Volume 31 — Washington Reports

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

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

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

<p>CABBIEBS-ACTION FOB LOSS OF GOODS-TITLE OF PLAINTIFF.</p> <p>In an action to recover the value of hay lost through the negligence of a carrier, while stored in its dock awaiting shipment, plaintiff’s ownership, though denied, is sufficiently established, where the evidence shows that plaintiff employed a third party to purchase the hay for it and deliver same at the dock to be shipped plaintiff, who had agreed to pay such third party a stipulated price per ton, when it appears that the plaintiff and such third party, between themselves, always treated the title to the hay as being in plaintiff.</p>

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

<p>LIMITATION OF ACTIONS-WAIVER, OF OBJECTION.</p> <p>Where a defendant did not raise the objection, either by demurrer or answer, that the cause of action .was barred by the statute of limitations, until after trial and judgment and the case came back for retrial after reversal on appeal, the objection must be deemed as waived, under Bal. Code, § 4911, which provides that “if no objection be taken either by demurrer or answer, the defendant shall be deemed' to have waived the same.”</p> <p>WITNESSES • — • TRANSACTIONS WITH DECEASED PARTNER.</p> <p>Under Bal. Code, § 5991, which provides that in an action where the adverse party derives right or title by, through, or from any deceased person, then a party in interest or to the record shall not be admitted to testify in his own behalf as to any transaction had by him with such deceased person, evidence of a transaction had with a deceased member of a partnership is inadmissible, when the surviving partner was not present nor had any personal knowledge of the transaction.</p> <p>SAME-ACTION ON PROMISSORY NOTE-TESTIMONY AS TO ALTERATION -COMPETENCY.</p> <p>The indorser of a promissory note cannot testify that a waiver of demand and notice was not on the back of the note when he indorsed it, where action is brought upon the note by the successor in interest of a deceased person with whom the transaction had been had.</p>

<p>APPEAL-FINDINGS OF FACT-EXCEPTIONS.</p> <p>Exceptions to findings of fact are unnecessary, wbere judgment is given on tbe pleadings, and tbat is tbe only error assigned.</p> <p>JUDGMENT ON PLEADINGS-DENIAL OF IMMATERIAL ISSUES.</p> <p>In an action for tbe rescission of a conveyance, because tbe obligation to support tbe grantor during bis life bad been ended by tbe death of tbe grantees, judgment for tbe grantor on tbe pleadings was warranted, wbere tbe answer admitted tbe consideration for tbe deed and tbe death of tbe grantees and its only denials were addressed to tbe immaterial allegations of tbe complaint that the sum of one dollar specified in the deed had not been paid and that the grantees had not supported the grantor for certain years.</p> <p>JUDGMENTS--RES JUDICATA.</p> <p>A judgment giving a right of lien for support against lands conveyed by plaintiff in consideration thereof, but denying rescission based on the failure of defendants to support plaintiff, is not res judicata as to a subsequent action which seeks rescission on the ground of the cessation of the obligation to support by reason of the death of the grantees.</p> <p>SAME-LAW OE THE CASE.</p> <p>Where a, plea of res judicata was determined on a prior appeal of the same cause adversely to appellant, it became the law of the case on a retrial thereof.</p>

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

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

<p>TAXES-PAYMENT BY GUARDIAN-BIGHT TO LIEN.</p> <p>Where a guardian, in order to protect lands belonging to her wards, and owned by them as tenants in common with adult persons, pays delinquent taxes thereon from her own funds, such guardian is entitled to a lien against the lands for the amount so paid, even as against the adult owners, since she does not occupy the position of a mere volunteer, but is chargeable with the duty of protecting the interests of her wards.</p>

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

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

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

<p>PROHIBITION, WRIT OP-WHEN LIES-AMOUNT IN CONTROVERSY.</p> <p>The fact tbat tbe superior court bas no jurisdiction to try and determine an appeal from a justice of tbe peace is not ground for tbe issuance of a writ of prohibition, where tbe amount in controversy is less than $200, since tbe judgment of tbe superior court is conclusive in such cases, under tbe constitutional provisions limiting tbe appellate jurisdiction of tbe supreme court.</p>

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

<p>WITNESSES-CROSS-EXAMINATION.</p> <p>In an action for the death of a coal miner, due to the fact that the timbers in the air-shaft caught fire from fires outside the mine, it was not error to allow a witness to be asked on cross-examination, although not examined in chief on the point, as to whether, if a system of bells had been provided in the mine, deceased could have been notified of the fire in time to have saved his life, where the witness had testified in chief that he was superintendent of the mine and had been examined as an expert upon the proper handling of the mine.</p> <p>TRIAL-MISCONDUCT OF ATTORNEY' — ■ INDULGENCE IN COLLATERAL REMARKS.</p> <p>The fact that attorneys in the course of a heated trial indulged in collateral remarks, not pertinent to the issues, would not be ground for reversal, in the absence of a showing that the jury was unduly influenced thereby to the prejudice of the adverse party.</p> <p>JURORS-MISCONDUCT-CONVERSATION WITH PARTY.</p> <p>The refusal of the court to discharge a jury during trial because one of the jurors and one of the plaintiffs had indulged in a conversation together during an intermission was not error, where it appeared that the talk had by them was not upon the subject of the trial, was publicly had in the corridor of the court house before many people and in the presence of some of them, and there was no showing indicating intrigue between the juror and the party.</p> <p>EXCESSIVE DAMAGES-DEATH BY WRONGFUL ACT.</p> <p>A verdict of $10,000 for the death of a coal miner through defendant’s negligence was excessive, where the deceased was a man fifty-five years of age, with an expectancy of life of seventeen years, and an earning capacity of $50 per month, which could not presumably be continued without intermission until he was seventy-two years of age, especially in view of the fact that his employment had never been constant prior to the time of his death.</p>

<p>EMBEZZLEMENT-SUFFICIENCY OF INFORMATION-ALLEGATION OF AGENCY.</p> <p>Under Bal. Code, § 7119, which provides that, if any agent clerk, officer, servant, or person to whom any money or other property shall be intrusted, with or without hire, shall fraudulently convert the same to his own use, he shall be guilty of larceny, an information sufficiently charges the crime of larceny hy embezzlement, where it charges that defendant, as county auditor, received a county warrant, the property of • another which was intrusted to him by virtue of his office, and which he afterwards fraudulently and feloniously converted to his own use.</p> <p>SAME-SUBJECT OP LABCENY-UNDELIVERED COUNTY WARRANT.</p> <p>A warrant drawn by a county auditor and placed upon the files of the office, pursuant to the order of the commissioners upon an approved claim against the county, is a thing of value although never having been delivered to the proper owner.</p>

<p>BILLS OF EXCHANGE-WAIVES OF NECESSITY FOB WRITTEN ACCEPTANCE-FAILURE OF PROOF.</p> <p>In an action by plaintiffs upon an unaccepted order for thv payment of money, which, under Laws 1899, p. 362, § 126 et seq., would not bin'd the drawee unless accepted in writing, it was error to refuse a directed verdict in defendant’s favor, where the allegations of the complaint as to an agreement obviating the necessity for a written acceptance were wholly unsupported by evidence.</p> <p>COSTS-JURY FEE IN CIVIL CASES-REPEAL OF STATUTE.</p> <p>The act of 1857 providing that a jury fee of |12 shall be taxed as costs in civil actions was impliedly repealed by the general act on tbe subject of fees and costs, found in Laws 1893, p. 421, wbieb enumerates tbe fees to be collected by clerks of superior courts, expressly stating that certain fees shall be collected in causes tried by a jury, but nowhere specifying a jury fee among them.</p>

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

<p>SCHOOL LANDS-PROCEEDS OE SALE-STATUTE AUTHORIZING INVASION OE PRINCIPAL-CONFLICT WITH ENABLING ACT.</p> <p>The act of March 7, 1895 (Laws 1895, p. 55) providing for the creation of a state normal school fund into which shall be paid all proceeds from the sales of lands granted.to the state of Washington by the United States for normal schools, and authorizing the payment of the cost of erection of normal school buildings from such fund is void, because in conflict with the provisions of the enabling act for the admission of this state into the Union, wherein it is provided (§ 11) “that all lands herein granted for educational purposes shall be disposed of only at public sale, . . . the proceeds to constitute a permanent school fund, the interest of which only shall be expended in the support of said schools.”</p>

<p>MUNICIPAL CORPORATIONS-ORDINANCES-SINGLENESS OF OBJECT.</p> <p>An ordinance regulating and licensing the carrying on of business by auctioneers, second-band dealers, bill posters, hotel runners, pawn brokers and persons engaged in tbe temporary sale of goods cannot be regarded as enumerating more than one object of legislation, as it has as its general purpose tbe protection of tlie public against certain occupations deemed inimical to the public good if allowed to be conducted without restrictions.</p> <p>SAME-SUFFICIENCY OF TITLE.</p> <p>Where the title of an ordinance states that it is “an ordinance to license and regulate certain trades and occupations in the city,” it sufficiently expresses the object of the ordinance without •enumerating in the title the several occupations mentioned in the body of the act.,</p> <p>SAME —■ PAWNBROKERS LICENSE FEES EXCESSIVENESS.</p> <p>A license fee of $100 per annum upon the business of pawnbroking cannot, as a matter of law be said to be arbitrary and excessive, and therefore a tax on business, but, such business being a proper subject of police regulation, it is within the province •of the municipality to make the business bear the cost of surveillance, the fairness of which the courts will not inquire into •on any mere difference of opinion between the municipal authorities and those engaged in the regulated business, in the absence ■of any proof on the question of the excessiveness of the charge.</p>

<p>TRIAL-STAY OP PROCEEDINGS UNTIL PAYMENT OP COSTS IN OTHER ACTION-POWER OP COURT.</p> <p>An order of tbe court staying proceedings in an action, until a judgment against plaintiff for costs in a prior action between tbe same parties involving, tbe same subject-matter was paid, is a valid exercise of tbe court’s powers.</p> <p>SAME-RECORD IN OTHER CAUSE-JUDICIAL NOTICE.</p> <p>Tbe fact that such prior judgment was void for want of jurisdiction would not be a matter of which the trial or appellate court could take judicial notice on tbe motion for stay of proceedings, nor could such record in tbe prior cause be made available, unless introduced in evidence in tbe lower court and incorporated in tbe record on appeal.</p>

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

<p>Appeal from Superior Court, Pierce County. — Hon. William 0. Chapman, Judge.</p>

<p>TEMPORARY RECEIVER-APPLICATION FOR APPOINTMENT-SERVICE OF NOTICE.</p> <p>Under Bal. Code, § 4886, which provides that one who has appeared in an action is entitled to notice of all subsequent proceedings, which notice, under Id., § 4886a, shall be at least three days’ notice, in the case of motions and applications, four days’ notice of the filing of an amended complaint and of a motion for the appointment of a temporary receiver thereunder was sufficient, when served upon the attorney for defendant who had appeared generally in the action and demurred to the original complaint.</p>

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

<p>PLEADING-WAIVER OF DEMURRER-FILING AMENDED COMPLAINT.</p> <p>An erroneous ruling sustaining a demurrer to a complaint is waived by the filing of an amended complaint.</p> <p>SAME-SUFFICIENCY OF COMPLAINT ATTACKED ON TRIAL.</p> <p>Where a complaint is attacked by an objection to the introduction of any evidence in its support, on the ground that it does not state a cause of action, the attack will be treated as an attack on a complaint after verdict, when every reasonable intendment and legitimate inference susceptible of being drawn or deduced from the facts stated is permitted in aid of the statement of the cause of action.</p> <p>CONTRACT OF EMPLOYMENT-CONSTRUCTION.</p> <p>A contract of employment made in the state of Washington, whereby defendant agreed to employ plaintiff at a stipulated salary, “for the time the work undertaken by the defendant at Manila should last,” was not so indefinite and uncertain, either as to the commencement or duration of service, as to render the contract void.</p>

<p>NEW TRIAL-ORDER GRANTING CANNOT BE VACATED.</p> <p>Where a court has granted a motion for a new trial, it cannot subsequently, under the belief that it committed error in so ruling, set aside such order and deny the motion. (Fullerton, C. X, dissents).</p>

<p>APPEAL-STATEMENT OF FACTS-PLACE OF CERTIFICATION.</p> <p>Under Laws 1901, p. 76, § 1, which provides that a superior judge shall not be authorized to hear any matter outside of the county wherein the cause is pending, except by consent of the parties, it was error for the court to adjourn the settlement of a statement of facts to a county other than the one of trial, when the respondent had not consented thereto.</p> <p>SAME-VOID CERTIFICATION-NEW NOTICE.</p> <p>Under Bal. Code, § 5058, which provides that if the judge is absent at the time named in a notice or fixed by adjournment for the settlement and certification of a statement of facts, a new notice may be served, the failure of the judge to legally certify a statement duly filed in his court, because of the adjournment of the proceedings to a place outside of the county of trial, would not preclude the subsequent settlement and certification of the statement under a new notice.</p>

<p>BARBERS-REGULATION AND LICENSING OF OCCUPATION-STATUTES —1 TITLE OF ACT.</p> <p>The title of an act reciting that it is “an act to regulate the practice of barbering and licensing of persons to carry on such practice, and providing punishment for its violation,” is broad enough to embrace provisions in the act for the appointment of a board of examiners, and their duties and compensation, for the regulation of apprentices, and for the payment of license fees.</p> <p>SAME-CONSTITUTIONAL LAW-LOCAL AND CLASS LEGISLATION.</p> <p>The act to regulate barbering (Laws 1901, p. 349) is not void on the ground of being local, class, and special legislation because of the fact that it divides the communities of the state into classes, for which different regulations are provided, when the law is made to operate equally upon all barbers within the respective classifications.</p> <p>SAME.</p> <p>The fact that a law proivdes for the issuance of a certificate without examination, upon the payment of one dollar, to all barbers carrying on their occupation in cities of the first, second and third classes at the time the act took effect, while barbers subsequently coming into those cities would be required to stand examination and pay five dollars for a certificate, would not render the act void as discriminating against one class of citizens in favor of others, since the law operates equally upon all who fall unuer its operation.</p> <p>SAME-APPLICATION OF ACT.</p> <p>An act making it “unlawful for any person to follow the occupation of barber in any incorporated city or town in this state,” under certain conditions, is not restricted in its application' to such municipalities only as were incorporated at the time of its passage.</p> <p>STATUTES-REASON FOE ENACTMENT-PROVINCE OF LEGISLATURE.</p> <p>Courts will not pass upon the sufficiency of the reason for the enactment of a law, which is not in conflict with some constitut’onal provi-ion.</p>

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

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

<p>NEGLIGENCE-DEPOSIT OE EXPLOSIVES ON VACANT LOT-INJURY TO CHILDREN.</p> <p>The placing of sticks of dynamite in a box upon vacant city lots upon which children are accustomed to play constitutes negligence, where the box is partially buried out of sight, but sufficiently exposed to be an object of attraction to children, to whom its contents are accessible by reason of deficient covering.</p> <p>INSTRUCTIONS-WEIGHT OE EXPERT EVIDENCE.</p> <p>Expert testimony, being competent testimony under the law, must go to the jury as any other testimony in the case, and it is error for the court to discriminate in any way against its weight in instructing the jury.</p>

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

<p>DISMISSAL OF APPEAL-FAILURE TO FILE BRIEF-EXCUSED BY FAILURE TO RETURN STATEMENT OF FACTS.</p> <p>Under Bal. Code, § 5063, which provides that the proposed statement of facts served upon the respondent shall be returned to the appellant for his use in preparing his brief on appeal, and the time limited by law for filing his brief shall be enlarged to the same extent as the delay made in returning such copy, an appeal should not be dismissed where the failure to file brief was occasioned by delay in returning the statement, even if such proposed statement was faulty and had required considerable amendment.</p>

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

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

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

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

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

<p>RESULTING TRUST-AGREEMENT TO PURCHASE LAND.</p> <p>Where two parties take a joint option for tbe purchase of land, and then determine not to buy, but, after the expiration of the option, one of them purchases the land in his own interest, the other has no right of action to have the purchaser declared a trustee for his benefit.</p>

<p>Appeal from Superior Court, Snohomish County. — ■ Hon. Tons' C. Dekyey, Judge.</p>

<p>HOMICIDE-SELF-DEFENSE-EVIDENCE-THREATS.</p> <p>Where testimony as to a threat made by respondent is relevant, it is for the jury to determine whether or not it proves the fact for which it was introduced, and error could not be predicated on the court’s refusal to strike it on the ground that the language testified to did not amount to a threat.</p> <p>SAME-DYING DECLARATIONS-SURROUNDING CIRCUMSTANCES.</p> <p>The circumstances under which a dying declaration was made affect its weight and credibility, and hence are admissible in evidence.</p> <p>SAME-ABSENCE OF MALICE-FEAR OF DECEASED.</p> <p>In a prosecution for murder, it was error to exclude testimony by the defendant as to whether he had any malicious feelings toward the deceased, and whether or not he was in fear of the deceased, since his feelings, motives or beliefs would be relevant to the issue of self-defense.</p> <p>SAME-REPUTATION OF DECEASED.</p> <p>The general reputation of the deceased as to going armed is admissible in evidence upon a trial for murder, where the defendant interposes the defense of justifiable homicide.</p> <p>SAME-REBUTTAL-TESTIMONY OF WIFE AS TO DECEASED’S FIREARMS.</p> <p>In a prosecution for murder, testimony by the wife of the deceased as to the number and character of fire arms he owned, and whether he had any of them with him at the time of the affray, and also as to the time of day he reached home after being shot by defendant, was admissible for the purpose of tending to refute defendant’s evidence offered in support of the claim of self-defense.</p> <p>SAME-APPARENT DANGER-INSTRUCTIONS-CURING ERROR IN CHARGE.</p> <p>A misstatement in an instruction to the effect that justifiable homicide is the killing of one who “manifestly intends” to commit a felony against the slayer, was cured by the subsequent charge in the same instruction that a person may act in self-defense when he in good faith, and as a reasonable man, has cause to believe that his life is in danger, whether the belief be founded on conditions which are real or only apparent.</p>

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

<p>APPEAL-NECESSITY FOE STATEMENT OF FACTS-QUESTIONS PRESENTED BY RECORD.</p> <p>An appeal will be dismissed because of the ahsence of a statement of facts, although the appellant seeks only the review of a question of law on the pleadings as to whether the action appeared therefrom to have been commenced in time, where the judgment of the court recites that the decision was based on other matters before the court as well as upon the application of the statute of limitations to the facts pleaded.</p>

<p>CONTRACTS — BREACH — NONSUIT.</p> <p>In an action to recover for a breach of contract, a motion for nonsuit was properly denied, where it appeared that defendant had contracted with twelve laborers, as a partnership, for their services in excavating and tunneling along a railway line, that, upon a change in the route, six of the men quit work and refused to return, but that the others continued work under a new agreement whereby they were to receive a- stated amount of cash for work done under the partnership contract and were to be paid days’ wages for their future labor, and that defendant had committed a breach of such contract by refusing to make the cash payments, or to permit them to go on with the work after they had entered upon it under the new contract.</p> <p>SAME.</p> <p>Where a contract contemplates the making of cash payments for labor performted, the refusal to make such payments constitutes a breach, for which suit may be maintained.</p> <p>SAME.</p> <p>Where defendant, after entering into a contract for the services of plaintiff’s assignors, and upon the performance of which they had entered, told them that he had taken charge of the work himself, that there was nothing more for them to do, and that he would not pay them another cent, his conduct amounted to a refusal to permit them to proceed, and constituted such a breach as to warrant a recovery for the amount unpaid for services rendered.</p> <p>INSTRUCTIONS-HARMLESS ERROR-COMMENT ON FACTS.</p> <p>Error of the court, if any, in referring to the facts in a case in charging a jury was cured by further instructions in which the jury were told that any reference made to the facts was not intended as an intimation of any opinion of the court, and that they were the sole judges of the facts in the case.</p> <p>SAME.</p> <p>An objection that an instruction excludes from the consideration of the jury one of the defenses of defendant, constitutes harmless error, where all the evidence introduced was submitted to the jury and their verdict was equivalent to an affirmative finding adversely to defendant’s contention.</p> <p>NEW TRIAL-IMPROPER VERDICT.</p> <p>The fact that the jury gave a verdict for just one-half of the am'ount claimed in an action for work under a contract providing a stipulated rate of wages is not ground for new trial, where one of the issues in the case was the amount of time actually spent by plaintiff and his assignors upon the work, defendant claiming that a portion of the men were often intoxicated and thus incapacitated for doing their work.</p>

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

<p>Appeal from. Superior Court, Spokane County. — Horn. Leaeder H. Prather, ! Judge.</p>

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

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

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

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

<p>APPEALABLE ORDER — OVERRULING MOTION TO QUASH EXECUTION.</p> <p>An order overruling a motion to quash a writ of execution is appealable, under the provisions of Bal. Code, § 6500, which allow appeal from any final order made after judgment which affects a substantial right.</p> <p>APPEAL-TIME FOR TAKING.</p> <p>Under the statutory rule for the eonsputation of time, an appeal taken on the fifteenth day after the entry of an order appealed from was in time, where there was a fifteen day limitation on the right of appeal in such cases.</p> <p>SAME — DISMISSAL-CESSATION OF CONTROVERSY.</p> <p>An appeal from an order refusing to quash a writ of execution will not be dismissed on the ground of a cessation of the controversy because of the fact that the court afterward sustained objections to the confirmation of the sale under such execution, where the order refusing to confirm was a general one, not specifying any of the several grounds upon which it was rested, and where there was nothing to raise a presumption that the objections were sustained on a ground that would bar a resale under the writ.</p> <p>JUDGMENTS — EXPIRATION OF LIEN.</p> <p>A judgment becomes dormant under the statutes of this state, at the end of five years from the date of its rendition, and will not, until it is revived, support an execution.</p>

<p>JUDGMENT — LIMITATION ON REVIVAL.</p> <p>Where a motion for the revival of a judgment was made just before the expiration of the six year limitation thereon, but notice thereof was not served on the adverse party until nearly two years thereafter, the judgment could not be revived, under Laws 1891, p. 165, which provides that no judgment shall be revived unless proceedings therefor shall be commenced within six years after the date of its rendition, inasmuch as thé procedure did not follow the statute in force governing the commencement of actions and, in case of the inapplicability of that statute, the service did not follow upon the suing out of the writ within such a reasonable time as to constitute one continuous transaction.</p>

<p>MECHANICS’ LIENS-FORECLOSURE-RESCISSION OF BUILDING CONTRACT -SUBSEQUENT ASSIGNMENT-RIGHTS OF ASSIGNEE.</p> <p>A building contract was abandoned by mutual consent of tbe parties, owing to tbe insolvency of tbe builder, and a lien was filed on tbe building for wbat was due tbe contractor. Tbe premises were sold by the owner to another, to whom he assigned the building contract. The assignee demanded that the contractor proceed with the building, and upon his refusal, the assignee finished the building at his own cost. Held, in an action for the foreclosure of the contractor’s lien, that the assignee could not apply the sum expended in the completion of the building against the claim of the contractor, as the building contract had provided, since that contract had in fact been rescinded prior to its assignment.</p> <p>SAME — AMOUNT DUE-CONTRACT PRICE — SOTEICIENCY OE EVIDENCE.</p> <p>In an action to enforce a mechanic’s lien for labor and material put into a building prior to the rescission of a building contract, the testimony of tne superintending architect that on the date of the rescission he made an estimate of all the work done and materials furnished and put into the building and that the reasonable value thereof according to the contract price was $15,193, to which should be added certain extras worth $689.28, for which plaintiff was entitled under the contract, was sufficient evidence, uncontradicted, to show that the estimate of the work done was based upon the contract price and not upon the quantum meruit.</p> <p>SAME — INTEREST.</p> <p>The allowance of interest prior to the date of a lien notice was erroneous, where the lien notice did not claim interest, and the complaint for foreclosure of the lien asked for interest only from the date of filing the notice.</p>

<p>VENDOR AND PURCHASER-RIGHT OF FORFEITURE-WAIVER BY PAROL.</p> <p>The time of performance of a written contract for the sale of land, although of the essence thereof, may be waived by subsequent oral agreement.</p> <p>SAME — ESTOPPEL.</p> <p>Wlhere the purchaser of land has been led to believe from the conduct of the vendor that a right given under the contract to declare a forfeiture has been waived, the vendor will be estopped from enforcing forfeiture.</p> <p>SAME — DEFAULT IN INSTALLMENTS — RIGHTS OF PURCHASER.</p> <p>After waiver of the vendor’s right of forfeiture, by reason of failure in payments the purchaser would not be in default until after demand upon him for payment of the installments due and the lapse of a reasonable time in which to meet the demand.</p> <p>SAME-CONTRACT BY HUSBAND ALONE — RATIFICATION BY WIFE.</p> <p>A wife who joins with her husband in an action for the cancellation of a contract for the sale of land and for a forfeiture ■of payments made thereunder, thereby ratifies the contract, though made by the husband alone for land in which each owns an undivided half interest as separate property.</p> <p>APPEAL-RESPONDENT NOT ENTITLED TO REVERSAL.</p> <p>Although the record on appeal from a judgment dismissing an action may show that defendants were entitled to affirmative relief, the judgment will be allowed to stand unreversed, where the defendants have not appealed.</p>

<p>COMMUNITY PROPERTY-LANDS ACQUIRED UNDER HOMESTEAD LAWS.</p> <p>The community heirs of a deceased wife are entitled to a half interest in land acquired under the homestead laws of the United States, although patent conveying the legal title thereto was not issued to the husband until after the death of his wife, where the equitable title had vested' during the existence of the community.</p> <p>SAME-STATUS AT INCEPTION OP TITLE GOVERNS.</p> <p>Where the inchoate title to land had its inception during the existence of the community, the legal title thereto, when acquired by a surviving spouse after the dissolution of the community by death, would inure to the benefit of the community heirs.</p>

<p>AI'PEALABLE ORDER-REFUSAL TO VACATE ORDER APPOINTING ADMINISTRATOR.</p> <p>The denial of a motion to vacate an order appointing an administrator is an appealable order, under Bal. Code, § 6500, subd. 6, which allows appeal from any order affecting a substantial right in a civil action which either in effect determines the action and prevents a final judgment therein, or discontinues the action.</p> <p>ADMINISTRATION OF DECEDENT’S ESTATE-PREFERENCE BIGHT OF HUSBAND -WAIVER.</p> <p>Where a surviving husband neglected for three years to apply for letters of administration upon the estate of his deceased wife, his preference right to appointment would not entitle him to the vacation of an order appointing another as administrator, when there is nothing showing the incompetency or unsuitability of the latter, since it is provided by § 6141, Bal. Code, that if one entitled to administer shall neglect for more than forty days after the death of the intestate to apply for letters of administration, then the court may appoint any suitable and competent person to administer such estate.</p>

<p>APPEAL-APPEALABLE ORDER — : QUASHING SUMMONS.</p> <p>An order quashing a summons in effect discontinues the action, when made after the expiration of the statutory limit on service of summons, and is therefore an appealable order.</p> <p>SAME-CESSATION OE CONTROVERSY.</p> <p>The fact that the trial court dismissed an action subsequent to the taking of an appeal from its order quashing a service of summons, would not work such a cessation of the controversy as would require a dismissal of the appeal.</p> <p>PROCESS-SERVICE BY NON-RESIDENT ATTORNEYS.</p> <p>Non-resident attorneys who have been admitted to the bar of this state are authorized to issue summons in actions in this state, and may perform this act outside the state as well as within its borders, provided the summons specifies a place within the 'state where an answer thereto may be served, within the meaning of Bal. Code, § 4870, which provides that the defendant shall “answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the 'state therein specified in which there is a postoflice.”</p> <p>SAME-EORM OE SUMMONS-STATUTORY REQUIREMENTS.</p> <p>A summons issued in conformity with the form set forth in the statute, and which substantially follows the sections enumerating the necessary content's of the summons, is good as against a general objection that it is void on its face, raised for the first time on appeal, even if the summons may not have fully incorporated everything required by other sections of the statute.</p>

<p>APPEAL-DISMISSAL-SUFFICIENCY OF NOTICE AND BOND.</p> <p>Where the attorney for defendants gave notice of appeal for all of them and executed a bond in behalf of all, no ground is afforded for dismissal of the appeal by reason of the facts that certain of the appellants failed to execute the appeal bond, and that notice of appeal was not served on some of them.</p> <p>PUBLIC LANDS-BAILBOAD GRANTS-SALE OF LANDS EXCLUDED FROM GRANT-PREFERENCE RIGHTS OF PURCHASER.</p> <p>Under 24 St. at Large, 557, § 5, which provides that where any railway company shall have sold to citizens of the United States as a part of its land grant from the government lands coterminous with the constructed portion of its road, but which are for any reason excepted from the operation of its grant, the bona fide purchaser may make payment to the United States at the government price and shall thereupon be entitled to patent, one who had in good faith purchased the land from the railroad company, and, upon the decision of the land department adverse to the railroad’s right to the land, had applied within a reasonable time to make purchase under the above act of congress, had a preference right as against a homestead entrynran, who had made entry within four mtonths after notice of cancellation of the railroad’s right to the land, and with actual knowledge of all the facts.</p> <p>SAME —■ CITIZENSHIP OF CORPORATIONS.</p> <p>A corporation organized under the laws of any state is a citizen of the United States within the meaning of 24 St. at Large, 557, authorizing citizens of the United States, in certain eases, to purchase government lands.</p>

<p>EMINENT DOMAIN-APPROPRIATION OE LAND FOR DRAINAGE PURPOSES -SUFFICIENCY OF PETITION.</p> <p>A petition for condemnation of lands for ditch purposes, under Laws 1895, p. 142, is not demurrable for want of an averment that an offer to purchase was made prior to the beginning of suit, since the statute is in the alternative, and authorizes the county commissioners to either purchase or condemn.</p> <p>SAME.</p> <p>The petition in a proceeding instituted by county commissioners for the condemnation of land necessary for the construction of a ditch need not set forth in exhaustive detail all the steps taken by the commissioners, but is sufficient if it notifies defendants in plain and specific language of toe issues to be tried.</p> <p>SAME-DAMAGES-TO WHOM ASSESSABLE.</p> <p>A judgment awarding damages for the appropriation of land for ditch purposes against the ditch district, which might be an irresponsible party, instead of against the county in whose name the action was instituted, would work no injury to the person whose property was damaged, where the judgment provided that the proceedings should stand abated unless the damages were paid within a specified time.</p> <p>SAME — COSTS.</p> <p>Where proceedings for the appropriation of land for ditch purposes are instituted in the name of a county, but in reality for the benefit of a ditch district, which is the real party in interest, the district and not the county would be liable for the costs.</p>

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

<p>INJUNCTION-VIOLATION OP PARTY WALL AGREEMENT-ACTION BY TENANT-NECESSARY PARTIES.</p> <p>The fact that adjoining owners had under a party wall agreement provided for the common use of an elevator, stairway, and halls in the building would not make the owner of one of the buildings a necessary party plaintiff in an action by his tenant to restrain the proprietors of the adjoining building from disturbing his peaceable and quiet possession by blocking up one of the halls so as to prevent egress and ingress from said tenant’s premises by way of such elevator and stairway.</p> <p>SAME-ADJOINING LOT OWNERS-RESTRAINING TRESPASS-CONSTRUCTION OP STATUTE.</p> <p>Under Bal. Code, § 5433, which provides that “an injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure, or annoy an adjoining proprietor,” a right of action is given to the one occupying the premises either as tenant or owner.</p> <p>SAME-AGREEMENT POR ARBITRATION -ESTOPPEL.</p> <p>Where the status quo under a party wall agreement, which provided for the common use of halls, stairway and elevator in adjoining buildings, and that in case of a dispute between the parties resort should be had to arbitration, was disturbed by the wrongful action of one of the parties in dispossessing the other from the free use of the premises in dispute, the injured party may resort to the courts,' instead of being compelled to propose an arbitration.</p>

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

<p>CONTRIBUTORY NEGLIGENCE-BURDEN OF PROOF.</p> <p>In actions for negligence contributory negligence is an affirmative defense, placing tb'e burden of proof upon defendant to establish it.</p> <p>MUNICIPAL CORPORATIONS —• DEFECTIVE STREETS DUTY AS TO ENTIRE WIDTH — INJURY TO TRAVELER.</p> <p>Conceding that it is the duty of a municipal corporation to keep only the traveled portion of a highway in repair, yet a charge to the jury that one traveling upon the street of a town, without any notice of a defect therein, has a right to presume that it is reasonably safe for ordinary travel throughout its ■entire width, would be no more than harmless error, where the evidence did not show that plaintiff’s team, in running into a hole in the highway, left entirely that portion of the street which was ordinarily traveled.</p> <p>TRIAL — INSTRUCTIONS — CUBING ERROR.</p> <p>Error of the court in charging the jury as to permanent injuries to plaintiff in an action to recover for personal injuries in which no claim was set up for permanent injuries, was cured by the court’s later instruction to disregard what had been said by him as to permanent injuries and his explanation to the jury that no claim for such injuries was involved in the case.</p> <p>SAME-ARGUMENT TO JURY-READING FROM LAW BOOKS.</p> <p>The fact that plaintiff’s counsel, in a personal injury case, read to the jury an opinion of the supreme court in a similar ease will not be regarded as prejudicial error, when the opinion read was in accord with the law as given by the court to the jury, and when there is nothing to show that the jury may have been misled or the defendant in any way prejudiced thereby.</p>

<p>LACHES-ENFORCEMENT OF TRUST.</p> <p>An agreement whereby a mortgagee was to be permitted to foreclose without opposition on the understanding that he was to make a declaration of trust in the premises in favor of the mortgagor cannot be enforced by reason of the laches of plaintiff, where suit to enforce it was not brought until four months after the death of the alleged trustee, at a date more than seven years after such trustee had acquired title under the foreclosure, the only excuse for delay being that he had promised to •execute a declaration of trust at various times, and had refused so to do at a period only three months prior to his death.</p> <p>EQUITY-ENEORCEMENT OE EBATTDUI.ENT AGREEMENT.</p> <p>A court of equity will not lend its aid to declare a trust in favor of plaintiff where it appears that plaintiff, while insolvent, had entered into an agreement with the holder of a first mortgage on his lands, against which there were liens held by a second mortgagee and judgment creditors, that such first mortgagee should foreclose thereon and plaintiff would allow judgment to go by default, after which such mortgagee was to declare a trust in favor of plaintiff; and that the mortgage was foreclosed for the sum of nearly $17,000 in excess of the amount actually due, without the knowledge of other creditors, and the land sold and bid in for the amount of such excessive judgment.</p>

<p>COMMUNITY PROPERTY-EQUITABLE INTEREST IN LAND-LIABILITY POR SEPARATE DEBT OP QNE SPOUSE.</p> <p>Equitable interests in land, held by a husband and wife as community property, are not subject to sale on an execution issued on a judgment rendered for the separate debt of either spouse.</p> <p>SAME-DISTINCTION BETWEEN REAL PROPERTY AND REAL ESTATE-CONSTRUCTION OP STATUTE.</p> <p>Bal. Code, § 4491, which provides that the husband has the management and control of the “community real property,” but shall not sell, convey, or incumber the “community real estate,” unless the wife join with him, does not recognize a distinction as existing between “real estate” and “real property,” in view of the fact that those terms are used indiscriminately in the several sections of the statute relating to the acquisition and disposition of real property.</p> <p>CONVEYANCE AS MORTGAGE-PAROL EVIDENCE.</p> <p>An absolute deed of conveyance, whether in form a warranty or quit-claim, may be shown by parol evidence to be a mortgage.</p>

<p>JUDGMENT-REVOCATION BEFORE ENTRY-POWER OF COURT.</p> <p>Under Bal. Code, § 5119, which provides that “all judgments shall be entered by the clerk, subject to the direction of the court,” an order of the court though signed and handed to the clerk for entry, does not become a finality until its actual entry, but may be recalled, and modified or annulled, at any time before it has been spread upon the journal.</p> <p>ALIMONY — ‘EFFECT OF REMARRIAGE OF PARTY BOUND TO PAY.</p> <p>The subsequent remarriage of a divorced husband will not relieve him from the obligation of a decree to pay alimony for the support of his divorced wife and minor child, even if the additional burdens imposed by such remarriage tend to exhaust his earnings, since his divorced wife and child have a prior claim thereon, until the modification of the decree in a direct proceeding therefor.</p>

<p>NEW TRIAL-AMENDMENT Off MOTION.</p> <p>Amendments to a motion for a new trial are allowable after the motion has been made</p> <p>SAME — DISCRETION AS TO GRANTING MOTION.</p> <p>The granting of a new trial is a matter so discretionary with the trial court, that its action will not be interfered with on appeal, unless it plainly appears that such discretion has been abused.</p>

<p>NONSUIT-SUFFICIENCY OF EVIDENCE..</p> <p>In an action to recover the value of iron plates furnished defendants for use in a structure, a nonsuit was properly denied, when defendants’ contention, that the contract called for curved plates, ready for adjustment, while only flat ones were furnished, was not supported by the written contract, and there was a conflict in the expert testimony as to whether or not the detail plans and drawings called for bent plates.</p> <p>TRIAL-HARMLESS ERROR-RECALLING WITNESS.</p> <p>Recalling a witness after a trial had closed, for the purpose of permitting him to deny a statement attributed to him by another witness, would not be ground for reversal, in the absence of a showing that the adverse party was prejudiced thereby.</p>

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

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

<p>PLEADING-OBJECTIONS —• ESTOPPEL ALTER VERDICT.</p> <p>After verdict a party is estopped to claim that the failure of an adverse party to deny certain allegation's in his pleading am'ounts to an admission of their truth, where he not only went to trial as if the allegations had been denied, but introduced evidence to support their truth, and made no objection when counter evidence was offered, or when the question was submitted to the jury for their determination.</p> <p>APPEAL-SUFFICIENCY OF EVIDENCE.</p> <p>The weight and sufficiency of the evidence is always a question for the jury, where there is a substantial conflict; and, in such case, the judgment should be affirmed, although the appellate court may be satisfied that the evidence would have permitted a different verdict.</p> <p>CONTRACT OF EMPLOYMENT — BREACH — ACTION FOR DISCHARGE — INSTRUCTIONS.</p> <p>Where, in an action to recover upon a contract of employment, evidence that plaintiff began work at an earlier date than that fixed by the written contract had been excluded on the ground that it was a variation of a written instrument by parol, it was 'error for the.court to charge the jury upon the question of defendant’s liability by reason of the plaintiff having entered upon the services at a date earlier than the written contract.</p> <p>SAME.</p> <p>In an action to recover upon a contract of employment from which plaintiff had been discharged without the sixty days’ notice provided by contract being given, the defense being that such a course was warranted by his gross breaches of contract, it was error to charge the jury that if the plaintiff was in the performance of his duties under the contract in good faith, in all its material particulars, “at the time” the defendant discharged him, then he could recover.</p> <p>SAME.</p> <p>Where the defendant, in order to justify the summary discharge of plaintiff, who was working for it under a contract of employment as its superintendent, had introduced evidence tending to show that plaintiff employed one dissolute woman as a cook and suffered another to occupy a house on the company’s premises, and that he did not conduct himself properly with these women, it was error for the court, instead of treating the matter as an issue of fact for the jury to determine, to charge them that the question of plaintiff’s moral or immoral conduct had nothing to do with whether he had discharged his duties under the contract.</p> <p>SAME-WAIVER OE NEGLECT OE DUTY.</p> <p>Where, in an action to recover upon a contract of employment, defendant had counterclaimed for money 'overpaid to plaintiff for time when he was not engaged in the services of defendant, a charge to the jury that “any payment by the defendant to the plaintiff for any services during any particular time would he a waiver of any fact of absence or neglect or failure to discharge his duties during that time, which had come to the knowledge of the defendant before the payment for that time,” was misleading, in view of the fact that plaintiff had paid himself monthly out of the defendant’s funds in his hands, and defendant would not he estopped by the fact of payment, unless it had knowledge that there was a failure to discharge the duties for the particular time, knowledge that the time was paid for, and a delay for an unreasonable time in demanding repayment.</p>

<p>MECHANIC’S LIEN-FORECLOSURE-PERSONAL JUDGMENT-ENFORCEMENT CONFINED TO DEFICIENCY.</p> <p>Under Laws 1893, p. 37, § 12, one who has ’obtained a judgment of foreclosure of a mechanic’s lien, together with a personal judgment in the same proceeding against the party liable, cannot in the first instance issue a general execution on the personal judgment, hut rtfust first, under a special execution, sell the property upon which it is adjudged he has a lien, credit the proceeds thereof on his judgment, and issue a general execution for the balance, before other property than that liened upon can he seized and sold.</p>

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

<p>TRIAL-DISCHARGE OE JURY.</p> <p>Where there are no disputed facts in the evidence, hut merely questions of law for the- court are presented, the discharge of the jury is proper, since there is nothing for it to pass upon.</p> <p>CORPORATIONS-CONVEYANCES-AUTHORITY OF OFFICERS TO EXECUTE — PRESUMPTIONS.</p> <p>The authority of officers of a corporation to execute a deed will he conclusively presumed, although there was no express authorization therefor, when it appears that the hoard of directors had by resolution given the president general authority to dispose of the corporate lands, for which he and the secretary were empowered to execute the proper deeds in behalf of the corporation; that the president sold certain lands under contract that the purchaser should erect thereon a flouring mill of certain capacity, which was done in accordance with the contract; that the officers and stockholders knew all about the transaction at the time, but did not attempt to repudiate the authority until long after the benefits of the conveyance had been received by the corporation.</p> <p>SAME-ESTOPPEL.</p> <p>Where the officers of a corporation, under a general authorization to sell lands, sold and conveyed certain lands by quitclaim deed, in consideration of the expenditure of a large sum of money in improving sanie, and, on the discovery that the corporation had no title, a guaranty was given by the officers that title would he acquired from the state and transferred to the purchaser, and in reliance thereon the purchaser made the-improvements with the full knowledge of the officers and stockholders of the corporation, who made no attempt to repudiate the transaction until long afterwards, the corporation is estopjed from asserting ownership under the after-acquired title, on the ground that the transactions of the officers were in excess of their authority.</p> <p>QUITCLAIM DEED-CONVEYANCE OE AETER-ACQUIRED TITLE.</p> <p>A quitclaim deed which recites that it remises, releases and quitclaims to the grantee certain lands, "to have and to hold all and singular the said described premises, together with the appurtenances unto the said party of the second part and to his heirs and assigns forever,” is sufficient to pass an after-acquired title, under Bal. Code, § 4521, which provides that a statutory quitclaim deed does not convey after-acquired title, “unless words are added expressing such intention,” and under Id., § 4538a, which provides that whenever any person sells land in the state without having title at the time, and afterwards acquires a title thereto, “such title shall inure to the benefit of the purchasers.”</p>

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

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

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

<p>PROHIBITION, WHEN LIES-INADEQUATE REMEDY BY APPEAL.</p> <p>The writ of prohibition will issue against the superior court in favor of a defendant on whose motion a receiver was discharged, from which order appeal was taken by plaintiff and the control of the receiver superseded during appeal, since there is no remedy by appeal for the defendant, the only appealable order, if any, being the one in his favor for the discharge of the receiver.</p> <p>RECEIVERS-DISCHARGE-APPEAL-EEEECT OE SUPERSEDEAS.</p> <p>Where the discharge of a receiver follows as a matter of course upon the affirmance of the final judgment in a cause which makes no provision for the retention of the receiver, an order for the discharge is self-executing, and the filing of a supersedeas bond on a second appeal would not reinstate the receiver, or authorize the court to maintain possession of the property pending appeal.</p>

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

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

<p>DENTISTS-EXAMINATION AND DEGISTEATION.</p> <p>The proviso to § 1, of the act of 1901, amending the dentistry law of 1893, which excepts from the operation of the statutory requirements as to examination and registration of dentists, '“persons engaged in the practice of dentistry at the time of the passage of this act who are bona fide citizens of the state of Washington,” contemplates only those who were lawfully practicing at that date, and would not operate in favor of those who had been practicing as dentists in violation of the existing law at the time of the passage of the amendatory law.</p> <p>"SAME-CONSTITUTIONAL LAW.</p> <p>Laws for the regulation of the practice of dentistry fall within 'the police power of the state, and hence are not unconstitutional on the ground of infringing the rights of the individual.</p> <p>■SAME-STATUTES-TITLE OF ACT.</p> <p>An act providing a penalty for practicing dentistry without •a license is not unconstitutional because of the failure of the title to specify that the act provides for a penalty, since the "title of the act, “An act to regulate the practice of dentistry in the state of Washington,” is comprehensive enough to include ■the means necessary to effect the object sought by the statute.</p>

<p>SALES-VOID CONTRACT-BIGHT OF POSSESSION-ATTACHMENT.</p> <p>The fact that a contract for the sale of goods for an immoral purpose was unenforcible would not entitle an attaching creditor of the vendee to hold them as against the vendor, to whom the vendee had surrendered all right and title in the goods.</p> <p>SAME-JUDGMENT FOR WRONGFUL REPLEVIN-SATISFACTION.</p> <p>A judgment awarding the return of goods or the recovery of their value on account of a wrongful replevy must he deemed satisfied and therefore unenforcible where it appears that the judgment is in favor of an attaching creditor who took the goods under an illegal writ of attachment which was reversed on appeal, and that the attachment debtor had subsequently surrendered all right in the replevied goods to the party who had sued out the writ of replevin.</p> <p>SAME-ESTOPPEL TO ASSERT COMMUNITY INTEREST.</p> <p>Where a husband procures an attachment sale of goods as the separate property of his wife, he is 'estopped from setting up a comrrfunity interest therein as against one subsequently acquiring title through the wife.</p>

<p>WITNESSES-CROSS-EXAMINATION.</p> <p>Prejudicial error cannot be assigned upon the refusal of the court to permit cross-examination as to a certain matter, when the same ground had already been reasonably covered in prior cross-examination of the witness.</p> <p>SAME-REPEATED EXAMINATION.</p> <p>Where an extended examination has been had upon a certain subject in evidence, the refusal of the court to permit further examination going over the same ground would not be error.</p> <p>TRIAL-ADMISSION OE EVIDENCE-COMMENTS BY COURT-HARMLESS ERROR.</p> <p>An alleged copy of a disputed assignment being admissible on a showing that the original had been delivered to defendant who refused to produce it on demand, it was not prejudicial error for the court to remark, at the time the copy was offered in evidence, “It would be admissible for what it is worth' — what it shows; just as much as the original would be,” when subsequent testimony and instructions made it clear to the jury that defendant denied the existence of the original assignment.</p> <p>SAME-INSTRUCTIONS-COMMENT ON EVIDENCE'.</p> <p>A comment by the court in his charge to the jury upon a matter not material under the issues would not constitute prejudicial error.</p> <p>APPEAL-OBJECTIONS NOT URGED BELOW.</p> <p>The objection that evidence admitted on the trial was hearsay cannot be raised for the first time on appeal, when specific objection on that ground was not urged below.</p> <p>SAME-ERRORS NOT IN RECORD.</p> <p>The exclusion of record evidence will not be considered on appeal, when such evidence was not formally offered on the trial and is not in the record on appeal.</p> <p>PLEADING-GENERAL ISSUE-EAILURE OE CONSIDERATION.</p> <p>A failure of consideration is not raised by an answer of general denial in an action on an instrument which imports a consideration.</p>

<p>FORECLOSURE DECREE-COLLATERAL ATTACK-IRREGULARITIES-PUBLICATION OF SUMMONS PRIOR TO AFFIDAVIT.</p> <p>The publication of summons in a foreclosure proceeding prior to the filing with the clerk of the court of the affidavit showing the existence of the necessary facts for publication, as required by Laws 1893, p. 410, § 9, is merely an irregularity, which is insufficient on collateral attack to warrant any finding against the validity of the foreclosure decree.</p>

<p>Appeal from Superior Court, Spokane County. — How. Prank H. Budkin, Judge.</p>

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

<p>Appeal from Superior Court, Skagit County. — Hon. Jeremiah Ueterer, Judge.</p>

<p>APPEAL-DISMISSAL-GROUNDS-FAILURE TO FILE TRANSCRIPT PRIOR TO SERVING BRIEF.</p> <p>Failure to file transcript before service of appellant’s brief, as required by Laws 1901, p. 29, § 2, is not ground for dismissal, nor for the imposition of term’s, where the transcript was supplied the same day the motion to dismiss was served, and one week before it was filed in the supreme court.</p> <p>SAME-DEPRIVING RESPONDENT OF OPPORTUNITY TO SEE TRANSCRIPT.</p> <p>The action of appellant in causing the transcript on appeal to be forwarded to the supreme court on the same day his brief is filed is not ground for dismissal, inasmuch as timely application by respondent would secure a return of the transcript for use in preparation of his answering brief.</p> <p>SAME-EXTENSION OF TIME FOR FILING BRIEFS-PRESUMPTIONS.</p> <p>An order of the lower court extending the time for filing briefs will be presumed not to be an abuse of discretion when the order recites that good cause was shown and there is nothing clearly showing the contrary.</p> <p>MANDAMUS —' ALTERNATIVE WRIT-INSUFFICIENCY OF ALLEGATIONS.</p> <p>An alternative writ of mandate to compel a municipal corporation to issue a warrant .upon a judgment against it is demurrable for want of facts, when it fails to allege that the judgment was satisfied by petitioner and a certified copy thereof presented to the city, as required by Bal. Code, § 5676.</p> <p>SAME.</p> <p>A petition for an alternative writ of mandate which refers to an affidavit filed ■ in support of a prior writ that had been quashed is insufficient, where some of the necessary elements showing the right to the writ are omitted from the petition but are contained in such affidavit, and the affidavit is not served with the amended petition. (State ex rel. King v. Trimbell, 12 Wash. 440, distinguished.)</p> <p>SAME-ISSUANCE OF WARRANTS AGAINST PARTICULAR FUND.</p> <p>An alternative writ of mandate does not state facts sufficient when it recites that petitioner is entitled to a warrant upon the current expense fund of the defendant city in satisfaction of a judgment, but no allegations are contained in the writ showing under what kind of contract the obligation which was merged in the judgment arose, nor against what fund it was a charge when the contract was made (Townsend Gas, etc., Co. v. Hill, 24 Wash. 469, distinguished).</p> <p>SAME-REFUSAL OF PUBLIC OFFICER TO DISCHARGE DUTY-REMEDY BY ATTACHMENT-ADEQUACY.</p> <p>The remedy provided by attachment, under Bal. Code, § 5677, against an officer of a public corporation who shall fail or refuse to satisfy a judgment against it in compliance with the provisions therefor in Id., § 5676, would not exclude the remedy by mandamus, since the former would not be wholly adequate to compel the specific act affording the necessary relief to be done.</p>

<p>PARTNERSHIP — ACTION BOB ACCOUNTING — JUDGMENT.</p> <p>In an action for an accounting between partners, a court of equity has power not only to state the account between the parties, but to enter a money judgment in favor of one and against another, as the state of the account may require.</p> <p>SAME — CONVERSION — OUTSIDE THE ISSUES.</p> <p>Where a suit is in equity for an accounting and partition of personal property between partners, and not an action at law for conversion, the refusal of the court to enter judgment in favor of plaintiff for the value of the property would not be error, although defendants had refused to acknowledge his right of possession when demand was made upon them.</p> <p>TRIAL ON WRONG THEORY-WHEN WITHOUT PREJUDICE.</p> <p>Where the theory on which a case was tried was adopted on the insistence of defendants, over the objection of plaintiff, they cannot urge on appeal that it was an erroneous theory, or without the issues made by the pleadings.</p>

<p>CRIMINAL LAW-TRIAL OR CONVICT UNDER SENTENCE UPON ANOTHER CHARGE.</p> <p>The superior court of a county has jurisdiction to remove from the penitentiary a convict under sentence, for the purpose of trying him upon another charge and of re-sentencing him, in case of conviction, to a term beginning at the expiration of the current term which he is serving.</p>

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

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

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

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

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

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

<p>.TELEGRAPH COMPANIES-LIABILITY FOR MISTAKE IN TELEPHONING MESSAGE-WHEN MESSENGER AGENT OF ADDRESSEE.</p> <p>Where the person, to whom a telegraph message was sent asked the messenger of the company to telephone him the contents of the telegram because he was outside of the free delivery district, he thereby constituted such messenger his own agent, and a mistake by the messenger in transmitting the contents of the telegram could not be chargeable against the company on the theory of ratification of his acts from the fact of his being in their employ and'using a telephone in their office to repeat the message, with the knowledge of the telegraph operator, when there is nothing to show that the operator heard the message read over the telephone, or knew that a mistake had been made.</p> <p>SAME — DELIVERY OF MESSAGE — SUFFICIENCY.</p> <p>Any delivery of a telegraph message which, in law, would be good as between the receiver of the message and the company is good as between the sender and the company.</p> <p>SAME-EVIDENCE-QUESTION FOR JURY.</p> <p>Where a principal has testified that he does not remember having authorized his agent to send a certain telegram, but the agent testifies positively that he was so authorized, there is no such substantial conflict as to require the submission of the question to the jury.</p>

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

<p>CONVERSION-UNAUTHORIZED LOAN BY BANK CASHIER-PLEADING-IMMATERIAL ALLEGATIONS.</p> <p>In an action against bank officers for the conversion of funds, allegations in the complaint to the effect that the converted funds were pretended to be loaned by defendants to a speculative corporation without mercantile credit were immaterial.</p> <p>SAME-EVIDENCE-MATERIALITY.</p> <p>Where defendants in such an action are charged with converting money of the bank to their own use, evidence that the corporation to which they claimed the funds had been loaned was of a speculative character, without property, and unworthy of credit was properly excluded because of its immateriality.</p> <p>SAME — RATIFICATION OF LOAN BY DIRECTORS.</p> <p>The directors of a bank are estopped to deny the authority of-the cashier and assistant cashier in the extension of credit to a speculative corporation in which the latter were stockholders, where the directors had known of the course of dealing for a period of five years without making objection thereto, and consequently the loan of the bank’s money to such corporation under such circumstances is insufficient to establish a conversion of the funds.</p> <p>STATUTE OF FRAUDS-PROMISE TO ANSWER FOR DEBT OF ANOTHER.</p> <p>The oral promise of bank officers to repay to the bank money that they have loaned out of its funds to an insolvent corporation is not binding, because a promise to answer for the debt of an-another, and not in writing.</p>

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

<p>NEGLIGENCE —' LIABILITY OF MASTER-SUFFICIENCY OF EVIDENCE.</p> <p>In an action by a servant for personal injuries, where there is no evidence, either direct or circumstantial, as to how the accident happened, but merely evidence of different causes that could have produced the injury, for some of which the master might have been liable, there can be no recovery unless it is established that the injury could have been produced in no other way than by some act or omission amounting to negligence on the part of the master.</p>

<p>COVENANT OP WARRANTY-LOSS OF PART OP LAND-ACTION FOB BREACH — MEASURE OF DAMAGES.</p> <p>. “ The measure of damages for breach of a covenant of warranty, where title has failed to part of the tract conveyed, is such proportion of the consideration paid as the value of that part of the land to which the title has failed hears to the value of the whole tract, together with interest on such proportion.</p> <p>SAME-CONDITIONS OP CONTRACT OP SALE-MERGER IN DEED.</p> <p>. • In determining the purchase price of land with a view to fixityg the measure of damages upon a breach of warranty, the value of improvements placed upon the land by the grantee cannot he included, although the contract for a conveyance was conditioned upon the erection of the improvement and the payment of the money consideration, inasmuch as such preliminary contract had become merged in the deed upon which the action was founded.</p>

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

<p>LIBEL-TRUTH AS A DEFENSE.</p> <p>In a civil action of slander or libel, the truth of the matter published is a complete defense.</p> <p>SAME — VARIANCE.</p> <p>In an action for libel on account of a newspaper article charging plaintiff with abstracting money from a “special postal fund”, evidence that the fund was really a “deposit made with the postmaster, as a cash bond” by a newspaper to secure the payment of postage as required by law would not constitute such a variance as to invalidate the defense set up that the alleged libelous matter was true.</p> <p>SAME-SUFFICIENCY OF EVIDENCE*</p> <p>Where there is no direct chárge in a publication that plaintiff committed embezzlement in abstracting funds belonging to another for his own private use, but merely a statement of the facts, it would not be incumbent on defendant, in sustaining the truth of the charge, to prove all the elements of the crime of embezzlement.</p>

<p>PHYSICIANS-PRACTICING WITHOUT LICENSE-SUPPICIENCY OP EVIDENCE.</p> <p>In a prosecution for practicing medicine without a license a conviction was unwarranted, where the only 'evidence thereof was the advertisement in a newspaper as a doctor of a person of the same name as defendant, since the jury would not be justified in inferring therefrom, as against the presumption of innocence, either that the advertisement was authorized by defendant or that he was the person named therein.</p>

<p>CONSTITUTIONAL LAW-APPELLATE JURISDICTION OF SUPREME COURT -VALIDITY OF STATUTE.</p> <p>Where the supreme court obtains jurisdiction of an appeal in an action in which the original amount in controversy does not exceed the sum of $200, merely because of the fact that the validity of a statute is put in issue as to one of several causes of action included in the complaint, its jurisdiction extends only to the cause of action affected by the statute.</p> <p>SAME —■ EQUAL PRIVILEGES MILEAGE OF COUNTY SUPERINTENDENTS.</p> <p>Section 8 of the act of March 19, 1901 (Laws 1901, p. 377) authorizing county superintendents to charge five cents mileage in counties of the first to the tenth classes inclusive and ten cents mileage in all counties having a higher class number than the tenth, does not violate art. 1, § 12, of the state constitution, which prohibits the passage of laws granting to any citizen or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all.</p> <p>SAME-EQUAL PROTECTION OF THE LAWS.</p> <p>Such a law cannot be said to operate unequally, and therefore in violation of the fourteenth amendment of the United States constitution, in the absence of a showing that the cost of travel is the same in all counties.</p>

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

<p>COSTS-LIABILITY OF COUNTY — INVALID ATTEMPT OF SUPERVISOR TO COLLECT POLL TAX.</p> <p>An action by a road supervisor, under Bal. Code, § 3822, to enforce the payment of a road poll tax is a proceeding in behalf of the county, and hence where a judgment obtained by the road supervisor before a justice of the peace is vacated and set aside in the superior court, a judgment against the county for costs is warranted, inasmuch as the failure to obtain a valid judgment cannot be imputed to the justice and supervisor as a tort, so as to exonerate the county from liability.</p>

<p>APPEAL-DISMISSAL-FAILURE TO SERVE NOTICE ON SURETIES.</p> <p>An appeal from a judgment on a cost bond will be dismissed, where the sureties on the bond have not joined in the appeal nor been served with notice of the appeal.</p>

<p>APPEAL-MOTION TO DISMISS-NOTICE OF MOTION--SUFFICIENCY OJ¡! SERVICE.</p> <p>A certificate of service of a motion upon the attorney for defendant to the effect that the sheriff, having made diligent search' for such attorney without being able to find him at his usual place of abode or anywhere else, had duly served the motion on said attorney by leaving a copy thereof under the door of a room which he believed to be the office of said attorney, is not a sufficient showing of service.</p> <p>SAME-TIME OF SERVICE.</p> <p>A motion to dismiss an appeal will hot be considered, where the appellant has not had the ten days’ notice required by the supreme court rules in such cases. •</p>

<p>Appeal from Superior Court, Spokane County. — Hon. A. G. Ejgixam, Judge pro iem.</p>

<p>PARTNERSHIP-EXECUTION OF MORTGAGE-REFUSAL OF PARTNER TO JOIN-EFFECT.</p> <p>A mortgage executed in the partnership name by some of the members of a non-trading partnership, to secure money loaned the firm from time to time for the purpose of increasing its plant and property, is a valid lien on the whole of the property of the firm, although one of the copartners refused to join in its execution, there being no affirmative showing that he refused his assent to the execution of the mortgage by the partnership, but, on the contrary, that the debt was incurred with his knowledge, and that he had enjoyed the fruits of the money received thereby in the betterment of the partnership property.</p>

<p>PLEADING-ACTION ON GUARANTY BOND-ALLEGATION OF CONSIDERATION.</p> <p>A complaint on a guaranty bond is not demurrable for want of facts because it appears that the bond was executed a week later than the execution of the contract it guarantied, and there is no allegation of consideration for the guaranty, when the complaint sets out the bond in full, showing it to be an instrument under seal, which in itself imports a consideration.</p>

<p>CORPORATIONS-POWERS OF VICE PRESIDENT-EMPLOYMENT OF COUNSEL.</p> <p>The acts of counsel for a corporation appointed by a vice president thereof are binding on the corporation, where the president had resigned and left the country, and the vice president was the acting president.</p> <p>SAME-INSOLVENCY-APPOINTMENT OF RECEIVER.</p> <p>The action of the trial court in appointing a receiver for a corporation upon the application of a creditor will not be disturbed on appeal on a showing made that the corporation had been conducting a telephone business which it had recently abandoned upon a transfer of its franchises and business to another company; that it was allowing its entire tangible property, consisting of wires, poles and telephone instruments to go to ruin, without any effort to care therefor; and that the board of trustees cannot agree upon the management of its affairs, and that the company must continue without official management, unless a receiver be appointed.</p>

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

<p>FORCIBLE ENTRY AND DETAINER-ACTION BY TENANT-EXPIRATION OE LEASE-EEEECT.</p> <p>Although a lease may have expired prior to the trial of an action by the tenant for forcible entry, the tenant may still recover in the samé action damages flowing from the forcible entry and detainer, even if he no longer has a right to a precedent judgment for restitution.</p>

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

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

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

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

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

<p>. Appeal from Superior Court, Pacific County. — Hon. Alonzo E. Rice, Judge.</p>