Volume 32 — Washington Reports

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

<p>• CRIMINAL LAW-INFORMATION-JURISDICTION OF COURT-PRESUMPTIONS. ' -</p> <p>In a prosecution by information, it will be presumed, in support of tbe jurisdiction’ of tbe superior court, in tbe absence of a contrary showing, that the defendant was not at the time under indictment for the offense with which he is charged, that the court was in session, and that the grand jury was not in session when the information was filed.</p> <p>SAME-QUASHING INFORMATION-GROUNDS.</p> <p>Under Bal. Code, § 6892, prescribing the grounds for setting aside an information, it' was not error for the court to refuse to quash an information upon the alleged grounds that no warrant had ever been issued for the arrest of defendant, that he had never had a preliminary examination, and that, at the time the information was filed, he was restrained of his liberty.</p> <p>SAME-PROSECUTION BY INFORMATION-ALLEGATION OF PREREQUISITES.</p> <p>The existence of the facts or conditions which the statute enumerates as prerequisites to the right to prosecute by information need not be set forth in the information itself.</p> <p>SAME-JURISDICTION OF PERSON OF ACCUSED.</p> <p>The fact that a defendant was arrested, in the first instance, by a person not having a lawful warrant therefor would not be ground for reversal of tbe judgment for lack of jurisdiction of the person of defendant, when it appears that he was in fact in the custody of an officer, was present in court on the day of his arraignment, entered a plea of not guilty, and was in court throughout the trial.</p> <p>TRIAL-COMPETENCY OE EXPERTS-BY WHOM DETERMINED.</p> <p>The competency of a witness to express an opinion upon a professional or scientific matter is a preliminary question for the trial court to decide.</p> <p>SAME-OBJECTIONS TO EVIDENCE-WITHDRAWAL.</p> <p>Objections to testimony will not be considered on appeal, when the objections were immediately withdrawn in the trial court, after being made there.</p> <p>SAME-TIMELINESS OE OBJECTIONS..</p> <p>An objection to a ruling of the court on the admission of evidence must be interposed, under Bal. Code, § 5055, at the time it was made, and not afterwards.</p> <p>WITNESSES-CROSS-EXAMINATION OE ACCUSED.</p> <p>Cross-examination of the accused, when testifying in his own behalf, as to his past life, conduct, habits, and associates was proper, where, in his direct examination, he had given testimony as to his life, occupation, and habits at the various places where he had resided from childhood down to date of the crime with which he was charged.</p> <p>SAME-' CREDIBILITY.</p> <p>Where an accused testifies in his own behalf, he is subject to cross-examination to impair his credit as a witness to the same extent that any other witness is.</p> <p>MURDER-EVIDENCE-TESTIMONY OE NON-EXPERTS.</p> <p>Testimony relative to the probable distance at which a revolver was held from the head of deceased when it was discharged by one who had experimented with the revolver for the purpose of ascertaining at what distance powder marks similar to those on the face of deceased would be produced is not expert testimony and therefore would pot require that the witness qualify as an expert. '</p> <p>SAME-INSTRUCTIONS-OVERCOMING PRESUMPTION OE MURDER IN SECOND DEGREE.</p> <p>An instruction that “where a homicide is proved beyond a reasonable doubt, the presumption is that it is murder in the second degree. If the state would elevate it to murder in the first degree, it must establish the characteristics of that crime, and if .the prisoner would reduce it to manslaughter the burden is on him,” is not open to the objection that it charges the jury the burden is on defendant to prove himself not guilty of murder in the second degree.</p> <p>SAME-INTEREST OE ACCUSED.</p> <p>An instruction that the jury have a right to take into consideration the interest in the verdict of a defendant who has testified in his own behalf is not erroneous on the ground of prejudicing the defendant by specially directing attention to his testimony.</p> <p>SAME-ACCUSED AS WITNESS-EALSUS IN UNO EALSUS IN TOTO.</p> <p>An instruction that a defendant upon the witness stand subjects himself to all the rules governing the credibility of witnesses, among them the rule that if the jury believe any witness has sworn falsely as to anything material to the issues, they are at liberty to disregard his entire testimony, except where it is corroborated, is a correct statement of the law.</p>

<p>MASTER AND SERVANT-TORTS OE SERVANT-JOINT LIABILITY.</p> <p>An action for tortious negligence may he maintained against the master and his employee jointly, where the injury was caused hy the act of the latter (Howe v.' ’Northern Pacific Ry. Go., 30 Wash. 569, followed).</p> <p>RAILROADS-INJURY TO EMPLOYEE-CONTRIBUTORY NEGLIGENCE.</p> <p>In an action hy a railway employee against the company to recover for injuries recovered hy being struck hy a fast passenger train while riding upon a hand-car a nonsuit was proper, when it appeared that the accident happened near a small station at which this train did not stop, but was accustomed to go hy at full speed; that the plaintiff had worked for the company at that point for four years and knew the train was due and would pass at full speed; and that prior to the accident he was not looking and listening for it, and failed to notice the headlight until he was struck; there being no positive evidence that the whistle and hell were not sounded as was customary, hut merely that the witnesses did not hear them.</p>

<p>Appeal from Superior Court, Clielialis County. — Hon. Mason Ibwin, Judge.</p>

<p> Original Proceeding for Disbarment. </p>

<p>APPEAL-DISMISSAL-CESSATION OF CONTKOVEKST.</p> <p>Where tbe subject-matter of a controversy bas ceased prior to judgment, by reason of tbe performance on tbe part of defendants of duties or obligations wbicb tbe action was brought to determine, no appeal will lie from such judgment merely for the purpose of determining the question of costs.</p>

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

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

<p>APPEAL-SETTLEMENT OF STATEMENT OF FACTS-WAIVER OF EIGHT TO PROPOSE AMENDMENTS-EFFECT.</p> <p>The settlement and certification of a proposed statement of facts, upon the waiver by the adverse party of his right to propose amendments, ousts the court, in the absence of fraud, of further jurisdiction over the matter, even though objection is raised to the statement before the expiration of the ten days allowed by statute for the submission of amendments after the filing of the proposed statement.</p>

<p>RAPE ■ — • INFORMATION CRIME CHARGED — DUPLICITY,</p> <p>An information charging that defendant committed the crime of rape by feloniously making an assault upon a female child of the age of fourteen years, and that he did then and there feloniously ravish, carnally know and abuse her does not charge more than one crime, but sufficiently charges the crime under that subdivision of Bal. Code, § 7062, which provides that a person shall be guilty of rape who shall carnally know any female child under the age of eighteen years.</p> <p>CRIMINAL LAW-ARGUMENT OF COUNSEL-DISPUTE 'OVER EVIDENCE-MISTAKE OF COURT • — ■ REFUSAL TO CORRECT.</p> <p>Where counsel for the state and for the defense dispute one another’s statements in their argument to the jury as to whether a certain material and relevant fact was in evidence, and the court waves the dispute aside with the remark that there is no such testimony in the case, and refuses to instruct the jury otherwise when the court is shown by the stenographer’s notes to be mistaken, the action of the court constitutes reversible error.</p>

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

<p>COMMENCEMENT OF ACTION-SERVICE OF COMBIAINT ON ATTOBNEYAUTHORITY MUST BE SHOWN.</p> <p>An order of the court dismissing an action as to one of the defendants was not erroneous, where no original process had ever been served upon him, but the amended complaint in the action had been served upon an attorney, and the proofs were conflicting as to whether or not the defendant had authorized that manner of service.</p>

<p>JUDGMENTS-COMMENCEMENT OE LIEN.</p> <p>Where appeal has been taken from a judgment, the lien of the judgment does not become dormant until five years after the final determination of the cause on .appeal, under Bal. Code, § 5132, which provides that the real estate of a judgment debtor shall be bound to satisfy any judgment “for the period of five years from the day on which such judgment was rendered,” and Id., § 5143, which provides that “in all cases of an appeal the date of final judgment in the supreme court shall be- the time from which said five years shall commence to run.”</p> <p>SAME — FAILURE TO ISSUE EXECUTIONS FOR FIVE YEARS-REPEAL OF STATUTE.</p> <p>Bal. Code, § 5192, which authorizes the issuance of execution by the judgment creditor at any time, provided a period of five years shall not have elapsed since the issuance of a prior execution, in which case execution should not issue until such judgment should be revived, has been modified and superseded by the later enactment of Bal. Code, §§ 5132, 5143, which limit the lien of all judgments to a period of five years, whether execution has been issued on them in the meantime or not, which, in cases of appeal, shall extend from the date of final judgment in thp appellate court.</p> <p>EXECUTION SALE-ACTION TO SET ASIDE —• EVIDENCE • — ■ SHOWING AS TO PERSONALTY UNLEVIED ON.</p> <p>In an action to set aside an execution sale of realty, a finding by the court that the judgment debtor had $1,000 worth of personal property subject to execution was not warranted, where the testimony showed that this property consisted of household goods, office furniture, and a civil engineer’s outfit of surveying instruments, since the statute exempts household goods to the value of $500,' and tools of trade to the value of $500, and permits the selection of additional personal property to the value of $250.</p> <p>SAME-SALE OF REAL ESTATE-EXISTENCE OF PERSONALTY- — PRESUMPTIONS.</p> <p>A sheriff’s return of the sale of real property is not void on its face, by reason of failure to show that no personal property could be found out of which the judgment could be made, but, in a collateral action to set aside the sale, the presumption would be that the officer performed his duty in this respect.</p> <p>SAME-NOTICE TO JUDGMENT DEBTOR. Bal. Code, § 4886a, which provides that after a party has once appeared in an action he shall be entitled to at least three days’ notice of any trial, motion, application, sale or proceeding therein has no application to proceedings had to enforce the judgment, but merely defines the rights of the respective parties before judgment, and hence would not require notice to a debtor of motion for the confirmation of an execution sale.</p> <p>SAME —• SALES GOVERNED BY EXISTING LAW.</p> <p>Tbe sale of real property under execution has been governed, since its enactment, by Laws 1899, p. 85, whether the execution was issued under a judgment rendered prior or subsequent thereto.</p> <p>SAME-NOTICES OE SALE-POSTING-INSUFFICIENCY.</p> <p>Laws 1899, p. 86, § 3, requiring the sheriff to post notices of the execution sale of realty "in three public places in the county, one of which shall be at the court house door, where the property is to be sold, and one posted on the property to be sold,” is satisfied by the posting in a conspicuous place on the property levied on, although it may not be a “public place”; and by the posting upon one of several tracts, although somewhat widely separated, instead of upon each parcel to be sold.</p> <p>SAME —■ PRESUMPTION AS TO OFFICIAL DUTY.</p> <p>A sheriff’s return reciting that notice of sale was posted in a public place at the court house is not void on its face, under a statute prescribing that the notice shall be posted at the court house door, inasmuch as it does not negative the fact that it was posted at the required place, and the presumption is that the officer complied with the law.</p> <p>HOMESTEAD — • NATURE OF RIGHT-ENACTMENT OF NEW LAW-EFFECT.</p> <p>The passage of the homestead law of 1895 (Bal. Code, § 5214 et seq.) whereby the value of the property thereby exempted was increased, but a declaration of the claim was required to be executed, acknowledged and filed with the county auditor, did not operate as an abrogation of homestead-rights acquired under the prior law, which had imposed no such duty on the claimant, inasmuch as a homestead is in the nature of a vested interest, which would not be destroyed by the mere repeal of the statute authorizing its acquisition.</p> <p>SAME-EXCESS VALUE SUBJECT TO SALE-HOW SOLD.</p> <p>Under the statutes of this state, a sale of homestead under a general execution is absolutely void; it can be sold at no time except for its excess of value, and this can be reached only by a sale in the manner provided by the law in force at the time of its selection.</p> <p>EXECUTION SALE- — -ACTION TO SET ASIDE-DAMAGES.</p> <p>In an action to set aside an execution sale of real property a judgment for more than nominal damages was erroneous, where the only element of damage shown was the worry and discomfort of plaintiff, and that he could make no disposition of the property because of the continuance of the suit, — there being no showing of an actual loss by reason of that fact.</p>

<p>CONSPIRACY-SUFFICIENCY OF INFORMATION.</p> <p>An information charging defendants with feloniously conspiring together to obtain from a member of the state medical examining board, for a money consideration, the set of questions to be propounded at the ensuing medical examination to be held by said board as required by law, to which answers were to be prepared in advance, so as to enable one of the defendants to pass the examination and thereby fraudulently and unlawfully procure a license to practice medicine, states a cause of action.</p> <p>SAME EVIDENCE ■— VARIANCE.</p> <p>Where the charge in an information is the unlawful con spiracy to. fraudulently obtain examination questions from tha state medical examining board, it would be immaterial whether the questions were actually obtained or not, and hence the admission by the state as a fact that the questions were not so obtained would not constitute a variance.</p> <p>SAME.</p> <p>The fact that one of the conspirators supposed that he was conspiring with a member of the board, through a go-between, when in fact he was conspiring with his co-defendant, would he immaterial, since it is not necessary to show that conspirators actually come together in person.</p>

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

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

<p>PRINCIPAL AND SURETY-CONTRACTOR’S BOND-WAIVER OP CONTRACT CONDITIONS-DISCHARGE OP SURETY.</p> <p>A guaranty company which, for a compensation, becomes surety upon the bond given by a building contractor for the faithful performance of his contract cannot escape liability by reason of deviations from the exact terms of the contract, where such provisions were waived by the contractor and no damage is shown as resulting to the surety by reason thereof.</p>

<p>BURGLARY-BUILDING ENTERED-ELAT CAB.</p> <p>A flat car loaded with freight, which was covered with a heavy canvas is not the character of structure contemplated by the term “railroad car,” so as to make the felonious taking of goods therefrom constitute the crime of burglary, under Bal. Code, § 7104, which defines the crime as the unlawful entry in the night time, or the unlawful breaking and entry in the day time of any house, office, store, railroad car, etc., or any building in which goods are kept.</p>

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

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

<p>HABEAS CORPUS-APPEAL-NECESSITY FOE BOND.</p> <p>Proceedings in habeas corpus being of a civil, and not of a criminal, nature, an appeal from an order remanding tbe applicant to custody would be ineffectual as a stay of proceedings, where no appeal bond bad been filed within five days after notice of appeal, as required in civil actions by Bal. Code, § 6505.</p> <p>SAME-RESTRAINING ACTION OF COURT PENDING APPEAL-PRESUMPTIONS ARISING FROM ISSUANCE OF ALTERNATIVE WRIT OF PROHIBITION.</p> <p>The fact that an alternative writ of prohibition restraining the trial court from remanding an applicant for habeas corpus to custody was issued within five days after -an appeal was taken from such order would not raise a presumption in favor of tbe regularity of tbe appeal, when tbe uncontroverted answer to such alternative writ shows that a bond bad not been given within five days after notice of appeal, as required by statute.</p>

<p>SUMMONS-SERVICE BY PUBLICATION-SUFFICIENCY.</p> <p>Where the statute regulating service of summons by publication provides that such summons shall direct the defendant “to appear within sixty days after the date of the first publication of the summons, exclusive of the day of said first publication, and defend the action,” a summons which requires the defendant “to appear within sixty days after the service of this summons upon you, exclusive of the day of service, and defend this action,” would not confer jurisdiction upon the court to render judgment.</p> <p>SAME-SETTING ASIDE DEFAULT-APPEALABLE ORDER.</p> <p>Under Bal. Code, §4880, which provides that, if the summons is not served personally on the defendant in certain cases, he may be allowed to defend within one year after the rendition of judgment, an order setting aside a default and vacating a judgment entered in such a case would not be an appealable order, since such action is not the grant of a new trial, which is made appealable under subd. 6 of Bal. Code, §6500, nor can the right of appeal be claimed under subd. 7 of the same section authorizing appeal from any final order made after judgment, inasmuch as a void judgment could not give the appellant any substantial right capable of being affected by the action of the court.</p>

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

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

<p>APPEAL-OBJECTIONS TO EVIDENCE-SUEEIOIENCY EOR PURPOSES OE REVIEW.</p> <p>Where objections to evidence in the trial court state no specific grounds against its admissibility, they will not be considered on appeal.</p>

<p>APPEAL-SUFFICIENCY OF EVIDENCE.</p> <p>Where there is evidence to support the verdict in a criminal prosecution, although it may not be of the most convincing kind, the verdict will not be disturbed on appeal on the ground of the insufficiency of the evidence.</p> <p>SAME-HARMLESS ERROR-REFUSAL TO STRIKE TESTIMONY.</p> <p>The denial of a motion to strike the answers of a witness to improper questions, to which no objection had been interposed, cannot be urged as error when the answers were not prejudicial to appellant.</p> <p>SAME-IMPROPER EXAMINATION OF WITNESS.</p> <p>The attempt to affect the credibility of a witness by asking him if he had ever been arrested for robbery was harmless error, where the witness answered that he was acquitted of the charge.</p> <p>TRIAL-ADJOURNMENT TO PROCURE WITNESSES-DISCRETION OF COURT.</p> <p>The granting or refusing an application by the accused for the adjournment of a trial to enable him to procure the attendance of absent witnesses is a matter within the discretion of the trial court, whose action will not be disturbed in the absence of a showing of abuse of such discretion.</p> <p>EVIDENCE-ADMISSIBILITY OF HEARSAY FOR PURPOSES OF EXPLANATION.</p> <p>Where a conversation by one of the state’s witnesses to the effect that the accused would not get out of jail before he would be arrested again had been put in evidence, it was not error to permit such witness, in explaining his conversation, to show that he understood there were other warrants out for the arrest of accused, even though such testimony as to the warrants was mere hearsay.</p> <p>SAME-EXAMINATION OF WITNESSES-REBUTTAL.</p> <p>Where testimony had been introduced by the defense tending to convey the impression that a conspiracy existed among the state’s witnesses to wrongfully convict the accused, it was not error to permit the state, in rebuttal, to introduce evidence in denial of such alleged plot.</p> <p>SAME.</p> <p>In such a case, evidence in rebuttal was also admissible for the purpose of showing the reputation as a peaceful, law-abiding citizen of a person who was not present at the trial, but who, a witness of the accused had testified, had threatened a witness who intended to appear in the interest of the accused.</p> <p>ROBBERY-EVIDENCE-RES GESTAE.</p> <p>Statements made immediately on recovering consciousness by one who had been knocked down and robbed, are admissible as part of the res gestae, although made in the absence of the accused and by one who had been drinking just prior to the blow, since the weight to be attached to such statements owing to the mental condition of the witness at the time was for the jury to determine.</p>

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

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

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

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

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

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

<p>PARTY WAIL AGREEMENT-COVENANT RUNNING WITH LAND — ENFORCEMENT AFTER CONVEYANCE BY COVENANTEE.</p> <p>Where the owners of adjoining lots, on which a party wall had been constructed, under an agreement making the promise to pay one-half the expense thereof a covenant running with the land, united in a conveyance of one of the lots by warranty deed without any reservation whatever, the grantee acquired the lot and the portion of the wall thereon freed from any liability under the covenant for repayment of one-half its cost.</p>

<p>Appeal from Superior Court, Garfield County. — Hon. Chistee F. Miller, Judge.. -</p>

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

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

<p>RECEIVERS-PLURALITY OF FUNDS-PAYMENT OF CLAIMS.</p> <p>A receiver appointed to take charge of the separate, community and partnership estates of an insolvent debtor, under a decree providing for the payment of each class of creditors primarily from the corresponding class of funds, cannot he compelled to pay a separate debt of the insolvent out of funds derived solely from the community estate of himself and wife, when it appears that the claims against that estate have not been satisfied.</p> <p>SAME-FUNDS AVAILABLE FOR RECEIVERSHIP EXPENSES.</p> <p>Where hut one receivership has been created to take charge of the partnership, community and individual estate of an insolvent debtor, funds derived from any of such estates are properly applicable toward payment of the expenses of the receivership.</p>

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

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

<p>CRIMINAL LAW-EVIDENCE-ADMISSIONS.</p> <p>Admissions of accused at the preliminary examination, upon being asked by the magistrate whether or not he had any testimony to offer, are not made under the influence of fear produced by threats, and evidence of the same is admissible, although the witnesses did not say in words that they were not made under the influence of fear.</p> <p>SAME.</p> <p>Evidence of admissions by accused is admissible where the jailer testifies that no inducements were held out to the accused, and that they were made in the presence of his wife when she was visiting him in the jail.</p> <p>RAPE-EVIDENCE OF OTHER CRIMES-IMPEACHING CHARACTER.</p> <p>Upon the charge of rape of defendant’s daughter, where the defendant’s general character has been put in issue, and his wife has testified on cross-examination that a daughter other than the one named in the information never told her that the accused had attempted to commit the crime of rape upon her, it is error requiring a reversal to permit the state to impeach the defendant’s character by evidence of a specific crime other than the one for which he is on trial.</p> <p>SAME.</p> <p>Neither is it competent to rehut his wife’s testimony hy evidence of the daughter to the effect that defendant had attempted to have sexual intercourse with her, as the state is concluded by answers on cross-examination pertaining to collateral matters.</p> <p>REASONABLE DOUBT.</p> <p>An instruction as to reasonable doubt approved (following State v. Krug, 12 Wash. 288).</p>

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

<p>KAILEOADS-KILLING STOCK-EVIDENCE.</p> <p>In an action for tbe killing of stock on a railroad right of way through negligence in the operation of the train at a point where stock was frequently encountered and likely to be caught in a trap, the plaintiff is entitled to show lack of cattle guards, although not alleged, as descriptive of the place, and as bearing upon the degree of care required under the conditions existing at that point.</p> <p>SAME-NEGLIGENCE-QUESTION EOE JURY.</p> <p>Where a witness of the plaintiff testifies that a locomotive and train of eleven empty cars, running upon a down grade of one per cent, at the rate of ten or twelve miles an hour, could be stopped within sixty feet, negligence in failing to stop the train is a question for the jury, notwithstanding the testimony of the defendant’s employees to the effect that the train was in all respects properly equipped and operated and that it could not have been stopped in any event before reaching the stock on the track about 400 feet away.</p> <p>SAME.</p> <p>Where a train consisting of a locomotive and eleven empty cars was running on a down grade of one per cent, at about ten or twelve miles an hour at a point where stock was frequently encountered and likely to be caught in a trap, it is a question for the jury whether defendant was guilty of negligence in running at this place at such a rate of speed that the train could not be controlled.</p>

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

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

<p>TAXATION-AEBITBAKY ASSESSMENT-EVIDENCE.</p> <p>In an action to recover taxes paid under protest, and alleged to have been fraudulently and arbitrarily assessed without regard to the true value of the land, it is proper to exclude oral evidence that the assessor increased the assessment of prior years, as the same was not the best evidence and was immaterial.</p> <p>SAME.</p> <p>In such action it is proper to receive in evidence on the part of the defendant, as bearing on the good faith of the assessor, and the arbitrariness of his action, (1) letters from the owners and his agent which were in reply to inquiries by the assessor as to their estimate of values; (2) testimony as to the methods pursued by and the duties of his deputy; (3) a certified copy of a deed just prior to the assessment showing a consideration in excess of the valuation; and (4) evidence that, upon objecting before the board of equalization, the owner’s agent stated orally that he “had no kick coming.”</p> <p>SAME-APPEAL-REVIEW OF FINDINGS.</p> <p>In such action findings will not be disturbed where the evidence shows that the assessor made reasonable effort to ascertain the value and exercised his best judgment in fixing the same.</p>

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

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

<p>STATUTES-TITEE.</p> <p>It was competent for the legislature to enact the penal code of 1881 with the comprehensive title, “An act relative to crimes and punishments and proceedings in criminal cases,” but provisions of a civil nature could not be included therein.</p> <p>SAME-BASTABDY PROCEEDINGS.</p> <p>A bastardy proceeding against a putative father for the support of his illegitimate child, commenced by summons and tried as a civil action, with judgment and execution against his property, is a civil proceeding, and the provisions therefor enacted in 1881 as part of the penal code, are not embraced within the title of the act, which relates, only to crimes and punishments.</p> <p>BASTARDY-COMMON-LAW LIABILITY.</p> <p>There is no common-law obligation on the part of a putative father to support his illegitimate child.</p>

<p>CRIMINAL LAW-INFORMATION-DUPLICITY-WAIVER.</p> <p>An objection to an indictment or information on the ground of duplicity is waived if not made until after verdict.</p> <p>ASSAULT WITH INTENT TO MURDER-INFORMATION.</p> <p>An information held sufficient to charge an assault with intent to commit murder, under Bal. Code, § 7057.</p> <p>VERDICT — OBJECTIONS.</p> <p>Failing to object to the form of a verdict does not preclude the defendant from objecting to its substance, and to the sentence as not warranted by the verdict.</p> <p>ASSAULT —- INTENT TO INFLICT BODILY INJURY-PARTIAL VERDICT.</p> <p>Upon an information' for assault with a deadly weapon with intent to murder, under Bal. Code, § 7057, a verdict finding the defendant guilty of “assault with a deadly weapon” does not warrant a sentence for an assault with intent to inflict hodily injury under Bal. Code, § 7058, hut only for a simple assault, as the intent is an essential element of the offense and must he' found as a fact hy the jury.</p> <p>SAME.</p> <p>In such case, while the verdict is to he liberally construed, the intention of the jury to find an intent to inflict hodily injury cannot he inferred from the fact that the information charges, and the instructions define, that offense.</p> <p>SAME.</p> <p>A partial verdict must specify the particular offense.</p> <p>SAME — SURPLUSAGE IN VERDICT.</p> <p>There is no such offense as assault with a deadly weapon, under the law of this state, and the words “with a deadly weapon” in a verdict are to he treated as surplusage.</p>

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

<p>APPEAL-TIME OF TAKING-SUSPENSION OF JUDGMENT.</p> <p>Where, after judgment in an equitable action tried by the court, a motion for a new trial is made, supported by affidavits, and counter affidavits are filed, and it is stipulated that “all the facts and evidence taken in the cause should be considered” on the decision of the motion, “with as full effect as if said judgment had not been rendered,” the judgment is waived and suspended and the time for taking an appeal therefrom does not begin to run until the entry of the order on the motion.</p> <p>QUIETING TITLE-MINING LOCATIONS-FINDINGS UPON DISPUTED TESTIMONY.</p> <p>In an action to quiet title to a mining claim where there were several successive locations, findings for the plaintiff claiming under the second location will not be disturbed upon conflicting testimony as to the fact of the first location, and the required assessment work thereunder, where there was much conflict as to the plaintiff’s assessment work, and these points were resolved in favor of the plaintiff by the lower court after hearing all the evidence and seeing the witnesses.</p>

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

<p>MASTER AND SERVANT — NEGLIGENCE-SAFE APPLIANCES.</p> <p>Where plaintiff, an engineer in charge of a donkey engine in a logging outfit, was injured by the breaking of a small and defective swamp hook, used to pull a large water tank, and the large swamp hook usually employed for that purpose was at the time attached to the donkey, holding a block in place, and no other hook was provided by the master, it is not a case of the proper selection by a servant from sufficient appliances concededly furnished by the master, but there was a dispute as to whether the master in the first instance had furnished the necessary available appliance, raising a question of negligence for the jury.</p> <p>SAME-VICE PRINCIPALS.</p> <p>A foreman known as the “hook tender” in charge of a logging crew, whose duty it was to give directions both as to the operations and selection of appliances for moving from one location to another a donkey engine and a large water tank containing 600 or 700 gallons of water, by means of a swamp hook attached to a cable pulled by the engine, is, under the circumstances, a vice principal in his relations to the engineer and men of the crew and is charged with the duty of providing a sufficient swamp hook.</p> <p>SAME.</p> <p>Where such hook tender directs a laborer known as the “rigging slinger” to attach the swamp hook for the purpose of moving the water tank, the “rigging slinger” is a mere intermediary and the arm of the hook tender, and his negligence in selecting an insufficient swamp hook is the act of a vice principal and not that of a fellow servant.</p> <p>SAME.</p> <p>In such a case where the hook tender is in the immediate presence of the tank, and the large hook was only a few feet away, he owed the duty to see that the same was used.</p> <p>SAME-SELECTION OF APPLIANCES.</p> <p>A selection from sufficient appliances actually furnished by the master, made by the person whose duty it is to make the selection, or made under his direction, is the act of a vice-principal, and in this case raises a question of negligence for the jury, conceding that sufficient appliances were furnished.</p> <p>SAME-CONTRIBUTORY NEGLIGENCE.</p> <p>The contributory negligence of the engineer in starting up the engine with a hard pull without first taking up six or seven feet of slack in the cable, as was usually done, is a question for the jury, where there was evidence that he obeyed the signal of the foreman for a hard pull, and also that the defective hook would have broken with any kind of a pull.</p> <p>SAME.</p> <p>Contributory negligence of the engineer, in that he knew of the use of the small swamp hook and did not object to it, is a question for the jury, where he denies such knowledge.</p> <p>SAME APPEAL —■ DECISION QUESTION FOR JURY.</p> <p>In such a ease, upon reversal, a motion to remand with instructions to have the damages assessed will be denied, as the questions of negligence and contributory negligence must be all submitted to the jury.</p>

<p>NEGLIGENCE-DEFECTIVE STREETS-CONTRIBUTORY NEGLIGENCE.</p> <p>In an action for personal injuries received by falling into an unguarded trench in the street, the plaintiff is guilty of contributory negligence as a matter of law, where it appears that she knew the location of the trench', that it was wide and deep, with slippery banks, that she had jumped across it the same afternoon, and was injured in . attempting to re-cross it after dark without the aid of lights.</p> <p>SAME — -SPECIAL VERDICT.</p> <p>In such a case, a special verdict finding the above facts, and that the plaintiff knew it was dangerous to attempt to cross on account of the darkness and slippery banks, is in conflict with and controls a general verdict for the plaintiff, and it is error to refuse the defendant judgment thereon.</p>

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

<p>Appeal from Superior Court, King County. — Hon. G-eobge E. Mobeis, Judge.</p>

<p>Appeal from Superior Court, "WMtmau County. — Hon. Chester H Miller, Judge.</p>

<p>Appeal from Superior Court, Clie]ialis County.- — Hon. Oliver AC Line, Judge.</p>

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

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

<p>SCHOOLS-TEXT BOOKS-CONTRACT OE STATE BOARD — CHANGE OE COURSE OE STUDY.</p> <p>After the state board of education has adopted a series of text books, and prescribed a course of study, and made a contract with a publisher for the use of its books for five years in certain grades of the public schools, a county board will be enjoined from so changing the course of study for such grades that approximately twenty per cent, less students in the schools of a city will use such books during the year.</p> <p>SAME-REVIEWING STATE BOARD OE EDUCATION.</p> <p>The fact that such course of study was inadvisable is immaterial, and the courts cannot review the action of the state board except for fraud.</p> <p>SAME-STATUTES-IMPAIRING OBLIGATION OE CONTRACT.</p> <p>. The contract of the state board of education for the purchase of school books for a period of five years cannot be impaired by subsequent legislation.</p>

<p>LANDLORD AND TENANT-UNLAWFUL DETAINEE-MERGER OE ESTATES.</p> <p>Where the lessee of a building sublets the second and third floors for the whole of the term of several years for $50 a month, and subsequently the second floor is surrendered by the subtenant, who then pays $20 per month, and the sub-tenant testifies that it was only a temporary surrender until he had use for it, while his landlord testifies that it was an absolute surrender and claims a merger, a verdict of restitution in favor of the subtenant and damages for detention resolves the question in his favor, and there could be no merger of estates by the temporary surrender.</p> <p>SAME.</p> <p>There was no merger in law, because there was an intermediate estate, retained by the sub-tenant, who did not yield his whole estate,.but only carved out a lesser estate, a tenancy from month to month for a limited time.</p> <p>SAME.</p> <p>The fact that the tenant ceased to pay the $50 per month, is not conclusive as to the merger, and the fact that he continued to pay one-half the water rent of the whole building is argumentative support for his contention that there was no merger.</p>

<p>GAMBLING — CONTRACTS-VALIDITY OF CHECKS.</p> <p>A check issued for money advanced for the purpose of gambling, where the payee wins the money, is void between the parties, under Bal. Code, § 7267, and it is immaterial whether it was won before or after it was advanced.</p> <p>SAME — PROMISE TO PAT.</p> <p>The subsequent promise of the loser to pay invalid checks given for money lost in gambling does not make the checks valid in the hands of any person with notice.</p> <p>SAME-EVIDENCE-HARMLESS ERROR.</p> <p>In an action to recover on checks given in payment of money lost in a gambling game with G., the introduction in evidence of the records in a police court wherein G, was convicted of conducting a gambling game, is harmless, where the fact was not disputed and was proven beyond question ' by other competent evidence.</p> <p>EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE-AFFIDAVIT.</p> <p>A claim presented to an administrator for allowance must, under Bal. Code, § 6229, be accompanied by the original affidavit of the claimant, and a copy of the affidavit is insufficient.</p> <p>GAMBLING-NEGOTIABLE INSTRUMENTS •— BONA FIDE HOLDER.</p> <p>In an action by an assignee of checks given for money lost in gambling, the jury is properly instructed that the plaintiff can not recover if he knew, when he purchased the checks, of the circumstances under which they were given.</p>

<p>Appeal from Superior Court, Spokaue County. Hon. Geobge W. Belt, Judge.</p>

<p>APPEAL-PINAL ORDERS.</p> <p>An order denying a motion to quash the service of a summons is not a final order or one that in effect determines the action, and is not appealable.</p>

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

<p>SUMMONS-SERVICE BY PUBLICATION- — SUEJGTCIENCY.</p> <p>Under Laws 1901, p. 384, § 1, siibd. 2, authorizing service by publication in proceedings to foreclose tax liens, wherein the owner of the property shall be directed to appear. within sixty days after the date of the first publication (exclusive of the first day) and defend the action, publication requiring defendant to appear “within sixty days after the service of this notice and summons” was not .a compliance with the statute, and hence failed to give the court jurisdiction.</p>

<p>VENDOR AND PURCHASER-CONTRACT OF SALE ■ — • CONDITIONAL OR ABSOLUTE —• CONSTRUCTION.</p> <p>A contract for the sale of land should be construed as conditional and not absolute, when its terms provided that the vendor should convey to the purchaser the lands described on payment of the taxes due and to become due, the principal and interest of a certain mortgage then a lien on the premises, and a sum which, together with such payments, would make $20,000, to be paid in installments at fixed times; that the purchaser should pay the taxes then due on or before a certain date, but expressly exempting him from agreeing to make any of the other payments; that, if any one payment is not made when due, all previous payments shall be forfeited at the option of the vendor, but should not “affect the parties as to any of said land already sold and conveyed,” under an agreement contained in the contract which provided that the vendor would convey to third parties certain of the lands on- payment by the other party to the contract of a fixed price per acre according to location; the rate for the entire contract in case of a consummation of sale by the purchaser being about $90 per acre, while the agreement for sale in parcels fixed a rate ranging from $125 to $300 per acre.</p> <p>SAME-NOVATION-TRUST AGREEMENT-EFFECT.</p> <p>A contract between an owner of land and another provided in effect for a sale of the entire tract at a specified price, payable in installments, with condition of forfeiture, and that, on payment to the vendor or application on a mortgage on the premises, any parcel of a certain portion would be conveyed to any one designated by the purchaser. Thereafter the vendee assigned his contract to a trust company, which for a consideration was to carry out the vendee’s plans and contracts. Subsequently judgments were entered against the vendor, preventing the free transfer of the property, and a contract was executed between the trust company and the vendor, which was denominated “a declaration of trust.” It recited the other contracts, that the trust company should be made “trustee” of the vendor, and that the lands had been conveyed to it; provided for a forfeiture in case the trust company should not collect moneys growing due under sales made by it to third parties; required a cash payment by the trust company to the vendor and the satisfaction of the judgments from moneys coming due under the original contract; and provided for the payment of certain damages claimed against the original purchaser. Subsequently it was found necessary to arrange for releases by the mortgagee of parcels sold, and a party was procured to purchase the mortgage. All four parties then united in a contract, reciting all the others, designating the trust company as “trustee” for the vendor, and providing for releases of the parcels sold as contemplated by the first contract on payment of specified sums per parcel. Held, that the trust company did not become a mere trustee as to the vendor, and entitled to compensation for its services, but stood in the place oí, and had the same rights and privileges as, the purchaser.</p>

<p>APPEAL-JURISDICTION OF SUPREME COURT' — AMOUNT IN CONTROVERSY.</p> <p>The appellate jurisdiction of the supreme court would extend to a case in which the original complaint claimed damages in excess of $200 for the killing of cows, even though the claim as made in an amended complaint had reduced the damages sued for to the sum of $200. (Anders and Dunbar, JJ., dissent.)</p> <p>DAMAGES-MARKET VALUE OF CATTLE KILLED-EVIDENCE.</p> <p>Evidence of the quantity and value of milk given by certain cows, which were chiefly valuable for their milk, is admissible for the purpose of aiding the jury in determining their market value in an action for damages for their death.</p> <p>RAILROADS-KILLING CATTLE-FAILURE TO FENCE-NATURAL BARRIERS.</p> <p>The existence of natural barriers along a railway track would not excuse the company from liability for stock killed at that point, where there was free access to the track at the ends of such barriers, under Bal. Code, § 4332, which provides that “it shall be prima facie evidence of negligence on the part of defendant to show that the railroad track was not fenced so as to turn stock from the track.”</p>

<p>APPEAL-NOTICE-SUFFICIENCY-DESIGNATION OF RESPONDENTS.</p> <p>The taking of an appeal not being the commencement of a new action, but a subsequent proceeding in the original action, a notice of appeal, directed to one of the respondents by name and referring to the others under the designation et al., and served upon the attorneys for such parties, is sufficient to give the supreme court jurisdiction.</p> <p>ADVERSE POSSESSION • — • TITLE ACQUIRED BY PAYMENT OF TAXES — OCCUPIED AND UNOCCUPIED LAND.</p> <p>Under Bal. Code, § 5503, vesting title in one who shall continue in actual, open and notorious possession of lands under color of title for a period of seven years, during which time he has paid the taxes thereon, and under Id., § 5504, declaring title in one who, having color of title to vacant and unoccupied land, pays the taxes thereon for seven years, the payment of taxes on land for seven years by one having color of title would vest him with the legal title, although part of such seven years he had been in actual possession, and the balance of the period had allowed the land tp lie vacant and unoccupied.</p> <p>SAME-COLOB OF TITLE-SHERIFF’S CERTIFICATE.</p> <p>Color of title, within the purview of Bal. Code, §§ 5503, 5504, takes its inception from the date of the sheriff’s sale of realty, even though it may be invalid, and not from the date of the execution of his deed pursuant to such sale.</p>

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

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

<p>EXECUTORS — EXECUTION OE RENEWAL NOTES-LIABILITY OE COMMUNITY ESTATE.</p> <p>A community estate would not be rendered liable by tbe execution of renewal promissory notes by one of tbe spouses after tbe death of tbe other, whether such notes were executed in bis capacity as executor or as a survivor of tbe community.</p> <p>SAME-ACTION ON CLAIMS-LIMITATIONS.</p> <p>The limitation in § 4798, Bal. Code, against right of action upon contracts in writing after tbe expiration of six years is not extended in case of tbe death of a debtor by tbe provisions of Id., §§ 6226, 6228, requiring notice to creditors and tbe presentment of claims within one year thereafter, as tbe latter sections give that right only to claims not already barred by tbe general statute of limitations.</p> <p>SAME-BIGHT OE ACTION AGAINST DECEDENT’S ESTATE.</p> <p>An action may be commenced against tbe personal representative of a deceased debtor, even after tbe statute of limitations has run against the' debt, under Bal. Code, § 4810, which provides that “if a person against whom an. action may he brought die before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may he commenced against his representatives after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.”</p> <p>SAME-QUALIFICATION OF EXECUTOB-ISSUANCE OF LETTEBS-AC-TIONS AGAINST-WHEN BAB BEGINS TO BUN.</p> <p>Under Bal. Code, § 6200, an executor is qualified to act as such and take charge of the1 estate when his bond is' filed, whether' letters testamentary have been issued or not,, and hence the running- of the year allowed by Id., § 4810, for the commencement of action against the1 executor would date • from the time of his qualification, although letters were not issued until a subsequent date.</p> <p>SAME LACHES OF CBEDITOB — -NOT EXCUSED- BY EXECUTOB'S NEGLECT</p> <p>OF DUTIES.</p> <p>The fact that an executor failed to proceed -with the administration. of an estate- would1 not. excuse1 a creditor who allowed1 hi's claim to. become barred by reason thereof, inasmuch as the creditor had a. remedy under Bal. Code,, §§ 6167, 6168, whereby he Gould have enforced administrative proceedings.</p>

<p>APPEAL-SUFFICIENCY OF EVIDENCE.</p> <p>Where there is substantial evidence in the record sustaining the verdict, though it be but the evidence of the person in whose favor the verdict was rendered, the supreme court has no rightful power to reverse the judgment for want of facts, no matter how strongly it may be convinced that the evidence preponderates with the other side.</p> <p>HUSBAND AND WIFE-ALIENATION OF AFFECTIONS-ACTION BY WIFE — EVIDENCE.</p> <p>In an action for the alienation of her husband’s affections, where it was not contended by the plaintiff, either in her complaint or evidence, that any one act of the defendant caused the separation of herself and husband, it was not error for the court to refuse to permit cross-examination of plaintiff requiring her to name some one act which caused the separation.</p> <p>SAME.</p> <p>In such an action, the complaint in a prior action by the husband for divorce was admissible in evidence as a declaration of the defendant, where the attorney who drew it up had already testified that he procured the facts therefor from the defendant in the present action.</p> <p>SAME-INSTRUCTIONS-ELEMENTS OF DAMAGE-LOSS OF SUPPORT.</p> <p>A charge to the jury in such a case that they might consider loss of support as an element of. damage was not erroneous, althougn there had been no direct evidence as to its money value, when there was evidence before the jury showing the circumstances and conditions in life of the husband and wife.</p> <p>SAME-EXCESSIVE DAMAGES.</p> <p>A verdict for $3,500 for the alienation of a husband’s affections is not so excessive as to appear to be the result of passion and prejudice on the part of the jury.</p> <p>VERDICT-IRREGULARITY.</p> <p>A verdict will not be set aside by reason of the fact that it had been obtained by computation, through the process of adding together the amounts favored by each individual juror and dividing the total by twelve, where it does not appear that an agreement was entered into by the jurors in advance to so agree upon a verdict.</p>

<p>DIVORCE-VACATION OF DECREE.</p> <p>Under Bal. Code, § 4880, which provides that in judgments based upon service by publication, the defendant may, "except in an action for divorce,” be allowed to defend within one year after judgment, the court has no power to vacate a decree of divorce, where there was no want of jurisdiction, nor fraud practiced in the procurement of the decree.</p> <p>SAME.</p> <p>The general statutes on the subject of vacation of judgments (Bal. Code, §4953 et seq.), which make no restriction in the case of divorce decrees is superseded in so far as they conflict, by the later enactment of Id., § 4880, which forbids the opening up of decrees of divorce.</p> <p>SAME-VOID ORDER FOR ALIMONY-CONTEMPT.</p> <p>A judgment convicting plaintiff of contempt for failure to comply with the order of the court requiring him to pay alimony and suit money was erroneous, where such order was made after the court had wrongfully attempted to vacate a decree of divorce and allow the defendant to interpose a cross-complaint.</p>

<p>PROHIBITION-REMEDY BY APPEAL.</p> <p>Prohibition will not lie to restrain a superior court from entering a judgment logically flowing from its findings, even if the legal operation of a former judgment in the case as res judicata is thereby destroyed, since such action of the court would amount to error for which there is a remedy by appeal.</p>

<p>TAX FpEECLOSUEiE •— SUMMONS TIME FOB APPEABANOE.</p> <p>Under Laws 1897, P- 182, § 96, subd. 3, requiring defendants in tax foreclosure cases to appear within sixty days after service of summons, exclusive of the day of service, and under Bal. Code, I 4878 (which, by Laws 1897, p, 182, § 97, is made applicable in tax cases), providing for the publication of summons in a newspaper once a week for six consecutive weeks, and that the service should not be complete until the expiration of the time prescribed for publication, a defendant in a tax foreclosure suit under the revenue law of 1897 would have sixty days for appearance after the completion of the publication of summons (Mount, J., and Fullerton, O. J., dissent).</p> <p>SAME-AMENDMENT OF STATUTE — EFFECT ON PENDING CASES.</p> <p>Where, pending the completion of service by publication, the law governing it is changed hy amendment so as to alter the procedure, and no provision, is enacted in the new law making it apply to pending cases or expressly repealing tbe old law, the question of the sufficiency of the summons to confer jurisdiction would be determined by the law in force at the time pf its issuance,</p> <p>GENEB4L APPEABANOE AFTEB JUDGMUNT — EFFECT.</p> <p>Where a judgment was yoid by reason of defective process, it would not be validated by the fact that the defendants subsequently made a general appearance in the action for the purpose of moving jts vacation.</p> <p>TRIAL —■ DELAY IN FILING PLEADINGS —-- DISCBETION OF COUBT.</p> <p>The sufficiency of defendant's excuse for delay in filing answer to a complaint after the setting aside of the original judgment therein is a matter resting largely in the discretion of the trial court for determination.</p>

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

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

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

<p>APPEAL-OBJECTION NOT RAISED BELOW-SUFFICIENCY OF COMPLAINT -PRESUMPTION AS TO AMENDMENT.</p> <p>The objection that the complaint does not allege defendant’s negligence as the proximate cause of plaintiff’s injury cannot be raised for the first time on appeal, when the evidence sufficiently connects the one as the proximate cause of the other, thereby warranting the court in deeming the complaint amended to correspond therewith.</p> <p>NEGLIGENCE-OBSTRUCTION IN HIGHWAY- — - FRIGHTENING HORSES-QUESTIONS FOR JURY.</p> <p>' Whether defendant was negligent in piliDg old planks on a highway close to the traveled part, without any authority therefor and without any showing of necessity except that the planks would have slid down and injured the abutting owner’s fence if they had been placed off the traveled way, on the slope of the embankment, and whether the obstruction was of such a character as to frighten horses, were questions for the jury in an action for injuries caused by plaintiff’s horse shying at such obstruction.</p> <p>SAME-EXCESSIVE DAMAGES.</p> <p>A verdict for $1,500 for injury to the arm of a common laborer cannot be said to be excessive, where it appears that he was entirely incapacitated from using it for about three months; that he would probably never be able to lift as much with it or use it as dexterously as before; that by reason of the fracture being in the joint of the elbow his suffering had been more acute than in the case of ordinary bone fractures; and that he had spent the sum of $100 for surgical treatment.</p> <p>SAME INSTRUCTIONS- — REASONABLE NECESSITY FOR OBSTRUCTIONS.</p> <p>In an action for damages because of injuries occasioned by the fright of a horse at debris placed along the side of a public highway by defendant, a charge to the jury that if it was not reasonably necessary for defendant in making improvements to use the highway for piling and burning debris, then defendant had no right to use it for that purpose, and plaintiff could recover damages for injuries occasioned thereby, was a proper statement of the law.</p> <p>SAME-HAEMLESS EEEOE.</p> <p>An appellant cannot complain of an instruction as being adapted to a question not in issue under the pleadings and proof, when the instruction, if erroneous at all, would be prejudicial to the respondent and not to the appellant.</p>

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

<p>HIGHWAYS-INJUNCTION AGAINST OPENING VACATED ROAD-SUFFICIENCY OF COMPLAINT.</p> <p>A complaint in an action to restrain a road supervisor from opening a highway through plaintiff’s land states a cause of action, when it sets up that such proposed road had formerly been a highway but had been vacated by the county commissioners and relocated elsewhere, even though there was no allegation showing the consent of the property owners whose lands were taken for the relocation of the road, inasmuch as the presumption of such consent would arise in the absence of a showing to the contrary.</p> <p>SAME —• EVIDENCE OBJECTIONS NOT URGED BELOW.</p> <p>An objection that the admission in evidence of records of the county commissioners was erroneous, on the ground that only certified copies were competent, cannot be urged on appeal when not specified as a ground on the trial.</p> <p>SAME-PRESUMPTIONS AS TO VALIDITY OF PROCEEDINGS.</p> <p>A finding by the court that a petition to the county commissioners for the vacation and relocation of a road was duly and regularly heard and granted raises the presumption that the evidence disclosed that all the necessary steps were taken by the commissioners to give their action validity.</p> <p>APPEAL-FINDINGS OF COURT-REVIEW.</p> <p>Findings of fact and conclusions of law will not be reviewed on appeal when the record fails to show exceptions thereto in the trial court.</p>

<p>Appeal from Superior Court, Lincoln Comity. — lion. Chakles H. Heal, Judge.</p>

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

<p>FORECLOSURE OF. MORTGAGE-QUESTION OF PARAMOUNT TITLE.</p> <p>Tbe question of paramount title may be determined in a suit to foreclose a mortgage, if the parties voluntarily submit such question for determination.</p> <p>VENDOR AND PURCHASER-UNAUTHORIZED CONVEYANCE BY CORPORATE • OFFICER-RATIFICATION-TITLE ACQUIRED-LIEN OF PRIOR UNRECORDED MORTGAGE.</p> <p>A mortgagee of land belonging to a corporation who fails to have his mortgage recorded, has no lien as against a subsequent grantee under a conveyance unauthorized by the corporation, who takes without notice of the prior mortgage, if the circumstances are such as to estop the corporation from denying the authorization.</p> <p>CORPORATIONS-CONVEYANCE BY OFFICER-AUTHORITY-ESTOPPEL.</p> <p>Where an officer of a corporation in sole charge of its business falsely represents that he has been authorized to make a sale of certain of its real estate, and fraudulently connives with a fictitious officer to make a conveyance thereof, and the corporation makes no move to disaffirm the conveyance for two years after discovery of the fraud, it is estopped to deny the authority of such officer.</p>

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

<p>MORTGAGE-PRIORITY-ESTOPPEL.</p> <p>Knowledge by a mortgagee of an action seeking to establish a prior lien over the mortgaged premises in favor of another would not estop the mortgagee from denying the validity of a decree declaring a prior lien, when the mortgagee had not been made a party to the action and served with process.</p> <p>SAME —• ASSIGNEE NOT BOUND BY ASSIGNOR’S KNOWLEDGE OF EQUITIES.</p> <p>Knowledge on the part of the assignor of a mortgage that a third party had an equitable lien against the premises would not affect the rights of an assignee who took without knowledge, actual or constructive, of the rights of such third party.</p> <p>NOTARY PUBLIC-MORTGAGE TO CORPORATION-ACKNOWLEDGMENT BEFORE CORPORATE OFFICER.</p> <p>The fact that a notary public is an officer in a corporation to which a mortgage is executed would not preclude his taking the acknowledgment of the mortgagor, as that is merely a ministerial act.</p> <p>FOREIGN CORPORATIONS — TRANSACTION OF BUSINESS WITHIN STATE.</p> <p>The purchase by a foreign corporation of a promissory note or mortgage in this state, with no intention of doing any other act here, is not a transaction of business within the meaning of the statute requiring every such corporation, before transacting business within this state, to record a certified copy of its articles of incorporation and appoint an agent within the state upon whom process can be served.</p> <p>MECHANICS’ LIENS ■ — ■ DATE OF COMMENCEMENT FOR FURNISHING MATERIALS.</p> <p>The inception of a material man’s lien is governed by the date of the actual furnishing of materials and not by the date of the contract therefor.</p>

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

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

<p>GARNISHMENT — ERRONEOUS JUDGMENT-INJUNCTION IMPROPER REMEDY.</p> <p>Injunction, will not lie to restrain the enforcement of a judgment against garnishees, where the court had jurisdiction of the subject-matter and the parties, since the remedy of the garnishees, if a finding of indebtedness to the principal defendant was not justified by the evidence, was the correction of such error by appeal.</p> <p>SAME-MONEY JUDGMENT AGAINST GARNISHEE WHO DISPOSES OF PERSONAL PROPERTY.</p> <p>The fact that garnishee defendants disposed of property of the principal defendant after the service of the writ of garnishment on them would not deprive the court of jurisdiction to make a finding of indebtedness to the principal defendant and enter judgment accordingly.</p>

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

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

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

<p>CONVEYANCES CONSIDERATION — LOVE AND AFFECTION.</p> <p>The transfer by a son to his mother for a nominal consideration of his interest as heir in his father’s portion of the community estate would be valid as against a subsequent assignee of such interest, where mother and son both testify as to the absence of fraudulent representations in procuring the conveyance to the mother, and state facts showing that it was actually made in consideration of love and afiection. .</p>

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

<p>APPEAL • — • SUCCESSIVE APPEALS.</p> <p>A second appeal may be taken by an appellant, without the necessity of having his original appeal dismissed.</p> <p>SAME-SUFFICIENCY OF APPEAL BOND.</p> <p>The requirement of Bal. Code, § 6506, to the effect, that the appeal bond shall be conditioned that the appellant will pay all costs and damages that may be awarded against him on the appeal or on the dismissal thereof, is sufficiently complied with where the appeal bond is conditioned that plaintiff will satisfy the judgment in case of affirmance, and any order which the supreme court may make, or order to be rendered by the superior court.</p> <p>SAME.</p> <p>Such a bond, though conditioned principally as a stay bond, is effectual as an appeal bond also, where it is in a penalty double the amount of the judgment and $200 additional.</p> <p>LIS PENDENS — SUIT TO BEMOVE CLOUD.</p> <p>Under Bal. Code, § 5521, which provides that any person in possession of real property may maintain a civil action against any person claiming an interest in said property, or any right thereto adverse to him, for the purpose of determining such claim, a suit to remove the cloud caused by the filing of a Us pendens notice in an action between other parties may be maintained by the owner, without awaiting the result of the action to which he is a stranger.</p> <p>SAME-CANCELLATION OF BECOBD.</p> <p>Bal. Code, § 4887, which provides that in actions affecting title to real estate, where a Us pendens is filed, the court may, at any time after the action is settled, discontinued, or abated, order the notice canceled of record, on application of any person aggrieved, is cumulative of the remedy provided by Id., § 5521, in so far as it is applicable to persons not parties to the action in which the notice was filed.</p>

<p>WITNESSES-RECALL FOR PURPOSE OF EXPLAINING TESTIMONY.</p> <p>Permitting the recall of plaintiff for the purpose of explaining' her testimony as given originally on the witness stand, and which had apparently been contradicted by the testimony of another witness, would not constitute prejudicial error, especially where the contradictory testimony had been elicited by means of improper cross-examination.</p> <p>SAME • — • IMPROPER CROSS-EXAMINATION ■— IMPEACHMENT.</p> <p>Testimony improperly elicited on cross-examination cannot he contradicted by the introduction of impeaching testimony.</p> <p>SAME-DECLARATIONS NOT IN PRESENCE OF PARTY-REBUTTAL.</p> <p>Declarations prejudicial to plaintiff, made by one not in her presence, cannot he introduced for the purpose of rebuttal, or to impeach the testimony given by one of her witnesses.</p> <p>CARRIERS-DEFECTIVE PLATFORM-INJURIES TO PASSENGERS-EVIDENCE OF CONTRIBUTORY NEGLIGENCE-ADMISSIBILITY.</p> <p>In an action for damages for injuries to plaintiff’s ankle, received from stepping into a rotten place in a railway platform, evidence on the part of defendant that plaintiff had a weak ankle was immaterial, in the absence of a plea of contributory negligence.</p>

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

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

<p>SCHOOLS AND SCHOOL DISTRICTS-RE-ELECTION OF TEACHERS-ACCEPTANCE -DISCHARGE.</p> <p>Where a teacher is re-elected for the ensuing year, and thereafter expresses her gratification to the secretary of the board that she is to have her same -work, and during vacation consults with the principal, at his request, in regard to her proposed work, acceptance on her part is sufficiently shown, and the dispensing with her services subsequently upon abolishing the line of work she had conducted, without giving her an opportunity to accept or refuse other work in the school, amounts to a breach of the contract.</p> <p>SAME.</p> <p>The acceptance of an offer to teach conveyed by a re-election of a teacher is established by her conference during vacation with the newly elected principal concerning the character of her work for the ensuing year, and a resolution of the board annulling her employment on the ground that it would not be for the best interests of the school amounts to a breach of contract.</p> <p>NORMAL SCHOOLS-TEACHERS-CERTIFICATES OF QUALIFICATION-NECESSITY.</p> <p>The certification of qualification of teachers of “higher and special institutions” not being required under that portion of the “Code of Public Instruction” (Laws 1897, title 4, p. 427) devoted to such institutions, but it- being the evident intent of the law that such certification shall apply only to teachers under the common-school system, one would not be incapable of entering into a contract to teach in one of the normal schools of the state by reason of not holding a teacher’s certificate.</p>

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

<p>FRAUDULENT CONVEYANCES-CONSIDERATION PASSING BETWEEN HUSBAND AND WIFE.</p> <p>In an action to set aside a transfer of real estate made by a husband to his second wife as in fraud of certain claims of his first wife, a finding of the validity of the transfer was warranted where the second wife testified that the conveyance was made in consideration of the price of certain furniture purchased from her by her husband about the time of their marriage, that she had assumed and subsequently paid from her own means a mortgage of $1,500 upon the property, and that the transfer had been made with the consent of the first wife; the testimony of the'husband that he received no consideration thereto’ being entitled to but little weight, owing to its contradictory character.</p> <p>JUDGMENT-COLLATERAL ATTACK-HARMLESS ERROR.</p> <p>A finding by the court that a judgment which was collaterally attached was obtained by fraud does not constitute reversible error, when the decree in the subsequent action does not attempt to avoid such fraudulent judgment or its legal effect.</p> <p>SAME-EES JUDICATA-ISSUES DETERMINED.</p> <p>A judgment in a prior action between the same parties affecting the same property cannot be res judicata upon the issue of fraud raised in the second case, when there were several affirmative defenses, including that of fraud, raised in the original action, and there is nothing in the record to show upon which of the issues the jury based their verdict in the original action.</p>

<p>DEED — PREMISES CONVEYED-EXCEPTION OE PARCEL EROM GRANT.</p> <p>Where a deed to plaintiff expressly reserved one acre for school purposes out of one corner of the tract conveyed, she has no standing to assert that the school district had title to hut one-half of an acre, from the fact that the original grant to the district had been but a half-acre, and had been so recognized by various grantors in plaintiff’s chain of title.</p>

<p>Appeal from Superior Court, King County. — Hon. Geobgke É. Mobbis, Judge.</p>

<p> Original Application for Writ of Review. </p>

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

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