Volume 30 — Washington Reports

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

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

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

<p>HOMESTEAD-CANCELLATION OF SHERIFF’S SALE-EVIDENCE.</p> <p>In an action to set aside a sheriff’s sale of real estate on the ground that it was exempt as a homestead, the admission of evidence as to residence thereon after the filing of the declaration of homestead would not constitute error, where such evidence was a part of the testimony showing residence on the land at the time of and prior to the declaration, was restricted to a period of four months just preceding and following the filing of the declaration, and was introduced merely for the purpose of showing bona fide residence.</p> <p>SAME — ADMISSIBILITY OF ORIGINAL DECLARATION.</p> <p>The admission in evidence of the original declaration of homestead instead of a certified copy thereof was not error, where it contained the indorsement of the county auditor showing the date of its filing and its entry of record.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Tiiad Huston, Judge.</p>

<p>NEGLIGENCE-DEFECTIVE RAILWAY CARS-ACTION FOR INJURIESNONSUIT.</p> <p>In an action for the death of a conductor of a logging train, caused by the derailing of the train, refusal of a nonsuit was proper, where the evidence 'showed that thie train was loaded as usual, was traveling at the usual rate of speed, and that the track was not out of order; that the flanges on some of the car wheels were too thin to be safe, had flaws in them, and that they broke at the time of the accident; that such condition of the flanges make a car unsafe and dangerous, especially when striking a curve; that a reasonable and ordinary inspection would have discovered the defect, and that the derailing of the cars occurred while the train was rounding a curve.</p> <p>SAME-EVIDENCE-ADMISSIBILITY OE BROKEN CAR WHEELS.</p> <p>Where it was claimed that the derailing of a train was caused by the breaking of wheel flanges on some of the cars it was not error to permit the introduction in evidence of a broken flange picked up by a witness several months afterwards at the place of the accident, when he' had testified to being on the train at the time of the accident and to having gathered up a number of broken pieces of flanges and placed them in a heap, and that the piece offered in evidence was picked up in that vicinity and resembled some of them, though he could not identify it.</p> <p>SAME-EES GESTAE-DECLARATIONS OE VICE PRINCIPAL.</p> <p>The declarations of a general superintendent of a railway made on the scene of a train wreck within three hours after it occurred, and tending to explain or account for the same, are admissible in- evidence as part of the res gestae.</p> <p>INSTRUCTIONS-CONSTRUCTION AS A WHOLE.</p> <p>Although an isolated portion of an instruction standing alone may be technically erroneous, yet it will be upheld, if the whole instruction, taken together, fairly states the law.</p> <p>SAME-REEUSAL 'OE REQUESTED INSTRUCTIONS.</p> <p>The refusal of the court to give a general definition of negligence as requested by defendant is not error, where the court has correctly instructed the jury upon the specific negligence under consideration.</p> <p>SAME.</p> <p>Where the court by its instructions has thoroughly impressed upon the jury that the burden was upon plaintiffs to establish negligence and that the jury must find by a preponderance of the evidence that it was the defendant’s negligence which caused the injury, it was not error to refuse a requested instruction to the effect that negligence is never presumed, and that it was not the duty of defendant to explain how the accident occurred, or to show that defendant was not negligent.</p> <p>SAME.</p> <p>The refusal of the court to give a requested instruction concerning circumstantial evidence was not error, where there was some circumstantial evidence introduced, hut the cáse did not rest upon that character of proof.</p> <p>SAME.</p> <p>The refusal of requested instructions is not error, when those given cover the same ground.</p>

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

<p>APPEAL-STATEMENT OE FACTS-MATTERS INCLUDED.</p> <p>The superior court cannot be compelled to certify a statement of facts covering that part of a case which occurred more than ninety days prior to the date of the filing of the statement, inasmuch as the utmost limit of time within which a statement can be filed is ninety days after the time begins to run within which an appeal may be taken.</p> <p>SAME-REVIEW OF PRIOR ORDERS.</p> <p>Although under Bal. Code, § 6500, subd. 7, all prior orders made in a cause are reviewable upon appeal from a final order made after judgment, the review is restricted to such prior orders as were made in the course of the particular proceeding leading up to the final order appealed from, and would not include other orders made in different proceedings in the same action; hence an order denying a motion to vacate a judgment would not be reviewable upon an appeal from a subsequent order denying a like motion for vacation and asking for a rehearing of the original motion.</p>

<p>EMBEZZLEMENT-SUFFICIENCY OF INFORMATION-ALLEGATION OP AGENCY AND OWNERSHIP OF PROPERTY.</p> <p>An information charging defendant, as the agent of an insurance company, with embezzling a promissory note, the property of said insurance company, sufficiently states the offense, under Bal. Code, § 7119, which provides that any agent or person to whom any money or other property shall be intrusted, who fraudulently converts the same to his own use, shall he deemed guilty of larceny.</p> <p>SAME-ESTOPPEL.</p> <p>An insurance solicitor who takes a promissory note for a premium due on a policy issued by his company, although the note is merely made payable to the order of the maker and by him indorsed in blank, is estopped to deny either the insurance company’s ownership of the note or his own agency.</p>

<p>RECEIVERS-ALLOWANCE OF CLAIM AGAINST INSOLVENT CORPORATION -RIGHT OF CREDITOR TO JUDGMENT IN SEPARATE ACTION.</p> <p>Where a claim against an insolvent corporation has oeen passed, upon by the receiver and the court and allowed, it is in effect a judgment in the insolvency proceedings, and the refusal of the court to enter judgment upon the default of such corporation in a separate action involving the same matter would not constitute error.</p>

<p>HOMESTEAD-SELECTION.</p> <p>Mere occupancy of property as a home amounted to a selection of a homestead, prior to the enactment of the homestead law of 1895, and a selection made at any time before sale was sufficient to entitle the claimant to exemption.</p> <p>SAME-COMMUNITY ESTATE-SELECTION AETEK WIEE’S DEATH.</p> <p>Under the statute permitting either the husband or wife to claim a homestead in community property while both are living, and vesting it in the survivor on the death of either, it is the spirit and intention of the law that a husband may, after his wife’s death, select a homestead from the community property for the benefit of himself and family.</p> <p>SAME-ATTAINMENT OF MAJOBITY BY CHILDKEN-EFFECT.</p> <p>Where a homestead in community property has been once lawfully claimed, it continued as a homestead, even though the children have attained their majority and left the parental roof.</p> <p>SAME-ABANDONMENT.</p> <p>The fact that a husband who had claimed a homestead in community property belonging to himself and his deceased wife had made conveyances thereof to his children did not constitute an abandonment of the homestead, so as to subject the land to sale for debts of the deceased wife’s interest in such community estate.</p>

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

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

<p>SURFACE WATER — DIVERSION UPON LANDS OF ANOTHER.</p> <p>Where surface waters are confined by natural harriers, so that the waters do not run from such confinement naturally, the upper proprietor may not construct' a ditch so as to cast such waters upon his neighbor, to the latter’s material injury.</p>

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

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

<p>COAL MINING-TIMBER FOR PROPS-DUTY OF OPERATOR TO SUPPLY —' NEGLIGENCE OF MASTER — ASSUMPTION OF RISK.</p> <p>Under Bal. Code, § 3178, which provides that the operator of a coal mine shall supply the workmen therein with timbers sufficient to properly secure the. workings from caving in, and these shall be delivered at the entrance of the working place, a positive statutory duty is imposed upon the operator of the coal mine, and where a neglect of such duty proximately contributes to an injury received by a miner, the operator is liable, even if the miner continued work after knowledge of the failure to supply the timbers, since the doctrine of assumption of risk is inapplicable in the face of the positive injunction of the statute.</p> <p>SAME-INJURY TO MINER-CONTRIBUTORY NEGLIGENCE.</p> <p>Whether a miner was guilty of contributory negligence in working in a crosscut of a coal mine, after the discovery of rock in the roof of the crosscut, which he could not timber against because of a failure to supply him with the necessary material therefor, is a question for the jury, when there was no showing that the danger was so obvious and imminent that no ordinarily prudent man would assume the risk.</p> <p>SAME-EVIDENCE OF GEOLOGICAL FORMATION.</p> <p>Evidence showing the natural condition of a coal mine, as regards its geological formation, is competent and material in an action by a miner to recover for injuries received from an accident therein, for the purpose of establishing his surroundings, the care necessary to be taken by him, and the care the operator should take in timbering and operating the mine.</p> <p>SAME-WITNESSES-EXAMINATION.</p> <p>The refusal of the court to allow plaintiff on his re-direct examination to testify as to whether it was rock or coal that fell upon him was not an abuse of discretion when he had not been questioned on that point on direct examination.</p> <p>SAME-INCOMPETENCY OF VICE PRINCIPAL-EVIDENCE.</p> <p>Where the complaint charged as an element of negligence the employment of an incompetent pit boss, evidence was competent and material, showing the duties of a pit boss as to inspecting the working places, keeping the chutes clear of coal, timbering for the purpose of keeping rocks from falling, and repairing defects when complained of; as to the extra hazardous work in unblocking clogged chutes and the selection by the pit boss of inexperienced men therefor; as to the discharge of miners on calling the attention of the boss to the omission to make repairs; as to the general complaint of the inability to get sufficient timbers to properly prop their working places; and as to the general reputation of the pit boss for incompetency and disregard for the lives and limbs of the miners.</p> <p>SAME-PROOF OF SPECIFIC ACTS.</p> <p>Specific acts of incompetency of the pit boss were admissible in evidence under the general allegation that he was ignorant and incompetent.</p> <p>MASTER AND SERVANT — NOTICE OF INCOMPETENCY OF EMPLOYEE.</p> <p>The master will be presumed to know the incompetency of a pit boss when specific acts of incompetency are shown, of such a nature, character and frequency that the master, in the exercise of due care, must have necessarily had them brought to his notice.</p>

<p>PLEADINGS —ACTION ON WRITTEN CONTRACT — PRIOR NEGOTIATIONS —IRRELEVANCY.</p> <p>Paragraphs of a pleading containing' averments relating to certain alleged oral conversations and agreements between the parties to an action were properly stricken as immaterial, where the pleading itself set up a written agreement subsequently entered into concerning the same subject-matter as the alleged previous oral agreement.</p> <p>FINDINGS OF COURT — SUFFICIENCY OF EVIDENCE.</p> <p>Where the testimony is conflicting and the preponderance is not clearly against the findings of the trial court, the supreme court will not interfere on appeal.</p> <p>SPECIFIC PERFOBMANCE-UNPERFORMED CONDITIONS. •</p> <p>Specific performance of a contract will not be enforced where any of its conditions remain unperformed on the part of the one asking enforcement.</p> <p>CANCELLATION OF INSTRUMENT-EQUITABLE JURISDICTION.</p> <p>Where defendant set up a contract and asked its specific performance, by way of cross complaint to an action against him for conversion, the court is warranted in decreeing a cancellation of the contract when it appears to be nonenforceable, although plaintiff did not ask for such relief, under the rule that, when equitable jurisdiction attaches for any purpose, it extends to the whole controversy.</p>

<p>APPEAL-NOTICE-PASTIES.</p> <p>When a party to an action has not appeared except for the purpose of disclaiming any interest in the subject matter of the suit, he is not a necessary party to the suit, and need not be served with notice thereof.</p> <p>SAME-DISMISSAL EOS FAILURE TO SERVE ALL PARTIES.</p> <p>A motion to dismiss an appeal for want of service of notice upon one of the parties to the action is premature, where the appellant has not brought up his record on appeal and his time therefor has not expired, since the question of whether due notice of appeal has been given to all the parties entitled thereto can be determined only by an inspection of the record.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. Geobge A. Joineb, Judge.</p>

<p>CRIMINAL LAW-COMPETENCY OF JUROR-KNOWLEDGE OF MATERIAL FACTS-CHALLENGEABLE FOB BIAS.</p> <p>Where one whose name had. been indorsed on an information as a witness for the state is drawn as a juror, he is incompetent to serve on the ground of bias, even though he disclaims any, when he has knowledge of material controverted facts in the case; and the action of the court in forcing the defendant to exhaust his last peremptory challenge against such juror is reversible error.</p> <p>SAME-DUTY OF PROSECUTING ATTORNEY TO INFORM! COURT.</p> <p>Where the prosecuting attorney who has inquired into the facts connected with an accusation of crime, and indorsed the names of witnesses upon an information laid by him, knows that a person called as a juror is a material witness to controverted facts constituting the offense, it is his duty to so inform the court, to the end that he may assist the administration of justice in upholding the constitutional guaranty of trial by an impartial jury.</p>

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

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

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

<p>APPEAL-DISMISSAL-FAILURE TO FILE TRANSCRIPT-IMPOSITION OF TEEMS.</p> <p>Under Laws 1901, p. 29, § 2, wbicb provides that the transcript on appeal shall be prepared, certified and filed in the office of the clerk, at or before the time when the appellant serves and files his opening brief, the failure of the appellant to have such transcript filed before serving and filing his brief will, on motion of respondent, subject him to the imposition of terms in order to entitle him to the further prosecution of his appeal.</p>

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

<p>TRIAL-EXCEPTIONS TO INSTRUCTIONS-TIMELINESS.</p> <p>Exceptions to the giving and the refusing of instructions wnl not be considered on appeal, where they were not taken until after verdict.</p> <p>PLEADING — VARIANCE — ACTION FOB TOTAL DESTRUCTION OF PROPERTY-PROOF OF PARTIAL DESTRUCTION.</p> <p>Under Bal. Code, § 4949, which provides that no variance shall be deemed material, unless it shall have actually misled the adverse party, the fact that plaintiff proved only a partial destruction of his property by reason of the fumes arising from defendant’s smelter, while his complaint asked damages for the total destruction of his property, would be but an immaterial variance.</p> <p>INJURIES CAUSED BY SMELTER FUMES-SUFFICIENCY OF EVIDENCE.</p> <p>In an action to recover damages for the destruction of plaintiff’s farm for agricultural and fruit raising purposes, the denial of a nonsuit was proper, where the evidence showed that the smelter was located a mile away from plaintiff’s land about the middle of the year 1898; that the fruit trees on plaintiff’s land were having a thrifty growth in the fall of the year 1898; that in the spring of 1900, after the fumes from the smelter hung for several hours in the atmosphere, the blooms on the trees became blighted and nothing in the way of fruit formed; that the leaves had a brown, cooked appearance and the alfalfa appeared bleached; that no fruit was gathered from the orchard in 1900, and the strawberry crop was greatly damaged in that year; that some such effect was noticed during the year 1899, but not so much; that, as shown by expert testimony, the presence of sulphuric acid released in the atmosphere by the roasting of ores would produce such effects, and, if continued, would ultimately kill the vegetation in the vicinity.</p> <p>SAME — LIMITATIONS.</p> <p>The fact that a smelter would inevitably occasion the damage for which plaintiff sues would not start the running of the statute of limitations from the first operation of the smelter, but the right of action would accrue only at the time the fumes began to cause damage.</p> <p>SAME-CONTINUING NUISANCE.</p> <p>The operation of a smelter, although a lawful business, is one which is sure to destroy vegetation upon which the fumes and smoke therefrom may be precipitated, and hence constitutes a continuing nuisance for which damages are recoverable for any period within two years prior to the commencement of action.</p>

<p>CERTIORARI-WHEN LIES — REMEDY BY APPEAL.</p> <p>The supreme court will not review an order of the superior court restraining interference with a receiver’s possession of a certain building which was claimed hy other parties, since there is a remedy hy appeal from such order.</p> <p>APPEAL —■ STAY OF RESTRAINING ORDER —■ SUPERSEDEAS BOND.</p> <p>Upon a showing of the superior court’s refusal to fix the amount of a supersedeas bond staying the execution of a restraining order pending appeal, the supreme court,, although denying the writ of certiorari in the cause, will direct the. lower court to fix the amount of such bond.</p>

<p>SALES-TIME EOB PEEFOBMANCE OE CONTRACT-EXTENSION-EVIDENCE.</p> <p>In an action for tbe price of goods shipped by plaintiff to defendant, in wbicb the plaintiff sought to establish a waiver of an agreement for liquidated damages for any delay in shipment, evidence that a stockholder of defendant, who was temporarily in plaintiff’s city on other business, had expressly agreed to an extension of time for shipment is admissible, when letters of defendant, though subsequent in date to the alleged agreement for extension, carry the inference that such stockholder was defendant’s authorized agent for the purpose.</p> <p>BILL OE PABTICCLABS-ADMISSIBILITY .IN EVIDENCE.</p> <p>A bill of particulars furnished by plaintiff in response to a motion by defendant is admissible in evidence on the part of defendant, although no order against plaintiff to furnish the bill is shown by the record as ever having been made.</p> <p>SAME — HEARING OE EVIDENCE.</p> <p>Conversations had by plaintiff with a former employee of defendant tending to show that defendant suffered no actual damage by reason of plaintiff’s delay in furnishing goods contracted to be delivered at a stipulated time under penalty of' liquidated damages, are inadmissible on the ground of being hearsay.</p> <p>LIQUIDATED DAMAGES-SHOWING OE ACTUAL DAMAGE UNNECESSARY.</p> <p>Under a contract providing for liquidated damages, it is not necessary to show in what manner or to what extent the party claiming thereunder has been actually damaged, but upon establishing a breach of the condition entitling him to such damages he should be awarded the stipulated sum.</p> <p>PLEADING — ADMISSIONS IN ANSWER.</p> <p>Where the complaint set up a written contract between the parties, and followed this with allegations of other matters which it averred were actually a part of the contract, but omitted by mistake, and the admission of the answer was merely that “the contract set forth in said complaint is a true copy of the contract between the parties hereto,” and the case was tried on the theory that defendant admitted nothing outside of the written contract, it was error for the court to charge the jury that defendant admitted by its answer that the contract was as alleged in the complaint.</p>

<p>EJECTMENT-TITLE BY ADVERSE POSSESSION-INSTRUCTIONS.</p> <p>Upon an issue of title by adverse possession in an action of ejectment, it was proper for tbe court to charge tbe jury that tbe open, notorious, peaceable possession of real estate, with a claim of right thereto, for the period prescribed by the statute of limitations vested title in plaintiffs.</p> <p>SAME — EVIDENCE — THAN SACTION S WITH DECEDENT.</p> <p>Under Bal. Code, § 5991, which excludes evidence of transactions had with a decedent, in an action of ejectment against the executors of the estate of a decedent from whom plaintiffs claimed to derive title sufficient to establish adverse possession, evidence on plaintiffs’ part of having been put in possession of the land by decedent under an agreement for a deed which was subsequently executed, but by mistake failed to incorporate all the land of which they had been put in possession under their purchase, is inadmissible.</p> <p>SAME DUE JUDICIAL EEBOB.</p> <p>Although there may be evidence sufficient to establish plaintiffs’ title by adverse possession, which was the vital issue in the case, yet, where the evidence is conflicting, and the jury may have been influenced in their verdict for plaintiff by reason of the erroneous admission of testimony of transactions had with a decedent tending to establish plaintiffs’ title, the error cannot be regarded as without prejudice.</p>

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

<p>APPEAL — SUPERSEDEAS — STAYING TEMPORARY INJUNCTION.</p> <p>The writ of prohibition will not issue to restrain the superior court from fixing the amount of a bond to stay the execution of a temporary mandatory injunction pending appeal, where the injunction was issued upon a hearing by the court after notice given to all parties.</p>

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

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

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

<p>APPEAL-AFFIDAVITS-REVIEW.</p> <p>On appeal from an order overruling a motion to vacate a judgment, affidavits in support thereof will not be considered, when not incorporated in the record by bill of exceptions or statement of facts.</p> <p>SAME —- INCLUSION IN RECORD BY DIRECT REFERENCE IN ORDER OF COURT.</p> <p>The fact that the order of the court in overruling a motion to vacate a judgment recites that the court has examined the affidavits and briefs furnished by the respective parties and duly considered the same, is not a sufficient identification of affidavits submitted for consideration on appeal, nor does it appear from such recital that the affidavits brought up were all the affidavits presented to the lower court and upon which it based its decision. (State v. Vance. 29 Wash. 435 distinguished).</p>

<p>APPEAL-ORDER APPOINTING RECEIVER-SUPERSEDEAS.</p> <p>An appeal from an order appointing a receiver will not operate as a stay of proceedings under the receivership, when no supersedeas bond has been given for the purpose of superseding the receiver pending the appeal.</p>

<p> Application for Admission to the Bar. </p>

<p>WILLS-PROBATE-RESIDENCE OF TESTATOR.</p> <p>Under Bal. Code, § 6087, which provides that wills may be probated and letters granted in the county of which deceased was a resident or had his place of abode at the time of his death, or in the county in which he may have died, leaving estate therein, and not being a resident of the state, or in the county in which any part of his estate may be, he having died out of the state, and not being a resident thereof, the question of the testator’s place of residence is not a jurisdictional fact, and need not be shown in a petition for probate.</p> <p>SAME-CONTEST-BURDEN OP PROOF.</p> <p>Although the order of the court admitting a will to probate is not conclusive of the facts necessary to support it, such as the soundness of mind of the testator and his due execution of the will, yet it makes a prima facie case upholding the validity of the will, and the burden of proof is upon contestants thereof to establish that the testator did not execute it, or that he was of unsound mind, or under undue influence.</p> <p>SAME — MENTAL CAPACITY — NON-EXPERT WITNESSES.</p> <p>The opinions of non-expert witnesses as to the mental condition of a testator are admissible, when it appears that they had known him personally for a long period of time, associated with him and conversed with him on many occasions, and were acquainted with his mental condition about the time the will was made.</p> <p>SAME-EVIDENCE.</p> <p>Evidence of the mental incapacity of a testator at a time long before his will was made would not establish incompetency, where other evidence shows that he was of sound mind prior to, at the time of, and subsequent to the date of the execution of the will.</p>

<p>Appeal from Superior Court, Whatcom County. — Hon. Jeremiah Heterer, Judge.</p>

<p>APPEAL-BOND-JUDGMENT DEBTOR AS SURETY.</p> <p>Under Laws 1893, p. 122, § 7, which provides that “the appeal bond must be executed in behalf of the appellant by one or more sureties,” an appeal bond is insufficient when it has no other sureties thereon than parties against whom the judgment appealed from was entered.</p> <p>SAME — PILING NEW BOND -r- DISMISSAL OP APPEAL.</p> <p>Where the appeal bond executed by appellant was ineffective and the time for filing a bond had expired, his appeal will be dismissed without his being permitted to file a new and sufficient bond.</p>

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

<p>FORECLOSURE OF MORTGAGE-REDEMPTION BY JUDGMENT CREDITOR.</p> <p>A judgment creditor bad no right of redemption from a mortgage foreclosure sale which was made prior to the act of 1897 (Laws 1897, p. 75, §15), which was the first enactment in this state conferring upon judgment creditors such right, but which expressly declared that rights of redemption from sales rendered prior thereto should remain unaffected.</p>

<p>GARNISHMENT-LIABILITY OF SHERIFFS-STATUTES-REPEAL.</p> <p>Laws 1885-86, p. 43, §19 (Bal. Code, § 5367), which, provides that a sheriff or constable may be garnished for money of the defendant in his hands, was not repealed by the later enactment on the subject of garnishments, when such subsequent act (Laws 1893, p. 95) contained no provision respecting the garnishment of public officers, and its repealing clause merely provided that “all acts and parts of acts in conflict with this act be and the same hereby are repealed.”</p>

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

<p>MUNICIPAL CORPORATIONS-AMENDMENT OE CHARTER-SUBMISSION TO VOTE.</p> <p>The fact that a charter amendment consisting of seven sections was submited to a vote of the people as one proposition instead of as seven would not invalidate the submission, under a charter regulation providing “that if more than one amendment be submitted at the same general election the same shall be submitted at such election in such manner that each proposed amendment may be voted on separately without prejudice to the others,” where it was plainly the intention that the new provisions should be substituted as a whole for the old provisions, all the sections being part of one article devoted to but one special subject.</p> <p>SAME-EEEECT OE AMENDMENT-REPEAL BY IMPLICATION-EXPENDITURE OE LIBRARY FUND-POWERS VESTED IN LIBRARY BOARD.</p> <p>The adoption of an amendment to the Seattle city charter providing that the library board shall alone have authority to expend the library fund, and shall certify every such expenditure to the city comptroller, who shall issue his warrants therefor to the city treasurer and the same shall be paid out of any money in the library fund not otherwise appropriated is a repeal, so far as the expenditure of the library fund is concerned, of art. 9, § 7, of the charter, which provides that warrants can be drawn only in pursuance of an order of the city council, and of § 12, of art. 9, which declares that all claims against the city of whatsoever nature shall he examined and allowed or disallowed hy the auditing committee.</p>

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

<p>TRIAL-WRONGFUL EXCLUSION OF EVIDENCE-HOW CUBED.</p> <p>Error cannot be predicated upon the exclusion of testimony, where the excluded matter is subsequently permitted to be put in evidence.</p> <p>MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALKS-PERSONAL INJURIES -SCOPE OF CROSS-EXAMINATION.</p> <p>In an action to recover damages for injuries to plaintiff’s leg caused by a defective sidewalk, where she has testified on direct examination merely .that it cost her $15 per month for medicine to swathe her leg, it was not error to refuse to allow cross-examination as to medical advice given by her physician.</p> <p>SAME' — KNOWLEDGE OF DEFECT.</p> <p>The knowledge of plaintiff of a safer way around is immaterial in an action for injuries occasioned by a defective sidewalk, since a person has a right to travel upon the streets and walks of a city by the most direct course.</p> <p>SAME-DISEASE AUGMENTING INJURY.</p> <p>One whose negligence occasions a personal injury to another is liable for the proximate consequences of his act, although these consequences may be aggravated and augmented by reason of the delicate health or organic tendency to disease of the person injured.</p> <p>TRIAL-EXCLUSION OF EVIDENCE-HARMLESS ERROR.</p> <p>The exclusion of testimony as to what would be a reasonable fee for curing plaintiff’s injuries was not prejudicial error, where no doctor’s fees were claimed by plaintiff and none were incorporated in the judgment.</p> <p>NEW TRIAL-REFUSAL TO GRANT-ABUSE OF DISCRETION.</p> <p>The refusal of a new trial on the ground of newly discovered evidence in the shape of witnesses who had lived in the same house with plaintiff and knew her condition, was not an abuse of the court’s discretion, where the case had been pending a couple of years before the trial, had been tried once before about a year prior to the second trial, and no effort had been made during all that time to procure the testimony of such witnesses.</p> <p>EXCESSIVE DAMA6ES.</p> <p>A verdict for $6,090 for injuries to plaintiff’s leg will not be disturbed as excessive, where there was testimony that ulcerations caused by the injury were permanent and that the plaintiff would probably be partially disabled for life.</p>

<p>APPEAL-NOTICE-PARTIES.</p> <p>A defendant who disclaims any interest in the subject-matter of an action is not a necessary party to an appeal from the judgment therein, and therefore need not be served with notice of appeal.</p> <p>SAME-TO WHOM ADDRESSED.</p> <p>The statutory provision requiring notice of appeal to be served on all parties who have appeared in the action does not require that the notice shall be directed to all parties who have appeared, but it is sufficient if the notice be directed to the prevailing parties.</p> <p>SAME-SERVICE BY ATTORNEY POR APPELLANT UPON PLAINTIVE AS ATTORNEY FOR ANOTHER PARTY.</p> <p>The fact that attorneys for appellants are also attorneys for ope of the other parties to the action would not debar their serving themselves with notice of appeal as attorneys for such client not appealing, when there is nothing in the record showing a conflict of interest between their clients.</p> <p>JUDGMENTS-RES JUDICATA-AWARD OF EXEMPTIONS IN BANKRUPTCY.</p> <p>A judgment of a bankruptcy court that certain property of the bankrupt was exempt from his debts is res judicata in an action of ejectment brought by the purchaser of such property at execution sale upon a judgment against the bankrupt.</p> <p>BANKRUPTCY-JURISDICTION OF COURT AND OF TRUSTEE.</p> <p>Although the United States bankruptcy act makes it the duty of the trustee in bankruptcy to set apart the bankrupt’s exemptions, such duty is merely ministerial, and the power to make an order setting apart to a bankrupt certain property as exempt is vested by the same statute in the bankruptcy court.</p> <p>SAME-POWER TO SET APART EXEMPTIONS.</p> <p>A bankrupt being obligated to schedule all his property in . his petition for bankruptcy- — that claimed as exempt as well as that not so claimed — the bankruptcy court has jurisdiction to pass upon the character of all his property, and set apart the exemptions allowed by law.</p> <p>SAME-BULES OF SUPREME COURT.</p> <p>The supreme court being empowered by the bankruptcy act to prescribe all necessary rules for carrying it into effect, and having provided by rule that no trustee need be appointed in certain cases, the failure to appoint a trustee under such circumstances would not affect the jurisdiction of the bankruptcy court to make a valid order with reference to the bankrupt’s exempt property.</p> <p>SAME — PRESUMPTIONS AS TO VALIDITY OF PROCEEDINGS.</p> <p>Where the trial court found that an order of the bankruptcy court setting apart property as exempt was “regularly made,” it cannot be objected on appeal that the order was made without notice to the creditors, there being nothing in the record rebutting the presumption that all the necessary steps were taken to give it validity.</p> <p>SAME-JUDGMENT OF COURT-RELATE BACK TO FILING OF PETITION.</p> <p>A judgment in the bankruptcy court relates back to the institution of the bankruptcy proceedings, and, where it had adjudged certain property exempt from debts as a homestead, a sale in the state courts of such property under execution was void, although the execution sale was prior to the award of exemption in bankruptcy, but subsequent to the initiation of the proceedings.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thad Huston, Judge.</p>

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

<p>NOVATION-SUBSTITUTION OP DEBTORS-EVIDENCE-CONVERSATIONS BETWEEN ORIGINAL AND SUBSTITUTED DEBTOR.</p> <p>Conversations between a debtor and one wbo assumed Ms obligation under a new contract are admissible, in an action by the creditor against the substituted debtor, for the purpose of showing the understanding arrived at by the parties to the novation.</p> <p>SAME —■ SUFFICIENCY OF EVIDENCE.</p> <p>In an action upon a contract by novation wherein a new debtor was substituted for the old, a nonsuit was properly refused where it appeared that plaintiff refused to supply a restaurant keeper with meats for his business owing to non-payment of bills due; that defendant agreed to pay the debtor’s obligation to plaintiff and the latter agreed to accept the defendant instead of the original debtor; that as part of the agreement the receipts of the restaurant business were turned over to defendant; and that further goods were furnished on the credit of defendant under the new agreement and bills rendered to defendant, who made part payment on both the old and the new accounts.</p> <p>SAME-CONTRACT MADE BY CORPORATE EMPLOYEE-LIABILITY OF CORPORATION.</p> <p>Evidence that the manager of the defendant company, at the time the alleged novation was entered into, called plaintiff up by telephone and said: “This is the Moore Investment Company, Mr. Moore talking,” was sufficient to establish that the contract was entered into by the manager in his representative capacity rather than as an individual.</p>

<p>BURGLARY-ENTRY.</p> <p>In a prosecution for burglary, a sufficient entry to sustain a conviction is shown, where it appears that a window was broken by one person, who reached in and removed stores from the building and handed them to another.</p> <p>SAME —■ ACCOMPLICES.</p> <p>An accomplice who takes goods handed him from a building by another who has effected a burglarious entry is liable as a principal.</p>

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

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

<p>Appeal from Superior Court, Spokaue County. — Hon. Leahdek H. Peatheb, Judge.</p>

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

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

<p>TRIAL-BINDINGS OB BACT-EQUITABLE ACTIONS.</p> <p>Tbe statute requiring tbe court to file findings of fact is inapplicable to actions of equitable cognizance.</p> <p>SAME-SIGNING JUDGMENT-NOTICE.</p> <p>■Tbe trial court may properly sign its judgment on tbe day of rendition, without any necessity of notice thereof being given to tbe losing party.</p> <p>PISHING-LOCATION OB TRAPS-VALIDITY.</p> <p>Where tbe location of a fishing trap was invalid by reason of tbe site being occupied by a prior locator, such invalid location could not ripen into a valid location at tbe expiration of tbe prior locator’s fishing license under which be fished that site.</p> <p>SAME.</p> <p>Where an attempted location of a fishing site is invalid as against original locators thereon it cannot he valid as against anybody else.</p> <p>SAME — ABANDONMENT — SUFFICIENCY OF EVIDENCE.</p> <p>In an action to enjoin defendants from operating a fishing trap upon a certain location claimed by plaintiff as a prior locator, a finding that such location had been abandoned was warranted, where it appeared that the site was located in March by plaintiff’s assignors by driving piles and posting thereon the number of the locator’s license; that nothing more was done by the locators thereon, nor their license even recorded; that in the latter part of September of the same year, defendants located the same site and at that time found no posts or piles on the site to indicate that it was held by other locators.</p>

<p>PLEADINGS-AMENDMENT DURING TRIAL.</p> <p>The refusal of the court to permit plaintiffs to amend their complaint during trial does not show abuse of discretion, when the amendment would introduce a new element of damages in addition to those claimed in the complaint.</p> <p>SAME-DISPUTED CONTRACT-EVIDENCE OF SURROUNDINGS.</p> <p>Where the pleadings put in issue the terms of a contract between the parties, evidence of circumstances surrounding the contract is admissible.</p> <p>CONTRACT TO ERECT BUILDING-ACTION FOR BREACH-EVIDENCE.</p> <p>In an action for damages for failure to construct a building on community property according to contract, the wife cannot object to evidence of alterations made under an oral agreement in which she had not joined, since she would be bound by any contract made by her husband for the benefit of the community property.</p> <p>SAME-STRIKING ALLEGATIONS OF REPLY.</p> <p>The striking out of affirmative matter in the reply cannot be urged as error, when there was no testimony on the subject of the stricken matter.</p> <p>SAME-INSTRUCTIONS-EXCEPTIONS.</p> <p>Where the court had charged the jury that “unless the plaintiffs have established to your satisfaction by a preponderance of the evidence that there was a substantial failure on the part of defendant to comply with his contract, your verdict must be for defendant,” an exception thereto which recites that plaintiffs except to “that part of the instructions wherein the judge says that if the defendant has substantially performed his agreement,” etc., was not properly taken, since it attributes to the court language not used by it and which conveys a different meaning than that employed.</p>

<p>CRIMINAL LAW-APPEAL BY STATE.</p> <p>Under Bal. Code, § 6500, subd. 7, restricting the state’s right of appeal in criminal cases to orders setting aside the indictment or information, orders arresting judgment on the ground the facts do not constitute a crime, or some material error in law not affecting the acquittal of the prisoner on the merits, the state has no right of appeal, where defendants, who have been discharged on habeas corpus, thereafter procure a dismissal of the proceedings against them and are awarded a judgment for costs on their preliminary examination.</p>

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

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

<p>STREET RAILWAYS-COLLISION WITH TEAM-DANGEROUS RATE OF SPEED-EVIDENCE.</p> <p>In an action against an electric street car company to recover for injuries resulting from a collision with plaintiff’s team, occasioned because of the operation of a ear at a high rate of speed, evidence showing that the customary rate of speed of cars on the line was in excess of the limit 'prescribed by ordinance is irrelevant (Christensen v. Union Trunk Line, 6 Wash. 75, followed).</p> <p>SAME-INSTRUCTIONS.</p> <p>An instruction, in effect, that no recovery could be had on account of a collision with an electric car, if the speed of the car was within the limit prescribed by ordinance and if the bells were rung, is erroneous, since negligence in the rate of running the car must be determined from all the surrounding circumstances.</p> <p>NEGLIGENCE-REASONABLE CARE OF PLAINTIFF-PROXIMATE CAUSE-INSTRUCTIONS.</p> <p>An instruction conveying the idea that slight negligence on the plaintiff’s part is sufficient to excuse negligence on the part of the defendant is erroneous, since the jury should be directed to the question as to whose negligence is the proximate cause of the injury.</p> <p>SAME-CAUSE OE ACCIDENT-QUESTION FOR JUEY.</p> <p>An instruction assuming as a matter of law that there was negligence in the happening of an accident is erroneous, as that is always a question of fact.</p>

<p>TRIAL-REOPENING CASE EOR INTRODUCTION OP TESTIMONY-AMENDMENT OP COMPLAINT TO CORRESPOND WITH PROOF.</p> <p>The reopening of a case to allow the contestant of a will to introduce in evidence another will making her a residuary legatee, although the petition contesting the will did not show upon its face any interest of the petitioner in the property of deceased, was not prejudicial to the adyerse party, where the will was already on file in the case and the evidence could have been no surprise to him.</p> <p>PLEADINGS — AMENDMENT ON APPEAL.</p> <p>Where a party to an action was entitled to amend her pleading to correspond to the proof, the supreme court will on appeal, under the provisions of Bal. Code, § 6535, consider the amendment as made.</p> <p>WILLS-TESTAMENTARY CAPACITY • — • SUPPICIENCY OP EVIDENCE.</p> <p>A woman sixty-four years of age became insane and was taken to a hospital in the month of May, and a few days later was removed to her son’s home, whence she was removed to an insane asylum about the middle of July of the same year upon a judgment of insanity rendered by the court; in June, while at her son’s home, she revoked a former will in which she had disinherited him, and made a new will in his favor; there is some evidence that she had lucid intervals before making this last will; after making it she grew gradually worse and in less than four weeks was committed to the asylum. At the time of making the will she was very nervous during the day and restless at night; walked the floor and refused to remain in bed; and had delusions and hallucinations. Her physician, who attended on her at the time, and had known her for the past twelve years, testified that he did not think she was sane enough to make a will.</p> <p>Held,, sufficient to support the finding of the court that the testatrix was of unsound mind at the time of making the last will.</p>

<p>SUPPLEMENTAL PLEADINGS-DISCRETION OP COURT.</p> <p>Allowing defendant to file a supplemental answer is a matter witbin the discretion of the court, and will only be disturbed upon a showing of abuse.</p> <p>BONDS — LIQUIDATED DAMAGES OB PENALTY.</p> <p>Where the vendor of land, upon which there was a mortgage, unpaid taxes and a five-year contract for cutting timber held by third parties, gave a bond to the vendees in a stipulated sum, conditioned that if the obligors should on or before six months from the date of the bond procure the satisfaction of the mortgage and remove the other incumbrances on the land, then the obligation should be void, the bond must be construed as one not for liquidated damages, but as imposing a penalty under which the obligees were entitled to recover only the actual damages suffered by them.</p>

<p>SALE OF LAND FOB BIGHT OF WAY-CONSTEUCTION OF CONTBACTSPECIFIC PEBFOBMANCE.</p> <p>An agreement by plaintiff in consideration of the sum of $200, the receipt of $160 of which is acknowledged, to convey defendant a right of way across his lands according to a certain line of survey; that defendant should have the right to enter upon the lands for the purpose of constructing a ditch along the proposed right of way, across which defendant agreed to construct a bridge at a point to be designated by plaintiff; and that, in consideration of the premises, the plaintiff agreed to execute a good and sufficient conveyance, on or before one year from date, upon the payment of the balance of $40 in cash, is not an option, but a mutual contract of sale of land, enforceable by defendant after the lapse of the year, inasmuch as time is not made of the essence of the contract, and for the reason that delay in payment of an inconsequential portion of the purchase price would not be sufficient of itself to justify forfeiture.</p>

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

<p>CONSTITUTIONAL LAW-LEGISLATIVE POWERS-INHERITANCE TAX.</p> <p>The absence in the constitution of specially delegated power to the legislature of this state to enact laws for the taxation of inheritances is not to be construed as a restriction of the right, under the provisions of the Bill of Rights, which declare in art. 1, § 1, that “all political power is inherent in the people, and governments derive their just powers from the consent of the governed,” and in art. 1, § 30, that “the enumeration in this constitution of certain rights shall not be construed to deny others retained by the people,” since legacies and inheritances are but creatures of the law, and natural subjects for legislative control, in the absence of constitutional prohibition.</p> <p>SAME.</p> <p>Laws 1901, p. 67, providing for the taxation of inheritances is not invalid by reason of exempting some and laying proportional taxes on different ones, since the charges provided for are upon the passing of the estate by succession and are not a tax upon property, and hence do not conflict with art. 7, §§ 1, 2, 5, of the state constitution, which require all property to be taxed uniformly according to its value in money.</p> <p>SAME — ■ EQUALITY OE TAXATION.</p> <p>The exemption in the inheritance-tax law (Laws 1901, p. 68, i 2) from the provisions of the act of sums below 510,000 when the estate passes to direct heirs and kindred is not invalid as violating the constitutional requirement of equality in taxation, for the reason that it does not extend the same exemption to devises to collateral heirs or strangers to the blood, since there is no inequality provided among members of the same class, and such rule of equality does not forbid a liberal classification for purposes of taxation.</p>

<p>Appeal from Superior Court, King County. — Hon. R. O. Steudwick, Judge pro tem.</p>

<p>APPEAL-INSUFFICIENCY OF EXCEPTIONS TO FINDINGS-AFFIRMANCE OF JUDGMENT.</p> <p>The insufficiency of appellant’s exceptions to findings of fact would not entitle respondent to an affirmance of the judgment, since tbe question of whether the conclusions of law legitimately flow from the findings of fact always remains open for investigation.</p> <p>LOGGING-LIEN ON MANUFACTURED LUMBER.</p> <p>One who assists in cutting logs in the woods for a saw mill is entitled to a lien upon the finished product after manufacture at the mill, as long as such product remains under the control of the manufacturer, when the latter is the same party who employed the lien claimant tó work in the woods.</p>

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

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

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

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

<p>ACTIONS-WANT OP PBOSECUTION-DISMISSAL.</p> <p>The dismissal of an action which had been pending for seven years without action upon defendant’s demurrer to the complaint would not be an abuse of the court’s discretion; nor would the fact that the statute permits a defendant the right to bring a case on for hearing deprive the court of its power to clear its docket of stale actions.</p>

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

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

<p>EVIDENCE-ADMISSIBILITY OF UNSTAMPED INSTRUMENT.</p> <p>The absence of an internal revenue stamp would not affect the admissibility of the instrument as evidence in an action in a state court.</p> <p>WHARFINGERS-COLLAPSE OF WHARF-PRESUMPTION OF NEGLIGENCE.</p> <p>Where no external violence is shown as the cause of the collapse of a dock and warehouse, a presumption of negligence on the part of the warehouseman is raised.</p> <p>SAME — INSTRUCTIONS —■ BURDEN OF PROOF.</p> <p>An instruction to the effect that, if the facts raised a presumption of negligence on the part of defendant, who had set up an affirmative defense of the exercise of due care, then the burden of removing the presumption was on defendant, and the jury should find for plaintiff, if the evidence should be evenly balanced, was correct.</p> <p>INSTRUCTIONS-REFUSAL OF REQUESTS.</p> <p>The refusal of requested instructions is not error when the same ground has been covered by the court in other instructions.</p>

<p>LANDLORD AND TENANT — WRONGFUL EVICTION — COMPLAINT — ALLEGATION OF RENT PAYMENT.</p> <p>The payment of rent is not a condition precedent to the quiet enjoyment of leased premises, and therefore need not be alleged as performed in the complaint in an action for wrongful eviction.</p> <p>SAME — COVENANT AGAINST SUBLETTING.</p> <p>Under a covenant in a lease whereby the tenant agrees “not to sublet the whole of said premises nor assign this lease without the written consent” of the landlord, the latter is not entitled to re-enter and evict the tenant because of the fact that he sublet parts of the premises less than the whole.</p> <p>SAME-EOBCIBLE EVICTION-BIGHT OE LANDLORD.</p> <p>The common-law right of a landlord to forcibly regain possession of leased premises has been abrogated under the statutes of this state giving a remedy upon the tenant’s failure to perform the conditions of the lease, and this is so, notwithstanding an agreement permitting the landlord to take possession by force.</p> <p>SAME-BEMOVAL OE EIXTUKES.</p> <p>Where a tenant enters into a new lease, making no mention of a former lease or tenancy, and with no reservation for removal of fixtures placed under the former lease, his right to remove fixtures is thereby precluded.</p>

<p>APPEAL-BEIEFS-STATEMENT OF CASE.</p> <p>Where appellant states in his brief the essential facts of the case, although not at the beginning, and makes reference to the place in the record where they can be found, it is a sufficient compliance with rule 8 of the supreme court, which provides that “briefs shall contain a clear statement of the case, so far as deemed material by the party, with reference to the pages of the transcript for verification.”</p> <p>BUILDING CONTRACT — -ALTERATIONS LIABILITY OF SURETIES.</p> <p>Where a building contract contemplates the possibility of changes in the plans and specifications, a surety upon the bond of the contractor must be regarded as having consented in advance to alterations in the contract and cannot escape liability on the ground of alterations having been made without the express consent of the surety.</p> <p>SAME-MAKING OWNER A SUB-CONTRACTOR-EFFECT.</p> <p>A surety on a building contract cannot complain that the contractor permitted the obligees to construct a portion of the work and deduct the value thereof from the contract price, when the contract itself contemplated that a portion of the work might be performed by sub-contractors, and the obligees merely occupied that relation toward the contractors.</p> <p>sam:e.</p> <p>A provision in a building contract that there shall be no alterations made except upon the written order of the architect relates solely to changes in the work shown on the drawings and specifications and not to changes in the employment of the men engaged in performing the work.</p> <p>SAME-LIQUIDATED DAMAGES-SUBMISSION OE CLAIM TO ARCHITECT.</p> <p>The provision of a building contract requiring disputes as to claims for damages to be submitted to the architect, or to arbitrators, has no application to another provision providing liquidated damages for failure to complete the building within a stipulated time.</p> <p>INSTRUCTIONS —■ COMMENT ON EVIDENCE.</p> <p>When references to the evidence, made by the court in its charge to the jury, do not amount to an explanation or criticism of the evidence, nor assume that a particular fact is proven thereby, such references do not violate the constitutional prohibition against judges commenting upon matters of fact.</p> <p>SAME.</p> <p>Where there is no evidence as to a particular matter, it is not a comment on the facts for the court to tell the jury that “the testimony is silent as to that point.”</p>

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

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

<p>ACTION TO DETERMINE CONFLICTING CLAIMS TO PROPERTY-SUFFICIENCY OF COMPLAINT.</p> <p>Bal. Code, §§ 4843-4845, which provide for actions to determine conflicting claims to property, do not require the complaint to allege that plaintiff has been sued or suit threatened, or that he is in danger of having judgment rendered against him twice for the same property, but any allegation which, shows the fact that each of two different parties claims the property is sufficient.</p>

<p>EXECUTORS-FAILURE TO FILE INVENTORY-REMOVAL-DISCRETION OF COURT.</p> <p>Bal. Code, § 6208, authorizing the court to revoke letters testamentary, where the executor fails to file his inventory of the estate within the period prescribed by statute, or within such further time, not exceeding three months, as the court shall allow, is directory instead of mandatory, and the authority of the court to remove in case of a failure of the executor to comply rests in its sound legal discretion.</p>

<p>REMOVAL OF CAUSE-SEASONABLENESS OF APPLICATION.</p> <p>Where the resident defendants to an action are dismissed from the case, only at the close of the introduction of testimony and in opposition to plaintiff’s contention, an application at that time by the remaining non-resident defendant for removal of the cause to the federal court is not seasonably made.</p> <p>MASTER AND SERVANT-TORTS OF SERVANT-JOINT LIABILITY.</p> <p>An action for tortious negligence may be maintained against the master and his employee jointly, where the injury was caused by the act of the latter (Doremus v. Root, 23 Wash. 710, distinguished).</p> <p>SAME-FELLOW SERVANTS-FIREMEN AND CONDUCTORS.</p> <p>The fireman and conductor on a train are not fellow servants, but the conductor stands as a vice-principal, for whose negligence the railway company is liable, where injury results therefrom to the fireman. •</p> <p>SAME-CONCUBEING NEGLIGENCE.</p> <p>Where the negligence of the master contributes to the injury of a servant, the master is liable, though the negligence of a fellow servant may be contributory.</p>

<p>JUDGMENTS-EES JUDICATA-ALLOWANCE OF ATTORNEY FEES IN PROBATE PROCEEDINGS.</p> <p>Where the superior court sitting in probate has passed upon the claim of an attorney for fees for services rendered the executor of an estate, and has rendered judgment theron, such judgment in the probate proceeding is a bar to a civil action by the attorney against the estate for the recovery of the value of his services.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thad Huston, Judge.</p>

<p>APPEAL-INTEREST OE APPELLANT.</p> <p>Where one has sufficient interest to be made a party to an action, be cannot be denied an appealable interest in the cause, should the judgment be against hijn.</p> <p>MANDAMUS — ISSUANCE OE TAX DEED — PARTIES TO PROCEEDING.</p> <p>• Upon a petition for mandamus to compel a public officer to convey lands purchased at tax sale, private persons who claim an interest in the land are' proper party defendants, under the provisions of our code which permit the rights of all persons in the subject-matter in controversy to be determined in one action.</p> <p>SAME-EIGHT OF REDEMPTION.</p> <p>A county treasurer is warranted in refusing to execute a conveyance to the purchaser at a delinquent tax sale, although the latter has tendered all the taxes due and is fully entitled to a deed, if before conveyance full redemption is made by the owner, since the statute governing tax sales permits redemption therefrom at any time before the execution of the tax deed.</p>

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

<p>MUNICIPAL CORPORATIONS — LIMIT OP INDEBTEDNESS-NECESSAM EXPENSES.</p> <p>Warrants issued by a city in excess of its constitutional limit of indebtedness are valid on the score of necessity for the perpetuation of its corporate existence, when such warrants were issued to cover the expenses of constructing a jail, boarding prisoners, feeding impounded stock, guarding quarantine patients, publishing notice of election, printing ballots, insurance on city buildings, services in making assessment rolls, city printing, postage and stationery for city officers, and necessary expenses of the city clerk.</p>

<p>HOMICIDE-ADMISSIBILITY OF EVIDENCE-CERTIFIED CONSTABLE’S BOND.</p> <p>A copy of the bond of a constable, certified by the county clerk, is admissible in evidence to establish the'official character of an individual as constable, since the county clerk is the proper custodian of the bonds of constables, under Laws 1889-90, p. 34, which makes such officer the custodian of the official bonds of all county and township officers.</p> <p>SAME-WARRANT OF ARREST-VALIDITY. '</p> <p>Under Bal. Code, §§ 6678, 6683, 6695,. which require only the substance of the complaint to be recited in a warrant of arrest for misdemeanor, a warrant is not. void on its face when it authorizes the officer to arrest defendant for defacing a building, described as the property of B. “and divers other persons,” further reciting that it was not the property of defendant.</p> <p>SAME.</p> <p>The fact that a warrant for the arrest of defendant for defacing a building belonging to private parties recited that the building wás upon the public highway would not render the warrant void on its face, inasmuch as there are circumstances when such a building may lawfully be upon the public highway.</p> <p>SAME-OBJECTIONS TO EVIDENCE-WAIVER.</p> <p>Where a warrant of arrest had been admitted in evidence without objection, except to the purported return indorsed on the back thereof, which was ruled out, it was not error to permit the warrant itself to be taken to the jury room, although containing the return on its back which was not in evidence, since the defendant waived all objections by permitting the introduction of the warrant in evidence without asking for the obliteration or concealment of the indorsement.</p> <p>SAME-VALIDITY OF WARRANT-QUESTION OF LAW.</p> <p>The question of whether a warrant of arrest was either valid or void upon its face being one of law, it was not error for the court to charge the jury that the warrant authorized an officer to make the arrest, where the court had already determined in favor of its validity.</p> <p>SAME — INSTRUCTIONS — INFERENCES FROM FACTS.</p> <p>In a prosecution for murder, tlie refusal of requested instruction that no unfavorable inference should be drawn against the defendant from the fact that he carried a loaded revolver upon his person at the time of and immediately prior to the commission of the act for which he was being tried, was not error, since the inferences deducible from the facts in evidence were questions wholly for the jury.</p> <p>SAME-INFORMING JURY OF PENALTY AFTER THEIR RETIREMENT.</p> <p>The fact that, after a jury in a prosecution for murder had retired to the jury room, they were brought back into court at their own request, and informed as to the statutory penalty for the crime of manslaughter, would not constitute error.</p>

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

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

<p>TBIAL-NOTICE OE ISSUE-NECESSITY ON BETBIAL AETEB APPEAL.</p> <p>Under Bal. Code, § 4970, which provides that “when a cause has once been placed upon either docket of the court, if not tried or argued at the time for which notice was given, it need not be noticed for a subsequent session or day,” it is unnecessary to give notice of the trial of a cause which had been reversed on appeal and remanded to the lower court for a new trial.</p> <p>SAME-DISMISSAL EOE EAXLUBE TO PBOSECUTE-EXCUSE-ABSENCE OE COUNSEL.</p> <p>Excusable neglect justifying the vacation of an order of dismissal for want of prosecution of an action is not established by a showing that counsel were engaged in other courts at the time the case was called for trial.</p> <p>SAME-ABSENCE OE WITNESS.</p> <p>The absence of a material witness will not excuse the failure of a party to appear on the day set for trial, when there is no showing of diligence to procure the attendance of such witness, nor any allegation of the facts expected to be proved by him.</p>

<p>WARRANTS ON DITCH FUND-PAYMENT IN ORDER OE ISSUANCE-INTEREST.</p> <p>Under Laws 1895, p. 144, § 7, which provides that warrants drawn on a ditch fund created hy assessment for the payment of cost of construction of a ditch should he paid “in the order of their issue,” and under Laws 1893, p. 76, which provides that all warrants shall draw interest from date of presentation and nonpayment thereof, the holder of warrants against a ditch fund is entitled to their payment, with accrued interest, in the order of issuance, even if the payment of interest on such warrants prevents payment of subsequent warrants in the hands of other holders.</p>

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

<p>DIVORCE-VENUE.</p> <p>Under Bal. Code, § 5718, which authorizes actions for divorce to be brought in the county where plaintiff resides, the refusal to grant a change of venue to the county of defendant’s residence would not constitute error.</p> <p>SAME-REFUSAL TO PAT SUIT MONET-EFFECT ON RIGHT TO DEFEND.</p> <p>The failure of the defendant in a divorce proceeding to comply with the court’s order for the payment of alimony and suit money to the plaintiff will not warrant the court in striking the defendant’s answer, inasmuch as it is the policy of the law that divorces be not granted without the interposition of defenses to the action.</p>

<p>CONTEMPT-ORDERS OF COURT-FAILURE TO OBEY.</p> <p>Failure to comply with an order of court directing that the property of a corporation he turned over to a receiver will not subject a person to punishment for contempt, where he was not a party to the proceeding in which the receiver was appointed and in which the order was made, and where he retains possession of the property in good faith in the belief that it probably belongs to others than the corporation.</p> <p>APPEAL-DOUBLE JUDGMENTS-REVERSAL OF BOTH TO CLEAR RECORD.</p> <p>Where two journal entries of a final judgment were entered under different titles, the second entry being made to correct some inadvertence in the first, but without ordering its cancellation, and appeal was taken from both judgments, the supreme court will, on reversing the judgment, direct a reversal on each appeal, in order to clear the record.</p>

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

<p>NEGLIGENCE-ACCIDENTAL INJURY-PROXIMATE CAUSE.</p> <p>Where the primary cause of an injury is a pure accident, occasioned without fault of the injured party, and which would not have resulted in the injury éxcepting for a negligent act of the defendant, such negligence is the proximate cause of the injury, for which damages are recoverable.</p> <p>SAME-INJURY TO SERVANT-SAFE PLACE TO WORK-QUESTION FOR JURY.</p> <p>Where a common laborer, employed in a gravel pit in connection with the work of a steam shovel, ignorant of the mechanical structure of the boom and crane attached to the shovel, is ordered hy the foreman to go out upon the boom to assist in righting things after the overturning of the shovel, without being warned of the dangers of the position, and, by reason of the slippery condition of the boom, falls and strikes the lever of the crane engine; thereby starting the machinery in motion, and in throwing out one hand to recover himself has it caught and ground in a cog wheel, the danger of the sudden starting of the crane engine being capable of avoidance by having the steam shut off completely by a valve for that purpose between the crane engine and the main engine of the shovel, a question of fact as to defendant’s negligence is presented for the consideration of the jury, and it is for them to determine, from such a state of facts, the proximate cause of the injury. (Andebs, J., dissents.)</p>

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

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

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

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

<p>Appeal from Superior Court, Skagit County. — Hon. Geobge A. Joineb, Judge.</p>

<p>PROHIBITION, WRIT OF-REMEDY BY APPEAL.</p> <p>There being a remedy by appeal from the judgment of the superior court in regard to the distribution of a decedent’s estate, the court will not be restrained by writ of prohibition from proceeding in the matter, although it may be acting without jurisdiction.</p> <p>SAME-ADEQUACY OF REMEDY.</p> <p>The adequacy of the remedy by appeal is not affected by the expense thereof, nor by the delays and annoyances incident to an appeal.</p>

<p>PROHIBITION, WRIT OP — REMEDY BY APPEAL.</p> <p>The writ of prohibition will not issue to restrain the superior court from entertaining an appeal from the order of a board of county commissioners establishing a county road, since there is an adequate remedy by appeal from the judgment of the superior court.</p>

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

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

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