p>Where a building and loan association has a defense against the original holder of a certificate of stock issued by it, a pledgee of such certificate, who has a right of action for damages against the corporation for the conversion or destruction of such shares, is entitled to recover only the amount due him from the pledgor, with interest accrued and accruing thereon at the contract rate; and his measure of recovery would not be the full value of the stock at the date of conversion, unless his actual damage was equal thereto.</p>

<p>UNLAWFUL DETAINER-SUFFICIENCY OF COMPLAINT.</p> <p>In. an action of unlawful detainer, tbe failure of the complaint to expressly set forth plaintiffs’ right of possession and leasing of tbe premises to defendant, would not subject tbe complaint to demurrer, where tbe notice to quit, wbicb was attached to and made a part of tbe complaint by reference, notified defendant, as tbe tenant in possession, to quit the premises wbicb be beld under a tenancy terminating on a date named, and notifying bim if be remained in possession thereafter be would be ousted under tbe provisions of the law relating to unlawful detainer.</p> <p>SAME-JUDSMENT-SUFFICIENCY OF VERDICT TO UPHOLD DOUBLE DAMAGES.</p> <p>The court is warranted in giving judgment for double damages on the verdict in an action of unlawful detainer, where tbe verdict is general, according to a form prepared by tbe court, and no exception was taken thereto at tbe time of its submission to the jury, since under Bal. Code, § 5542, the court could pronounce judgment for double the amount of the verdict, as well as for a restitution of the premises.</p> <p>TRIAL-IMPROPER EXCLUSION OF TESTIMONY-HOW CURED.</p> <p>Error committed by the court in excluding testimony when first offered is cured by subsequently permitting its introduction.</p>

<p>ELECTIONS-PASTING NAMES ON BALLOTS-FAILURE TO'MABK BALLOT -LEGALITY OF VOTE.</p> <p>Where there was but one set of candidates to be voted for upon the official ballot used in a general election, and the voter pasted the name of another person over that of one of the candidates and cast his ballot without making an X after the names of any of the candidates, his vote should be counted, since Bah Code, § 1376, provides that a ballot is not void, unless it is impossible to determine the elector’s choice; Id., § 1403, provides that no ticket shall be lost for want of form, if the board of judges can determine to their satisfaction the person voted for and the office intended; and Id., § 1362, provides that “nothing in this chapter [relating to elections] shall prevent any voter from writing or pasting on his ballot the name of any person for whom he desires to vote for any office, and such vote shall he counted the same as if printed upon the ballot and marked by tbe voter.”</p> <p>SAME-STATUTES-REPEAL.</p> <p>Bal. Code, § 1362, passed in 1890, and providing that where a name is pasted on a ballot, the vote shall he counted the same as if printed upon the ballot and marked by the voter, was not repealed by Id., § 1370, passed in 1895, which declares, in providing for the method of marking ballots, that any elector may paste over any other name the name of any person for whom he may wish to vote, since the act of 1895 was merely amendatory of existing statutes and did not undertake to supersede the provisions of the old law, except in the matter of marking the ballots with an X after, instead of before, the names of candidates.</p> <p>SAME-IDENTIFICATION MARKS.</p> <p>Neither the placing of a paster upon an official ballot, as allowed by law governing elections, nor the failure to mark the ballot with an X, when hut one set of candidates is being voted for, can be beld to bfe a violation of Bal. Code, § 1380, which prohibits an elector’s placing any mark upon his ballot by which it may be identified.</p>

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

<p>■OFFICIAL BONDS — SIGNATURES OF OBLIGORS.</p> <p>An official bond which, was executed by a principal and his sureties by affixing their signatures to the justification which followed immediately after the bond, upon the printed form, instead of signing at the end of the stipulations and conditions, was a valid bond, where the names of the principal and sureties-were set forth in the body of the bond and it had been delivered and accepted by the pbligors and obligee with thé intent that it should constitute a binding obligation. *</p>

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

<p>Appeal front Superior Court, Pacific County. — lion. William 0. Ci-iapman, Judge.</p>

<p>APPEAL-VOLUNTARY DISMISSAL-RIGHT' OF RESPONDENT TO AFFIRMANCE.</p> <p>Where an appeal is dismissed upon the motion of appellant, the respondent is entitled to an affirmance of the judgment of the lower court, when the time limited by law within which another appeal may be taken from the same judgment’ has already expired.</p> <p>SAME •— ATTACK UPON JUDGMENT AFTER AFFIRMANCE.</p> <p>The supreme court has power to grant leave to attack judgments which it has affirmed, upon a showing being made to the satisfaction of the court that the ends of justice require it.</p>

<p>APPEAL-AMOUNT IN CONTROVERSY-HOW DETERMINED.</p> <p>The constitutional provision limiting the jurisdiction of the supreme court on appeal to cases where the amount in controversy exceeds $200 applies to the amount sued for and not to the judgment rendered.</p> <p>NEGLIGENCE —■ INJURIES TO SERVANT • — • DEFECTIVE ELEVATOR-NON-SUIT.</p> <p>In an action for damages for injuries received from the fall of a freight elevator plaintiff should be non-suited when the only negligence alleged was that “the elevator through want of proper repairs and a sufficient brake immediately dropped to the bottom,” and the evidence shows that’ the elevator was not out of repair nor defectively constructed; but that plaintiff went on the elevator without being required so to do by the defendant as a part of his duties, and, in ignorance of its mechanism, attempted to operate it, causing it to fall.</p> <p>SAME-INSTRUCTIONS.</p> <p>Where there. was no evidence that the construction of an elevator was complicated and dangerous, it was error for the court to charge the jury as to the duty of defendant to give plaintiff notice of its complicated and dangerous character.</p>

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

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

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

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