Volume 38 — Washington Reports

, entered February 27, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for the rescission of a contract.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 12, 1904, dismissing an action to quiet title, upon sustaining a demurrer to the complaint.</p>

, entered January 5, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Appeal from a judgment of the superior court for Lincoln county, Neal, L, entered October 11, 1903, in favor of the plaintiffs, upon discharging the jury at. the close of the evidence, after a trial on the merits, in an action for a broker’s commissions.</p>

<p>Certiorari—Receivers—Order Denying Leave to Sue—Adequate Remedy by Apbeai. A writ of review will not issue to review an order denying a creditor leave to bring an action against a receiver, upon tbe disallowance of his claim by the receiver, since there is an adequate remedy by appeal from such an order, with a stay of proceedings, if necessary, to preserve the fruits of the appeal.</p>

, entered January 27, 1904, upon tbe verdict of a jury and findings of the court in favor of the city, in a street condemnation proceeding, assessing benefits against abutting property.

■ Appeal from a judgment of tbe superior court for Kittitas county, Budkin, J., entered June 19, 1903, upon granting a nonsuit, after a trial before tbe court and a jury, dismissing an action upon a policy of accident insurance.

William Baines, Court Commissioner, entered July 16, 1904, in favor of the plaintiff, upon default of the defendants to plead over, after the overruling of a demurrer to the complaint.

, entered September 23, 1903, upon sustaining a demurrer to the complaint, dismissing an action against a saloon keeper for personal injuries inflicted by an intoxicated person.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered January 21, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to redeem lands from a mortgage.</p>

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered June 13, 1904, upon findings in favor of the intervener, after a trial on the merits before the court without a jury, in an action on a promissory note, decreeing the priority and foreclosure of intervener’s mortgage.</p>

county, Morris, J., entered April 21, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a receiver to recover assets wrongfully paid to a stockholder.

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered November 2d, 1903, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a pedestrian struck by defendant’s train.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered January 21, 1901, upon findings in favor of the defendants, .after a trial before the court without a jury, dismissing on the merits an action to quiet title.</p>

<p>Limitation op Actions—Judgments—Fraudulent Conveyances ■—Discovery of Fraud—Absence of Judgment Debtor From State. Tbe statute of limitations does not run against an action to set aside a conveyance as fraudulent and subject tbe lands to a judgment, until after the discovery of the fraud, nor while the judgment debtors are absent from the state.</p> <p>Fraudulent Conveyances—Assignment for Benefit of Creditors—Action in Name of Creditors—Assignee Failing to Act ob Discharged. A creditor may bring an action in its own name to set aside a fraudulent conveyance made by the debtor prior to making an assignment for the benefit of creditors, especially if the assignee was a party to the fraud or neglects to act, or has been discharged; and the debtor cannot raise the objection that only the assignee could bring such an action.</p> <p>Same—Discharge in Bankruptcy—Fraudulent Conveyance Prior to Proceedings. A discharge in bankruptcy is no defense to an action by creditors to set aside a fraudulent conveyance, made before the proceedings in bankruptcy, where the property was not subjected to the benefit of the creditors.</p> <p>Trial—Pleadings—Failure to Answer Interrogatories—Extending Time—Discretion. A judgment against the defendants, upon striking out an answer for failure of the defendants to answer interrogatories, and refusing to extend the time therefor, will not be reversed where there was no abuse of discretion in refusing to extend the time.</p>

, entered September 12, 1903, upon, the verdict of a jury rendered in favor of the defendants, in an action upon a promissory note.

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered March 15, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to restrain the removal of buildings from leased premises.</p>

<p>Trial—Verdict—Certainty—Loss and Logging—Action to Recover Boomage Charges. In an action to recover boomage charges, a verdict for 35 cents per thousand for tide water logs and 50 cents for fresh water logs, without specifying the amount or ascertaining the quantity of logs boomed above tide water, is void for uncertainty, and it is error to enter judgment thereon by computing the quantity of logs from the allegations of the complaint, which were denied, there being nothing in the testimony or record from which the quantity could be ascertained.</p>

, entered December 4, 1903, upon granting a nonsuit at the close of plaintiffs case, in an action for personal injuries sustained by defendant’s workman in assisting to recover a grading scraper that had fallen off the grade.

<p>Bonds—Supersedeas—Action for Damages in Being Kept Out of Possession of Premises—Evidence—Admissibility. In an action upon a supersedeas bond for damages in being kept out of possession of premises awarded by tbe judgment, tbe defendant is not prejudiced by the exclusion of evidence on collateral matters not affecting tbe question of possession.</p> <p>Same. In such a case a lease of tbe premises is admissible to impeach the defendant’s testimony that be was in possession under an oral agreement, and for tbe purpose of showing tbe terms of tbe lease.</p> <p>Same. In such a case, evidence that tbe defendant consented to a change in a contract affecting bis earning ability is admissible upon an issue as to whether tbe plaintiff wrongfully brought about such a change in tbe status of tbe defendant.</p> <p>Same—Defenses—Release of Surety—Agreement Affecting Status of Principal—Waiver—Principal and Agent. In an action upon a supersedeas bond given by a compensated surety, an agreement affecting tbe status of tbe principal lessening bis earning ability or tbe value of tbe premises retained by him by virtue of tbe bond, does not release tbe surety, since tbe principal acts as agent of tbe surety company.</p>

, entered January 29, 1904, upon the verdict of a jury rendered in favor of the plaintiff in an action for personal injuries sustained through a de>fective sidewalk.

, entered December 17, 1903, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to set aside a fraudulent conveyance.

, entered June 1, 1904, dismissing an action to enjoin the obstruction of a public highway, upon sustaining a demurrer to the complaint.

<p>Burglary—Evidence—Letters to Show Conspiracy to Prosecute—Hearsay. In a prosecution for burglary of tbe house of M and tbe theft of a typewriter belonging to M’s daughter, letters from tbe daughter to tbe accused, between whom an attachment bad existed, written prior to tbe commission of tbe offense, stating that her parents were threatening to send tbe accused to tbe penitentiary, are inadmissible to show a conspiracy on tbe part of tbe parents; since they were hearsay as against tbe parents, and do not tend to show a conspiracy.</p> <p>Burglary—Evidence—Confessions—Voluntary Statements to Police Officers. In a prosecution for burglary, statements by tbe accused to police officers, who were investigating tbe matter of tbe stolen property, made before any charges were preferred against tbe deceased, are not inadmissible as confessions induced by threats, when they were voluntarily made without threats or inducements on tbe part of tbe officers.</p> <p>Same—Pawn Ticket—Admissibility—Furnishing Evidence Against Himself. In a prosecution for a burglary and tbe theft of a typewriter, which was, on tbe same day, pawned by tbe accused, tbe pawn ticket taken from bis person while in tbe custody of tbe officers, but before any charges were' preferred against him, is competent evidence and admissible, even conceding that it was wrongfully taken from him, and tbe same is not open to tbe objection that tbe accused was compelled to furnish evidence against himself.</p> <p>Same—Sufficiency of Evidence. There is sufficient evidence to support a conviction of tbe crime of burglary where it appears that a bouse, in which tbe accused bad boarded and with which be was familiar, was entered in tbe absence of tbe family and a typewriter stolen therefrom, that tbe accused pawned the typewriter on tbe same day, and that be made contradictory statements to tbe officers respecting tbe typewriter, failing to satisfactorily explain bis possession.</p> <p>Same—Evidence—Hearsay. Upon a prosecution for burglary. and the theft of a typewriter, hearsay evidence to the effect that the accused had possession of a typewriter prior to the burglary is properly excluded.</p>

, entered February 16, 1904, upon sustaining a demurrer to the complaint, dismissing an action by a trustee in bankruptcy to recover a fund transferred by the bankrupt.

, entered March 2, 1904, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action of ejectment.

, entered April 2, 1904, upon an agreed statement of facts, dismissing an action to enjoin the assessment for taxation of Indian lands.

Application filed in the supreme court June 10', 1901, for a writ of prohibition to prevent the superior court for Ring county, Tallman, J., from vacating a judgment.

, entered January 12, 1904, appointing a temporary receiver pending the action, upon application of the defendants, after a hearing upon affidavits and the cross-complaint of the defendants, in an action for an injunction.

<p>Municipal Corporations—License op Business—Taxation— Teading Stamps. A municipal ordinance requiring the payment of a license fee by persons transacting or soliciting business through the use or medium of trading stamps, is a valid exercise of the taxing power.</p> <p>Same—Contracts—Violating Ordinance Requiring Payment op License Fees. The courts will not enforce a contract with reference to the use of trading stamps, where the same was entered into in violation of an ordinance requiring the payment of a license fee for transacting business with such trading stamps, and such ordinance may be pleaded, and is a good defense, to an action upon the contract.</p> <p>Same—Interstate Commerce—Nonresidents Soliciting Business por Resident op This State. A municipal ordinance requiring the payment of a license fee, by persons transacting or soliciting business through the medium of trading stamps, is not void as an interference with interstate commerce, as applied to a contract by a nonresident to solicit business in a city of this state for a resident business man of said city, there being no interference with the right of anyone to solicit in this state sales of goods in a foreign state; since the object was not to make a tax on sales, but to tax a peculiar method of doing business.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered October 23, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court, a jury being waived, in an action upon a promissory note.</p>

, entered July 9, 1903, upon the verdict of a jury rendered in favor of the defendant, iii an action for personal injuries sustained through the collapse of a bridge.

<p>Appeal from a judgment of tbe superior court for Olarke county, Bice J., entered December 2, 1903, upon findings in favor of tbe defendant, after a trial on tbe merits before tbe court, without a jury, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for King county, Hatch, J., entered December 15, 1904, after a hearing in habeas corpus, remanding to custody a prisoner extradited to Alaska.</p>

<p>Libel and Slander—Pleading—Complaint—Requiring Newspaper Articles to be Set Out in Full. In an action for libel in the publication of newspaper articles, it is proper to require the complaint to be made more definite and certain by setting out the articles in full, since the- full meaning of the objectionable parts can be ascertained only when construed in connection with the whole.</p> <p>Libel and Slander—Newspaper Account of Arrest and Prosecution—Express Malice—When Necessary. A series of newspaper articles purporting to be a statement of the acts, theories, and representations of law officers relating to the pursuit, arrest, trial, and acquittal of the plaintiff, who was charged with burglary, are not libelous per se, and are qualifiedly privleged, where there was no statement as to plaintiff’s guilt or imputing to her the commission of crime, when construed with reference to the whole text; and the defendant is not liable in the absence of an allegation of express malice.</p>

<p>Actions—Abatement—Plea oe Another Action Pending—Infants—Suit by Next Friend—Demurrer Sustained in Former Action. In an action by an infant, by his father and guardian ad litem, a plea of .another action pending is properly overruled, where it appears that the previous suit was commenced by the infant by his father and next friend, that a' demurrer was sustained because the action was not commenced by a guardian ad litem, and where nothing further was done in the action and the complaint was never filed; since if the former action was pending it could not become vexatious or afford full relief.</p> <p>Judgment—Entry-—Delay After Rendition of Verdict—Motion to Vacate Irregular Judgment—Appeal—Review. Failure to enter a judgment immediately upon the return of the verdict is not ground for reversal where no motion to vacate it was made in the court below.</p>

<p>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered January 19, 1904, upon the verdict of a jury rendered in favor of the plaintiff, an oiler, for personal injuries sustained by reason of the1 starting of machinery without warning.</p>

<p>Sales—Conditional Sale Teemed a Lease—Validity. The delivery of machinery under a conditional bill of sale, termed a lease, for a specified price payable in installments, providing that payments shall be applied as rent with the right of forfeiture until full payment is made, is valid as a conditional sale, passing no title until final payment, and binding also on third parties.</p> <p>Same—Forfeiture for Nonpayment—Re-sale—Fraud—Insolt vent Corporations—Fraud on Creditors—Receivers—Recovery of Property—Tender. Where a corporation, after purchasing machinery under a conditional bill of sale, became insolvent and defaulted, whereupon the vendor declared a forfeiture and re-sold the property to a brother of the president of the corporation, who paid his own money on the purchase price, neither the purchaser’s knowledge of the insolvency, nor collusion with the officers of the corporation, would amount to a fraud upon creditors, making the purchaser a fraudulent trustee, so as to entitle a receiver to recover the property, where the receiver did not tender the purchase price paid, and the insolvent corporation was not prevented by any fraud from making its payments on its original purchase.</p>

ÍAppeal by plaintiff from a judgment of the superior court for Clallam county, Hatch, J., entered August 12, 1903, upon the verdict of a jury, awarding damages for land appropriated under the right of eminent domain. Motion to recall remittitur.

<p>Appeal from a judgment of tbe superior court for Spokane county, Belt, J., entered May 14, 1904, denying an application to vacate a judgment, after a bearing before tbe court without a jury.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered February 6, 1904, dismissing an action to quiet title^ upon sustaining a demurrer to the complaint.</p>

<p>Appeal and Ebboe—Statement op Pacts—Amendments—Cebtieicate—Correcting. Although no amendments are proposed to a statement of facts and the same is certified to contain all the material facts, the trial judge may, on motion of the respondent at any time before the hearing, change the certificate to show that the statement does not contain all the material facts, under Bal. Code, § 5060 (Rudkin, J., dissenting).</p> <p>Same—Statement to Contain all Material Pacts. Where the trial judge corrected his certificate to the statement of facts by striking out the recitation that the statement contained all the material facts, the statement cannot be considered, as it is evident that the statement does not contain all the material facts, and the judgment must he affirmed if it is sustained by the findings.</p> <p>Appeal and Ebboe—Decision—Affirmance on Cobbected Certificate—Costs. Upon an order of affirmance based upon a correction of the certificate to the statement of facts, no costs will be allowed the respondent where no amendments were proposed to the statement of facts and he waited several months before moving for a correction of the certificate.</p>

, entered February 3, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered December 23, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose the lien of a local improvement assessment.

, entered January 14, 1904, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to enjoin the use of a fish trap.

<p>Appeal from a judgment of the superior court for Garfield county, O. R. Miller, J., entered April 18, 1901, upon findings in favor of the plaintiff, granting a divorce.</p>

, entered May 4, 1904, upon finding’s in favor of the contestant, setting aside the probate of a will, after a trial on the merits before the court without a jury.

<p>Cross-appeals from a judgment of the superior court for Spokane county, Kennan, J., entered June 18, 1904, after a trial on the merits before the court without a jury, giving construction to a will.</p>

, entered April 7, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a lien for street assessments.

, entered January 28, 1904, in favor of the defendants, upon the pleadings and plaintiff’s opening statement, at a trial before the court without a jury, dismissing an action to quiet-title.

<p>Appeal and Error—Review op Findings—Conflicting Evidence —Deed Intended as Mortgage. The finding of the trial court on conflicting evidence, that an absolute deed was intended as a mortgage, will not be disturbed on appeal where it is supported by direct and positive .evidence, and the supreme court is not convinced that the trial court erred.</p>

■ Appeal from a judgment of tbe superior court for Spokane county, Belt L, entered May 16, 1904, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court, a jury being waived, in an action on contract.

<p>Appeal from a judgment of the superior court for Jefferson county, Hatch, J., entered January 19, 1904, upon findings in favor of the plaintiff, after a trial on tbe merits before the court without a jury, decreeing the foreclosure of a tax lien.</p>

<p>Appeal from an order of the superior court for King, county, Tallman, J., in probate, entered October 20, 1903, allowing the final account of an administrator.</p>

<p>Criminal Law—Horse ' Stealing—Information—Description of Property—Certainty. An. information for horse stealing, describing the horses as two certain mares of the value of $200, the property of F, is sufficiently certain and specific.</p> <p>Criminal Law—Trial—Separation of Jurors—Waiver of Objection. Error cannot he predicated on the separation of the jury in a criminal case, in that one juror was inadvertently allowed to separate from the others, where, upon convening court and before the jury was called in, the accused consented to proceed with, the trial, and the court was apparently ready to grant a new trial if objection had been made.</p> <p>Appeal and Erhob—Record—Exceptions—Jurors—Objection to Venibe. Objection to a special venire of twelve jurors in that a thirteenth man was substituted by the sheriff for one who was excused, cannot be urged where the record fails to affirmatively show such substitution, nor where no exception was taken to such juror.</p>

, entered January 2, 1905, retaxing the costs in favor of the defendants, after a trial, verdict and judgment in fa.vor of the plaintiff.

, entered October 13, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court, a jury being waived, in an action to reu cover damages for breach of contract.

<p>Appeal from a judgment of the superior court for Snohomish county, Denney, J., entered July 11, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to set aside the probate of a will.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered November 25, 1903, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee in a mill, whose hand was crushed in cogwheels.</p>

, entered March 4, 1904, in favor of the defendant, upon withdrawing the case from the jury at the close of plaintiffs’ evidence, in an action for damages for a constructive eviction.

'Appeal from a judgment of the superior court for King county, T'allman, J., entered May 7, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enjoin the collection of a special improvement assessment

<p>Appeal from a judgment of the superior court for Lincoln county, Neal, J., entered May 3, 1904, upon findings in favor of the defendants, after vacating a default, and a trial on the merits before the court without a jury, in an action to foreclose a mortgage.</p>

<p>Corporations—Change in Name—Trust Companies. Under Laws 1903, p. 367, providing that no corporation thereafter organized shall carry on a trust business or use the word '‘trust” as part of its name; a pre-existing corporation cannot change its name to include therein the word “trust,” without complying with the other provisions of the act regulating trust companies; since the change in name is to that extent the creation of a new corporation.</p> <p>Same—Statutes—Title of Act—Sufficiency.- A provision prohibiting the nse of the word “trust” in the name of other corporations is germane to the general purposes of Laws 1903, p. 367, entitled “An Act providing for the incorporation of trust companies; and defining their powers and duties.”</p> <p>Mandamus—When Lies—Secretary of State—Change in Name of Corporation—Violation of Law. Mandamus will not lie to compel the secretary of state to file a certificate changing the name of a corporation, which violates the law relating to- trust companies, on the theory that he performs his full duty by filing the certificate and informing the attorney general of the violation of the law, since the court will not compel him to do a vain or illegal act.</p>

, entered June 14, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by an employee in taking down a telephone pole.

, entered October 6, 1903, upon findings in favor of the plaintiff, after a tidal before the court, a jury being waived, in an action for personal injuries, sustained by a pedestrian struck by a street car at a city crossing.

, entered March 11, 1904, upon withdrawing the ease from the jury, at the 'dose of plaintiffs evidence, in an action to compel the state dental board to issue a. license to practice dentistry.

<p>Appeal from a judgment of the superior court, for Spokane county, Belt, J., entered May 2, 1904, dismissing an action for personal injuries, upon sustaining a demurrer tO' an amended complaint.</p>

, entered May 9, 1904, confirming an administrator’s sale of real estate, after a hearing before- the court upon exceptions to the report of sale.

<p>Damages—Pleading—Complaint—Description of Personal Property—Definiteness. In an action to recover damages to property occasioned by flooding, a motion to make a complaint more definite and certain should be granted, where damage to lands, tenements, furniture, hay, live stock, lumber and other personal property is lumped at $2,000, without any particular description of the personal property damaged.</p> <p>Damages—To Live Stock—Financial Loss in Selling—Evidence—Gross Amount. In an action to recover damages to live stock occasioned by flooding plaintiff’s farm, it is error to permit the plaintiff to testify that he was damaged in the sum of $400, by reason of being compelled to sell his stock after his hay was destroyed, since financial loss does not come within the allegation, and also because a party cannot in such a case testify to the gross amount of damages sustained.</p> <p>Same—Gross Amount of Damages—Prospective Profits—Curing Error by Instructions. Error in permitting a party to testify to the gross amount of damages to live stock by reason of. being compelled to sell the same, is not cured by an instruction tnat he could not recover prospective profits to be made in keeping them over until spring.</p>

, entered May 31, 1904, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action upon an indemnity bond guaranteeing a building contract.

, entered February 11, 1904, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained in a fall from a street car.

, entered March 19, 1904, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to' remove an obstruction from a public street.

, entered February 1, 1904, upon findings in favor of the plaintiff, after a trial before the court without- a jury, in an action for goods sold and delivered.

, entered February 5, 1904:, upon proceedings supplemental to execution, after a hearing on the merits, requiring the judgment debtors to deliver1 property to a receiver.

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J., entered September 19, 1901, upon the verdict of a jur^ rendered in favor of the defendants by direction of the court* after a trial on the merits, dismissing an action on a promissory note.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered December 8,1903, in favor of the petitioner, upon sustaining a demurrer to an affirmative answer, in a proceeding to set aside the probate of a will, declaring the will void.</p>

, entered December 23, 1903, upon a hearing of habeas corpus proceedings, discharging from custody a prisoner convicted of violating an ordinance.

<p>Sales—Validity—Action foe Price—Defenses—Goods Sold Poe Illegal Purpose. It is no defense to an action for the purchase price of liquor sold and delivered that the same was to he put to an illegal purpose hy reselling it in a house of ill fame, and that the vendor had knowledge of such fact, where the vendor did not aid or participate in the illegal objects; since such sale of liquor does not amount to a felony or involve great moral turpitude.</p>

<p>Appeal—Review—Harmless Error. Error in overruling appellant’s demurrer to an affirmative defense, in an equitable case, is without prejudice when the findings sustain the judgment regardless of the affirmative defense, and the evidence is not before the court in a statement of facts.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 16, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action for conversion.</p>

<p>Appeal from a judgment of the superior court for King county, Bell, J., entered May 24, 1904, upon sustaining a demurrer to a complaint, dismissing an action of inter-pleader.</p>

<p>Innkeepers—Liens—Property Not Belonging to Guest— Samples of Traveling Salesman—Title—Evidence of Notice— Estoppel. Where hotel keepers admit an extensive acquaintance with traveling salesmen for wholesale houses, and their methods of doing business, and never knew of an instance where the salesman owned the samples carried, they are estopped from asserting ignorance of the title to the property, if they failed to make inquiry before extending credit on the faith of the samples, and a finding that they knew that the samples did not belong to the salesman is sustained.</p> <p>Same—Lien at Common Law—Lodges Not a Guest. An innkeeper’s lien upon property brought into a hotel by a traveling salesman cannot be maintained at common law, where he was not a transient guest, but rented rooms by.the month as a lodger.</p> <p>Same—No Lien On Samples oe Teaveling Salesman. Bal. Code, § 5975, providing for. an innkeepers lien upon the baggage or other property of guests, does not give a lien on the samples of a traveling salesman, where the hotel keeper was aware, at the time of giving credit, that the samples belonged to the salesman’s employer.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Belt, J"., entered October 16, 1903, upon the verdict, of a jury rendered in favor of the plaintiff, in an action to. recover a broker’s commissions.</p>

iTin, J., entered November 30, 1903, upon the verdict of a jury rendered in favor of the plaintiffs in an action for damages for false representations.

<p>Executors and Administrators—Appointment—Wills—Contest—Special Administrator Pending Contest—Parties—Executor Disqualified—Statutes—Construction. Under Bal. Code § 6172, authorizing the appointment of a special administrator other than one of the parties, during the pendency of the contest of a will, the executor of the will is disqualified, being a “party” Within the meaning of the statute.</p>

, entered May 18, 1904, setting aside the verdict of & jury rendered in favor of the plaintiff, and granting a new trial.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered June 30, 1904, in favor of the proponents of a will, after a hearing before the court and a jury, dismissing on the merits a contest of a will.</p>

, entered April 20, 1904, upon the verdict of a jury rendered in favor 'of the plaintiff, for personal injuries sustained by an 'employee in a mine through the fall of overhanging rock.

<p>Larceny—Cattle Stealing—Distinct Offenses—Statutes— Repugnancy—Information. Bal. Code, § 7113, making cattle stealing (including sheep) a distinct offense and providing a special punishment in the discretion of the court, is not repugnant to, and does not repeal, as to the kinds of property named, Bal. Code, § 7108, defining grand larceny and fixing a different punishment therefor, and the prosecutor may proceed under either statute; hence an information may charge grand larceny in the stealing of sheep.</p> <p>Same—Duplicity: An information charging grand larceny of the personal property of F, to wit, 111 sheep of the value of $444, states but the one offense, and is not duplicitous because it embraces sheep stealing under Bal. Code, § 7113.</p> <p>Trial—Verdict—Preparing Form. Error cannot be assigned in that the clerk prepared the form of the verdict, as it is immaterial who prepares the form.</p>

, entered November 11, 1903, upon findings in favor of tbe defendant, after a trial on tbe merits before tbe court, a jury being waived, dismissing an action of ejectment.

, entered June 24, 1903, upon the verdict of a jury in favor of the plaintiff, in an action for breach of promise of marriage.

<p>Divorce—Grounds—Inability to Live Together—Statutes— Construction. Under Bal. Code, § 5716, subd. 7, a divorce cannot be granted on tbe ground that the parties “cannot live together," but the court must be satisfied of that fact, and there must, in addition, be “any other cause deemed by the court sufficient,” which cause must be stated in the complaint.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Denney, J., entered September 10, 1904, in favor of the defendants, upon the pleadings and the opening statement of counsel, dismissing an action to reform a deed as a mortgage, and to redeem therefrom.</p>

<p>New Trial—Verdict—Technical Disobedience op Instructions—Intent op Jury Clear—Replevin—Issue as to. Sale op Wheat. In an action of replevin for wheat or its value, claimed by the defendant to have been sold to it, in which the defendant tendered the agreed price, the only issue being whether the wheat was sold or merely stored, and in which the court instructed the jury that they must find a verdict for the plaintiff, for the value if •there was no sale, and for the price if there was a sale, it is not ground for a new trial that the jury returned a general verdict for the defendant, with special findings showing the tender by the defendant; since the verdict is only a technical disobedience of the instructions, and it is clear that the jury found that the wheat was sold; and the court should have entered judgment for the plaintiff for the price, and for the defendant for costs.</p>

, entered September 1, 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>Libel—Wobds Libelous Pee Se—Publishing of Officer That He Was a Liar and Poltroon. It is libelous per se to publish of a public officer that certain figures disputed by him were, at the time, Known by him to be true, followed by an offer to forfeit $50 if the writer could not convince the plaintiff, before his friends, of being a “liar and a poltroon,” if he would accompany the writer to the public records.</p> <p>Libel—Privileged Communications—Defenses. Such a publication is not privileged, in the absence of express malice, by reason of the fact that defendant was drawn into a newspaper controversy through attacks by the defendant, since the right to defend oneself does not extend to statements unnecessarily defamatory.</p> <p>Same—Criticism of Public Officer. A statement, if false, is not privileged as fair comment and criticism of a public officer, although made in good faith.</p> <p>Same—Qualified Privilege—Question for Court. It is for the court to determine whether a publication is qualifiedly privileged, and it is not error to refuse to submit the question to the jury.</p> <p>Libel—Malice—Not Element Under the Code—Statutes— Construction—Special Verdict. Under Bal. Code, § 7087, defining libel, malice is not a necessary element of civil libel, hence a special finding of no malice is not inconsistent with a general verdict for the plaintiff.</p>

, entered October 20, 1904, dismissing an action to enjoin a change of grade and damage to abutting property, upon sustaining a demurrer to the plaintiff’s reply.

<p>Taxes—Setting Aside Deed—Tender of Tax—Complaint— Sufficiency. As against a demurrer, a complaint in an action to set aside a tax title sufficiently alleges a tender of all taxes, penalties, interests and costs, when it follows substantially the language of Bal. Code, § 5679.</p> <p>Same—Tender—Payment into Court. In an action to set aside a tax title, the amount tendered for taxes, etc., due need not be paid into court, since the action is in equity and the court will only grant the relief prayed upon fulfillment of proper conditions.</p> <p>Quieting Title—Plaintiff’s Interest—Mortgages—Foreclosure—Possession of Purchaser at Sale—Suit Before Deed. A purchaser at a mortgage foreclosure sale, upon receiving a certificate of sale and before receiving his deed, is entitled to the possession and to the title of the mortgagor, subject to redemption, under Laws 1899, p. 93; and hence has a “valid subsisting interest in real property and the right to the possession thereof,” within Bal. Code, § 5500, entitling him to bring an action to remove a cloud from the title.</p> <p>Taxes—Foreclosure of Tax Liens—Notice to Owner—Statutes—Construction. Under Laws 1897, p. 182, §§ 96, 97, providing that, upon the foreclosure of a delinquency tax certificate, the holder shall give notice to the owner of the property, and that the summons shall be served in the same manner as a summons in a civil action, it was intended that the owner should he served personally if personal service can. he made, and if not, by publication.</p> <p>Same—Summons by Publication—Affidavit of Nonresidence —Jurisdictional Requisite. In the foreclosure of a delinquency tax certificate held by a private individual, an affidavit for publication, showing the nonresidence of the owner of the property, is a jurisdictional requisite of a summons by publication, under Laws 1897, p. 182, § 97, requiring the summons to be served in the same manner as in civil actions, and the same must affirmatively appear in the record, or the court will not acquire jurisdiction.</p> <p>Quieting Title—Void Tax Deed—Statute of Limitations. In an action to remove a cloud from title, commenced by the purchaser at a mortgage foreclosure sale, • against the holders of a tax title alleged in the complaint to be void, there is no question of the statute of limitations in the case that can be raised by the defendants, although the mortgage debt had run for more than six years, since they are either owners of the title, or of a superior lien for the taxes which must be repaid to them.</p>

, entered August lJ, 1903, upon granting a nonsuit, at a trial before the court and a jury, dismissing an action to recover a balance due on contract.

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, J., entered July 3, 1903, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon contract.</p>

<p>Quieting Title—Plaintiff Out of Possession—Demurrer— Waiver by Proceeding With Trial. An objection by demurrer that an action to quiet title cannot be brought by a party out of possession, against defendants who are in possession, is waived by answering on the merits and trying' out the issues, especially where defendants asked and obtained a trial by jury upon the issues involved.</p> <p>Judgment—Res Ad judicata. A judgment in a- former action is not res adjudicata where the parties and issues were not the same; and the question of former adjudication is one of law for the court.</p> <p>Adverse Possession—Timber Excepted Prom Deed. Adverse possession of land does not necessarily include possession of the timber, where the same was expressly excepted from the deed under which the parties claim.</p>

, entered March 26, 1904, upon the verdict of a jury rendered in favor of plaintiff for personal injuries sustained by a “fire knocker” through the bumping together of engines over a cinder pit.

<p>Fraud—Bills and Notes—False Representations as to Financial Responsibility—Investigation oe Truth. The payee of a note, who was induced to loan money by the fraud of officers, of a corporation, is not bound to investigate the truth or falsity of representations concerning the financial ability of the corporation, where it would involve the examination of a concern represented as doing a banking business, and of public records, and a large number of houses said to be building, since the means of knowledge are not open, and reasonably call for reliance on the representations.</p> <p>Bills and Notes—Officers of Corporation—Fraud—Individual Liability. Where a loan is secured by false representations as to the responsibility of a corporation, a note therefor, signed in a representative capacity by the officers who procured the loan and received the money, is their individual obligation.</p> <p>Bills and Notes'—Corporations—Signature of Officers—Representative Capacity'—Failure to Disclose Principal. Under Laws 1899, p. 345, § 20, an officer of a corporation who signs a note without indicating his representative capacity other than by following his name by “Secy.” and no words are used showing that the corporation is obligated, is individually liable on the note, although the note was written on a blank form of a receipt giving the name of a corporation at the top, and its corporate' seal was attached.</p>

, entered May 18, 1904, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for causing the death of a minor child, employed on a gravel train, and knocked off of a trestle by the starting of the train without warning.

, entered September 5, 1903, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing on the merits, an action on promissory notes.

, entered March 21, 1904, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court without a jury, in an action of replevin.

, entered September 11, 1903, upon findings in favor of tbe defendants, after a trial before the court without a jury, in an action to recover the possession of land, and also from an order entered October 6, 1903, denying a motion to retax costs.

<p>Brokers—Action for Commissions—Procuring Cause—Evidence—Sufficiency. Brokers are entitled to their commissions on a salei of real estate, where it appears that there was an understanding between the two joint owners, B and R, that either was authorized to make a sale at $9,000 net, that R agreed with the brokers that they could sell at such figure, that the brokers found a purchaser who agreed to buy at $9,500, notified R that they would make the sale with the understanding that they should have the $500 as commissions, and asked for thirty days’ time to close the deal, that B objected to giving time, whereupon the brokers gave the name of the purchaser and the question of time became a matter of direct negotiation between B and the purchaser, and was fixed at three days, within which time the deal was closed at $9,500, B at that time repudiating the agreement with the brokers, and the brokers notifying the owners that they would be held for the commissions before the deal was closed; since the brokers were the procuring cause, upon terms satisfactory to the owners, who, in closing up a sale practically consummated by the brokers, reaped the benefit of their services, and are not in a position to deny liability for the commissions.</p>

, entered January 8, 1904, denying defendants’ motion to vacate a tax foreclosure judgment entered January 8, 1902, after a hearing upon affidavits.

, entered April 21, 1904, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, granting a divorce and awarding property to the wife.

<p>Appeal from a judgment of the superior court- for Jefferson county, Hatch, J., entered May 23, 1904, dismissing an action for nonpayment of the costs of a continuance.</p>

<p>Appeal and Error—Review—Technical Objections on trial de Novo. In an action triable.de novo on appeal, technical objections to the pleadings and findings, that do not go to the merits, are of no moment, since there must be a trial de novo disregarding all technicalities, and necessary amendments will be considered as made:.</p> <p>Water Companies—Regulation and Rules—Permission op Use Violating Rule—Estoppel. . A public service water company is not estopped from enforcing a rule that consumers shall not place a tap in the yard where it would be accessible to persons occupying neighboring premises, by reason of the fact that it at one time granted permission to use such tap if enclosed in a box provided with a lock, where the consumer failed to keep the box locked and persons occupying neighboring premises continued to use the tap as a common source of supply.</p> <p>Same—Discrimination. The enforcement of such rule cannot be objected to as discrimination, where there was but one instance in evidence where such use was tolerated in the case of other consumers, and it appears that it was the general policy of the company to enforce the regulation.</p>

, entered April 13 ,1904, dismissing an appeal from an order of the board of state land commissioners rescinding an order for the sale of state lands-

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 11, 1903, dismissing on the merits an action to enjoin the opening of a county road, after a trial before the court without a jury.</p>

, entered May 11, 1903, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an adverse action to establish the right to a mining claim.

, entered upon the verdict of a jury rendered in favor of the defendants upon a counterclaim on contract, in an action upon a promissory note.

<p>Judgments—Duration—Action Upon—Constitutional Law— Impairment op Obligation op Contract. Laws 1897, relative to the duration, and prohibiting an action upon, judgments thereafter entered, is unconstitutional as to a judgment based upon a promissory note made prior to the enactment of said law, since it is an impairment of the obligation of the contract.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered March 11, 1904, upon the verdict of á jury rendered in favor of the plaintiff, in an action on contract.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Kennan, J., entered January 4, 1904, upon the verdict of a jury rendered in favor of the plaintiff on one cause of action, and in favor of the defendant upon a second'cause of action, in an action for damages for breach of warranty.

<p>Appeal from a judgment of the superior court for Snohomish county, Denney, J., entered March 11, 1904, dismissing an action for damages for breach of covenants of seizin and warranty, upon sustaining a demurrer to the complaint.</p>

, entered June 20, 1904, in favor of the defendants, dismissing on the merits an action to quiet title, after a trial before the court without a jury.

, entered October 31, 1903, setting aside tbe verdict of a jury rendered in favor of tbe plaintiff, after a trial on tbe merits, and granting a new trial, in an action by a trustee in bankruptcy against creditors for a fraudulent preference.

<p>Accounting — Contracts—Pleadings—Variance—Failure of Proof. In an action for an accounting, in which one of tbe defendants was tbe agent and employee of tbe plaintiff and tbe other defendant, it is error to render a joint and several judgment against tbe defendants, where .the complaint alleges a contract between tbe plaintiff as one party, and‘the defendants jointly as tbe other parties, and tbe proof showed a contract between tbe defendant agent as one party, and bis two employers jointly, as tbe other party; since tbe same is a fatal variance amounting to a failure of proof under Bal. Code, § 4951.</p> <p>' Accounting—Sale of Mining Stock by one of two Promoters— Contract to Sell Joint Stock—Sale of Independent Stock— Damages. Where the defendant agreed to sell certain mining stock, held oy him and the plaintiff jointly as promoters of a mining corporation, for the purpose of meeting certain expenses, but instead sold his individual stock, he would be liable on the contract to the plaintiff for the damages sustained, but the plaintiff could not, in an action for an accounting, have the sale of the individual stock declared a sale of the joint stock, and it is error for the trial court to arbitrarily fix the value of such stock sold, and give judgment for the plaintiff’s share as for a sale of joint stock.</p>

, entered March 1, 1904, upon findings in favor of the defendants,, after a trial on the merits before the court without a jury, dismissing- an action to enjoin the opening‘of a highway across plaintiffs’ land.

, entered July 30, 1904, directing the distribution of money paid into court to abide the result of the suit, after a decision of the supreme court on appeal from the final judgment.

<p>Appeal from a judgment of tbe superior court for Spokane county, Belt, J., entered June 1, 1904, upon findings in favor of a defendant, after a trial on tbe merits before tbe court without a jury, dismissing an action upon a promissory note as to one of tbe joint makers.</p>

<p>Trial—Setting Cause foe Trial—Allowance of Three Days’ Time—Review—Evidence Not Brought Up. Error does not conclusively appear in allowing only three days in which to prepare for a trial of proceedings to condemn a way for a county road from the fact that the locality was forty miles from the county seat; and, in the absence of the evidence before the court on setting the cause for trial, the order will be affirmed.</p> <p>Jury—Waiver of Right to Jury Trial in Condemnation Proceedings—Statutes—Change in General Laws. Where defendants in a condemnation suit refuse to pay the jury fee provided for by Laws 1903, p. 50, the right to a jury trial is waived, since Bal. Code, § 5620, and Const, art. 1, § 16, provide for waiver as in1 other civil actions, in the manner provided by law, without re* ferring to any particular existing statute, thereby having reference to the general law in force at the time of the condemnation, although enacted subsequently to the act relating to condemnations.</p> <p>Highways—Eminent Domain—Petition for County Road— Description—Definiteness. In proceedings to condemn a way for a county road, under Laws 1901, p. 201, the definiteness of the petition with reference to the terminal points and course of the proposed road is not jurisdictional, since it may not be followed and is not relied upon as notice to the land owners, but the petition is sufficient if the road is described in a general way.</p> <p>Same—Petition Asking for More Than One Road—Irregularity. The fact that a petition to condemn a way for a county road asks for more than one road, or a road with a branch, is merely an irregularity, and cannot be urged as a jurisdictional defect in a proceeding brought to condemn land for one of such roads.</p>

, entered December 4, 1903, upon findings in favor of the defendants, after a tidal before- the court without a jury, dismissing on the merits an action for specific performance.

, entered October 6, 1903, dismissing an action for damages for breach of contract, upon sustaining a demurrer to the complaint.

, entered November 9, 1903, upon findings in favor of the plaintiff, after a trial on the merits before the court with-1 out a jury, in an action to recover a broker’s commissions.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered April 21, 1904.</p>

<p>Appeal from an order of the superior court for King county, Bell, J., entered March 16, 1904, vacating a judgment on motion, on the ground that it was void on its face.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J„ entered December 23, 1903, upon findings in favor of the plaintiff, decreeing the foreclosure of a street assessment lien.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered January 12, 1904.</p>