Volume 36 — Washington Reports

<p>Adverse Possession — Unsurveyed Land — Mistake in Boundary Line — Claim op Right. One who settles upon unsurveyed government land and builds a house and makes improvements under a mistake as to where the boundary line will be run, and thereby incloses a strip of the adjoining tract, does not commence to hold such strip by adverse possession until the government lines are established, nor does such party so hold after the establishment of the lines and receipt of the patent, where it appears that no claim was made to any part of the adjoining tract, and that after talk with the adjoining owner about moving back the fence, consent was given that it remain temporarily; hence it is error to conclude that such party was owner in fee of the strip and that title thereto passed to her grantee, who claimed to have purchased without notice of the true boundary line.</p>

<p>Contracts — Construction—Performance—Certificate of Engineer. Where a railroad contract for the clearing of a right of way provides for payment upon the certificate of the chief engineer that the same has been fully completed, a certificate that he has “accepted” the work is all that is required.</p> <p>Same — Agreement for Cutting Wood — Amount Called for. Where a railroad contract for clearing right of way at a stated price per acre, contains the following: “Cutting cord wood 2 ft.</p> <p>long, not to exceed 1,000 cords . . . ?1.50,” the contractor is not required to cut 1,000 cords, hut it is optional with him to cut any amount not exceeding 1,000 cords, at $1.50 per cord.</p>

<p>Replevin — Source of Title — Pleading—Defenses—Showing Invalidity of Title Under General Denial. Where tbe plaintiff in an action of replevin alleges generally tbe ownership and right of possession of certain wheat, and at the trial claims by virtue of a written lease of the lands on which the wheat was raised, the defendants may show the invalidity of the lease under a general denial, since they need not anticipate the source of plaintiff’s title when the same is not disclosed by the complaint.</p> <p>Indians — Contracts—Leases—Approval by Indian Department. A lease of lands in the Cceur d’Alene Indian reservation from an Indian to a white.man is void unless approved by the Indian department.</p> <p>Replevin — Wheat Raised Under Invalid Lease ■— Possessory Rights — Indian Lease Not Approved by Department. Where the plaintiff leased lands in a reservation from the Indian owner by a written lease, which was void because not approved by the Indian department, and subsequently sublet the same on shares, furnishing the seed and paying for threshing the wheat raised, and his share was set aside for him by the sub-tenants, but the same came into the possession of the Indian owners of the land, claiming the right thereto, replevin will not lie in favor of the plaintiff on the theory that courts will protect the possessory right under such circumstances; since the plaintiff was never in the actual possession of the land or the wheat, and cannot claim constructive possession by virtue of an unlawful lease.</p>

, entered January 19, 1903, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to recover from a carrier for the loss of goods.

Appeal by defendants from, a judgment of the superior court for Kittitas county, Kudldn, J., entered June 25, 1903, appropriating a right of way for irrigation purposes, after a trial on the merits and the assessment of ’damages by a jury.

<p>Evidence — Admissions of Agent — Res Gestae — Incompetency of Servant. In an action for personal injuries sustained through the alleged incompetency of the engineer in charge of the defendant’s train, the declarations of defendant’s superintendent, who was not at the scene of the accident, made the day after, reflecting upon the engineer’s competency, are inadmissible and not binding upon the defendant, since they are not part of the res gestae.</p> <p>Master and Servant — Negligence—Railroad Wreck — Proximate Cause — Logging Train Colliding With Cows — Question for Jury. In an action for personal injuries sustained in a collision of a logging train with cows on the track, upon rounding a curve at the end of a down grade, the questions of plaintiff’s contributory negligence and assumption of the risks in riding on the engine, and whether the presence of the cows was the proximate cause of the injury, are for the jury, where the evidence was conflicting as to the competency of the engineer, the sufficiency of the equipment, and as to the negligence of the trainmen in permitting the train to get beyond their control.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered April 10, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $600 damages for malicious prosecution.</p>

Application to the supreme court, filed September 30, 1904, for a writ of mandate to compel the superior court for King county, Bell, J., to certify to a supplemental statement of facts.

, entered August 3, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action upon an employer’s liability insurance policy.

, entered December 19, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $620 damages for stock killed at a railroad crossing.

, entered June 27, 1903, upon the findings and decisions of the court, after a trial on the merits, a jury being waived, in an action of ejectment.

, entered October 29, 1903, upon findings and conclusions of the court, dismissing a garnishment proceeding, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered June 30, 1903, upon the verdict of a jury rendered in favor of the plaintiff.</p>

Certiorari, upon application of a receiver, to review an order of the superior court for King county, Hon. William H. White, Judge pro tempore, entered August 8, 1904, removing the receiver, upon application' of an intervenor.

, entered May 21, 1904, upon findings in favor of the defendant, vacating a decree of divorce on the ground of fraud, upon the petition of defendant, after a hearing on the merits.

<p>_ Trial — Demand for Jury — Waiver. A demand for a jury trial is waived where the trial is transfered to another judge, on the theory that the cause is of an equitable nature, with the suggestion that the party may save his right to a jury trial by a motion to remand, and no objection or motion to remand is made, and the trial is had without calling the trial judge’s attention to the demand.</p> <p>Assignment — Drafts Left With Bank — Directions to Apply Amount Collected. The delivery of drafts to a hank for collection, under an agreement between tbe payees and their creditor that the amount due him shall be credited to his account, amounts to an equitable assignment, and, upon collection by the bank, the title to the money passes to tbe creditor.</p> <p>Interpleader — Assignment of Drafts — Defenses—Previous Contract — Evidence—Admissibility. In an action of inter-</p> <p>pleader to determine conflicting claims to money collected by a bank, waged on the theory that the same had been assigned in payment of the amount due upon a contract, evidence in relation to the contract, which is not in dispute, is inadmissible, since the. claim for recovery is based on the assignment and not upon .the contract.</p> <p>Fraud — Contract to Locate Timber Claims — Rescission — Knowledge of Party — View of Premises. Where parties are seeking to recover money paid upon a contract, whereby they were located upon certain timber claims, for false representations respecting the location and character of the claims, it is not error to confine the testimony respecting fraud to tbe period after the parties returned from viewing the land, where, acting upon their own knowledge and with means of knowledge, they subsequently closed the transaction, and paid the balance due.</p> <p>Same — False Representations — Evidence—Sufficiency. Findings of the trial court against the claim of fraud and false representations respecting the location and character of timber claims, inducing a contract to locate thereon, will not he disturbed where tbe parties subsequently viewed tbe lands, consulted with the officers of the land department, and afterwards paid the balance due on the contract.</p> <p>Appeal and Error — Judgment in Name of Firm — Harmless Error. In a proceeding to determine conflicting claims to money-in court, the appellant, whose claim was denied, can not claim error in that the order directed the money to he paid to respondent’s firm, instead of to respondent individually.</p>

Application to the supreme court for a writ of prohibition, filed April 6, 1904-, to enjoin the superior court for King county, Bell, J., from enforcing orders to deliver property to a receiver.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered Kovember 10, 1903, dismissing the action, upon sustaining a demurrer to affirmative defenses in the answer.</p>

<p>Appeal — Final Orders — Vacation op Judgment. An order vacating a judgment of foreclosure of a tax certificate, which also quashes the service of summons, sets aside the tax deed, and directs redemption from the tax upon payment of the same, with costs, is appealable as a final judgment, although there is no formal order of dismissal of the action, since it effects a'disposition of the whole case.</p> <p>Appeal — Bonds—Tax Lien Foreclosure — Special Appeal Act. The plaintiff in a tax lien foreclosure may appeal from a judgment denying his right to foreclose, by giving an appeal bond under the general law of appeals, since the special provisions of Laws 1897, p. 186, as amended by Laws 1903, p. 75, requiring the bond on an appeal from a tax judgment to be served at the time of taking the appeal, conditioned for the payment of the tax, applies only to appeals by the party resisting the tax.</p> <p>Judgment — Vacation—Recitals as to Summons and Jurisdiction — Motion to Vacate. Where a judgment contains recitals showing due service of process, with other findings sufficient to show jurisdiction, the presumption of jurisdiction is not overcome by defects in the record, and hence an unsupported motion to vacate the judgment, based upon the record in the cause, is demurrable.</p>

, entered July 13, 1903, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries received in an elevator.

<p>Eminent Domain — Injunction Against City Improvement Until Damages Are Paid — Damages—Assessment by Jury Without Regular Condemnation Proceedings. Where an action, is brought by an abutting property owner to enjoin a city from further damaging the plantiffs’ property in improving a street, until compensation shall first be paid therefor, and a jury is called at plaintiffs’ request for the purpose of assessing damages, it is-not error to submit to the jury, over plaintiff’s objection, the question of what future damages the plaintiffs will suffer by the city’s completion of the improvement, where no prejudice appears from the mere fact that the damages were not ascertained hy a jury impaneled in a regular condemnation proceeding.</p> <p>Jurors — Challenge. In an action against a city, a challenge to a juror for implied bias solely because he had performed clerical work for the city is properly denied.</p> <p>Evidence — Experts—Limiting Number. It is within the discretion of the court to limit the number of expert witnesses called to testify to the value of land.</p> <p>Eminent Domain — Evidence—Damages. In an action to ascertain the damages to abutting owners by a change.of grade, it is proper to exclude mortality tables showing the expectancy of plaintiffs’ lives, and, also, evidence as to the effect upon their health that might result from climbing the flight of steps made necessary by the improvement.</p> <p>Same — Statements by Contractor — Hearsay. In such an action it is proper to exclude the statements of the contractor as to plaintiffs’ damages, since that would be hearsay as against the city.</p> <p>Same — Damages—Value oe Soil. Where an abutting lot is sloped off to meet a change of grade in the street, the soil which is removed is not land taken, and the actual value thereof is not to be added to the damages to the land not taken.</p> <p>Appeal — Trial—Reading Law to Jury — Instructions. Error can not be predicated upon the refusal of the trial court to allow counsel to read a decision of the supreme court to the jury, where the instructions which were given to the jury are not brought up in the record.</p> <p>Appeal and Error — Review—Amount of Recovery. Error in that the amount of a verdict was too small cannot be urged in the supreme court when the evidence upon which the same was based is not included in the record on appeal.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Heal, J., entered June 6, 1901, upon motion of the plaintiff for judgment upon the pleadings, in an action on contract.</p>

<p>Appeal — Appealable Oedees — Injunction—Dissolution—Finding oe Insolvency. An order dissolving a temporary injunction is not appealable, under Pierce’s Code, §1048, unless the court has found that the party enjoined was insolvent, as such finding is jurisdictional to the appeal.</p> <p>Appeal — Review—Statement oe Facts — Affidavits — How Brought up. Upon an appeal from a judgment dissolving a temporary injunction, based upon the complaint and the evidence in the form of affidavits submitted, there can he no reversal where the affidavits are not brought up in a hill of exceptions or statement of facts, and the appeal will he dismissed on motion.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Martin, J., entered May 10, 1904, upon sustaining a demurrer to an information, dismissing a prosecution for burglary.</p>

, entered Kebruary 23, 1904, after a hearing upon the merits of conflicting applications for the appointment of a guardian of a minor.

, entered June 10, 1904, after a hearing upon affidavits before the court without a jury, denying defendant’s motion to vacate a judgment foreclosing a tax lien.

Application to the supreme court, filed December 16, 1903, for a writ of mandamus, to compel the appraisement of tide lands.

<p>Criminal Law. — Evidence of Identity — Sufficiency—Question for Jury. In a prosecution for assault with intent to murder, in which the prosecuting witness positively identifies the prisoner as the person who shot him, the question of identity was for the jury, although the prosecuting witness stated shortly after the shooting, upon accusing the prisoner, who thereupon became angry, that he might have been mistaken as it was dark.</p> <p>Criminal Law — Assault with Intent to Kill — Intent not Presumed When Death Does not Result — Instructions. Upon a prosecution for assault with intent to kill, in which it appears that the prosecuting witness was shot in the hip, and death did not result, the intent to kill being an essential fact to be established by evidence and which can not be presumed as a matter of law, it is error to instruct that every person is presumed to intend the natural consequences of his acts, and that such presumption will always prevail unless the jury entertain a reasonable doubt as to the intent.</p> <p>Same. For the same reason it is error to instruct that such shooting would have been murder in the first degree in case death had resulted, if the shot had been fired in the intent to perpretate a robbery.</p> <p>Appeal and Error — Review—Trial—Conflicting Instructions— Curing Error. Where, of two conflicting instructions, it is impossible to determine which one the jury adopted, an erroneous instruction will not be held cured by a subsequent one correctly stating the law governing the subject.</p>

, entered November 21, 1903, denying an application to cancel the satisfaction of a judgment, after a hearing before the court without a jury.

<p>Appeal from a judgment of the superior court for 'Chehalis county, Rice, J., entered April 23, 1903, upon findings in favor of the plaintiff, after a trial before the court without a jury, decreeing the foreclosure of liens upon sawlogs.</p>

<p>Attachment — Dissolution. The dissolution of an attachment is within the discretion of the court.</p> <p>Pleadings — Action on Note — Tolling Statute or Limitations — Payments-—Pbesumed to be Made by Obligobs. A complaint in an action upon a promissory note is not demurrable because it does not affirmatively allege that the payments, relied upon to toll the statute of limitations were made or authorized by the obligors on the note, since the spirit of the code requires that to be presumed from the allegation specifying payments, and the fact that the payments were made by a stranger can be raised by answer.</p>

, entered September 30,1903, dismissing a writ of garnishment, upon sustaining a demurrer to the controverting affidavit of the garnishee.

<p>Application to the supreme court, filed October 20, 1904, for a writ of mandate to require the superior court for Jefferson county, Hatch, J., to cause an execution to issue.</p>

, entered July 25, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin trespassing.

, entered May 4, 1903, upon setting aside the verdict of a jury rendered in favor of the defendants by direction of the court and granting a new trial, in an action of claim and delivery for goods levied upon.

<p>Negligence — Dangerous Premises — Pall Down a Stairway in a Store — Contributory Negligence — Directed Verdict. In an action for personal injuries sustained by a customer in a store in falling down a stairway, a verdict for tbe defendants is properly directed when it appears from tbe plaintiff’s evidence that sbe fell down tbe entrance to an ordinary stairway, wbicb was protected on all sides except tbe entrance, and wbicb was not in tbe main aisle of tbe store, that it was light and witbin twenty feet of windows, and there were lights in tbe basement, and that plaintiff was wearing darkened glasses to protect her eyes from tbe light, and could have seen the stairway if she bad looked down.</p>

<p>Appeal from a judgment of the superior court for Ohehalis county, Irwin, J., entered February 1, 1904, upon sustaining a demurrer to the complaint, in an action to quiet title.</p>

<p>Appeal from a judgment of tbe superior court for Spokane county, Belt, J., entered July 3, 1903, upon granting a nonsuit at the close of plaintiff’s case, after a trial before the court and a jury, in an action on contract.</p>

Application to the supreme court, filed November 14, 1904, for a writ, of mandate to compel the superior court for King county, Bell, J., to set a cause for trial.

<p>Gross-appeals from a judgment of the superior court for Chehalis county, Rice, J., entered July 10, 1903, upon the special verdict of a jury rendered in favor of the plaintiff for damages for the detention of land, and refusing to find that the defendant was maintaining a public nuisance.</p>

<p>Adverse Possession — Seven Years Payment of Taxes — Good Faith of Purchaser — Community Property — Appeal—Review of Findings. Where the surviving husband conveyed certain lands by warranty deed to the defendants, and the children seek to recover a one-half interest in an action in which the defendants claim title by adverse possession for seven years under claim and color of title made in good faith, and the payment of taxes under Bal. Code, § 5503, findings to the effect that the property was purchased in good faith will not he disturbed, where one of the questions in issue was whether the same was community or separate property of the husband, and the testimony sustains the findings.</p>

, entered July 1, 1904, directing the payment of certain allowances to an administrator for services and attorneys’ fees.

<p>Appeal — Parties—Service op Notice — Appeal by Intervenors— Corporation Necessary Party to Appeal. Where, in an action brought against a corporation by a stockholder, temporary injunctions are issued, after an appearance and contest by the corporation, restraining the corporation and its officers and stockholders from holding a stockholders’ meeting, during the pendency of the action, and subsequently certain stockholders intervene in their own right, and appeal from an order refusing to dissolve the temporary injunctions, the corporation is a necessary party to the appeal, and interested therein, upon whom service of notice of the appeal by the intervenors must be made, or the appeal will he dismissed.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered November 16, 1904, upon findings in favor of the state, as intervenor and claimant, upon the final settlement of an estate, after overruling a demurrer to the complaint in intervention and a trial upon the merits before the court without a jury.</p>

, entered Feb. 9, 1903, levying an assessment against the stockholders of an insolvent bank, after overruling their demurrers, and a hearing upon the merits upon the petition of the receiver, filed in the receivership action.

, entered July 24, 1903, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, and also from an order for alimony entered September 1, 1903, in an action for a divorce.

, entered April 4, 1904, upon findings in favor of the defendants, after a trial on the merits before the court, a jury being waived, dismissing an action for personal injuries sustained by a passenger in stepping through a hole in the floor of the dock.

, entered March 19, 1903, upon granting defendant’s motion for judgment on the pleadings, in an action for damages for breach of a covenant to assume mortgages, and save the plaintiff from suits thereon.

<p>Criminal Law — Larceny — Evidence — Unidentified Money— Corroborating Circumstance. In a prosecution for the larceny of a twenty dollar gold piece, which the prosecuting witness testified positively was taken from his pocket hy the defendant in a certain room, where the defendant was at once arrested and denied the possession of the money, or that it was in the room, a twenty dollar gold piece found secreted in the room within half an hour after the arrest is admissible as a circumstance corroborating the witness, although he was. unable to identify it.</p> <p>Criminal Law- — -Information—Variance—Idem Sonans. It is not a fatal variance between an indictment and the proof upon a prosecution for larceny from the person of one Shuter, that the name was misspelled in the indictment with a double "t,” since they are idem, sonans.</p> <p>Larceny- — Evidence—Sufficiency. When the larceny of a twenty dollar gold piece was actually seen, and is testified to positively, there is sufficient evidence to warrant a conviction, the credibility of the witness being entirely for the jury.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Eichardson, J., entered February 23, 1904, upon a trial and conviction of the crime of embezzlement</p>

<p>Application to the supreme court for a writ of habeas corpus, filed December 16, 1903.</p>

, entered May 1, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon an oral guaranty of a promissory note.

, entered October 6, 1903, upon the verdict of a jury rendered in favor of the plaintiff for $1,900 damages for breach of an agreement to' execute a lease.

<p>Mechanics’ Liens — Interest of Owner Less Than Freehold. Under Bal. Code § 5901, where premises are held under a contract of sale, duly recorded, a mechanics’ lien for improvements contracted for by the vendee is confined to the interest of the vendee in the land, notwithstanding the fact that the vendor, in the contract of sale, requires the construction of the improvement, since the contractor deals with the vendee at his peril, and the lien is lost in case of forfeiture of the vendee’s interest.</p> <p>Mechanics’ Liens — Parties—Community Property — Foreclosure — Wife of Owner Necessary Party. The wife is a necessary party to an action to foreclose a mechanics’ lien upon community property.</p> <p>Same — Amendment Bringing in Party — Expiration of Time Limited for Foreclosure. The interests of a wife or other party in real estate can not be subjected to a mechanics’ lien when not originally made a party to the foreclosure suit and not brought in by amendment until after the expiration of the time limited for commencing the action. '</p> <p>Mechanics’ Lien — Notice—Sufficiency—Agent of an Agent. A notice that the materials were furnished and the work performed at the request of the S company, as agent for B, as agent for the owners, is not sufficient under Bal. Code § 5900 requiring it to have been done at the request of the agent of the owners.</p>

<p>Municipal Corporation» — Streets—Negligencb—Pleadings—¡ Evidence — Variance-—Permit to Repair Walk. In an action for personal injuries sustained in a fall through a trap door in the sidewalk, in which the city is alleged to have granted a permit to repair the sidewalk and trap door, it is not a variance to prove a permit to construct a brick walk at the same place.</p> <p>Same — Liability op City — Negligence op Peivate Contractor. Where a city grants a permit to repair a sidewalk, it is charged with notice of the work and with the duty to see that the work is properly conducted.</p> <p>Same — Defective Sidewalk —- Evidence — Sufficiency — Question for Jury. In an action for personal injuries sustained in a fall through a trap door in a sidewalk, the questions of the negligence of the city, and the contributory negligence of the plaintiff, are for the jury where it appears that the city granted a permit for a new walk in front of a lodging house, that it was necessary to cross the trap door to enter the house, that, while the repairs were in progress, and the trap door appeared as it always had, and there was no harrier, it gave way with plaintiff, she having hut recently crossed it, and having been informed by the man in charge of the work that it was safe; and the fact that the plaintiff could have gained access to the building by a hack stairway, which was old and unsafe, does not alter the case.</p>

, entered January 26, 1904, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by a logger by reason of the sudden starting of an engine and the tautening of a cable.

, entered March 4, 1904, upon a trial and conviction of the offense of violating the act regulating the occupation of barbering.

<p>Appeal and Error — Record—Review—Criminal Law — Trial —Arraignment—Bringing to Trial Within Sixty Days. The denial of a motion to dismiss a prosecution, made upon entering a plea forty-five days after the filing of the information, on the ground that there had been such a delay in the arraignment that the prisoner was unable to prepare for trial within sixty days from the time the information was filed, will not be reviewed on appeal where the record does not show at what time the appellant was arraigned, since the court can not presume that it was delayed beyond a reasonable time, or that no sufficient cause appeared for the delay.</p> <p>Same — Abuse of Discretion. The denial of a motion to dismiss. a prosecution, made at the commencement of the trial sixty-three days after the filing of the information, upon the ground that the prisoner was not brought to trial within sixty days, under Bal. Code § 6911, so requiring unless good cause is shown for the delay, will not be reversed except for abuse of discretion, and can not be reviewed where the record on appeal fails to show the order of the court setting the cause for trial, or the proceedings had thereon, since the order must be presumed regular and on sufficient cause.</p> <p>Criminal Law — Tbial-^-Indorsement of Names of Witnesses on Information. It is not error to permit the state to indorse on the information the names of additional witnesses on the day before the trial.</p> <p>Rape — Jurors—Challenge fob Cause — Sitting on Similar Trial. In a prosecution for rape committed on the person of a child under the age of consent, a juror who had sat upon a trial wherein another person had been convicted of a similar offense, committed upon the same prosecuting witness, is not disqualified, where the crimes were separate and distinct and committed at different times; and a challenge for cause is properly overruled.</p> <p>Appeal — Review—Trial—Improper Argument of Counsel — ■ Exceptions. Error can not be predicated upon improper argument of counsel to the jury, upon exceptions thereto, unless the trial court is moved to act in the matter, and exceptions are taken to its refusal to act.</p> <p>Same — Cueing Error. Where an attorney is rebuked for commenting on matters outside of the record, and the jury is told to disregard the statements, the error is sufficiently cured.</p> <p>Criminal Law — Trial—Verdict—Evidence— Sufficiency. A verdict will not be set aside in a criminal case where the direct evidence of the prosecuting witness is corroborated on all the material issues.</p> <p>Appeal and Error — Decision — Criminal Law — Excessive Sentence. The power of the appellate court to reduce an excessive sentence being doubted, the propriety of reducing a sentence from twenty-five years to five years is suggested to the pardoning power.</p>

<p>Criminal Law — Instructions—Comment on Facts. It is unlawful comment on the facts and reversible error for the trial judge to recall the jury, after they have deliberated for eighteen hours, and, in urging them to agree upon a verdict, to state that it is a very plain case, that they ought to arrive at a verdict without any trouble, and that he can see no reason why they should hesitate, since that was clearly insinuating that the verdict should be guilty.</p>

<p>Animals — Vicious Horses — Injury Inflicted by Runaway Team. The owners of a team of vicious horses of known propensity to run away are liable for all injury inflicted thereby, without proof of negligence or fault in endeavors to prevent the doing of the mischief.</p> <p>Same — Notice. Knowledge of the defendants’ drivers of the vicious character of a runaway team is imputed to the owner.</p> <p>Animals — Vicious Horses — Negligence—Injury Inflicted by Runaway Team — Contributory Negligence —■ Evidence — Sufficiency — Nonsuit—Question fob Jury. In an action for personal injuries sustained by one who, while driving on the public highway, was run into by defendants’ runaway team, alleged to be vicious and addicted to the habit of running away and driven by an incompetent servant, the questions whether the team was a “runaway” team and of plaintiff’s contributory negligence, are for the jury, where it appears that the team had run away several times, and it can not be determined by the evidence as a matter of law either that the team did not have such vicious habit, or that plaintiff was guilty of contributory negligence.</p>

<p>Appeal — Review—Findings. Where, in an action tried by the court after waiving a jury, the evidence is not brought up and the findings are within the issues, and warrant the conclusions' of law, the merits of the case are not reviewable.</p> <p>Costs — Attorney’s Fees. In an action for damages for breach of the covenants of a lease, it is error to allow an attorney’s fee of $100 in addition to the statutory fee.</p> <p>Appeal and Error — Exceptions — Suppiciency. Error in allowing an attorney’s fee is properly presented for review in the appellate court by excepting to the allowance when first set forth in the conclusions of law; and, when it is part of the judgment, it is deemed excepted to, and need not be urged in the court below.</p> <p>Appeal and Error — Decision—Attorney's Fee — Costs. Upon remanding a case wherein the only error was in allowing an attorney’s fee in the sum of $100, the judgment will be affirmed except as. to said sum, with instructions to the lower court to modify the decree, the costs of the appeal to be taxed in favor of the appellant.</p>

<p>Application to the supreme court, filed April 9, 1904, for a writ of habeas corpus.</p>

<p>Eminent Domain — State Lands — Condemnation op School Lands by Water Company. There is no authority in this state for the condemnation of state school lands hy a water company for the purpose of procuring water for domestic purposes, since the statutes do not expressly so provide, and they must be strictly construed.</p>

, entered July 15, 1903, upon granting a motion for a nonsuit, at a trial before the court and a jury, dismissing an action for personal injuries sustained by a passenger, after ejection from a train, through coming in contact with an electrically charged third rail upon the right of way.

<p>Appeal — Dismissal—Bond—Poem and Sufficiency. Where the bond on appeal runs to the State of Washington, instead of to the adverse party, as required by Bal. Code, § 6505, but obligates the appellant to pay all costs etc. awarded against it, and the intent is manifest to execute it for the benefit of the respondents, the appeal will not be dismissed, especially in view of Laws, 1899, p. 79, providing that appeals shall not be dismissed for defects in the bond, if upon order the party perfect the appeal.</p> <p>Schools — State Board of Education — Uniform System of Text Books. Under Laws, 1897, p. 356, the state board of education has the exclusive power to adopt a uniform series of text books and prepare a general course of study for the public schools.</p> <p>Same — Course of Study Inconsistent With State Course. Where the course of study prescribed by the state board of education for public schools under § 27 of the school code, requires the use of certain text books and writing tablets in certain specified grades, a course of study prescribed by the directors of a school district, requiring such text books to be supplemented by the use of others on the same subject, is inconsistent with the law of the state, and is not authorized by § 73 of the school code giving such directors the power to grade the schools, nor by the fact that §§73 and 27 are apparently repugnant.</p> <p>Same — Remedy for Failure of District to Follow State Course of Study — Injunction—Material Damages. Where a school district refuses to follow the course of study adopted by the state board of education, the publisher of the books (under contract with the state board) is not entitled to relief by injunction unless materially damaged, and an injunction will not be issued because one teacher testified that more of plaintiff’s writing tablets would have been used if they had not been supplemented by other copy books, when it does not appear how many more would have been used, and when the tablets were used in all the grades prescribed, and one more.</p> <p>Same — Following State Course of Study — Grading Schools —Different Classes in Same Year. Where the directors of a school district divided the sixth year into two classes, A and B, the latter being promoted into the former after the first half of the year, the requirement by the school district that the text book prescribed by the state board of education for the sixth grade be used in class A only, is not a violation of the rights of the publisher, since the state course does not contemplate the use of the publication at all times during the year, especially where it appears that it is used until the pupils become proficient therein, and since no damage is shown where it does not appear that there were any pupils in the sixth grade who did not purchase and use the book during the year.</p> <p>School Districts — Class of — Number of Teachers Employed —Pleading and Proof — Amendment. A finding that a school district is of the class employing more than one teacher is supported by the evidence where three teachers of the district testify, and the pleadings may be considered amended to bring the same within the issue determined.</p> <p>Intervention — Parties Interested in Litigation — Patron of .School Intervening in Suit Against District Brought by Publisher of Text Books. A taxpayer in a school district whose children attend the school has no such interest in the matter in litigation as entitles him to intervene in an action brought against the district by the publisher of text books under a contract with the state board, which action is based on the publisher’s contract to supply the books needed and seeks to enjoin the school district from deviating from the course of study prescribed by the state board of education.</p>

<p>Appeal — Review—Harmless Error — Pleadings — Motion to Strike. It is not prejddi'cial error to refuse to strike out averments from a complaint which amount to conclusions of law.</p> <p>Schools — Course oe Study Adopted by State Board — Evidence op Adoption — Sufficiency. There is sufficient evidence to support a finding that the state board of education adopted a uniform series of text books and a course of study for the public schools, where it appears that the same was published throughout the state, apparently by their authority, and was generally recognized as valid and acted upon by school districts, including the defendant.</p> <p>Schools — State Board of Education — Contracts—Execution of Agreement to Furnish Text Books. A contract with a publisher to furnish text books for the use of the public schools of the state appears to be sufficiently executed by the state board of education when i't is signed by the president and secretary of the board, when it was suggested by the board, without objection, at the time the subject was discussed, that such signatures would be sufficient.</p> <p>Same — Contract With Publisher to Furnish Text Books' — • Validity — Attack by School District. Where the state board of education has entered into a written contract with a publisher for furnishing the text books prescribed by the course of study for the public schools of the state, a school district can not question its validity in an action brought to enjoin the district from using other books on the same subject, when the state has raised no objection thereto; since the district was not a party to the contract.</p> <p>Schools — Following Course of Study Prescribed by State Board — Bond of Publisher — Approval. The fact that the publisher of text books, who is under contract with the state board of education to supply all the books required by the public schools of the state, fails to have its bond to the state duly approved, does not excuse a school district board for failing to enforce the course of study prescribed by the state board.</p> <p>Same — Uniform Course of Study — School District Regulations — Compliance With State Course. Where the course of study prescribed by the state board of education requires the use of certain text books in specified grades, a regulation of a school district that the pupils in such grades shall use such books until they become “proficient therein” is a sufficient compliance with the state course of study.</p> <p>Same — Injunction. But in such case, where such books prescribed in the state course of study are not required by the district to be used at all in a certain grade, whether inadvertently or intentionally, it is not a compliance with the state course of study, and injunction is properly issued to compel compliance therewith by the district.</p>

Cross-appeals from a judgment of the superior court for Thurston county, Linn, J., entered February 2, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for an injunction.

<p>Cross-appeals from a judgment of the superior court for Thurston county, Linn, J., entered July 14, 1902, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for an injunction.</p>

<p>Ckiminal Law — Burglary — Information — Unoccupied Outhouse. Under Bal. Code, § 7104, an information which charges an attempted burglary of an outhouse adjoining a dwelling ■ is demurrable if it fails to allege that the same was “occupied therewith,” since the common law rule and definition of dwelling has been modified by the statute.</p>

<p>Appeal from a j udgment of the superior court for Clallam county, Joiner, J., entered June 28, 1902, upon a trial and conviction of the crime of perjury.</p>

<p>Labor — Public Works — Eight-Hour Day — Constitutional Daw — Right of Contract. An ordinance prescribing an eight-hour day, and forbidding the employment for longer hours of any laborer upon municipal construction work, making the same a part of all city contracts for such work, and providing'a pen-' alty for any violation thereof hy any city contractor, .is not unconstitutional as in conflict with the fourteenth amendment or any other federal or state constitutional provision, since the same relates only to public works, and the state has á right to do its work in any manner it sees ñt, and no violation of private rights is involved.</p>

<p>Appeal from an order of the superior court for King-county, Bell, J., entered June 12, 1904, after a hearing upon affidavits, appointing- a receiver pendente lite and granting a temporary injunction, in an action to enjoin the sale by defendants of any other than plaintiff’s beer.</p>

<p>Indemnity — Insurance—Bond Guaranteeing Building Contract — Notice of Acts Involving Loss — Construction—Release of Surety. An indemnity bond or policy guaranteeing the performance of a building contract, • which stipulates that notice must be given the surety of any act on the part of the contra.ctor which may involve a loss, does not require the giving of notice that the contractor has failed to pay the employees, and a notice given as soon as the claimants sought to make their claims charges against the property is in time to prevent the discharge of the surety.</p> <p>Indemnity — Building Contract — Action on Bond — Accrual—Date of First Breach — Delay in Completion of Building. Where an indemnity bond, guaranteeing a building contract, provided that actions thereon must be instituted within six months after the first breach of the contract, and the owner accepted the building after delay in its completion, the surety cannot claim that the right of action on the bond was barred six months after the time specified in the contract for the completion of the building, since the surety cannot complain of waiver of any breach of the contract by the owner’s acceptance of the building, when such waiver did not operate to the prejudice of the surety.</p> <p>Same — Alteration in Contract Increasing Cost of Building —Release of Sueety. The surety in an indemnity bond guaranteeing a building contract is not released by reason of the fact that changes were made in the plans as the work progressed, increasing the cost of the building, where the building contract provided that such changes might be made.</p>

<p>Appeal by tbe executors of a will from an order of tbe superior court for King county, Bell, J., in probate, entered October 28, 1903, setting apart tbe household goods and personal effects, and making an allowance to tbe widow during tbe administration of an estate.</p>

<p>Criminal Law — Evidence of Other Crimes — Impeachment of Witness — Attempt to Correct Inadverent Statements of Wife. It is reversible error to permit the state, upon' cross-examination of the accused’s wife, to show that the accused had been convicted of another crime some years before, and it is not a sufficient excuse that the same was shown to correct the statement that she had married the accused about the year 1898, at which time he was in prison, the same being an inadvertence, she having married him in 1899.</p> <p>Same — Credibility of Witness — Impeachment of Wife of Accused by Fact of Former Conviction. It is not permissible, on the cross-examination of the accused’s wife, for the state to show that the accused had been convicted of another crime some years before, and before their marriage, in order to affect the credibility of the wife, since the fact tends directly to prejudice the accused, and only remotely, if at all, to discredit the witness.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, A. L. Miller, J., entered December 11, 1903, upon a trial and conviction of the crime of horse stealing.</p>

, entered July 15, 1903, upon findings in favor of the defendants, after a trial on the merits' before the court without a jury, dismissing an action upon a note and mortgage.

Apeal from a judgment- of the superior court for C'hehalis county, Irwin, J., entered July 14, 1904, upon findings in favor of the defendants, dismissing, on the merits, an action upon contract, after a trial before the court without a jury.

, entered June 29, 1903, upon withdrawing the case from the jury at the close of plaintiff’s evidence, in an action for injuries sustained by a pedestrian upon a railroad trestle.

<p>Seduction — Conditional Promise or Marriage Sufficient. Under Bal. Code, § 7066, prescribing the punishment for any person who shall “seduce and debauch any unmarried woman of previous chaste character,” seduction under a promise of marriage is not essential to constitute the crime of seduction, any seductive promises being sufficient; and, if an engaged woman finally submits relying upon a conditional promise to marry immediately in case of trouble, there is sufficient evidence to go to the jury.</p>

, entered May 1, 1904, upon granting a nonsuit, after a trial before the court and a jury, dismissing' an action upon a policy of fire insurance.

<p>Liens — Railroads—Statutes — Title of Act — Sufficiency— Provisions Furnished Contractor not Embraced in Title of Act for Labor and Material Liens. Laws 1893, p. 32, § 1, entitled “An act creating and providing for tbe enforcement of liens for labor and material,” is not sufficiently broad to include a clause rendering a railroad contractor liable for “provisions” furnished to bim in tbe prosecution of tbe work, since “materials” as used in tbe lien laws, means something that becomes part of tbe finished structure; and the clause is not germane to tbe title and contravenes Const, art. 2, § 19.</p> <p>Indemnity — Bond Under Void Act — Common Law Obligation —Privity. Where an indemnity bond is given by a railroad contractor, under tbe provisions of an act void for want of sufficient title, conditioned for tbe payment for provisions furnished in the prosecution of tbe work, tbe surety is not liable to tbe person furnishing the materials as upon a common law obligation, since there was no privity of contract between them.</p>

<p>Process — Attachment—Service of Summons on Foreign Corporation Outside of State. Where an action is commenced by attaching the property of a foreign corporation, personal service of the summons and complaint upon the defendant outside of the state, in lieu of publication, is all that is required under Bal. Code, § 4879.</p> <p>Conflict of jaws — Aliens—Right to Sue in This State— Contracts — Lex Loci Contractus. An action between aliens for damages for breach of a contract made in Minnesota whereby the defendants gave the plaintiff the exclusive sale of defendant’s lands situated in this state, will not be dismissed as commenced by an alien in a foreign jurisdiction for the purpose of obtaining an undue advantage, where the only advantage alleged is that the contract was not enforcible between the parties in Minnesota under the laws of that state, especially where it appears that the only property of the defendant subject to execution is situated in this state, and the same was the subject of the contract, since the courts of this state will be governed by the laws •f the state where the contract was made.</p> <p>Appeal and Error — Review—Order Refusing to Dissolve an Attachment. Upon an appeal from an order refusing to dissolve an attachment of the property of a foreign corporation, error in sustaining a demurrer to the defendant’s answer can not be reviewed on the theory that the answer showed that the court was without jurisdiction, since the test of jurisdiction was the status of the case upon the issuance of the attachment, which • if rightful, is not affected by subsequent proceedings.</p>

<p>Appeal from an order of the superior court for King county, Tallman, J., entered December 26, 1903, appointing a temporary receiver, after a hearing’ upon affidavits.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 18, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon an indemnity bond.</p>

<p>Exemptions — Findings of Bankruptcy Court — Construction— Award of Exemptions — Conclusiveness — Execution Sale of Exempt Property — Quieting Title. In an action to quiet title to lands sold to defendant under execution, and claimed by plaintiffs to have been set aside to them as exempt in a bankruptcy proceeding, the finding of the referee in bankruptcy that “the schedules of the bankrupt disclose no assets except such as are claimed exempt and found by the court to he exempt,” warrants, the trial court in finding that the property was pronounced exempt by the referee and shows sufficient title in the plaintiff; since the schedules must include all the property, and such adjudication of the bankruptcy court being conclusive, the sale of the property in the state courts under execution was void.</p> <p>Quieting Title — Possession of Plaintiff — Complaint—Sufficiency. An allegation in a complaint in an action to quiet title that the plaintiffs are entitled to the immediate possession of the property, does not make it appear that the plaintiffs are out of possession, and that ejectment is, therefore, the proper remedy.</p> <p>Quieting Title — Possession of Plaintiff — Necessity of — Estoppel — Failure to Demand Jury or Object to Form of Action. An action to quiet title will not he dismissed by the supreme court on the ground that ejectment was the proper remedy, because of the plaintiffs’ failure to allege or. prove that they were in possession or that the land was unoccupied, where the defendant answered on the merits and proceeded to trial without demanding a jury, or raising the objection in the court below.</p>

Application to the supreme court, filed October 18, 1904, for a writ of prohibition, to prevent the superior court for King county, Bell, J., from taking jurisdiction of an action to enjoin the officers of the relator from canvassing the returns of a special election to annex territory,

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered January 19, 1904, upon the verdict of a jury for $1,350 damages for personal injuries sustained by an employe through the fall of an elevator.</p>

<p>Mandamus — When Lies — -Schools—Compelling School Board To Issue Warrant for Teacher’s Salary. Mandamus will lie upon tbe application of a school teacher to compel a board of school directors to issue a warrant for his salary, if anything is due under a contract providing that he was to be paid by a warrant drawn by the school board on the county treasurer, the remedy at law being inadequate, since it could only result in a judgment directing the issuing of a warrant.</p> <p>Same — Mandamus Under the Code. The principle that the writ of mandamus issues only where the right thereto is clear has no application to the writ authorized by the Code, and hence may issue, although sought to enforce disputed claims, the procedure under the code having all the elements of a civil action.</p> <p>Schools and School Distbicts — Contbact to Teach School— Validity. It is error to dismiss a proceeding in mandamus to enforce a teacher’s contract to teach school, on the theory that it was illegal to contract to teach a district school forming a part of a union district, and at the same time to teach in a union high school in the same building, as there is nothing illegal in such contract.</p> <p>Mandamus — Pleadings—Reply. It is not necessary, under the code, to reply to a return or answer to mandamus, new matter being deemed denied.</p>

<p>Frauds, Statute of — Oral Agreement to Convey Lands— Damages for Breach of Contract — Trial—Nonsuit on Opening Statement. An action for damages for breach of a contract to oonvey lands, seeking to recover the value of the lands, which had been fully paid for and quitclaimed to the plaintiff by the defendants before they acquired any title, and which the defendants afterward sold to a bona fide purchaser, cannot be maintained and a nonsuit is properly ordered, where it appears from the opening statement of counsel that the agreement to convey was oral, since it is within the statute of frauds.</p> <p>Same — Quitclaim Deed as Memorandum of Sale. A quitclaim deed is not a sufficient memorandum to take an oral sale of lands out of the operation of the statute of frauds, when the grantors had no title at the time of the conveyance.</p> <p>Same — Payment as Part Performance. Payment of the purchase price is not a sufficient part performance of an oral agreement to convey lands to take the same out of the operation of the</p> <p>itute of frauds.</p>

, entered June 27, 1904, upon the findings and decision of the court in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon an assessment on unpaid stock in an insolvent corporation.

, entered October 20, 1903, upon findings in favor of the defendant, dismissing on the merits an action on a promissory note paid by one of the two joint makers, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 5, 1903, upon a verdict of the jury rendered in favor of the plaintiff in an action of conversion.</p>

, entered July 22, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in. an action upon a benefit certificate upon the death of a. member of a mutual benefit association.

, entered April 13, 1904, upon sustaining a demurrer to an answer, directing the issuance of a writ of mandamus, as prayed for.

, entered March 11, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a policy of fire insurance.

, entered March 24, 1904, upon findings in favor of the plaintiff, in an action for malicious prosecution, after a trial on the merits before the court without a jury.

, entered October 14, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing on the merits an action of ejectment.

, entered July 1, 1902, upon sustaining a demurrer to a complaint, dismissing an action for relief upon the ground of fraud.

, entered April 24, 1903, upon findings in favor of the defendant, after a- hearing on the merits before the court, denying an application for a writ of mandate.

, entered March 24, 1904, upon the pleadings and plaintiff’s opening statement to the jury, dismissing an action for damages for a death, by wrongful act.

, entered June 27, 1903, upon findings of the court, after a trial on the merits without a jury, dismissing an action to recover assets of an insolvent corporation, distributed in fraud of creditors.

, entered May 24, 1904, upon granting a motion for a nonsuit, denying an application for a writ of mandate to compel the county treasurer to issue a deed of county property.

, entered July 8, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered August 29, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title.

, entered June 16, 1903, upon the verdict of a jury rendered in favor of the plaintiff in an action for damages sustained by a brakeman in falling from a ear.

, entered April 19, 1904, upon findings in favor of the plaintiff, after a trial on the merits he-fore the court, a jury being waived, in an action to recover for property destroyed by a fire negligently set out by defendant.

, entered February 25, 1903, dismissing an appeal from an order of the state hoard of land commissioners, confirming a sale.

, entered July 1, 1902, upon findings in favor of the defendants, dismissing on the merits an action for an accounting, after a trial before the court without a jury.

, entered May 19, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action against the vendee of goods sold in fraud of creditors.

, entered February 28, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>On Petition for Rehearing.</p> <p>Appeal from a judgment of the superior court for Spokane county, Belt, J.</p>

<p>Application to the supreme court for a writ of mandate, filed October 24, 1904.</p>

<p>Appeal from an order of the superior court for Thurston county, Linn, J., entered July 14, 1902.</p>

<p>Appeal from an order of the superior court for Thurston county, Linn, J., entered July 14, 1902.</p>

<p>Appeal from an order of the superior court for Thurston county, Linn, J., entered February 2, 1903, denying a petition for leave to intervene.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered January 29, 1904, upon granting a non-suit.</p>

, entered June 18, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court ■without a jury.