Volume 37 — Washington Reports

, entered November 12, 1902, on granting a motion for judgment upon the pleadings and a stipulation, affirming an order of the board of state land commissioners awarding the prior right to purchase tide lands.

<p>Judgments — Vacation—Attack by Motion — Limitation—Failure to Deny Allegation. A motion to vacate a judgment valid on its face, for alleged want of service of process, must be denied when it was not filed until after tbe statutory period for sucb an attack, and tbe failure to deny tbe allegation as to want of service does not warrant tbe granting of tbe motion.</p>

<p>Appeal and Error — Briefs—Striking Out. A brief referring to the trial judge in grossly discourteous language will be struck out on motion, with leave to file a proper brief within thirty days.</p>

, entered April 14, 1903, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing an action for an injunction..

Appeal by defendant from a judgment of the superior court for Lincoln county, Neal, J., entered May 19, 1904, upon the verdict of a jury assessing damages for the value of land, after a trial on the merits in a condemnation proceeding.

, entered July 29, 1904, upon findings in favor of a garnishee, after a trial on the merits before the court without a jury, discharging a writ of garnishment.

<p>Appeal and Error — Evidence—Sufficiency of ’Objections — ■ Waiver of Error> Where an objection is improperly sustained and exceptions taken, but the same question is repeated in a different form, and answered, whereupon the court sustains the objection and cautions against further inquiry along that line, but the answer is allowed to stand and the defendant had the benefit thereof, there is no ruling of the trial court that can he reviewed on appeal (Fullerton, J., dissenting).</p> <p>Criminal Law — Rape—Evidence. In a prosecution for rape upon a child, committed in the presence of other children called as witnesses for the state, it is not proper to restrict their cross-examination hy the defendant, and that it tends to show the commission of another crime by defendant is no valid objection.</p> <p>Criminal Law — Rape—Unsupported Testimony of Child. It is proper to instruct that one may be convicted of rape upon the unsupported evidence of an infant under the years of discretion.</p> <p>Trial — Argument of Counsel — Limiting. Error cannot be predicated in a criminal prosecution upon limiting the argument of counsel to twenty-five minutes, where counsel refused to use ten minutes additional, granted at the close of his argument.</p> <p>Criminal Law — Excessive Sentence — Review. The severity of a sentence is not the subject of review upon appeal.</p>

, entered May 7, 1903, upon findings in favor of the plaintiff, after a hearing on the merits, in a habeas corpus proceeding.

<p>Application for a writ of mandate, filed in the supreme court November 11, 1903, to compel the superior court for Spokane county, Kennan, J., to set a cause for trial. Dismissed.</p>

<p>Executions — Sale—Vacation—Parties Entitled to Notice. The purchaser at an execution sale is not a party in interest upon whom notice of motion to vacate the sale must he served, where he had previously parted with his interest to the execution creditor, who appeared and contested the motion.</p> <p>Same — Vacation for Inadequacy of Price — Seizure of Note Piled as Record in Case. The sale under execution of a nóte and mortgage of the value of $2,400, for $110.20 (the costs upon ah appeal), is properly vacated, where it appears, in addition to such inadequacy of price, that possession was obtained by seizing the same after they had been filed in the clerk’s office as part of the record in said cause, without notice of the seizure to the owners, who shortly after the sale moved its vacation immediately upon learning thereof.</p>

<p>Limitations of Actions — Mortgages—Biles and Notes — Extension of Time — Failure to Pay Installments. A provision, in an agreement to extend the time- of payment of a mortgage note, to the effect that the note shall become due without notice upon the failure to pay any installment of interest, does not mature the note or start the running of the statute of limitations upon the failure to pay an installment when due; since the provision is for the benefit of the mortgagee, and may be waived.</p> <p>Same — Extension of Time — Recording—Notice to Subsequent Purchaser. An extension of the time of the maturity of a mortgage note, made while the mortgagee still owns the property, need not be recorded, and is valid as against the mortgagor and subsequent purchasers without notice, so that the statute of limitations does not begin to run against an action of foreclosure until the expiration of such extension.</p>

<p>Municipal Corporations — Contracts—Lighting Streets — Ne* cessity of Advertising for Bids. A contract to furnish a town with electricity for street lighting purposes is not a contract for the erection or improvement of a public work, nor for “street work” within Laws 1903, p. 33, requiring such contracts to he submitted to competitive bidding.</p> <p>Same — Contracts—Extending Beyond Expiration of Term of Office. The mayor and council of a town may contract for lighting the streets for a period of time extending beyond the expiration of their terms of office.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered January 29, 1903, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action upon contract.</p>

<p>Vendor and Purchaser — Frauds, Statute of — Execution of Verbal Promise to Convey Land — Part Performance — Festino Title — Attachment. Where parents outfitted their son for Alaska, he being -without means and in debt, and paid of£ his debts amounting to several hundred dollars, under the verbal promise that, if his venture was successful, he would, out of his first earnings, purchase and present them a farm for a permanent home, and in pursuance thereof, upon returning with $5,000, he purchased a farm, taking a deed in his own name, and placed his parents in possession, delivering them the deed, and agreeing to execute a deed to them, the transaction is' not a gift, hut amounts to an executed contract o'f sale, with the purchase price paid, and there is such a part performance as to take the case out of the operation of the statute of frauds, and vest in the parents all except the hare legal title to the property, so that the same would not he subject to attachment for the debts of the son subsequently contracted.</p> <p>Executions — Sales—Bona Fide Purchaser. In this state an attaching creditor acquiring title to his debtor’s realty is not a bona fide purchaser, and takes only the debtor’s interest.</p>

<p>Trial — Excluding Witnesses rrom Room — Waiver of Request. Where the defendant does not insist upon his request to exclude the witnesses from the court room, but leaves it “optional with the court,” error cannot be predicated upon the court’s failure to exclude them.</p> <p>Homicide — -Evidence in Rebuttal- — Relevancy. Where the state in a prosecution for homicide gave evidence of threats made by the defendant against the deceased, and the defendant in justification made a detailed statement of his troubles with the deceased, rebuttal testimony giving the state’s version of such troubles is admissible.</p> <p>Criminal Law — Trial—Argument of Counsel — Opinion of Prosecuting Attorney. A statement hy the prosecuting attorney that the jury will agree with him that "this is the worst homicide that ever occurred in the county," is not objectionable argument because of drawing a comparison with other homicides; nor is it objectionable as an expression of the prosecutor’s opinion, since he may state his opinion based upon or deduced from the evidence, when it is not given as independent fact.</p> <p>Criminal Law — Homicide—Trial-—Request foe Specific Instructions — Error. Upon a prosecution for murder in the first degree, it is not error to fail to define deliberation and premeditation in the instructions to the jury, in the absence of a specific request therefor.</p> <p>Same — Instructions to Jurors Individually. It is not error to refuse instructions addressed to the jurors individually, and not to the jury as a body.</p> <p>Same — Instructions—Relevancy. It is not error to refuse instructions having no special application to the case upon points sufficiently covered in the general charge.</p>

, entered April 15, 1903, upon the findings of the court and a verdict of a jury rendered in favor of the defendants, dismissing an action on injunction bonds.

, entered December 12, 1902, upon the verdict of a jury rendered in favor of the defendants, dismissing an action for treble damages for the cutting and conversion of timber.

<p>Mechanics’ Liens — Indemnity—Waives of Lien by Conteact- or’s Bond and Agbeement — Assignment. Where a contractor gives an indemnifying bond to protect the owner against liens, and also agrees with the surety company to prevent the filing or enforcement of liens against the property, he waives his right thereto, and neither he nor his assignee can enforce a lien against the property.</p>

, entered May 16, 1903, upon the verdict of a jury rendered in favor of the defendant hy direction of the court, in an action for personal injuries sustained hy an employee in driving a load of lumber through a narrow passage.

, entered June 13, 1903, upon the verdict of a jury rendered in favor of the defendant, after a trial on the merits, dismissing an action for damages for an eviction and a conversion of personal property.

, eutered September 20, 1901, upon overruling a demurrer to the complaint, granting a permanent injunction as prayed for in the complaint.

<p>Appeal from a judgment of the superior court for Clarke county, Miller, J., entered July 22, 1903, upon sustaining a demurrer to the complaint, in an action upon an order.</p>

<p>Indians — Criminal Law — Offense Committed on Reservation —Indians Not Sustaining Trujal Relations — Courts—Jurisdiction over Allotted Reservation. The state courts have jurisdiction over homicides committed by one Puyallup Indian against another on the Puyallup Indian reservation, it appearing that the reservation had been allotted in severalty, all restrictions against alienation removed, and no agency or government control maintained, and that the Indians thereon had maintained no tribal relations for years, but were qualified electors and had adopted the customs, laws and precinct offices of the Whites, since Act Cong., 23 Stat. 385, conferring jurisdiction of such offenses upon the federal courts applies only to Indians sustaining tribal relations.</p> <p>Trial — Jurors—Misconduct. A conversation between a juror and a deputy sheriff, which has no relation to the case, is not misconduct amounting to ground for a new trial.</p> <p>Criminal Law — Trial—Improper Arugment — Comment on Failure to Testify. Remarks of the prosecuting attorney in argument asking why they have not explained certain incriminating circumstances, and stating that it was easy for them to do so, should be construed as addressed to the argument of opposite counsel and not a comment on the failure of the accused to testify, which is forbidden by implication by the statute.</p> <p>Same. The prosecuting attorney may comment on the failure to explain incriminating circumstances, although in part they might have been explained by the accused, when he does not comment on the failure of the accused to testify.</p>

, entered June 24, 1904, upon a trial and conviction of the offense of owning and running a dental office without a license.

<p>Constitutional Law — Police Power — Dentistry. The provisions of Laws 1901, pp. 314-318, regulating the practice of dentistry are a valid exercise of the police power.</p> <p>Criminal Law — Practicing Dentistry Without a License — • Instructions. Upon a prosecution for practicing dentistry without a license it is 'proper to instruct that it is not necessary to show that a fee was charged for any specific act, or payment made upon performance of the service, or that the act was committed on the exact day charged, but that it is sufficient if it appears that a fee was charged for a series of acts of which the act complained of was one, and that payment was made at any time within one year, for an act performed within one year of the filing of the information.</p> <p>Trial — Assignment—Discretion op Court — Review. The manner of assigning a case on the trial docket is within the discretion of the trial court, and not to be reviewed except for abuse thereof.</p> <p>Criminal Law — Trial—Time for Plea. Tbe defendant cannot allege error in that he was not allowed one day to plead, where at the arraignment he answered that he was ready and plead not guilty.</p> <p>Practicing Dentistry Without License — Evidence of Qualifications — Attack on Decision of Dental Board. Upon a prosecution for practicing dentistry without a license, it is proper to exclude evidence going to show that the defendant properly passed his examination and that the license was withheld through the fraud of the dental board, since the decision of the board cannot be questioned in that manner.</p>

<p>Constitutional Law — Police Power — Dentistry. The provisions of Laws 1901, pp. 314-318, regulating the practice of dentistry are a valid exercise of the police power.</p> <p>Trial — Nonsuit—Re-opening Case. It is discretionary to reopen a case for further evidence after the state has rested and a motion for a nonsuit is about to be granted, and error cannot be predicated thereon in the absence of abuse of discretion.</p> <p>Criminal Law — Practicing Dentistry Without a License— Evidence — Sueeiciency. There is sufficient evidence to sustain a conviction of the offense of practicing dentistry without a license where it appears that the defendant cleaned a patient’s teeth, removed tartar therefrom, and made an examination for the purpose of estimating the cost of further treatment.</p> <p>Trial — Assignment—Discretion oe. Court — Review. The manner of assigning a case on the trial docket is within the discretion of the trial court, and not to be reviewed except for abuse thereof.</p> <p>Criminal Law — Trial—Time eor Plea — Waiver oe Objection. The defendant cannot allege error in that he was not allowed one, day in which to plead, where he waived arraignment and the trial was continued, and no objection was made until after conviction.</p> <p>Criminal Law — Trial—Indorsement oe Names oe Witnesses. It is largely discretionary to permit a witness to testify without indorsement of his name upon the information, and is not ground for reversal where defendant suffered no disadvantage thereby.</p>

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered May 18, 1903, upon the verdict of a jury rendered in favor of the defendant, after a trial on the merits, dismissing an action for personal injuries sustained in the collision of a steamer with a drawbridge.</p>

, entered June 24, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing on the merits an action to enjoin the obstruction of a county road.

Application filed in the supreme court February 29, 1904, for a writ of mandamus to compel the commissioner of public lands to sell certain state timber lands to the relator.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered July 18, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a fall from a horse caused by a defect in the street.</p>

<p>Appeal from a judgment of the superior court for King county, Rudldn, J., entered November 11, 1903, in favor of the plaintiffs, after a trial before the court ivithout a jury, decreeing the satisfaction and cancellation of a chattel mortgage.</p>

<p>Estoppel — -Street Railways — Right op Way — Acquiescence. Where the owner of platted land agrees in writing to give a right of way across the same for a street railway in consideration of the benefits to be derived therefrom, the railway to be completed in one year on a line acceptable to him, and thereafter acquiesced in the construction of the railway and its use for seven years, be is estopped from asserting that he did not agree to the exact location, or from in any way questioning the right to use the same.</p>

<p>Waters — Diversion of — Right of Wat — Deed—Grant—License. An instrument executed as a deed purporting to grant and convey a right of way for a water pipe line, and also the right to divert the flow of water in a certain creek, operates as a grant as in the case of land itself, and is not a license, terminable at will.</p> <p>Same — Deed—Certainty—Time Limit for Diversion. Such a deed is not void for uncertainty in that it fails to fix any time limitation for the diversion of the water, but will be construed as unlimited as to time.</p> <p>Same — Certainty as to Location. Such a deed is not void for uncertainty in failing to locate the right of way, where entry on the tracts described was made, and a route selected and marked out, and work commenced with the intention of using the strip.</p> <p>Same — Certainty as to Amount of Water. Such a deed is not void for uncertainty as to the amount of water to be diverted where the grant covers all the water except an express reservation for all that one family may need for domestic purposes on a certain forty-acre tract, and in case of fire to the extent cf service through a three-inch pipe.</p> <p>Same — Certainty as to Reservations of Water. Such a deed is not void for uncertainty as to how the reserved water was to be taken, since no pipe being specified except for fire, it follows that water for domestic purposes was to be taken from the bed of the stream.</p> <p>Same — Certainty .as to Width of Right of Way. Such a deed is not void for uncertainty in failing to specify the width of the right of way, since in such case the width would be only such as shall be reasonably necessary.</p> <p>Same — Deed not Affected by Rights of Lower Riparian Owners. A deed of the right to divert the waters of a stream cannot be objected to by successors in interest of the grantor because of the fact that the rights of lower riparian owners had not been acquired.</p> <p>Same — Fraud in Procuring Deed — Purposes for Which Water is to be Used. A deed of the right to divert water from a stream for “water purposes at the town of L,” is not void for fraud in that it was intended to use the same for a new city to be founded in the vicinity, the name of which was not then determined, where it appears that such intention was made known to the grantor, that the vicinity was known as L, then the nearest postoffice, and water is to be supplied to what is still called L.</p> <p>Same — Specifying Purpose — Surplus. Where a deed grants all the water of a stream, except certain reservations, specifying that the diversion was for “water purposes at the town of L,” without any words of prohibition against the use of water for other purposes, the grantee is entitled to use the surplus water, after supplying the town of D, for supplying another city.</p> <p>Same — Abandonment of Right of Water — -Non-User—Prior • Lease — Limitation of Actions — When Commences to Run. Where the owner of the fee grants a right of way for a pipe line across lands subject to a prior lease, and the lessee enjoins any use thereof, the statute of limitations against the grantee upon a non-user of the right of way does not begin to run until the expiration of the lease, and, where only six years had elapsed since that time, the right to use the right of way was not abandoned or lost by non-user; since no non-user for any length of time short of the period of the statute of limitations would constitute an abandonment, when no time is fixed.</p> <p>Same — Diversion of Water — Injunction to Restrain Interference. Injunction is the proper remedy to restrain interference with the right to divert the waters of a stream and to use a pipe line right of way, granted to the plaintiff by the predecessors in interest of the defendants, who deny the plaintiff’s right and threaten interference with the enjoyment thereof.</p> <p>Same — Injunction Pending Condemnation Proceedings. In an action to enjoin a land owner from interfering with a water company’s use of a right of way for a pipe line to supply the inhabitants of a city with water, where it appears that a portion of the route departs from the company’s granted right of way, It is proper to grant an injunction as to such new part of the route for thirty days to enable the company to institute condemnation proceedings, and to make the same permanent if the proceedings are diligently prosecuted.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered July 8, 1903, upon the verdict of a jury rendered in favor of the plaintiffs for damages for breach of contract, after a trial on the merits.</p>

, entered May 2, 1903, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, decreeing an accounting and redemption from a mortgage.

Appeal by plaintiff from a judgment of tbe superior court for King county, Tallman, J., entered June 16, 1903, upon findings of the court after a trial on the merits without a jury, determining the amount of plaintiff’s commissions upon a sale.

, entered April 11, 1904, dismissing on the merits plaintiff’s second cause of action for an injunction, submitted to the court without a jury upon the testimony introduced at a trial for damages, in an action for damages for flooding lands and to enjoin the maintenance of a dam.

<p>Taxation — Foreclosure of Lien — Judgment—Parties—Stranger and Unknown Owners. Where taxes were assessed to unknown owners, a judgment foreclosing a tax certificate of delinquency in a proceeding instituted against one S and unknown owners, is not invalid because S was a stranger to the record, since it would have been valid against unknown owners alone, where the property was assessed to unknown owners.</p>

, entered July 15, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for the obstruction of a navigable slough by the storage of logs therein.

<p>Quieting Title — Action to Cancel Void Tax Deed — Plaintiff not in Possession. It is error to dismiss an action brought by one out of possession to cancel a void tax deed and judgment, and asking that his title be quieted, since tbe rule that an action t.o quiet title cannot be maintained by one out of possession, applies only where the plaintiff has a complete remedy at law, and this is not an action to quiet title within such rule.</p> <p>Judgment — Vacation—Void Process — Recitals as to Due Service. The recital in a tax foreclosure judgment of due service of process is sufficiently overcome where it clearly appears from a void summons by publication, tbe sheriff’s return, the proof of publication, the fact of the death of the principal defendant prior to service, and the testimony of the plaintiff in the tax suit, that the only service of process was by tbe publication of a summons which was insufficient to confer jurisdiction.</p> <p>Same — Process—Taxation—Foreclosure of Tax Lien — Form of Summons. Under Laws 1897, p. 182, § 96, subd. 3, a summons by publication requiring tlie defendant to appear within sixty days after the “service” of the summons is not in accordance with the statute, and is insufficient to confer jurisdiction to enter a judgment of default.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Snell, J., entered October 26, 1903, upon the motion of plaintiff for judgment on the pleadings, in an action to quiet title.</p>

, entered December 10, 1903, upon dismissing an action, after sustaining an objection to any evidence on the ground that the complaint did not state a cause of action.

, entered May 9, 1904, upon findings in favor of the defendants, after a trial on. the merits before the court without a jury, dismissing an action of ejectment.

, entered June 13, 1903, after a trial on the merits before the court without a jury, foreclosing a local improvement assessment.

, entered August 11, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing the specific performance of a contract for the sale of land.

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered May 26, 1903, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, reducing an assessment for taxes.</p>

, entered March 1, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an. action to foreclose a lien on logs.

, entered October 17, 1903, in favor of the plaintiff, in an action of replevin, after a trial before the court without a jury, upon stipulated facts.

<p>Appeal from an order of the superior court for King county, Bell, J., entered August 12, 1904, appointing a temporary receiver, after a hearing upon affidavits, in an action to wind up a partnership.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 1, 1903, upon findings in favor of the defendants, after a trial on the merits before tie court without a jury, denying plaintiff’s right to foreclose a mortgage as to an undivided half interest in the property.</p>

, entered April 2, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, establishing a prescriptive right of way. The respondent moved to dismiss the appeal on the ground of insufficiency of the notice of appeal, which omitte.d the words, “to the supreme court.”

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered June 3, 1904, upon findings in favor of the plaintiffs after a trial before the court, a jury being waived, in an action for personal injuries sustained through a defect in a sidewalk.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Rennan, J., entered November 24,1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing the foreclosure of a chattel mortgage.</p>

, entered July 17, 1903, in favor of the plaintiff, after striking portions of the answer and sustaining a demurrer thereto-, in an action for an accounting.

<p>Appeal and Error — Review—Verdict. The verdict of a jury upon conflicting evidence is controlling and will not be disturbed on appeal.</p> <p>Contracts — 'Breach—Stipulated Damages — Evidence of Actual Profits — Immateriality. In an action upon a contract to pack fish for a canning company, wherein stipulated damages of forty cents a case are agreed upon for each case less than 3,300, upon the failure of plaintiff to pack that number each day, it is proper to exclude evidence of the actual profit on each case of fish packed, offered by the defendant for the purpose of showing that it did not refuse the use of the machinery during certain hours, since there was no issue as to such profits, and the evidence would tend to confuse the jury.</p> <p>Contracts — Construction — Sundays —Work Upon — Instructions. In an action upon a contract to pack a certain number of cases of fish for a canning company on every day during the continuance of the contract, and for stipulated damages per case for any shortage in the required amount, it is proper to instruct the jury to the effect that the plaintiff could not be charged with any shortage occuring on Sunday, nor offset the fish packed on Sunday against shortages occurring on other days, since the contract did not require work on Sundays.</p> <p>Appeal and Ep.itoit — Review—Instructions. It is not error to refuse specific instructions that are covered in the general charge.</p>

<p>Pabent and Child — Weongs of Pabent — Damages—Action by Child Against Pabent — Rape. A minor child cannot maintain an action for damages against a parent for injuries inflicted while the family relation exists, and the fact that the wrong was the heinous offense of rape, for which the father was convicted and imprisoned, does not, in effect, emancipate the daughter or authorize the action.</p>

<p>Pleadings — Amendment—Discretion of Court. Error cannot be predicated upon the allowance of an amended complaint in that it changed the cause of action, where the court acted within its discretion in allowing the amendment and the defendants were not misled or prejudiced.</p> <p>Appeal and Error — Review—Evidence on Trial de Novo. Error cannot be predicated on the improper admission of evidence in a case tried on the evidence in the supreme court, since it will be disregarded.</p> <p>Appeal and Error — Review—Evidence. Findings will not be disturbed when justified by the evidence, although the same is conflicting.</p>

<p>Guardian and Ward — Final Account — Compromise op Litigation by Order op Court — Contract by Indian — Validity. Where a suit has been commenced against an Indian and his guardian for a conveyance of lands, pursuant to a contract made by the Indian before the removal of restrictions upon the power of alienation, upon which contract $1,600 had been paid to the Indian from time to time, the court may authorize the guardian to compromise the suit by the payment of $2,000, regardless of the validity of the contract, where it appears that the land has become valuable, and the court finds it to be for the best interests of the estate to end the litigation; and after the guardian has made such payment under the order of court, the invalidity of the contract cannot be urged against the allowance of a credit for such payment in the guardian’s final account, exceptions to which are properly overruled.</p>

, entered May 28, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a chattel mortgage.

<p>Application filed in the supreme court February 13, 1905, for a writ of habeas corpus to admit to bail.</p>

<p>Appeal from a judgment of the superior court for Pierce' county, Snell, J., entered August 15, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for the foreclosure of a chattel mortgage.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 30, 1903, upon sustaining a demurrer to a complaint, dismissing an action to remove the cloud of a judgment.</p>

<p>County Commissioners — Vacancy—How Pilled. Upon a vacancy occurring in tbe office of a county commissioner, the two remaining members have power to select a successor, Bal. Code, § 327, providing that the judge of the superior court of the county shall act with them being in conflict with Const, art. 11, § 0, which provides that the county commissioners shall fill vacancies in any county office.</p>

<p>Municipal Coepobations — Pabks—Divebsion to Economical Use — Lands Heed in Fee and Paid eoe Fbom Geneeal Fund— Abutting Ownebs. A city of the first class, being authorized to acquire lands by purchase or otherwise and to dispose of the same, and to establish, regulate, control or vacate parks, and having acquired lands in fee for the purpose of a public park by the right of eminent domain, may thereafter divert the same to an economic use by the erection thereon of a city building, where the lands appropriated were paid for by the city out of its general fund, as distinguished from a restricted donation or conveyance for park purposes, or from a purchase paid for by local assessments levied upon the property specially benefited thereby; and abutting owners can not object to such diversion.</p>

, entered [November 8, 1903, upon the verdict of a jury rendered in favor of the defendant, after a trial on the merits, in an action for conversion.

<p>Appeal from an order of the superior court for King county, Morris, J., entered July 8, 1904, setting aside a verdict as excessive and granting a new trial.</p>

, entered December 18, 1903, after a hearing on the merits before the court without a jury, appointing a receiver during the pendency of the action.

, entered April 8, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a policy of fire insurance.

, entered March 10, 1902, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for partition.

, entered July 23, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, decreeing an absolute deed to he a mortgage.

, entered November 12, 1903, upon findings in favor of the defendants, after a trial before a court without a jury, dismissing on the merits an action upon promissory notes.

, entered February 29, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in being ejected from a moving train.

, entered March 15, 1902, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to set aside a conveyance as fraudulent as to creditors.

, entered April 16, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a stevedore for personal injuries sustained through the breaking of a rope sling.

, entered September 19, 1903, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to recover the possession of real and personal property, and for damages.

, entered April 2, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in au action to foreclose a mortgage. There was testimony tending to show that the building was turned over and accepted as completed in October. On January 6, upon the demand of the owner, the contractor put metallic flashings over six windows that had been inadvertently omitted, and on February 13, certain drain tile was relaid.

<p>Estoppel — Mortgages.—Covenants—Warranty—After - Acquired Title — Tide Lands Belonging to State. A mortgage covering tide lands belonging to the state, which contains a covenant of ■seizin and general warranty against all lawful claims, conveys the after-acquired title of the mortgagor, secured through a state deed issued after the decree and foreclosure sale, upon an application for purchase made pending the foreclosure.</p>

<p>Mortgages — Foreclosure — Parties — Husband and Wife— Wife of Purchaser of Premises. The foreclosure of a mortgage against community property transferred by the mortgagor, is void where the wife of the purchaser is not made a party defendant.</p> <p>Mortgages — -Void Foreclosure Sale — Mortgagee in Possession. A purchaser or assignee in good faith under a void foreclosure sale becomes a mortgagee in possession.</p> <p>Mortgages — Interest—Increased Rate After Maturity — Bills and Notes. A stipulation in mortgage notes providing for an increased rate of interest after maturity, is valid.</p> <p>Same — Interest on Taxes Paid. It is proper to allow twelve per cent interest upon taxes paid by the mortgagee where the mortgage provides therefor.</p> <p>Mortgages — Action to Redeem — Mortgagee in Possession— Value of Improvements — Interest Upon — Rental Value. In an action for an accounting, brought by mortgagors, against mortgagees in possession under a void foreclosure, it is proper to allow the defendants for the- value of their improvements, with interest thereon from the time they were made, where the plaintiffs are allowed the rental value of the premises at a rate increased by the improvements, and where the plaintiffs had knowledge that the improvements were being made in the full belief of the legality of the defendants’ title, and made no claim to the land for more than three years thereafter.</p> <p>Same — Form of Decree — Interlocutory Order Fixing Time foe Redemption — Equity. In an action brought by mortgagors against mortgagees in possession under a void foreclosure, seeking to set aside the foreclosure decree and for an accounting for rents, it is proper to enter an interlocutory decree fixing 90 days within which the amount necessary to redeem from the mortgage debt shall be paid, and in default of such payment, dismissing the action and quieting the title of the defendants; since, either as an action to quiet title or to redeem, the plaintiffs must do equity before being entitled to relief against mortgagees in possession.</p>

<p>Appeal and Error — Pleading—Waiving ■ Error by Pleading Over. Error in striking out a portion of the complaint is waived by the filing of an amended complaint.</p> <p>Negligence — Dangerous Premises — Power House in Quarry-Injury to Trespassing Child. A power house in a quarry 200 yards from a public road, containing no dangerous machinery or device particularly attractive to children, does not come within the rule of the turntable eases so as to render the owner liable to a trespassing child, six years of age, who was injured in stepping through a hole in the floor of a platform covering the machinery.</p> <p>Same — Trespassers—Unauthorized Invitation. A child six years of age who enters defendant's power house at a quarry, of his own volition, just after being driven away by the engineer in charge, cannot be said to enter upon invitation, but is a trespasser, notwithstanding he may have been enticed there by two boys employed by defendant in manipulating the levers of the hoisting machinery, since they had no authority to invite strangers there, or to impose obligations on the defendant with reference to trespassers.</p>

<p>Contempt — To Enforce Contract Rights — Order in Probate for Delivery of Exempt Property — -Warehouseman’s Receipt. Where in probate proceedings certain personal property, stored with a warehouseman by the deceased, was set aside as exempt to the widow, and order was made for its delivery to her, pursuant to which the warehouseman accepted from her the storage charges and issued her a warehouse receipt, she not wishing to remove the goods at that time, a subsequent delivery cannot be enforced by contempt proceedings for disobeying the order in probate, since the transaction was a constructive delivery and an independent contract enforcible in a proper action, and in no way connected with the order.</p>

<p>Trial — Comment on Facts — Harmless Error — Homicide— Self-Defense — Admitted Fact. In a prosecution for a homicide, unlawful comment of the judge, at the time of the introduction of the evidence, in telling the jury that they must remember the evidence of a certain witness respecting the identification of a knife, is not prejudicial error, where the identification of the knife became immaterial and unimportant through the plea of self-defense, it being an admitted fact that the killing was done by the accused with a knife similar in appearance.</p> <p>Same — Instructions. In a prosecution for a homicide an instruction in the nature of a comment on the evidence, in that it assumed that witnesses had testified to incriminating circumstances, is not reversible error where that is a conceded fact in the case, the killing being admitted under a plea of self-defense, and where the jury were instructed to disregard all comments on the evidence; since unlawful comment on the evidence is not ground for reversal where it affirmatively appears that it was without prejudice.</p> <p>Criminal Law — Homicide—Sele-Defense—Instructions—Definition of Beating — Harmless Error. In a prosecution for homicide, where the plea was self-defense in avoiding a heating administered by the deceased, an instruction defining a "beating” as a functional derangement such as the blackening of an eye, while subject to criticism, will not he ground for reversal, where it appears from the evidence and other instructions that the accused was not prejudiced thereby.</p> <p>Same — Right to Defend Against Beating. In a prosecution for a homicide, an instruction to the effect that the right of self-defense does not justify one in killing an assailant who makes an assault without a deadly weapon with intent to administer a mere beating,-is not prejudicial, where, with five or six other instructions on the subject taken as a whole, the law is fairly presented.</p> <p>Criminal Law — Improper Questions — Other Acts — Harmless Error. In a prosecution for a homicide, permitting the state to ask if the witnesses had heard of the accused’s engaging in other acts of violence, is not prejudicial where the witnesses answered in the negative.</p> <p>Criminal Law — Homicide—Mtjrder in Second Degree — Killing in Affray — Evidence—Sufficiency. In a prosecution for a homicide, where the deceased was stabbed by the accused in a saloon fight and the piea of self-defense is made, there is sufficient evidence to warrant a conviction of murder in the second degree, where it appears that there had been ill-feeling between the deceased and the accused, that there was talk of fight before the affray, that the accused was armed with a knife, and the deceased was unarmed and using only his fists, that they were about equal in physical ability, that the fight was of very short duration, and the deceased was severely cut in several places, that tibie accused admitted the cutting, and there was evidence that he had expressed the hope that it would result fatally; although there was conflict in the evidence as to how the fight started.</p>

, entered May 31, 1904, upon the verdict of a jury in favor of the plaintiff, in an action for personal injuries sustained in a fall through a defective approach to premises owned by defendants.

L. Miller, J., entered August 4, 1903, upon findings and an advisory verdict of a jury rendered in favor of the defendants, after a trial on the merits, quieting defendants’ title, to mining claims.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered May 26, 1904, upon overruling defendant’s demurrer to a complaint in forcible entry and detainer, awarding restitution and damages.</p>

<p>Appeal from an order of the superior court for King county, Bell, J., entered June 2, 1904, after a bearing upon plaintiff’s motion, granting a temporary injunction.</p>

, entered September 9, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, quieting the defendants’ title to real estate.

<p>Appeal from a judgment of the superior court, for Chehalis county, Irwin, J., entered July 15,1904, upon granting a nonsuit, in an action for personal injuries sustained by the operator of a saw in attempting to remove sawdust while the saw was in motion.</p>

<p>Appeal — Dismissal—Filing of Statement and Briefs. Motions to strike the statement and briefs and to dismiss the appeal for failure to file tbe same in time will be overruled where the statement was filed witbin time properly extended and the briefs were filed within 90 days after the appeal was taken.</p> <p>Witnesses — Competency—Conviction of Perjury. A witness convicted of cattle stealing, who acknowledges upon cross-examination that he committed perjury, is not incompetent hy rea. son of Bal. Code, § 5992, providing that a person convicted of perjury shali not be a competent witness in any case.</p> <p>Criminal Law — Cattle Stealing — Testimony oe Accomplice— Corroboration — Caution to Jury — Instructions. In a prosecution for cattle stealing, where a convicted accomplice admitted to having testified in a former trial to statements contradicting his present testimony, and there was no corroborating evidence, it is reversible error to refuse to give an instruction cautioning the jury against convicting the accused upon the uncorroborated testimony of an accomplice, and stating that the jury could not so convict where the accomplice admitted to testifying differently on a former occasion.</p>

Austin E. Griffiths, Judge pro tempore, entered June 28, 1904:, after a hearing on the merits of conflicting applications for appointment as guardian of minors.

, entered May 14, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in ai action for personal injuries sustained by a passenger by reason of a defect in a station platform.

<p>County Officers — Highways—Road Supervisors — A ?pointiient by County Commissioners — Constitutional Law--Delegation of Legislative Auttiority. Road supervisors, with duties defined by, and compensation and time of service fixed iy the county commissioners, who have the general supervision over roads, are mere employees or deputies of the commissione: s, and not county officers within Const., art. 11, § 5, requirin g the legislature to provide for their election, and Laws 1903, d. 223, §§ 12, 13, authorizing the commissioners to appoint such supervisors, is not an unlawful delegation of legislative authority ■ or in conflict with said provision of the constitution.</p> <p>Same — Class Legislation — Special" Privileges. Laws 1903, p. 223, providing that the county commissioners may appoi it the road supervisors from among the qualified electors of the state, is not unconstitutional as granting special privileges or in munities to any citizen or class of citizens in violation of Cons ., art. 1, § 12, since the law places upon the same terms all pers >ns in the designated class.</p> <p>Same — Statutes—Title of Act — Conflict in Laws. T'h i title to the act providing for the levy of road and poll taxes, ai .d for road districts and the appointment of supervisors thereof Laws 1903, p. 223), being sufficient to authorize such appointments, an objection that it is insufficient to embrace the repeal of firmer laws providing for the election of supervisors, is immaterial upon the question of the validity of an appointment, since tie appointment could he made if the former law was not repeale 1.</p>

, entered March 18, and April 8, 190 refusing to vacate a foreclosure decree and deficie icy judgment entered June 8, 1899, upon the special appearance and motions of the defendants.

, entered February 6, 1904, upon a verdict rendered in favor of the defendant ly direction of the court, after a trial on the merits, dismissing an action for personal injuries sustained by an e nployee by reason of the starting of an engine which he was engaged in painting.

, entered May 13, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, ordering the payment to the plaintiff of money in court, in an action of interpleader.

<p>Railroads — Death op Pedestrian on Right op ¡Vay — Trespasser or Licensee — Evidence—Sufficiency—Nonsi it. A pedestrian on a railroad right of way’ is a trespasser, t > whom the company owes no duty as a licensee, in the absence of wilful or wanton neglect, where it appears that she and her ft mily and a few villagers were in the habit of walking upon the track to a post office three-fourths of a mile from her home, t hat notices' were posted along the right of way warning trespassers of the danger of walking thereon, and that there was a oublic road that might have been taken almost parallel to the i ailroad, no express license to use the track having been given.</p> <p>Same — Pedestrian’s Deafness — Contributory Iegligence. Where a person is very deaf, she is guilty of gross negligence in walking upon a railroad right of way without keei ing a constant lookout for a daily train that had been in tí e habit of passing her home for years.</p>

<p>Judgment — Vacation—Parties—Substitution by Stipulation. Upon a petition to vacate a judgment, a stipulation providing that certain named persons are to be considered as the real parties in interest instead of specified parties to the judgment, amounts to an agreed substitution. .</p> <p>Appeal and Error — Parties—Notice—Denial oe Vacation on Judgment. Upon an appeal from an order denying a petition to vacate a judgment, the notice of appeal need be served only upon the parties who appeared in that proceeding to contest the petition.</p> <p>Appeal and Ereoe — Notice—Time of Piling — Servic s on Unnecessary Parties. The requirement of Bal. Code, § ( 503, that notice of appeal he filed within five days after service is jurisdictional, and where the effective service upon all i 'ho were necessary parties was made in March, and the filing was not made until June, the appeal must he dismissed, and it is immaterial that a service of the notice was made upon non ’essential parties in June within five days of the filing.</p>

, entered November 9, 19 )3, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing i n action for a rescission of a contract to sell land.

, entered June 23, 1904, after a hearing on the merits before the court without a jury, dismissing a petition to vacate a decree of adoption.

<p>Labor — Public Works — Eight-Hour Day — Constitutional Law —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 penalty for any violation thereof by 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 a right to do its work in any manner it sees fit, and no violation of private rights is involved.</p> <p>Appeal and Error — Review. Where a case is tried in the court below solely on the theory of the unconstitutionality of a statute, the party will not be heard in the supreme court on the theory that the case came within certain exceptions to the statute.</p>

, entered November 21, 1903, upon the pleadings, on motion of the plaintiff, in an action to set aside a fraudulent conveyance.

<p>Appeal and Error — Review. Findings upon eonflictiE g evidence will not he disturbed when the evidence does not pr ¡ponderate against the same.</p> <p>Co-tenancy — Improvements—When Not Charsed Aiainst Co-tenant — Other Land in Lieu oe Improved Lots. In an action by a tenant in common to recover a half interest in i sal estate, deed for which was held by the co-tenants under a ilaim that plaintiff’s interest was only in the nature of a loan, t le defendants are not entitled to charge the land with the yali e of their improvements, where the plaintiff’s testimony was 1 ndisputed that it had been agreed that plaintiff was to deed the ■ .efendants the.improved lots and receive an equal quantity of laid in lieu thereof, and judgment should he entered for such division.</p>

<p>Contbacts — Building Hull or Vessel — Specifications Part of Contract. A contract to build tbe hull of a vessel in accordance With specifications attached, includes superstructure to be built on the main deck, masts, rigging and other equipment particularly enumerated as part of the hull in the specifications.</p> <p>Indemnity — Principal and Surety — Contractor’s Bond to Complete Vessel — Notice of Default — Failure to Give Within Time — Release of Surety — Demurrage for Delay. Where a contractor’s indemnity bond provided that notice of any-default by the contractor must be given the surety within thirty days, and the contract provided that the hull of the vessel should he ready for machinery September 15, and completed ready for trial October 15, and notice of default in both particulars was given October 17, together with a demand that the surety complete the contract, the failure to give notice of the first default within thirty days releases the surety from liability for the demurrage charged for the non-completion of the vessel on time, since the law cannot say how much of the demurrage would have been saved by timely notice; hut the surety is not released from liability for the cost of completing the vessel, where it refused to complete the same and where the failure to give notice of the first-default did not affect the relation of the surety with reference to the second default; since a compensated surety can only insist upon forfeiture clauses where the failure to comply therewith probably inflicts a loss on the surety.</p>

Appeal by plaintiff from an order of the superior court for Whatcom county, Neterer, J., entered May 18, 1904, modifying the clerk’s entry of judgment upon the verdict of a jury, rendered in favor of the plaintiff after a trial on the merits, by releasing’ from liability thereon the surety upon a bond given to discharge an attachment.

<p>Railroads — Negligence—Crossings—Traveler Failing to Look and Listen — Contributory Negligence — Nonsuit. A traveler who drives a team upon a railroad crossing at a point where for a considerable distance he had an unobstructed view of an approaching locomotive, is guilty of contributory negligence, as a matter of law, where he drove on to the crossing either without looking or looked and whipped up his horses in an endeavor to cross ahead of the engine.</p> <p>Same — -Evidence—Presumption as to Due Care. The presumption that a traveler used due care and stopped to look and listen before driving upon a railroad crossing, cannot he indulged where it appears from the testimony that for a considerable distance he had an unobstructed view of an approaching locomotive, hut drove at a slow walk until within fifty feet or less of the crossing, and suddenly whipped up his horses in an endeavor to cross ahead of the engine.</p> <p>Same — Doctrine of “Last Clear Chance.” The doctrine that the defendant had the “last clear chance” to avoid killing a traveler, who was struck by a locomotive at a railroad crossing, has no application where the deceased was driving at a slow walk until within fifty feet of the crossing and suddenly whipped up his horses in an endeavor to cross ahead of a locomotive moving at a rate of between 12 and 60 miles an hour.</p> <p>Same — Comparative Negligence. The doctrine of comparative negligence does not obtain in this state.</p> <p>Same — Trial—Setting Astde Verdict Not Sustained by Evidence — Contributory Negligence. The verdict of a jury upon an issue as to contributory negligence which is contrary to what all reasonable men ought to find upon the undisputed testimony, is not conclusive upon the court, and will be set aside upon appeal.</p>

<p>Appeal and Error — Review—Stipulation—Effect. A stipulation admitting the facts stated in the pleadings, and treated by the parties and court as sufficient to,raise the validity of an ordinance, will be so considered on appeal.</p> <p>Appeal — Jurisdiction—Amount in Controversy. The supreme court has jurisdiction of an appeal involving the validity of an ordinance, regardless of the amount in controversy.</p> <p>Animals — Impounding—Municipal Corporations — Ordinances —Validity—Constitutional Law — Due Process of Law. Under Bal. Code, § 1011, a municipal corporation of the fourth class may prohibit the running at large of domestic animals, and an ordinance providing for the summary sale of impounded animals, under reasonable notice, without a judicial inquiry, is effective to transfer the title and does not authorize the taking of property without due process of law.</p> <p>Same — Imposing Fine. A provision in such an ordinance imposing a fine against an owner for permitting animals to run at large, to be exacted without a judicial investigation, is unconstitutional.</p> <p>Same — Invalidity of Ordinance as to Fine Not Affecting Balance of Impounding Ordinance — Sale—Validity—Offep, to Pay Legal Charges. An invalid provision in an impounding ordinance whereby a fine is exacted from the owner, does not affect the validity of the other provision of the ordinance, otherwise complete in itself, prohibiting the running at large of domestic animals and providing for a summary sale, without judicial investigation, to pay said fine and the charges for the impounding, keeping, and sale; nor does such provision affect the validity of a sale, where the owner did not offer to pay the legal charges; before or after the sale.</p>

Rudkin, J., entered January 21, 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 in the nature of specific performance1.

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, J., entered April 1, 1904, upon a trial and conviction of the crime of perjury.</p>

, entered July Id, 1903, and September 26, 1903, denying defendants’ motions to vacate a judgment and to reconsider the former ruling.

<p>Appeal — Appealable Obdeks. An order sustaining a demurrer is not appealable.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, Denney, J., entered May 4, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, quieting the title to real estate.</p>

<p>Carriers — Removal of Trespassers From Train- — Force Necessary — Resistance. In removing trespassers from a train, the employees may use such force as appears reasonably necessary, and where forcible resistance is offered, the jury should not weigh with too much nicety the force resorted to.</p> <p>New Trial — Insufficiency of Evidence to Support Verdict— Exercise of Discretion by Trial Judge. When the trial judge is satisfied that the verdict is against the weight of the evidence, and that substantial justice has not been done, it is his duty to grant a new trial, the rules governing the trial and appellate courts being wholly different; and where the trial judge denies a new trial after expressing an opinion at variance with the ruling, he fails to properly exercise his discretion, and the ruling will be reversed on appeal.</p>

, entered October 23, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in attempting to enter a street car.

, entered March 1, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Appeal from a judgment of the superior court for King county, Griffin, L, entered February 20, 1904, upon findings in favor of the plaintiff, after a trial before the court, a jury being waived, in an action for damages for breach of a contract of carriage.</p>

, entered August 7, 1903, upon the verdict of a-jury rendered in favor of the' defendant, after a trial on the merits, in an action upon a promissory note.

, entered March 8, 1904, upon the verdict of a jury rendered in favor of the plaintiffs for $740.42 damages for breach of contract.

, entered April 7 and 11, 1904, requiring a city attorney to approve a cost bill for witness fees, and overruling the city’s objections to the jurisdiction.

, entered April 30, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to wind up a corporation.

<p>Appeal from a judgment of the superior court for Adams county, Heal, J., entered May 10, 1901, in favor of plaintiff, upon its motion for a new trial after the entry of judgment in favor of the defendants, in an action upon promissory notes.</p>

, entered September 30, 1903, upon tbe advisory verdict of a jury and findings rendered in favor of plaintiffs, in an action to foreclose a mechanics’ lien and for damages.

<p>Judgment — Vacation—Collateral Attack Upon Subsequent Judgment After Vacating Void Decree. Where a default judgment is, on motion of the plaintiff, found to be fraudulently entered and void, it may be vacated and a new judgment entered in accordance with, the demand of the complaint, without notice to the defendants; and, upon a collateral attack, the subsequent judgment will be presumed to have been made on sufficient showing, nothing appearing to the contrary in the record.</p> <p>Quieting Title — Pleadings—Complaint—Sufficiency as to Part of Lot — Demurrer. In an action to quiet title to a lot, sold under a tax foreclosure which was alleged to he void, it is error to sustain a general demurrer to the complaint upon its appearing by a bill of particulars that the tax foreclosure was valid, where the tax deed covered only a portion of the lot.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Hatch, J., entered January 9, 1904, dismissing an action to enjoin a tax sale, upon sustaining a demurrer to the complaint. Appeal dismissed as to appellant Trumbull.</p>

<p>Appeal from an order of the superior court for King county, Bell, J., entered January 4, 1904, discharging a prisoner on a writ of habeas corpus.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered Rovember 10, 1903, upon findings in favor of the plaintiff, after a trial before the court, a jury being tvaived, in an action for personal injuries sustained' in tripping upon a street car rail.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 11, 1904, dismissing an action for an injunction, upon sustaining a demurrer to the complaint.</p>

, entered May 31, 1904, upon findings in favor of the defendants, after a trial on the merits before tbe court without a jury, dismissing an action to enjoin the keeping of tract indices by a county.

, entered April 20, 1904, dismissing an action upon contract, at the close of plaintiff’s testimony, after a trial before the court, a jury being waived.

<p>Appeal from a judgment of the superior court for "King county, Kudkin, J., entered May 12, 1904, in favor of the plaintiff, as prayed, upon sustaining a demurrer to an answer in an action of ejectment.</p>

Bell, J., entered April 8, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to declare a forfeiture of a contract for the sale of land.

<p>Estoppel — In Favor of Purchaser of Mortgaged Premises— Bills and Notes — Mortgages—Holder of Unpaid Coupons— Notice of Negotiations. Where a purchaser of mortgaged proi> erty, who had assumed payment of the mortgage as part of the purchase price, paid the amount claimed by the holder, and received a satisfaction in full discharge of the mortgage, the holder of unpaid negotiable coupon notes secured by the mortgage, to whom they had been assigned by the holder of the mortgage before maturity, is not estopped to assert a claim against the property and to foreclose the mortgage to satisfy the same, by reason of the fact that four days before he purchased the property or assumed the mortgage, the purchaser wrote to the assignee of the coupons that he was about to arrange a release of the mortgage and if it had any interest to advise him, and that he received no reply; nor by the fact that the assignee had for a long time been the agent of the holder of the mortgage for the purpose of collecting interest, had notice of the pending negotiations, and gave no notice that it held the coupons or that they were unpaid.</p> <p>Bills and Notes — Mortgages—Assignment of Coupons — Payment — Estoppel. Where a loan and trust company, having sold a mortgage and coupon notes to an eastern customer, was in the habit of advancing payment of the coupons six days before maturity, and the holder returned the coupons endorsed with the stamp of negotiability, the transaction does not amount to a voluntary payment of the coupons, and the trust company is not estopped to collect the same from the makers or from one who had assumed the mortgage.</p>

<p>Appeal from a judgment of the superior court, for King county, Bell, J., entered July 14, 1903, discharging a prisoner upon a writ of habeas corpus, after a hearing on the merits.</p>

, entered June 22, 1903, dismissing an action for damages for injuries sustained by a member of a fire department, after sustaining a demurrer to the complaint.

, entered April 19, 1904, upon the verdict of a jury rendered in favor of the- plaintiff, in an action for a broker’s commissions.

<p>Wills — Inheritance Tax — Executors and Administrators— Foreign Administration — Comity—Judgments—Conclusiveness op Distribution — Inheritance Tax Chargeable to Legatees. Where a resident of the state of Maine died, leaving estate there and in the state of Washington, and his will was probated there, and all legacies to collateral heirs and strangers to the blood and all the debts were, by order of the probate court in Maine, paid out of the estate situated in that state, leaving the property in this state to be divided between his widow and son under the residuary clause in the will, the estate in the state of Washington is not chargeable with the increased inheritance tax upon legacies to collateral heirs and strangers to the blood at the rate of 3 and 6 per cent, under Laws 1901, p. 67; since comity requires that full faith and credit he given to the proceedings in the probate court in Maine, ordering those legacies to he paid out of the estate within its jurisdiction and under its control, and such order is conclusive on the courts of this state; and since the inheritance tax is to he deducted from the legacies and paid by the legatees, and the executor in this state has no.opportunity to collect the same from the legatees chargeable therewith.</p>

<p>Railroads — Nuisance—Streets—Authority to Use — Acquiescence of Abutting Owners — Vacation of Street. An abutting owner wbo purchased bis lot after the vacation of part of the street and the construction there of a railroad track, and acquiesced for years in the operation and improvement of the railroad, cannot object to the operation of the road as a public nuisance, because of want of original authority to use the street, since the street had been vacated, and since the company, as a common carrier, possessed of the right of eminent domain, was under obligation to continue its duties to the public as such.</p> <p>Municipal Corporations — Streets—Vacation—Discretion of City Council. The vacation of a street is a legislative question, and within the discretion of the city council, and will not he disturbed in the absence of an abuse of discretion, or where the» owners of abutting property may have requested such vacation.</p> <p>Same — Burden of Proof as to Character of Street — Vacation —Pleading—Amendment of Answer. In an action to enjoin the use of a public street for railway purposes, in which the answer denied that the place was a public street, tbe burden of proof as to that fact is upon the plaintiff, and hence it is not error to permit a trial amendment to the answer setting up an ordinance vacating the place as a street prior to its use for railway purposes, the vacation being a matter of public record.</p> <p>Railroads — Acquiescence, of Land Owner in Construction— Damages — Injunction — Estoppel. After acquiescence "in thei construction and operation of a railroad, the remedy of a land owner is limited to compensation in damages, and he is estopped to enjoin its operation.</p> <p>Same — Trespass—Damages Not Running With Land — Subsequent Purchasers. Damages to a land owner, by the construction and operation of a railroad by a common carrier possessing the power of eminent domain, are in the nature of compensation for a trespass and do not run with the land, and his grantee takes the land subject to the burden, and cannot enjoin the operation of the road.</p> <p>Same — Evidence of Damage to Subsequent Purchaser. A party purchasing land after the construction of a railroad thereon, suffers no injury from the fact that the trains were thereafter heavier and the track had been standardized by spreading the rails upon the same ties, no more land being occupied.</p>

<p>Highways — Over Public Lands — Grant of Congress — Construction — Acceptance by User — County Commissioner’s Acceptance. U. S. R. S. §2477, granting a right of way for the construction of highways over public lands, is a grant in praesenti becoming effective upon user by the public without any formal action on the part of the state; and actual continuous user for seven years by the general public before entry by a homesteader, constitutes such acceptance of the grant; and an acceptance by the county commissioners, under Laws 1903, p. 155, is not necessary, that act providing that nothing therein contained shall invalidate “acceptance of such grant by general public use.”</p> <p>Same — Prescription. In such a case, the ten years user required for prescription is not essential, as it is not a question of prescription, but one of acceptance of a grant.</p>

<p>Appeal from a judgment of the superior court for King county, Kennan, J., entered May 13, 1904, upon a trial and conviction of the offense of practicing dentistry without a license.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, X, entered January 19, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries received by a seaman in falling through an open hatch, while in the defendant’s employ.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, J., entered November 14, 1903, in favor of the plaintiff, upon discharging the jury after a trial on the merits.</p>

, entered March 12, 1903, refusing to vacate an order allowing $1,500 as fees to an administrator’s attorney, after a hearing on the merits.

<p>Appeal from a judgment of the superior court for Jefferson county, Hatch, J., entered January 29, 1904, upon findings in favor of the plaintiff.</p>