Volume 3 — Washington Reports

Action by George P. Hurd to recover possession of, and quiet title to, certain lots in tbe city of Seattle wbicb bad been purchased at tax sale in 1876 by plaintiff’s grantor. Tbe action was brought against Henry Brisner, who answered alleging bis possession as tenant of R. L. Hawthorne. Said Hawthorne was, upon application, made defendant in place of Bxisner, the tenant. Trial by the court and judgment for defendant, whereupon plaintiff appeals.

<p>MUNICIPAL CORPORATIONS — CONSOLIDATION—SPECIAL ELECTIONS — CONSTITUTIONAL LAW — STATUTES—TITLE AND OBJECTS.</p> <p>The act of March 27, 1890, authorizing cities and towns to consolidate, and to hold a special election therefor in each of the cities or towns proposing consolidation, does not contravene the constitutional provision (art. 11, l 10) requiring the legislature (o provide hy general laws for the incorporation, organization and classification of cities and towns in proportion to population.</p> <p>The provisions of the act authorizing the consolidation of municipal corporations by holding special elections therefor are within the title of the “act providing for the organization, classification, incorporation and government of municipal corporations. ”</p> <p>The act of March 27,1890, authorizing the consolidation of municipal corporations, applies to those created by special charter as well as to those organized under general incorporation laws.</p>

<p>CRIMINAL LAW — INFORMATION—LARCENY—DESCRIPTION OF MONEY.</p> <p>Under Code 1881, 2 1023, an information for grand larceny which describes the property taken as “ a quantity of money of the value of seventy-seven dollars,” is sufficient, especially where the question of sufficiency is not raised until after verdict, when every intendment will be brought to the aid of the pleading.</p>

<p> Appeal from Superior Court, Klickitat County. </p>

<p>MALICIOUS PROSECUTION — PLEADING—PARTIES—PROBABLE CAUSE— INSTRUCTIONS — APPEAL—STATEMENT OF FACTS.</p> <p>Under the appeal act of March 22, 1890 (Laws 1889-90, p. 338), it is only necessary to send up so much of the evidence and proceedings as ii required for the presentment of the errors alleged.</p> <p>A complaint for malicious prosecution against two defendants alleging that they jointly “procured the arrest of plaintiff on a false charge,” and “that in procuring the arrest and prosecution of the plaintiff the defendants acted maliciously and without probable cause,” sufficiently charges a joint responsibility, although other allegations show that one defendant only swore to the complaint to obtain the warrant for plaintiff's arrest and prosecution.</p> <p>The fact that plaintiff was hound over by a justice of the peace and was indicted by the grand jury does not show probable cause for instituting proceedin s against him, when the whole proceedings were founded upon the acts and testimony of defendants, and the issue to be tried in the action is as to the maliciousness and falsity of such acts and testimony.</p> <p>In an action for malacious prosecution, an instruction to the jury that if they find that defendants willfully testified falsely against plaintiff, they may find that there was no probable cause to warrant or excuse the prosecution, and that the same was malicious, is not erroneous on the ground that express proof of no probable cause is required.</p> <p>An instruction in such case that the jury may allow plaintiff such sum as will compensate him for injured credit, peace of mind and mental suffering, is not misleading by the use of the word “ credit,’* where it was not claimed the financial standing of plaintiff had been injured nor any testimony offered in regard to it, as the meaning of the term is made obvious by the context.</p> <p>(Hoyt, J., dissents.)</p>

<p>CUSTOM — PAROL EVIDENCE — INSTRUCTIONS—COMMENTING ON PACTS.</p> <p>In an action upon a contract to furnish within a stipulated time certain wainscoting and stair work fora building, accordingtothearchitect’s plans and specifications, parol evidence is admissible to show that under such contracts the general custom is to take actual measurements, and that such contracts are entered into with reference to such general custom, as an excuse for plaintiffs’ not performing their part of the contract within the time stipulated.</p> <p>Under art. 4, ? 16 of the constitution, providing that “judges shall not charge juries with respect to matters of fact, nor comment thereon,” it is error to tell the jury there is no dispute in the testimony on a certain point, or' that any fact is conclusively proven. (Hoyt, J., dissents.)</p>

Appeal from Superior Court, Spoleane County. Motion by respondent to strike the statement of facts from the record and to affirm the judgment.

On the 5th day of December, 1889, Reuben W. Warren, who was then the owner of a general store and doing a general retail business at Bucoda, Washington, being indebted to certain business men and jobbers of Portland, Oregon, gave them his notes for $1,600 as security for the indebtedness, indorsed by his brother, Moses Warren.

<p> Appeal from Superior Court, Clarice County. </p> <p>Action by Wm. F. Wallace against Anna M. Johnston on contract. Judgment for plaintiff, and defendant appeals.</p>

Suit by W. L. Jones, as a citizen and taxpayer of the State of Washington against T. M. Reed, auditor, A. A. Lindsley, treasurer of the State of Washington, George A. Black, S. B. Conover and Andrew H. Smith, claiming to be commissioners, and S. B. Conover, J. H. Bellinger, Eugene Fellows, Andrew H. Smith and Geo.

Action by R R Marsh against F. A. Degeler and others for damages for forcible entry and detainer. Judgment for plaintiff, and defendants appeal.

<p>PLEADING — ANSWER—JUDGMENT ON PLEADINGS-</p> <p>Although an answer to a complaint may be defective, if it can be gathered therefrom that an issue is tendered by the pleading upon a material matter, it is error to render judgment on the pleadings in favor of plaintiff.</p> <p>Where a complaint alleges that by the contract sued on payment was to be made on a certain date, but it nowhere appears that the work was to be done and the material furnished on or before that date by the terms of the contract, the denial in the answer of the completion of the work is not material, unless coupled with some allegation that the payment of the contract price depended or was contingent thereon.</p>

<p> Appeal from Superior Court Pierce County. </p> <p>Action, by James Bleecker against the Satsop Rajlroad Company to recover for the rent of a scow and for injuries while in its alleged use by defendant. Judgment for plaintiff, and defendent appeals.</p>

<p> Appeal from Superior Court, Spokane County. </p>

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

<p>JUDGMENT OE OUSTER — APPEAL—STAY—BOND.</p> <p>On an appeal from a judgment ousting the appellant from the office of school clerk, he is entitled, under the Laws, 1891, p. 341, to file a bond staying proceedings pending the appeal, and it is the duty of the trial judge to order and fix the amount thereof.</p>

<p>MURDER, — JURY—IMPEACHING WITNESS — EVIDENCE—CONFESSIONS—ARGUMENT — INSTRUCTIONS—MISCONDUCT OF JUDGE.</p> <p>Under Code 1881, 212 and 1078, the former employer of a decedent is disqualified as a juror in a trial for his murder.</p> <p>Where a juror called in a murder trial testifies that he has formed and expressed an opinion which would require evidence to remove, but that he would try the case on the evidence and the law, he is disqualified upon the ground of actual bias, as it cannot be inferred from such testimony that he would disregard the opinion he had formed.</p> <p>A witness may be asked on cross-examination for the purpose of impeaching her credibility, whether she is a prostitute, and it is error for the court to sustain an objection thereto, unless the witne s claims the privilege of refusing to answer on the ground of criminating herself.</p> <p>A witness testified in a murder trial that defendant said that “unless some one paid him he would take his life,” and added, “I often thought of what he said at the saloon, and one day, while in my room, I said to myself, ‘ My God! He said he would kiil that man, and he did it: ’ ” Held, Incompetent, as expressing the witness’ opinion of defendant’s guilt.</p> <p>Where a witness has denied having a conversation with certain persons, in which he refused to tell where defendant was concealed for fear defendant would kill him if he told, it is incompetent, as being hearsay evidence, to allow such persons to testify that the witness said “ he could not tell us where the defendant was, for the Italians who were the friends of defendant would kill him.”</p> <p>Where a defendant, after having been shot down by the officers sent to arrest him, but apparently ignorant of the fact that they were officers, and without any threats being made against him, makes confession that he killed decedent, the confession is a voluntaiy one and admissible in evidence.</p> <p>Evidence is admissible in a murder trial to show that a third party had told defendant that the decedent threatened to kill defendant, if he kept on talking about his owing him money, as a circumstance tending to show the danger defendant believed himself to be in at the time of the murder.</p> <p>It is in the discretion of the trial court to exclude the jury during the argument of counsel upon instructions asked as the law of the case, and the sending the jury from the room at such time, while the trial is in progress, does not violate the constitutional provision (arl. 1, $ 22) that in criminal prosecutions defendants shall have a public trial by an impartial jury.</p> <p>In charging the jury in a trial for murder the court should, if so requested, define the terms “malice” and “premeditation” employed by him in stating the statutory requisites constituting murder and manslaughter.</p> <p>The reading of a newspaper by the judge while the defendant in a murder trial is on the witness stand, and familiar and pleasant conversation by the judge with a witness whom the defendant’s attorney Was trying to impeach, is such misconduct on the part of the judge as to entitle the defendant to a new trial.</p>

<p>BILL OF EXCEPTIONS — STATUTES—REVIVAL OF FORMER LAW — ACTION ON INSURANCE POLICY — SUFFICIENCY OF COMPLAINT.</p> <p>Although chapter 19, Code 1881, was repealed by the act of February 3, 1886, the intent of the legislature to revive said chapter 19 by later enactment is apparent, inasmuch as the act of February 3, 1886, is repealed by the act of March 22,1890 (Laws 1889-90, p. 335), which also enacts that a hill of exceptions may be made a part of the record of a case on appeal “ as provided by chapter 19 of the Code of Washington relating to exceptions.”</p> <p>In an action on an insurance policy, a complaint that does not set out the policy sued on, nor show proof of loss, ownership of the property, or value thereof, does not state sufficient facts, although it does allege that notice of the fire was given defendant, and that plaintiff was damaged by the fire in a certain sum. (Dunbar, J., dissents.)</p>

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

<p>BURGLARY — INSUFFICIENCY OF INFORMATION — NEW TRIAL — DISCRETION OF COURT.</p> <p>In a prosecution for burglary, an information charging the defendant with unlawfully breaking and entering a certain house is sufficient to sustain a charge of burglary, either by day or night, without alleging an unlawful entering in the night time, or an unlawful breaking and entering in the day time.</p> <p>It is a sufficient averment in the information for burglary that the house which was broken into was a dwelling house, to allege the breaking and entering a house used as a hotel and lodging house, “thesame being then and there the dwelling house” of a party named.</p> <p>It is not an abuse of discretion for the trial court to refuse to grant a new trial upon the ex parte affidavit of a man who confesses the commission of the crime for which defendant was convicted, where there is no attempt to show affiant’s residence, or whether defendant could procure his attendance at court at any future time, or whether affiant would swear to the matters set forth in the affidavit, if he should attend.</p>

Action by J. A. Burrichter & Co. against Henry H. Cline upon a foreign judgment. The defendant was arrested and held to bail on an affidavit charging that he was about to leave the State with intent to defraud his creditors. Judgment for plaintiffs, and defendant appeals.

Action by James S. Bogle against tbe Puget Sound Cooperative Colony, a corporation. The defendant filed its motion for a change of place of trial from the county of Pierce to the county of Clallam, its principal and only place of business, which motion was granted by order of the court. From such order plaintiff appeals.

<p> Appeal from, Superior Court, Lewis County. </p>

<p>MUNICIPAL CORPORATIONS — VALIDITY OP CONTRACT — DISCRETION OP CITY COUNCIL — VOID INJUNCTION — CONTEMPT.</p> <p>The provision of the charter of the city of Tacoma requiring the city council to “ annually let the public printing to the lowest and best bidder,” and making it “ the duty of the city council after having let the contract for the city printing to designate the newspaper published by the party receiving said contract as the official newspaper ofsaid city,” does not compel the city council to let the contract for the city printing to the lowest and best bidder who is at the time the publisher of a newspaper, nor does it forbid their letting the contract to one who, at the time of the bidding, is not the publisher of a newspaper. The discretion is especially conferred upon the council, and upon no other tribunal, of determining who is the lowest and best bidder.</p> <p>Where the action of a city council is authorized by law, and the council acts within the limits of the discretion conferred upon it by such law, a court of equity will not sit in review of its proceedings and enjoin its actions.</p> <p>Where a court is without jurisdiction of the subject-matter of an action, its order imposing a fine for contempt is void.</p>

This is a proceeding commenced by the appellant to secure a peremptory writ of mandamus against the respondents, requiring them to levy and extend on the tax rolls of King county, Washington, an assessment for school purposes on that portion of the city of Seattle which was added to the city June 1, 1891.

<p>CONTRACT — CONSTRUCTION—OWNERSHIP OP LAND — PARTITION—ABANDONMENT OP CONTRACT.</p> <p>Where, by agreement between plaintiff and defendant, certain land upon which plaintiff held an opinion was to be purchrsed and paid for by the defendant and deeded to the latter in his own name, the profits of the transaction, after refunding purchase money and interest, to be equally divided between them, the defendant is entitled to continue to hold the land until it has all been sold to third parties, and the plaintiff has not such an interest in the land as to entitle her to a partition thereof, but can claim only an equal share of the profits from its sale.</p> <p>The fact that defendant removed certain contracts and papers relating to the sale of portions of said land from plaintiff’s office, and revoked certain powers of attorney made to plaintiff authorizing the conveyance of defendant’s property in Spokane county, does not show an abandonment of such contract, nor a denial of plaintiff’s rights in relation thereto, and under such circumstances there can be no decree for partition of the property.</p>

<p>EVIDENCE — EOREIGN JUDGMENT — CUSTODY OE MINOR CHILDREN.</p> <p>Where there is no showing that the record of a decree in a court of another state has been lost or destroyed, the loss of a certified copy thereof which plaintiff had obtained will not warrant the admission of parol proof to show the nature and contents of the decree.</p> <p>In an action of habeas corpus for the possession of minor children brought by the mother against the father, based upon an alleged decree of divorce in another state awarding the custody of the children to her, where it appears from the evidence that the father is the more suitable person to have the care and custody of the children, being better prepared to rear and educate them, and that the mother is unsuited morally to have the control of the children, and is financially unable to care for them, a decree giving the mother the custody of the children is erroneous.</p>

The defendant, Charles R. Hammond, was convicted of the crime of grand larceny upon the following information: “Whereas, a public offense, to wit, the crime of grand larceny, has been committed by the above named defendant; and whereas, the said defendant is not now under indictment therefor; and whereas, the above entitled courtis now in session; and whereas, there is now no grand jury in session in said King county: Therefore, on this ninth day of December, A. D. 1890,…

<p>CRIMINAL LAW — ACCESSORY AFTER THE FACT — INSTRUCTIONS—PREJUDICIAL ERROR.</p> <p>In a trial for grand larceny, an instruction is erroneous -which, charges that there is no longer any such offense as being accessory to a felony after the fact, and authorizes the jury to consider, as substantive proof of the crime charged in the indictment, such acts of defendant after its commission as, at common law, would only have tended to show that defendant was an accessory after the fact.</p> <p>The giving of an instruction which is clearly not applicable to the facts in the case is prejudicial error, as it would have a tendency to mislead the jury.</p>

<p> Appeal from, Superior Court, Lems County. </p> <p>Motion to strike statement of facts, and dismiss the appeal.</p>

<p> Appeal from Superior Court, Pierce County. </p> <p>Action by William Scully and Patrick H. Scully against William P. Book and Prank I. Blodgett, to enforce the conveyance to plaintiffs of a certain parcel of land in the city of Tacoma, for which plaintiffs held a contract of sale, in the usual form, executed to them by L. M. Glidden as the agent of said Book. Judgment for plaintiffs, and defendants appeal.</p>

<p> Appeal from Superior Court, Yakima County '. </p> <p>Motion by respondent to strike statement of facts and dismiss appeal.</p>

<p> Appeal from Superior Court, Spokane County. </p>

<p>PLEADING — MONEY HAD AND RECEIVED.</p> <p>Under the provisions of the code abolishing all forms of pleading inconsistent therewith and requiring the complaint to contain a plain and concise statement of facts constituting the cause of action, an action for money had and received is not supported by proof that plaintiff had paid defendant certain sums of money upon a written contract for the conveyance of land, which had be n rescinded by the plaintiff on the ground that defendant had failed to deliver a deed to said land within the time prescribed by the contract.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>QUIETING TITLE — PARTIES—WILLS—ELECTION BY HEIRS — ESTOPPEL.</p> <p>In an action to quiet title, the complaint alleged that a certain decedent was, at the time of his death, the owner of a certain tract of land, and had a homestead claim upon a certain other tract of government land; that he left surviving him several minor children, his wife having died prior to his death; that by his will he directed that the title to the homestead be perfected, and that all his real estate be Isold when it would realize $6,000, the proceeds of all his property to be equally divided among his children; that the executor named qualified and filed an inventory of the estate, listing and describing the homestead claim as well as the decedent’s other real estate; that a guardian of the minor children was duly appo’nted, who made the necessary proofs under the homestead laws, and received a certificate of entry from the United States for the homestead claim; that therefore the executor, under authority of the probate court, sold both the above-mentioned tracts for §6,050, which sale was duly confirmed by the court; that two of the heirs and legatees cf decedent, being of age, conveyed by deed all their interest in said lands to plaintiff; that the guardian of said minors petitioned the probate court for leave to sell and convey whatever interest his wards might have in said lands, and the said court duly made an order authorizing such conveyance, whereupon said guardian executed and delivered to plaintiff a conveyance of all the interest of his wards in said lands; that said minors, with full knowledge of all the facts, on their arrival at the age of majority, each received their several portions of such purchase money, and have retained and used the same, and have never asserted any claim to said tract; that defendant S. induced certain of decedent’s children, although disclaiming intorest in said land, to execute quitclaim deeds for all their interest therein to one L.; and that after the delivery of said quitclaim deeds, S. procured the patent for said tract from the land office, and retains possession thereof. S. and L., together with all the children of decedent, are made defendants.</p> <p>Held, That the action should be dismissed as to all the defendants except L., with their costs.</p> <p>Held, That the minor children of decedent were not required to make any election to take under the provisions of his will instead of as his heirs, but could claim this homestead tract as their own, and also share in the estate under the will.</p> <p>Held, That the minor children of decedent are estopped from saying that their title to the homestead tract (assuming that under Rev. St. U. S. $ 2292 the same inured to them) did not pass to plaintiff by the executor’s deed.</p>

<p> Appeal from Superior Court Kittitas County. </p>

<p> Appeal from Superior Cou/rt, King County. </p>

<p> -Appeal from Superior Court, Pierce County. </p>

<p>PLEADING — CORPORATIONS—WAIVER OP OBJECTIONS — INSTRUCTIONS— VERDICT.</p> <p>Where a complaint against a corporation does not allege the corporate character of defendant, objection thereto is waived by-defendant’s plea of counter claim as though it were in fact a corporation.</p> <p>In an action upon contract against a corporation, an insufficient denial of the complaint admits that the person shown to have made the contract sued on was the authorized agent of the corporation.</p> <p>Where the iustructions proposed by the defendant in an action assume some state of facts on which there is no testimony, and are based upon the defendant’s pleadings and not upon the evidence, they should be refused, although stating correct abstract propositions of law.</p> <p>Where the jury, in an action upon contract, brings in a verdict which, under the pleadings, is either a mistake or a compromise verdict, the court may refuse to receive it, and direct the jury to find for the full sum claimed, or nothing. (Anders, O. L, and Hoyt, J., dissent.)</p>

Action by E. Meeker and Fred. Meeker, under the firm name of E. Meeker & Co., against Ira Johnson, to recover possession of certain hops which plaintiffs claimed under a contract of sale. Judgment for defendant, and plaintiffs appeal.

<p>STATUTES — AMENDMENT—SUBJECT-MATTER—TITLES—CODIFICATION—JUDGMENT — VACATION.</p> <p>An amendment to § 109, Code 1881, taking away the five months’ limitation'on the modification of judgments rendered, is operative upon a judgment rendered ten months prior to the passage of the amendment, and as other provisions of the code allow the vacation and modification of judgments within one year after rendition, such judgment not being vested, it was competent for the legislature to extend or change the time within which it could be attacked.</p> <p>The subject-matter of the act amending $ 109, Code 1881, is included within the title of “An act relating to pleadings in civil actions, and amending H 76,77 and 109 of the Code of Washington of 1881,” as said £1109 was contained in the chapter of the code relating to pleadings, and as the relief sought thereunder is always obtained by filing some paper in the nature of a pleading.</p> <p>The Code of 1881 is a valid and binding body of laws, arranged and consecutively sectionized under authority of the legislature of 1881, from laws revised and reenacted by that body, and ratified by subsequent legislatures by constant reference thereto gs the Code of 1881.</p> <p>A section of the code may be amended by an act under a title which simply provides for the amendment of such section by its number, without any designation of the subject-matter of the ■ section to be amended.</p>

<p>APPEAL — ASSIGNMENT OF ERRORS — DAMAGES—BREACH OF CONTRACT— PROFITS — EXPENSES IN CORRED.</p> <p>Under the provisions of the appeal act of March 22, 1890, it is sufficient, without making a formal assignment of errors, to specify the errors in appellant’s motion for a new trial, and cite them in its brief.</p> <p>In an action for breach of contract for driving a well, the expense incurred by plaintiff in preparing for the work is not a proper element of damages.</p> <p>In such a case the proper measure of damages is the profit plaintiff might have made out of the contract if its completion had not been prevented by defendant.</p> <p>In an action upon such a contract, defendant cannot show, for the purpose of reducing damages, what profits plaintiff made on other contracts, or under other employment, during the period that he might have been engaged under the contract sued on.</p>

<p> Appeal from Superior Court, King County. </p>

Action by D. A. Ross against D. K. Howard, to have a certain deed declared to be a mortgage, and for an accounting. The case was tried before a referee, but after the testimony was taken and before it was reported to the court, the entire testimony and all the pleadings in the case were destroyed by fire.

<p>MANDAMUS — TAXATION—NATIONAL BANKS — ASSESSMENT.</p> <p>Mandamus will lie in a state court to compel the officers of a national bank to exhibit to a county assessor a list of names and residences of all shareholders in the bank, with the number of their shares, as required by jj 5210, Rev, St, U. S,</p> <p>The absence of state legislation empowering some taxing officer to make demand upon national bank officers for a list of shares and shareholders does not render § 5210, Rev. St. U. S., inoperative.</p> <p>Wiiere the officers of a national bank have furnished the county-assessor a statement giving the amount of its paid-up capital stock, the amount of surplus or reserve fund, and the amount of undivided profits, together with the amount invested in real estate, as required by § 21, Laws 1891, p. 289, mandamus will not lie to compel such bank officers to furnish the assessor with a list of stockholders, and the number of Ur. ir shares and par value thereof, directed to be exhibited by l 5210, Rev. St. U. S., as such lists are not necessary for making a proper assessment of the shares of capital stock.</p>

<p>CONTRACT — RESCISION—INSTRUCTIONS—SALE—WAIVER—DAMAGES.</p> <p>Where an issue is raised by the pleadings upon the rescisión of a contract, and the evidence concerning the rescisión is c -nflicting, it is error for the court to refuse to instruct the jury, that if they believe from the evidence that such an agreement for the rescisión of the contract set out in the plaintiff’s complaint was made as is alleged in defendant’s answer, then the parties would be bound by such an agreement, and the jury must find for defendant.</p> <p>Where an affirmative defense is pleaded in defendant’s answer, it is error for the court to instruct the jury that “if you believe from the evidence that all the material allegations of the plaintiff’s complaint have been proven by a preponderance of the evidence, then you will find for the plaintiff.”</p> <p>Where the contract of sale is to deliver goods at a certain date, the purchaser does not, by accepting a delivery after such date, waive any claim he may have for damages arising from the delay.</p>

<p>CORPORATIONS — WATER COMPANY — REGULATIONS.</p> <p>A rule of a water company requiring payment of a sum due under a contract for water as a condition precedent to its continuing to supply water to the party in arrears, is a reasonable one, and binding upon all parties with actual notice thereof.</p>

<p>APPEAL — VACATING JUDGMENT — MISTAKE.</p> <p>An order denying a petition or motion to vacate a judgment is a final order in such, proceeding, and is therefore appealable.</p> <p>A court will not open a judgment regularly entered, although it may be through mistake, unless it appears from the motion therefor that the judgment is wrongful or oppressive.</p>

<p>GARNISHMENT — SUPPLEMENTARY PROCEEDINGS.</p> <p>Where, in garnishment proceedings, the party garnisheed denies his indebtedness to the judgment debtor, the court has no authority to try the issue under 386, Code 188:, but may authorize the judgment creditor to institute a suit against the garnishee, and can forbid a transfer of the property or other interest until an action can be commenced and prosecuted to judgment.</p>

Action by Nelson Bennett against the Tacoma Light & Water Company, to enjoin defendant from shutting off the water supplied by defendant to plaintiff’s premises. Demurrer to defendant’s answer sustained, and from the judgment thereon defendant appeals.

Action by Anna Sophia Brygger, executrix, and Ole Schillestad, executor, of the last will and testament of Johan Brygger, deceased, against John Keane, to recover possession of a certain tract of land. Defendant answered, setting up that said land had been public land of the United States, subject to homestead entry, upon which he had made a homestead, which was uncanceled, and that he was living thereon, under said entry, under the homestead laws of the United States.

Action by Daniel K Baxter to enjoin the city of Seattle and its officers from interfering with the erection of a certain building, or tearing down and destroying the same. Defendant, by its cross complaint, sought to enjoin plaintiff from proceeding further with said building, to which pleading plaintiff replied. Upon the hearing the court denied plaintiff's application for injunction, and granted that of defendant. Plaintiff appeals.

<p>HUSBAND AND WIFE — COMMUNITY PROPERTY — LIABILITY BOB DEBTS— MORTGAGES — EXECUTORS AND ADMINISTRATOR’S SALE UNDER ORDER OE COURT.</p> <p>Under 2411, 2412, Code 1881, upon the death of either the husband or wife, the whole community estate, and not merely the decedent’s interest therein, is subject to administration proceedings for the payment of community debts.</p> <p>Under §§ 1523,1524, Code 1881, authorizing the probate court to order a sale of the mortgaged property of a decedent, if the redemption thereof is not deemed expedient, community property mortgaged by a decedent and his wife may be ordered sold for the purpose of paying the mortgage thereon.</p> <p>Such sale, under administration proceedings, being a proceeding in rem, personal notice thereof to the widow of decedent is unnecessary, unless required by statute.</p> <p>Where, in the administration of a decedent’s estate, certain community real estate, mortgaged by him and his wife, is sold under the provisions of $$ 1523,1524, Code 1881, the sale being duly confirmed by the probate court, but the deed executed thereunder purporting merely to convey “all the right, title, interest and estate of the estate of deceased at the time of his death,” an equitable title to the entire tract is conferred upon the purchaser, sufficient to constitute a defense to an aclion for ejectment.</p> <p>(Dunbar, J. dissents.)</p>

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

<p>APPEAL — RECORD IN EQUITABLE CASES.</p> <p>Where an action commenced as a suit at law was, by consent of the parties and the couri, tried and decided as a cause in equity, the supreme court, on appeal, will treat it as a cause in equity, and dismiss the appeal, where the record does not contain the evidence.</p>

<p>EVIDENCE — RELEVANCY—FRAUDULENT REPRESENTATIONS.</p> <p>In an action to recover money paid upon a contract for the sale of real estate, on the ground that the sale was procured by fraudulent representations, it is inadmissible to show that in a similar transaction prior thereto defendants had made like misrepresentations to another party.</p>

<p>■STATE MILITIA — POWERS OP GOVERNOR — RIOTS — MILITIA IMPROPERLY CALLED OUT — RIGHT TO PAY.</p> <p>Sec. 860, Code 1881, providing that any sheriff, deputy sheriff, etc., :in case of a riot, may call out an “armed force,” if necessary, to arrest ;and secure in custody all persons engaged therein, does not authorize such peace-officers to command the services of the state militia.</p> <p>Where the colonel of a regiment of the state militia is ordered by ■the governor ,to call out one or more companies to render aid to the civil authorities in the suppression of a riot, if called upon by the sheriff, such companies do not become a part of the sheriff’s posse comitatus, hut are -engaged in the service of the state, in the preservation of its peace and the execution of its laws.</p> <p>;TJnder the terms of art. 10, § 2, of the constitution, vesting in the governor the power .to call forth the militia to execute the laws of the state, the governor is not bound in any case where, in his judgment, the danger of riot and bloodshed is imminent, to observe the antecedent formalities required by Laws 1889-90, p. 627, $ 1, subd. 12, before calling forth the military power of the state.</p> <p>Where the militia has been called into the service of the state, they are entitled to pay, whether there was reasonable ground for calling them out or whether the call was formally correct, or not.</p> <p>The act of February 25,1890, relating to the duties of the governor, is controlled by the later enactment of March 27,1890, prescribing the powers of the governor in regard to the militia force of the state, if there is any conflict between the two enactments.</p>

<p> Appeal from Superior Court Jefferson County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, Whatcom County. </p>

<p> Appeal from Superior Cowrt King Cownty. </p> <p>Motion for 1’etaxation of costs in the supreme court.</p>

Action by H. E. Levy against J. E. Sheehan for the unlawful seizure of goods which plaintiff' claimed under the terms of a chattel mortgage.

<p>VENDOR AND VENDEE — TIME OF PERFORMANCE — FORFEITURE—FINDINGS OF COURT.</p> <p>The finding of a trial court will not he disturbed where the testimony is conflicting, and there is evidence to support the finding.</p> <p>TJnder a contract for the conveyance of land, of which time is the essence, requiring the payment of §150 in three months and §150 in six months, and in event of failure thereof, declaring all moneys paid thereunder forfeited, the fact that the vendor extended the time of payment to a certain day, on the vendee’s failure to meet the first payment, upon the consideration that §200 be paid in full for the land on that day, does not waive any of the conditions of the original contract.</p> <p>Where there is an absolute agreement on the part of the vendee that, if payment is not made at the exact time stipulated, all rights under the contract shall be forfeited, a court of equity, as well as one of law, is bound to enforce the contract as it finds it.</p>

<p> Appeal from Superior Court, Lewis County. </p>

<p> Appeal from Superior Court, Douglas County. </p>

<p> Appeal from Superior Court, Chehalis County. </p>

<p> Appeal from Superior Court, Pierce Comity. </p>

<p> Appeal from Superior Court, Cowlitz County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, King County. </p>

<p> Appeal from Superior Court, King County. </p>

<p>ANIMALS — VICIOUS DOSS — EVIDENCE—OWNER’S KNOWLEDGE — DAMAGES.</p> <p>In an action to recover damages for injuries inflicted by a vicious dog, it is competent to ask a witness to lell, from his knowledge as a surgeon and general practitioner, what was the probable cause of the wounds inflicted on plaintiff.</p> <p>Where the competency of a witness to testify as an expert was not raised in the lower court, it cannot be urged in the supreme court.</p> <p>In an action for damages resulting from the bite of a dog, where one of the principal issues is, whether or not the dog is vicious, it is competent to show that prior to the occasion on which he attacked plaintiff he had bitten or attempted to bite other persons.</p> <p>Where several witnesses in such an action testify that the dog had always been kept chained; that he would bark and jump at persons going near him, and endeavor to get loose ; that on one occasi .n, when at large, he ran after and seized a ivoman’s dress as she escaped through the gate; that lie sprang upon plaintiff as she went to defendant’s house, and bit and bruised her savagely, and that defendant had stated to a neighbor he was afraid the dog would get loose and bite the neighbor’s child, there is sufficient testimony to go to the jury on the points of the ferocious disposition of .the dog, and the owner’s knowledge thereof.</p> <p>Although it may not be shown that defendant had knowledge that the dog had ever attacked or bitten any person, yet if he knew that the disposition of the dog was such as to make it highly probable it would bile someone, if allowed at large, the defendant is liable for injuries inflicted by it.</p> <p>Such damages as are the direct and obvious results of the injuries received by plaintiff, including physical pain and mental anguish, need not be specially alleged in order to recover compensation therefor.</p> <p>Where plaintiff has been attacked by a savage dog, which inflicted a wound on her wrist, penetrating to the bone, and one in her side, three-quarters of an inch long and one-quarter of an inch in depth, and was rendered so nervous by the shock that she could scarcely sleep, and was in danger of going into convulsions whenever she heard the dog barking, a verdict for §800 damages cannot be said to be excessive.</p>

<p> Appeal from Superior Court, Snohomish County. </p>

<p>APPEALS — STATEMENT OF FACTS — JUDGE’S CERTIFICATE NECESSARY.</p> <p>Under Daws 3S91, p. 347, $ 21, governing appeals, the stipulated statement of counsel as to the facts in a cause will not be regarded by the supreme court, where there is no ap- earanee by respondent, unless the same is certified by the judge trying the cause as containing all the material facts.</p>

<p>CANCELLATION OP DEED — EVIDENCE—PROOF OF TITLE — QUIETING TITLE— EQUITY — PRAYER FOR RELIEF.</p> <p>In an action to cancel a deed, fraudulently procured, plaintiff is not bound to prove title in his grantor, where defendant’s claim of title rests on a deed from plaintiff and a quitclaim deed from plaintiff’s grantor.</p> <p>In such an action, a warranty deed may be canceled, although it actually conveys nothing, on account of the defective description of the laud sought to be conveyed.</p> <p>Under our statute, an action to quiet title may be maintained by persons having merely an equitable title.</p> <p>Although an action may be termed a suit to remove a cloud, and the» complaint may allege that a certain deed is a cloud on plaintiff’s title if the facts stated in the complaint show a case where a deed was obtained by fraud, and plaintiff asks to be relieved from such fraudulent conveyance and to have the deed canceled, a court of equity haa power to grant such relief as the facts hi the case require.</p> <p>In an action to cancel a deed, where the evidence shows that the plaintiff is an ignorant Indian, with a very limited knowledge of the English language, and with no knowledge of legal transactions, or the force or effect of legal instruments, the burden of proof is shifted from defendant to show that the import of the deed was understood by plaintiff at the time he signed it.</p> <p>In such a case, where the certificate of the officer taking the acknowledgment fails to show that he made known the contents of the deed to the grantor, before acknowledgment, the certificate cannot be accepted as proof of the grantor’s knowledge of the contents of the deed.</p>

<p>PRINCIPAL AND AGENT — AUTHORITY OP AGENT — ADMISSION OP PRINCIPAL.</p> <p>In an action to recover possession of a team of horses sold by the agent of plaintiff without authority, as alleged, the declaration of plaintiff that “A. (his agent) wants to sell that team,” although not made to the purchaser, is admissible as tending to show the scope of the agent’s authority.</p>

<p>APPEAL — STATEMENT OP PACTS — BY WHOM SETTLED — NEW TBIAL.</p> <p>A statement of facts cannot be settled by the judge who tried the cause after he has gone out of office.</p> <p>In case a statement of facts has been stricken from the record, on appeal, for the reason that the same was settled by the judge trying the cause after the expiration of his term of office, a new trial will not be granted appellant, where he had two months between the rendition of judgment and the expiration of the judge’s term in which to have the facts settled, and where he made no application to the superior court, after the judge trying the cause had gone out of office, to have the facts settled by the court.</p> <p>Where the judge who tried a cause has gone out of office, the power to settle the facts on appeal is retained by the court over which he presided, and, in the absence of other regulations, the court can direct the proceeding, on an application for settlement, by rule or order.</p>

<p>HUSBAND AND WIFE — COMMUNITY PROPERTY — MECHANICS’ LIENS — FORECLOSURE — PARTIES.</p> <p>Under § 2410, Code 1881, giving the husband the management and control of community real property, and providing that such property shall be subject to the liens of mechanics and others for labor and materials furnished in erecting structures thereon, the husband is empowered to contract for the erection of buildings on the community real estate and subject it to mechanics’ liens.</p> <p>Sec. 2398, Code 1881, abolishing all laws which impose or recognize civil disabilities upon a wife which are not imposed or recognized as existing as to the husband, is limited by 2409, 2410, Code 1881, on the ground that general provisions must yield to special ones.</p> <p>In all suits to foreclose liens upon community real estate the wife is a necessary party ¡’efendant, and in such, cases ? 1959, Code 188 , authorizing the interest of a party owning less than a fee simple to be sold on execution, does not apply.</p>

<p>APPEAL — HARMLESS ERROR. — INSURANCE—PLEADING—CONDITIONS OF POLICY — APPORTIONMENT—OWNERSHIP OF PROPERTY — FORFEITURE FOR FRAUD — EVIDENCE—INTERROGATORIES TO JURIES.</p> <p>In an action upon a conditional policy of fire insurance, which is declared upon in the complaint as an unconditional one, there is no reversible error, where the evidence shows the fire not to have been of the excepted classes, and the statute as to variances was not complied wTith.</p> <p>Where a policy of insurance was for certain amounts upon a stock of goods, a safe and store fixtures, a complaint, in an action thereon which alleges the loss of the “whole of said stock and fixtures,” is sufficient to admit proof of the loss of the safe as included within the term “fixtures,” the formal proof of loss having shown that claim was made for the safe.</p> <p>Although a policy of insurance may contain a clause providing that arbitration shall be resorted to when the parties cannot agree upon the amount of loss, and that suit shall not be commenced until after an award obtained in the manner stipulated, the assured is excused from applying for arbitration where the insurer declines to pay on the ground that he set fire to the property insured.</p> <p>Where property insured in different sums in more than one company is destroyed by fire, there can be no apportionment between the companies except where the actual loss is less than the total insurance.</p> <p>A tentative proposal of partnership by a certain party, to take effect at some future time, and the acceptance of that proposal by plaintiff, does not constitute a partnership, and, under such circumstances, it was proper for the court to refuse to give a charge concerning the ownership of the property insured to the effect that, unless according to the terms of the policy plaintiff was the sole owner, the policy was void.</p> <p>An attempt by the assured., by the use of money, to induce parties to suppress statements they were threatening to make to the effect that he set fire to his property, such statement not being true in fact, is not such a fraud as will work a forfeiture of an insurance policy, under a clause providing that “any fraud, or attempt at fraud', or any false swearing on the part of the assured, shall cause a forfeiture of all claim under this policy.”</p> <p>The testimony of a physician that he had treated plaintiff for a disease that would tend to enfeeble the intellect and weaken the will power of the sufferer is relevant, for the purpose of showing that it might have been easier to obtain the money and note from plaintiff, under threats of interference with his receiving his insurance money, than from an ordinary man.</p> <p>The submission of special interrogatories to juries, under l 242, Code 1881, is a matter entirely in the hands of the trial court, and its refusal to submit cannot be treated as error.</p>

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

Appeal to the superior court by Daniel Pearson from the order of the board of commissioners of Island county,. allowing him certain damages for the establishment of a county road. From the order of the court dismissing the appeal, plaintiff prosecutes his appeal to this court.

<p>APPEAL — VOLUNTARY DISMISSAL — SUBSTITUTION OF NEW PARTIES — REPLEVIN —DISMISSAL OF ACTION — RETURN OF PROPERTY TO DEFENDANT.</p> <p>A party who voluntarily dismisses his action and causes judgment to be rendered thereon cannot prosecute an appeal from such judgment.</p> <p>The refusal of the trial court to allow an amendment substituting entirely new parties plaintiff to the complaint in an action, is not such an abuse of discretion as would authorize the appellate court to interfere.</p> <p>In an action of replevin, where plaintiffs have given bond and taken possession of the property in controversy, and the plaintiffs thereafter voluntarily dismiss their action, it is error for the court to render judgment dismissing the action, unless it also render judgment restoring the possession of the property to the defendant, or, in case that cannot be done, giving him judgment for the value thereof.</p>

<p> Appeal from, Superior Court, King County. </p> <p>Action by Charles R. Brown against Gustave and Henrietta Winehill to foreclose a mechanics’ lien. Judgment for plaintiff, and defendants appeal.</p>

Action by Nelson Chilberg against William E. Jones and John M. Hubbell, co-partners under the firm name of Jones & Hubbell, to recover commissions under a contract for the purchase of hay. Judgment for plaintiff, and defendants appeal.

Action by Charles Eisenbeis against C. P. Wakeman & Co., contractors, and N. D. Hill, owner of certain premises, to foreclose a mechanic’s lien and recover for a balance due on brick furnished by plaintiff to be used in the construction of a building on said premises. Judgment for plaintiff, and defendants appeal.

<p>mechanic’s lien — husband and WIFE — AOENCT—NON-SUIT.</p> <p>In an action against a married woman to foreclose a mechanic’s lien for a building erected on her land, under a contract with her husband, the plaintiff should be non-suited where it is not shown the wife had any knowledge of the contract, and the only proof tending to show the husband’s agency was the fact that husband and wife had executed a mortgage upon certain lands, including the tract in controversy, which recited, among other things, that they thereby bound themselves to make improvements on said lands, and that the husband had told plaintiffs they were borrowing the money for the purpose of putting up the building.</p> <p>In such action, where the husband testifies that plaintiffs did not stand in the relation of ordinary contractors, but had obliged his wife by becoming bondsmen for her in the completion of the building, such testimony, being taken in connection with that previously introduced relating to the improvements mentioned in the mortgage, is sufficient to establish a prima facie agency.</p> <p>Where a motion for non-suit in an equity case is erroneously refused, there is no ground for reversal where the error is subsequently cured by the admission of proper testimony sufficient to make a prima facie case.</p>

<p> Appeal from Superior Court, King County. </p> <p>Action by Samuel and Margaret Livesley against Morgan P. O’Brien to recover on a certain hop contract. Judgment .for plaintiffs, and defendant appeals.</p>

<p> Appeal from Superior Court Jefferson County. </p> <p>Action by James Morgan and others against William Bell to enforce a contract for the conveyance of certain lands in Clallam county, State of Washington, or for damages for failure to convey. Judgment for plaintiffs, and defendant appeals.</p>

Action by the Washington Iron Works Company against T. A. Jensen and Lewis Crossett for the balance of the purchase price of a marine engine and boiler and other material and labor used in the construction and equipment of a certain vessel, and claiming a lien upon said vessel, tackle, etc., for said material and labor. Judgment for plaintiff, and defendants appeal.

Action by Marie and George Hawkins, wife and husband, against the Front Street Cable Railway Company, to recover for personal injuries to the wife while a passenger on defendant’s cars. Judgment for plaintiffs, and defendant appeals.

Action by Staver & Walker, a corporation, against T. A. and D. B. Rogers, to recover the price of a traction engine. Judgment for plaintiff, and defendants appeal.

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

Action by H. A. Sears against F. L. Stinson for damages for breach of contract to convey certain land. Judgment for plaintiff, and defendant appeals.

<p> Appeal pom Superior Court, Snohomish County. </p> <p>Motion by respondent to affirm the judgment of the superior court.</p>

<p>APPEAL — FAILURE TO FILE TRANSCRIPT — DAMAGES.</p> <p>Where the judgment of the court below is affirmed on motion of respondent ior the reason that appellant has failed to file a transcript within the prescribed time after giving notice of appeal, there can be no judgment for damages against appellant on the ground that the appeal was taken merely for delay, as that fact can be ascertained only from the record.</p>

<p>EMINENT DOMAIN — AVPROPRIATION OP LEASEHOLD ESTATE — MEASURE OF DAMAGES.</p> <p>Where lands held under a leasehold interest are appropriated by-a railroad company for right-of-way, the tenant’s measure of damages is the difference between the value of the leasehold at the time of the appropriation and its diminished value due to the appropriation.</p> <p>In such cases, the tenant is not entitled to damages for injuriesto the land and buildings, fruit trees and other improvements thereon at the time he took possession under the lease, but is entitled to recover the value of growing crops destroyed in building the railroad,, and also the value of buildings erecte l by him for his own use as. tenant, or, in case of removal of such buildings to another portion of. the premises, the costs thereof.</p>

Action by J. L. Week against the Fremont Mill Co. to recover damages for the loss of an arm in consequence of the defective machinery used in holding a saw in position in defendant’s mill. Verdict and judgment for plaintiff for $8,000, from which defendant appeals.

<p> Appeal from, Superior Court, Clarice County. </p>

<p>MASTER AND SERVANT — INJURY TO EMPLOYE — CONTRIBUTORY NEGLIGENCE.</p> <p>In an action for damages for personal injuries the proof showed that plaintiff had been employed in a sawmill for more than a year, engaged in taking away lumber from the pony saw; that for the purpose of removing sawdust he went below to adjust a belt upon an elevator used for that purpose; that in order to place the belt on the elevator pulley it was necessary to get on the opposite side of the shaft which operated the belt, and then he must return to put it upon the pulley of the shaft; that the shaft was about two feet above the lower floor and plaintiff crawled under it in performing this service, as was his usual practice, and after placing the belt on the elevator pulley, he sought to return by walking on a beam which supported one end of the shaft; that the shaft was revolving rapidly at the time, and there was a set screw at that end projecting about an inch beyond the collar; that the shaft, with collar and screw, was less than a foot high above the beam, and did not extend along the beam more than a foot; that in stepping across the shaft, plaintiff’s overalls caught in the screw and one of his legs was broken. Held, That plaintiff was guilty of contributory negligence, and his action was properly non-suited.</p>

<p>ATTACHMENT — PURCHASE PROM ATTACHMENT DEBTOR — LIABILITY OP SHERIPP — DEMAND.</p> <p>A seizure of property under a writ of attachment does not divest the title, it merely creates a lien. The attachment debtor can sell the property subject to the existing lien, and the title will become absolute upon the discharge of such attachment, though other levies may have been made upon the property while in the hands of tb« sheriff, subsequent to such sale.</p> <p>Where property seized under a writ of attachment is sold by the debtor and the attachment released, but subsequent to the sale and prior to the release the sheriff levies another writ of attachment upon the property while in his hands, the sheriff cannot be held for the value of the property without demand therefor, although it is not necessary that the demand should precede the levy last made.</p>

Action by Eleanor Newhouse against Joseph Simino, to contest their respective claims to a lot in the townsite of Waterville. Judgment for defendant, and plaintiff appeals.

<p>NEGOTIABLE INSTRUMENTS — ASSIGNMENT—ACTION BY ASSIGNOR AGAINST PAYOR — SUPPLEMENTAL PLEADINGS.</p> <p>In an action by the payee of a promissory note against the maker thereof, a complaint alleging that the payee assigned said note to a certain bank as security for a loan, and that the bank though requested thereto, refuses to bring suit after the maturity of said note, fails to show a right of action in the plaintiff.</p> <p>In such a case, where the defendant pays the notes to the bank after the institution of suit against him by the plaintiff, a supple-, mental complaint against defendant claiming reasonable attorney’s fees, and all. ging collusion between the bank and the payors of the note to prevent plaintiff obtaining judgment for his attorney’s fees, is insufficient as a supplemental pleading under $ 114, Code 1881.</p> <p>Where a demurrer to a complaint has been sustained and the plaintiff given twenty days to file an amended complaint, and he does not give notice of an intention to ask leave to file an amended or supplemental complaint until more than forty days after the time granted had expired, no application for further time having been made nor any attempt to justify the delay, the refusal of the court to allow the filing of a supplemental complaint is not an abuse of discre» tion.</p>

<p> Appeal from, Superior Court, King County. </p>

<p> Appeal from Superior Court, Lewis County. </p>

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

<p>REPLEVIN — RESCISSION OF SALE — PROPERTY IN HANDS OF SHERIFF — BONA FIDE PURCHASER — PARTIES—SUFFICIENCY OF EVIDENCE.</p> <p>The vendor of goods sold upon credit may rescind the sale for fraud on the part of the vendee, and in such case may maintain an action for their recovery against a sheriff in whose custody the goods are held under a valid writ of execution.</p> <p>The rescission of a sale of goods on the ground of fraud may he made by the vendor subsequent to the goods coming into the custody of a sheriff under an execution against the property of the vendee, as an execution creditor does not stand in the position of a bona fide purchaser for value and without notice of the fraud.</p> <p>In such an action, the sheriff being in possession of the property, is the only necessary defendant.</p> <p>Where the evidence in an action to recover personal goods shows that the vendee represented to the plaintiffs that he was solvent and paying cash for goods and discounting his hills, while in fact he was heavily indebted, a great proportion of his indebtedness being due at the time and the balance would fall due in a short time ; that his entire stock of goods was not equal to the amount of his indebtedness; that he confessed judgment upon older debts soon after receiving plaintiffs’ goods, and that he did not make his financial condition known to plaintiffs, but agreed to discount their hill two months before it became due; such evidence is sufficient to warrant the conclusion of the court below that at the time the vendee made such fraudulent representations and obtained possession of said goods, he was insolvent and unable to pay for them; that he knew he was insolvent and concealed the fact from plaintiffs, and that hedid not intend to pay for the goods when he received them.</p>

Action by John H. Fox, T. J. McGovern and Lott Farr, partners doing business as Fox & Co., against F. Nachtsheim and J. Klee, partners, and T. F. Leader & Co. and Laumeister & Tod, to foreclose a mechanic’s lien on the premises of Nachtsheim & Klee for repairs made thereon at the instance of the other defendants, who were lessees thereof. Judgment for plaintiffs, and defendants Nachtsheim & Klee appeal.

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

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

<p> Appeal from Superior Court, Pierce County. </p> <p>Action by Josephus S. Howell to restrain the city of Tacoma from enforcing the collection of an assessment for the improvement of Wayne street in said city. The court sustained a demurrer to defendants’ answer, and from judgment thereon defendants appeal.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>MASTER AND SERVANT — DEFECTIVE MACHINERY- —LIABILITY OF LESSOR— APPEAL — EXCEPTIONS NOT TAKEN AT TRIAL.</p> <p>Although an instruction may be erroneous, the error cannot be urged on appeal unless an exception was taken at the trial.</p> <p>In an action for damages for injuries caused by the defective condition of machinery about which plaintiff was employed, in defendant’s mill, and one of the issues in the cause is as to whether •defendant or another was the operator of said mill, and the proof showed that the defendant had leased the mill to another prior to the injury, it is error for the court to refuse to charge the jury that defendant “must prove by a preponderance of the evidence that at the time of the injury the defendant corporation was then hirer or employer of the plaintiff; and that there then existed between them the relation of master and servant.”</p>

Action by James S. Wintermute and others to restrain the Tacoma Light and Water Company from erecting, pumping works on the shore of American lake, and from in any manner appropriating or using the waters of said lake for supplying water to the inhabitants of the city of Tacoma. The court rendered a decree granting an injunction restraining defendant, and from such judgment defendant appeals.

<p>APPEAL — RECORD—DISMISSAL—ATTORNEYS* REES.</p> <p>Where the transcript in a cause of equitable cognizance does not contain a statement of facts showing all the testimony on which the case was tried below, the appeal will be dismissed.</p> <p>Where an appeal is dismissed because the record is not before the court, the party moving the dismissal cannot consistently ask for attorneys’ fees in addition to the amount allowed in the lower court, on the ground that the record shows the allowance to be inadequate.</p>

Action by Hj. Nyman against John W. Berry for an injunction and the cancellation of a deed of assignment hy the Tacoma Brick Company to John W. Berry. Judgment for defendant, and plaintiff appeals.

Action by R. J. Park against Mighell & Richards to re-cover $758.96 as commissions for safes sold by plaintiff for -defendants, as their agent and salesman. Plaintiff attached defendants’ stock of safes at Tacoma, and to release sáid attachments defendants gave bond, with Charles Wilson and H. O. Piercy as sureties. The cause was tried before a court commissioner, and upon his report the court gave judgment for plaintiff in the sum of $300. Defendants appeal.

Action by Willard Graves against the L. H. Griffith Realty and Banking Company, to recover commissions for the sale of real estate. Judgment for plaintiff, and defendant appeals.

<p>TAXES — DELINQUENCY—REGISTRATION FEE.</p> <p>Sec. 94, Laws 1891, p. 316, providing for a registrat'on fee of twenty-five cents for each separate parcel of land entered as delinquent for county taxes in the registry book of delinquent taxes, is prospective in its operation, and such fee cannot be charged against parcels of land delinquent for the taxes of the year 1890.</p>

<p> Appeal from Superior Court, Pierce County. </p>

<p>ATTORNEY AND CLIENT — CONTRACT FOR SERVICES — CONSTRUCTION—COMPENSATION — BILL OF PARTICULARS — SUFFICIENCY — WAIVER OF OBJECTIONS TO — EVIDENCE — BURDEN OF PROOF — LIABILITY OF ATTORNEY.</p> <p>The plaintiff, as an attorney at law, entered into a contract with defendant, providing among other things that he “agrees to prosecute and conduct according to his best skill and ability . . . the following suits commenced in the district court, and prosecute sa'd cases through the courts of the Territory of Washington and, if requi: ed so to do, to take said cases to the supreme court of the United States, and prepare briefs for the argument of said cases (naming them), and in consideration of such services the said Parker is to pay the said Isham the sum of $500 and all his necessary expenses in conducting said business, including traveling expenses and board and lodging while away from home on said business; and in case said cases, or either of them, are taxen to the supreme court of the territory or United States by the opposing party, then said Isham is to prepare briefs in answer to the opposing party.”</p> <p>Held, That where the attorney filed and argued a petition for a re-hearing in the territorial supreme court of certain cases included in the contract, such services being regarded by the parties as outside of the services provided for in the written contract, and as preliminary to applications to the supreme court of the United States for writs of mandamus, he is entitled to extra compensation therefor.</p> <p>Held,, That the applications for mandamus were unusual proceedings and not a taking of the cases to the United States supreme court within the meaning of the contract.</p> <p>Held, That plaintiff is entitled to extra compensation for the clerical work necessary for preparation of an abstract of the testimony in one of the cases, made on the order of the territorial supreme court, as the contract did not bind plaintiff to perform such work.</p> <p>Held, That plaintiff can recover his traveling expenses only from his place of residence while away from home on defendant’s business, and not his traveling expenses from other points where he was upon other business when summoned to conduct defendant’s cases in court.</p> <p>In a second cause of action not included within the written contract, plaintiff, on demand, furnished defendant with an unverified hill of particulars, as follows: “May 14th to Aug. 1st, 1890, advised in all road matters, cash entry land cases, helped make briefs for Washington U. S. land dept., advanced money for telegraph and express, drawing' wills, and general work as hi3 attorney, §2,000.” Held, That under § 93, Code 1881, such bill of particulars is insufficient, against a good objection, to admit of proof of services during such period.</p> <p>Where plaintiff makes a bona fide attempt to comply with defendant’s demand for a bill of particulars, and defendant, on account of its insufficiency, makes a motion that he be required to file an additional itemized account, the defendant cannot object to proof thereunder on the ground that the statement is insufficient, after he has allowed his motion to lie dormant and has entered upon the trial without objection.</p> <p>Where plaintiff has shown the character of services rendered by him as attorney and the time occupied in rendering them, the testimony of other attorneys is competent as to what such services were worth per year.</p> <p>The fact that there is a contract between plaintiff and defendant as to the performance of certain services, does not repel the presumption that defendant has promised plaintiff to pay for other services rendered at defendant’s request, although there may be no express promise to pay.</p> <p>In an action by an attorney to recover pay for services rendered in certain cases, it is not error for the court to refuse to instruct that “ the burden of proof is upon the attorney in all such cases to show the validity of contracts made and dealings had with his client.”</p> <p>The fact that additional counsel were employed in some of the cases with plaintiffs consent, and paid by defendant, does not deprive plaintiff from recovering what his services were reasonably worth in such cases, irrespective of the number of counsel engaged therein.</p> <p>Upon an issue as to the negligent and careless management of the cases, there was no error in instructing the jury as follows: “An attorney at law, when he enters into the employ of another person, as such, undertakes that he possesses a reasonable amount of skill and knowledge as an attorney, and that he will exercise a reasonable amount of skill in the course of his employment, but he is not a guarantor of results and is not liable for the loss of such case, or cases, unless such loss occurred by reason of his failure to possess a reasonable amount of skill or knowledge, or by reason of his neg'igence or failure to exercise a reasonable amount of skill and knowledge as an attorney at law.”</p> <p>Stiles, J., dissents.</p>

<p> Appeal from Superior Court, Douglas County. </p>

<p> Appeal from Superior Court, Pierce County. </p>

<p> Appeal from Superior Court, King County. </p>