Volume 42 — Washington Reports

<p>Criminal Law — Assault—Threats. A person may 'be guilty of assault and battery where he advances toward another threatening to “put him out of his misery,” and at the same time deliberately drawing a revolver from his pocket which is taken from him by the bystanders after some considerable effort; and the question of his guilt or innocence is one for the jury.</p> <p>Criminal Law — Information—Loss and Substitution — Costs. Where an information is lost, the substitution of a new information at the trial, which is given a new case number, is not an institution of a new prosecution, and it is not error to tax against the defendant the costs of the original proceeding.</p> <p>Criminal Law — Assault — Evidence — 'Admissibility. Upon a prosecution for an assault made by advancing upon the prosecuting witness and drawing a revolver, evidence that the defendant on the day after the occurrence stated that he “mighty near killed” the prosecuting witness, is admissible upon the issue as to whether the violence was only menaced or was actually begun.</p>

, entered July 3, 1905, granting a new trial, after a trial on the merits and the verdict of a jury rendered in favor of the plaintiff in an action to recover damages for ejection from a train.

, entered March 8, 1905, upon the verdict of a jury in favor of the plaintiff in an action upon a policy of life insurance.

, entered March 25, 1905, upon findings in favor of the relator, upon sustaining a demurrér to the answer, granting a mandate to compel the submission of charter amendments to a vote of the people.

<p>Municipal Cobpobations — Local Impboyements — Assessments— Notice. Notice of tbe hearing of objections to a proposed assessment for tbe construction of a sewer, which is not required by statute, does not constitute constructive notice to tbe property owners, and cannot have a binding effect on tbem, or estop tbem from subsequently objecting to tbe proceedings.</p> <p>Same — Publication of Obdinance. Tbe publication of an ordinance, as by statute required, that the city was about to create an assessment district for tbe construction of a sewer, is constructive notice to tbe owners of contiguous property sufficient to put tbem upon inquiry as to tbe fact of an assessment of their property therefor.</p> <p>Same — Action to Annul Assessment — Diligence. An action to annul a special assessment to pay tbe cost of tbe construction of a sewer is commenced within a reasonable time when it is brought by -the owners of contiguous property within thirty days after tbe going into effect of tbe ordinance approving tbe assessment roll.</p> <p>Same — Assessment Accobding to Valuations — Benefits. A local assessment upon contiguous property to pay tbe cost of tbe construction of a sewer, levied upon all of tbe property in tbe assessment district, in proportion to tbe assessment of tbe property for general taxation, is invalid, being in violation of Const., art. 7, § 9, providing that such assessments for local improvements shall be by special assessment upon tbe property benefited.</p> <p>Same — Assessment foe Sewee — Appboximate Peopebtt. In case of local assessments to pay for the construction of a sewer, property legally assessable therefor as “approximate thereto” must be so situated as to be capable of using tbe sewer or deriving á special advantage therefrom, different in character from that enjoyed by tbe general public.</p>

<p>Appeal from a judgment of the superior court for Spokane county Kennan, J., entered December 19, 1904, upon findings' in favor of the defendant, after a trial on the merits before the court without a jury, in an action for an injunction and damages on account of interfering with the waters of a lake.</p>

, entered June 14, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained hy a logger by reason of the starting of an engine and the tautening of a cable.

<p>Appeal from a judgment of the superior court for Thurston county, Linn, J., entered May 25, 1905, upon a trial and conviction of the crime of cattle stealing. Affirmed.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered April 10, 1905, upon findings in favor of the plaintiff, after a trial on the merits, before the court, a jury being waived, in an action for damages to goods shipped.</p>

, entered May 17, 1905, in favor of the defendant upon granting a nonsuit, after a trial before the court without a jury, in an action to recover damages for the destruction of a mill by fire.

<p>Motion to dismiss an appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered October 19, 1905.</p>

, entered Kovember 16, 1904, upon findings in favor of the plaintiff, after sustaining a demurrer to an affirmative answer and a trial before the court without a jury, in an action for the specific performance of a subscription.

<p>Master- and Servant — Negligence—Assumption of Risks — Injury to Miner — Projecting Trip in Shaft Catching Clothing — ■ Question for Jury. In an action for personal injuries sustained, by an employee in a mine, reasonable minds might differ, and the question of the assumption of risks is for the jury, where it appears that the plaintiff, am experienced miner, who was in charge of the cage which delivered the miners to the different levels of the mine, was injured through the fact that the clothing of one of the men on the cage was caught while descending the shaft by a.projecting “trip” used for the purpose of dumping the ore loads into the ore pocket, that although the plaintiff knew that the “trip” projected into the shaft, and could hear it click every time the cage passed it, and that at times it had caught the clothing of the men riding on the cage, the shaft was dark, and the plaintiff had never seen the trip, had nothing to do with placing the men properly in the cage, and the same was daily used with safety.</p>

, entered May 3, 1905, upon findings in favor of the plaintiffs, after a trial before the court without a jury, foreclosing a mechanic’s lien.

<p>Appeal from a judgment of the superior court for Lincoln county, Warren, J., entered July 13, 1905, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action upon a promissory note.</p>

, entered June 3, 1905, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to recover damages for breach of contract,

, entered March 15, 1905, dismissing, at the close of plaintiff’s case, an action to. quiet title, after a trial before the court without a jury.

, entered September 30, 1905, granting a temporary injunction against a change of street gradei, after a hearing upon affidavits.

<p>Contracts — Services—Trial—Verdict—Computation or Amount. In an action to recover for services performed, in which, the principal controversy was as to a modification of the terms of the contract, whereby the plaintiffs wages were reduced from $35 to $25 per week after a certain date, making the balance due thereon either $111.65 or $257, a verdict for the sum of $217, is justified where there was evidence from which the jury might have computed the amount by reference to a different time than that specified as the time of the modification, or might have considered certain allowances for room rent in consideration of the modification of the contract.</p>

, entered May 20, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a motorman in a collision of street cars.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered June 23, 1904, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, in an action to recover for damages to plaintiff’s lawn,, caused by a horse kept by defendant in its fire department.</p>

<p>Pieadings — Demurrer- — -Amendments. Upon sustaining a demurrer to a petition and granting leave to amend, the court is not thereby precluded from overruling a demurrer to an amended petition stating substantially the same facts with some additional averments.</p> <p>Executors and Administrators — Estate of Nonresident — Necessity of Administration. It is unnecessary to administer upon the estate of a nonresident testator who never resided in this state, and who left no personal property here, after the lapse of more than ten years after his death, he having left no debts and there being no liens upon the real estate .of which he died seized, Bal. Code, § 4642, providing that in such case the estate shall vest immediately in the heirs without the necessity of administration.</p> <p>Same — Appointment and Removal. The court in probate has the power to revoke the appointment of an administrator c. t. a. upon the application of the heirs upon its being made to appear that there is no legal necessity for administration.</p>

Appeal by defendants from a judgment of tbe superior court for King county, Gilliam, 3., entered October 16, 1905, upon tbe verdict of a jury assessing tbe damages for tbe condemnation of property for tbe widening of a street, after a trial on tbe merits.

<p>Appeal from a judgment of the superior court for King county, Yakey, J., entered June 30, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court "without a jury, in an action to recover possession and quiet title to real estate.</p>

<p>Appeal and Error — Dismissal—Bonds—Amount op Supersedeas Bond — Money Judgment — Interpleader. In an action of interpleader to recover a deposit in a bank, in which the money in controversy was deposited with the clerk of the court and judgment was entered ordering the clerk to pay it to the plaintiff, an appeal bond, conditioned also to effect a supersedeas," in a sum fixed by order of court, hut less than double the amount of the judgment, is sufficient to give the supreme court jurisdiction of the appeal, inasmuch as it is for the recovery of specific personal property (overruling IcL., 37 Wash. 443).</p> <p>Contracts — Pleadings — Interpleader — Suppiciency op Complaint. In an action to recover a sum of money deposited in hank to he paid to the plaintiff upon the performance by him of a contract, a complaint setting up the contract, the performance thereof, and which states a cause of action against the bank is sufficient without amendment to state a cause of action against the other parties to the contract, who were required to interplead, upon the hank’s disclaiming title and paying the money into court for the use of the parties entitled thereto.</p> <p>Contracts — Evidence—Varying Writing by Parol. Where a written contract plainly recites that the first payment is to bq deposited in a hank subject to the order of the first party, upon his part performance of a contract, and plainly advises the bank of its duty in the premises as to the payment, oral evidence is inadmissible as to what was said at the time the contract and money were delivered to the hank.</p> <p>Contracts — Rescission—Performance — Evidence — Sufficiency. There is sufficient evidence to support findings of fact to the effect that a contract for the sale of mining property had been performed by the vendor by offering a conveyance of sufficient title, where it appears that the vendees examined the papers, were perfectly satisfied, and took possession and worked the property until ordered out for failure to make payments due on the contract.</p> <p>New Trial — Newly Discovered Evidence — Bad Faith on Execution of Contract. In an action upon contract to recover a sum deposited by the vendees as a forfeit, on the failure to purchase mining’ property sold by the plaintiff, in which there was a finding in favor of the plaintiff, it is proper to deny a new trial on the ground of newly discovered evidence of had faith in that the appellant first ascertained at the trial that his co-vendee was paid a commission on the sale, where there is no clear showing that the vendor sought to gain any advantage thereby or that the property was worth less than the purchase price, or that a different result would he probable on a new trial.</p>

<p>Eminent Domain — Notice of Pkoceedings — Affidavit foe Publication. Under Bal. Code, § 5638, the affidavit, authorizing publication of notice to an owner whose residence is unknown, in proceedings for the condemnation of land, to be made by the agent or attorney of the corporation, need only shown that the residence of such owner is unknown to, or cannot be ascertained by, the “Deponent,” and need not show that the same was unknown to the petitioner or any of its agents, officers or servants.</p> <p>Same — Motion to Quash — Residence Unknown — Evidence—Sufficiency. A motion to quash a service by publication, in condemnation proceedings, on the ground that the defendant’s residence was known or could have been ascertained, is properly denied where it appears that diligent effort was made to ascertain the same, and that his house on the premises was boarded up, and none of his neighbors knew his actual residence.</p>

<p>Appeal from a judgment of the superior court for Oowlitz county, Miller, J., entered December 2, 1904, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained by a brakeman in the wreck of a logging train.</p>

<p>Indemnity — Against Judgment — Evidence—Oe Party at Trial oe Original Action — Competency—Harmless Error. In an action by a city upon the indemnity bond of a contractor to recover the amount of a judgment recovered against the city, the testimony of che plaintiff in the original action, who died since the trial thereof, is not competent as intrinsic evidence of any fact necessary to be shown outside of the record of the original action, to bind the person liable over to the city as the original judgment debtor; but the admission of such evidence for that purpose is not prejudicial where there is other uncontradicted competent evidence of the ultimate fact sought to be proved, which was admitted without objection.</p> <p>Evidence — Objections—Motion to Strike. That part of the evidence of a witness is shown upon cross-examination to be derived from hearsay is not ground for striking the whole of the testimony, and such a motion is properly overruled where some of the matters testified to were within the knowledge of the witness.</p> <p>Accord and Satisfaction — Payment to Contractor Pending Suit for Negligence. Where an action has been commenced against the city on account of the negligence of the contractor in failing to guard an excavation in a street, as required by his contract with the city, an accord and satisfaction by the city of any claim it may have against the contractor on account of such action is not shown by a settlement with the contractor for the amount due upon his contract for performing the above work, and the making by the city of final payment two months after the action against the city had been commenced.</p> <p>Principal and Surety — Indemnity—Release by Payment to Contractor Pending Suit — Contracts—Construction. The making by a city of final payment to a contractor upon public work, two months after an action has been commenced against the city to recover for personal injuries sustained through the negligence of the contractor in failing to guard an excavation in the street, and the failure of the city to retain sufficient money to reimburse the city on account of such action, will not have the effect of releasing the surety upon the indemnity bond of the contractor guaranteeing the performance of his contract and saving the city harmless from such a judgment, where the city was not required by the contract to withhold any fixed sum, but the contract simply provided that the city could withhold such sum as the board of public works deemed necessary, and where there is no proof of fraud or collusion on the part of such board.</p> <p>Evidence — Due Preparation for Trial — Competency. A motion for a new trial, filed in a certain action against the city, showing that the corporation counsel was alone familiar with the case, and had been suddenly taken ill, does not tend to show that the city had not made proper preparation for the trial, and is properly excluded when offered in evidence in a subsequent action for the purpose of proving such fact.</p> <p>Continuance — Right to — Instructions. Upon an issue as to whether a person not a party to an action could have obtained a continuance of the trial, it is proper for the court to instruct that the granting of a continuance is largely discretionary, and may be exercised in favor of the real defendant, although not a party of record, when the requirements of justice demand it.</p> <p>Interest — When Recoverable Without Pleading. In an action to recover the amount of a judgment paid by an indemnified party, interest is recoverable from the date of the payment up to the time of the trial, although the complaint did not contain any demand for the interest, and the same may be properly included in the verdict.</p>

<p>Statutes — Title—Sufficiency—Criminal Law — Living- With a Prostitute. The title to chapter 123 of the Laws of 1903, p. 230, with reference to living off the earnings of prostitutes, etc., fails to make any mention of anything relating to male persons who live with a prostitute, and is not sufficiently broad to cover a provision making such an act a misdemeanor, but such fact does not affect the balance of the act.</p> <p>Criminal Law — Living Off the Earnings of a Prostitute — Instructions. In a prosecution for living off the earnings of a prostitute, it is not error prejudicial to the defendant for the court in its instructions to the jury, to impose upon the state the additional burden of proving that the defendant had lived with a prostitute, especially where the jury are expressly instructed that living with a prostitute would not. constitute the offense charged.</p> <p>Criminal Law — Evidence—Admissions—Showing Commission of Other Crimes. Admissions and confessions tending to show that the defendant was guilty of the crime charged, viz., living off the earnings of a prostitute, are not objectionable on the ground that they show the commission of other crimes, viz., vagrancy and larceny, when such fact appears only as an incident and because admissions were made during the progress of the prosecutions for such other offense.</p> <p>Same — Voluntary Confessions. The confession of the accused made to officers while under arrest and during prosecutions for other offenses, are admissible, if voluntary and not made under the influence of fear produced by threats.</p> <p>Appeal — Review — Objections to Evidence — Harmless Error. Upon an assignment of error as to the admission of the evidence of a committing magistrate, in that he undertook to state the evidence of witnesses as to other offenses for which the defendant had been prosecuted, reversible error will not be found where it does, not clearly appear that the witness undertoqk to testify to the testimony of such witnesses, and where no objection to the testimony was made on that ground.</p>

<p>Appeal from a judgment of the superior court for King county, Bell., J., entered October 11, 1904, upon findings in favor of tbe plaintiff, after a trial on tbe merits before tbe court without a jury, in an action against a stockholder to recover the proceeds of tbe sales of stock.</p>

, entered July 10, 1905, upon findings in favor of tide plaintiffs, after a trial on the merits before tbe court without a jury, in an action to foreclose a mortgage.

<p>Feaud — Contbacts—Pleadings—Specific Statement of Facts. In an action upon a written contract for the sale of hops, an answer alleging that the plaintiffs, by mistake or with intent to deceive defendant, inserted an erroneous description in the contract and induced the defendants to sign the same, representing that it contained the agreement of the parties, is a sufficiently specific allegation of the facts constituting fraud, and is a valid defense to the action.</p> <p>Contracts — Paeol Evidence to Vary Writing — Feaud. Evidence of conversations prior to the making of a written contract is admissible to vary or change the terms of the writing where it was received for the purpose of showing fraud in drawing up the contract and stating the terms agreed upon.</p> <p>Contracts — Sale of Hops — Mistake or Feaud — Evidence—Sufficiency. In an action on a contract for the sale of hops to be grown by the defendant on two certain tracts of land containing ten and twenty acres respectively, the evidence sufficiently shows that the defendant signed the contract through the mistake or fraud of - the plaintiffs in drawing up the contract, and that he was not liable thereunder, where it appears that the defendant, to the knowledge of the plaintiffs, had already sold the hops on the twenty-acre-tract at the same price and to another firm of buyers, that the contract was an involved one, and that the defendant had confidence-in the agent of the plaintiffs, and asked if the contract contained the terms of the agreement, which in fact was confined to the ten-acre tract, and that he was informed by the agent that it did, and: that he signed the contract without reading it, relying upon sucht representations.</p>

, entered July 29, 1905, denying a petition for a writ of habeas corpus, by one convicted of peddling and canvassing without a license.

<p>Pledge — Stock in Corporations — Whether Released by Reorganization — Consent of Pledgee — Notice. Where all the interests of a stockholder in a corporation, stock issued as well as stock to be thereafter issued, was pledged by him as security for a debt, and a reorganization of the corporation is effected whereby each of the stockholders is to receive a corresponding interest in a new corporation, the pledge cannot be released without the consent of the pledgee; and where the pledgee refused to release any of the debtor’s interest (save certain shares), and certain shares in the new corporation are at the direction of the debtor, issued and pledged to the pledgee as security for a new note representing the same indebtedness, the pledge as to such shares is a continuous one, and is not affected by an attempted prior assignment by the debtor of a portion of such shares to another who had notice of the lien of the pledgee.</p>

<p>Appeal from a judgment of the superior court for King county, Tallmau, J., entered May 23, 1905, upon granting a nonsuit, at the close of plaintiff’s case, in an action to> recover damages for a wrongful eviction.</p>

, entered December 20, 1904, upon the verdict of a jnry rendered in favor of the plaintiffs, in an action to recover damages for the death of an employee in a mill, struck by a splinter thrown from an edger.

Application filed in the supreme court Eovember 21, 1905, for a writ of habeas corpus, to release from custody a plumber, convicted before a justice of the peace of engaging in the business of plumbing without having obtained a license.

, entered August 18, 1905, upon findings in favor of the plaintiff, granting a divorce, after a trial before the court without- a jury.

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered August 5, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action of ejectment.</p>

, entered June 12, 1905, granting a new trial for error of law, after a verdict in favor of the plaintiff, in an action for personal injuries sustained through a de>fective sidewalk.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered January 31, 1905, upon findings in favor of the plaintiff, after a trial on the merits, in a proceeding by a warrant holder to compel a city to make a reassessment to pay the cost of a local improvement.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered April 24, 1905, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J\, entered February 28, 1905, upon find-' ings in favor of the plaintiff granting a divorce;, after a trial before the court without a jury.</p>

, entered January 3, 1905, upon the verdict of a jury rendered in favor of the plaintiff, an employee injured by a premature explosion of a blast.

<p>Brokers — Contracts for Compensation — Rescission for Fraud of Agents — Equity. One who has availed herself of the services of real estate agents in the purchase of property, resulting in large profits, is not entitled to rescission of a contract to compensate the agents hy dividing the profits by reason of the constructive fraud of the agents unless she first do equity by giving the agents a reasonable compensation for the services performed by them.</p> <p>Same — Constructive Fraud — Evidence—Sufficiency. Where real estate brokers, who have been acting as confidential agents of a client, purchase certain property for her, representing that the-owner is unwilling to pay any commissions, and agree in lieu of commissions to effect a resale and share equally in the profits, it is a constructive fraud upon the client for the brokers to accept part of the commissions paid by the owners, warranting a court of equity, in the interest of public policy, in cancelling the contract to share the profits on a resale; and the burden of proof being upon the brokers to establish the fairness of the transaction, findings establishing constructive fraud will not be disturbed on appeal in the absence of satisfactory proof.</p>

<p>Appeal from a judgment o-f the superior court for Clarke county, McCredie, J., entered March 20, 1905, upon sustaining a demurrer to the complaint, dismissing an action to recover from a railroad company the amount of labor claims incurred by a contractor in construction work.</p>

, entered December 20, 1904, 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 collection of a tax.

<p>Appeal from a judgment of the superior court for What-com county, Heterer, J., entered July 22, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a benefit certificate.</p>

, entered August 5,, 1905, appointing a receiver to collect the accounts of a corporation, upon application of the plaintiff in an action for an accounting.

, entered July 20, 1905, upon findings in favor of the plaintiff after a trial before the court without a jury, in an action to foreclose a mortgage.

, entered May 3, 1905, upon findings in favor of the plaintiffs, after a trial before the court without a jury, decreeing a distribution of the assets of an insolvent corporation.

, entered June 15, 1905, upon a finding by the court that the plaintiffs had no capacity to sue; dismissing an action brought on behalf of the members of a church to cancel a deed and for an accounting.

, entered March 30, 1905, upon the verdict of a jury rendered in favor of the plaintiff, after a, trial on the merits, in consolidated actions to> recover possession of real property and quiet title.

, entered April 10, 1905, upon the verdict of- a jury for $20,000 damages for personal injuries sustained by a longshoreman through the fall of freight.

<p>Appeal from an order of the superior court for King county, Griffin, J., entered February 10, 1906, directing the payment of an inheritance tax by the executors of a will.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 28, 1905, upon the verdict of a jury rendered in favor of the plaintiff in an action to recover damages for personal injuries.</p>

<p>Appeal — Final Orders — Vacation of Leave to Sue Executors. The vacation of an order granting leave to sue executors of an estate upon a rejected claim in effect determines the right to maintain the action, and is appealable as a final order.</p> <p>Guardian and Ward — Actions—By Foreign Guardian — Courts— Jurisdiction — Leave to Sue. The superior court has jurisdiction, on the principles of comity, to grant leave to a foreign guardian of nonresident wards to maintain an action in this state against the executors of an estate, there being no statute prohibiting the same.</p> <p>Same — Property—Statutes—Construction. Bal Code, § 6419, providing for the removal to another state of the “property” of nonresident wards, where the guardian is also a nonresident, applies to choses in action, in view of the provision authorizing the guardian to sue therefor.</p>

<p>Municipal Corporations — Assessments eor Local Impbove•ments — Notice. Where the notice of a special assessment for local improvements limited the assessment to property within 120 feet of the improved streets, as described in the assessment roll, the city council could not, without notice, amend the roll to include all property within 180 feet of the streets.</p> <p>Same — Partial Validity. Such an assessment is valid as to the 120 feet first described, that part not being affected by proceedings as to another part; but it is void as to the 60 feet added by amendment, since it is essential that notice be given of the intention to assess such strip at that stage of the proceedings.</p> <p>Same — Void Assessment — Power to Reassess. The power of the city to levy a valid assessment for a local improvement is not exhausted hy the levy of a void or ineffective assessment, and in such case the right to reassess is not dependent upon a judgment of a court declaring the first assessment void.</p> <p>Same — Parties Bound — Contractor. A contractor is not a party to proceedings to assess property owners for a local improvement, nor entitled to appeal from an order therein; hence he is not estopped to question the validity of the proceedings hy failing to object or appeal.</p> <p>Same — Mandamus to Compel Assessment. Mandamus to compel the city to levy a local assessment is the proper remedy for the contractor to pursue where the city has made a void assessment and refuses to correct the same, since it is the only complete and adequate remedy.</p>

, entered July 15, 1905, in favor of the defendants, dismissing an action to determine the right to the waters of a stream, upon sustaining a demurrer to the plaintiff’s reply to the answer.

<p>Appeal from a judgment of the superior court for Lincoln county, Warren, J., entered June 2, 1905, upon the verdict of a jury for $5,000 damages for malpractice.</p>

<p>Appeal from a judgment of the superior court for King connty, Honorable George Meade Emory, Judge pro tempore, entered September 16, 1905, upon findings in favor of the plaintiff, after a trial on the merits, dismissing am action to enjoin the enforcement of an order of the state land commissioner, . cancelling a tide land lease.</p>

, entered January 7, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Municipal Corporations — Streets—Defects—Contributory Negligence of Traveler Thrown From.a Wagon — Question for Jury. The question of the contributory negligence of a traveler by team, who was Injured by being thrown from his wagon by the dropping of the front wheels into a hole, two feet deep, at the edge of a pavement at a street intersection, is for the jury, where there was conflicting evidence as to whether the defect was visible from the wagon and could have been avoided by ordinary care.</p> <p>Same — Safer Route. One traveling by wagon in a city street, open for public travel, who was injured by reason of a defect in the street, is not guilty of contributory negligence by reason of the fact that there is another safer way that he might have taken to reach his destination.</p> <p>Same — Streets Not Improved. It is the duty of the city to keep in ordinary repair a street which, to its knowledge, is in common use, and suffered to remain open, although not formally accepted or improved by the city.</p> <p>Trial — Misconduct of Counsel — Prejudice. In an action against a city for personal injuries, a statement to the jury by counsel for the plaintiff that any verdict against the city would be paid largely by nonresident owners of real estate held for speculative purposes, will not require a reversal where the court, on objection, immediately instructed the jury to disregard the same, and where a reversal to punish counsel would he too harsh a remedy.</p>

, entered June 21, 1905, upon granting a nonsuit, in an action for death resulting from injuries sustained by a passenger in attempting to board a street car.

<p>Appeal from a judgment of the superior court for What-com county, ISTeterer, J., entered April 24, 1905, dismissing a proceeding in quo warranto, upon sustaining a demurrer to the information.</p>

<p>Appeal from an order of the superior court for Spokane county, Kerman, J., entered May 10, 1905, for the adoption of a child, after a hearing upon conflicting applications.</p>

<p>Partnership — Note op Successor por Firm Debt — Payment. The acceptance by a creditor of a firm of the individual note of one of the partners, after a dissolution, will not operate as a payment of the pre-existing debt, or discharge the other partner, where it was not agreed or intended to have that effect.</p> <p>Principal and Agent — Traveling Salesman — Notice—Authority as to Collections. Notice to a traveling salesman, the agent of a creditor, that a partnership had been dissolved, and that one of the partners had assumed payment of the firm debts, is not proof of notice to his principal, in the absence of evidence showing that he had authority over the collection of the account due his principal from the firm; since the scope of the authority of a traveling salesman does not extend to collections.</p>

<p>Public Lands — Highways Across Tide Lands — Legislature— Power to Vacate Streets. The legislature has the power to vacate streets platted across the tide lands the fee of which was still in the state, where no private rights had intervened; and the approval of a plat made hy the tide land commissioner which conflicts with former plats by upland owners necessarily vacates the former plat and all streets in conflict with the latter plat.</p> <p>Same — Cancellation oe Contracts — Street Projections. Laws 1897, p. 30, authorizing the vacation of tide land contracts covering legally established street projections has no application to a con-, tract made subsequently to the legal vacation of such streets.</p> <p>Same — Estoppel to Question Vacated Plat. The purchaser of tide lands according to the latest plat thereof legally existing at the time of the purchase is not estopped to dispute a former plat of the same lands which was vacated by the approval of the latter plat.</p>

<p>Appeal from a judgment of the superior court for Ohekalis county, Irwin, J., entered October 14, 1905, upon a trial and conviction of the crime of assault with intent to kill.</p>

<p>Taxation — Excessive Levy — Power oe Courts to Reduce. Where it appears that property was assessed at over $20,000 one year, and $8,000 for subsequent years, which was about its market value, and that like property on the opposite corner of the street was assessed much lower than the property in question, the assessment is properly set aside and reduced to $8,000.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 18, 1905, dismissing an action on motion of the defendant, for failure to prosecute with diligence.</p>

, entered June 22, 1905, upon sustaining a demurrer to the defendants’ answer, setting aside an. attachment and execution levy in favor of a creditor, at the suit of the receiver of an insolvent corporation.

Application filed in the supreme court December 12, 1905, for a writ of mandate to the state land commissioner to- compel the reinstatement of a lease of public lands.

, entered January 7, 1905, upon findings in favor of the plaintiff after a trial before the court without a jury, in, an action, upon a policy of accident insurance.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July'29, 1905, dismissing an action to foreclose a mechanics’ lien, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Steiner, J., entered August 26, 1905, upon a trial and conviction of the larceny of fence posts.</p>

<p>Process — Description of Party — Christian Name. Service of a summons and complaint upon a minor heir, described as an infant daughter without specifying her Christian name, is valid when it appears from the record that she was the only daughter to whom the summons could refer and the service was properly made upon her.</p> <p>Mortgages — Foreclosure — Infants — Failure of Guardian Ad Litem to Answer. A decree of foreclosure of a mortgage is not void as to a minor heir because of the failure of her guardian ad litem to file an answer, where he appeared by filing his acceptance of the appointment, proofs were taken, and sufficient facts appear to warrant the decree, in the absence of an affirmative defense.</p> <p>Mortgages — Void Fobeclosube — Mobtgagee in Possession — Redemption — Decbee—Ineants. In an action to recover possession of premises from the'successor in interest of a mortgagee in possession under a void foreclosure sale, in which the defendants set up the mortgage and asked its foreclosure, it is proper to decree the payment of the sum due less rents and profits, with a right in the plaintiff to redeem within ninety days; and the fact that the plaintiff is a minor is not in itself a sufficient reason for allowing a further time for redemption.</p> <p>Same — Attorney's Fees on Fobeclosube Under Ckoss-Complaint. In such an action, it is proper to allow the defendants a reasonable sum as attorney’s fees, where the mortgage provided therefor, and the plaintiff did not recognize the mortgage hut sought possession and partition, claiming as owner of an interest in the property.</p>

, entered June 19, 1905, upon the verdict of a jury rendered in favor of the plaintiff in an action for injuries sustained by a passenger in a street car collision.

<p>Appeal from a judgment of the superior court fcr Columhia county, Miller, J., entered April 1, 1905, 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 mortgage.</p>

, entered July 8, 1905, upon the pleadings upon the motion of the defendant^ in an action to recover a deposit in a bank.

<p>Appeal from a judgment of the superior court for Lincoln eo-uuty, Warren, J., entered November 11, 1905, in favor of the defendant, upon withdrawing the cause from the consideration of the jury, after a trial on the merits, in an action for alienating the affections of a wife.</p>

<p>Pleadings — Amendments—Discretion. It is discretionary to permit a trial amendment of the answer, and' no abuse of discretion appears where application was made several days before the trial, and no request for a continuance was made.</p> <p>Replevin — Title—Evidence—Admissibility. In an action of replevin in .which the plaintiffs claim title through one R., evidence that the title of R. was fraudulent is competent under a denial that R. was the owner.</p> <p>Same — Oral Evidence of Contents of Deed — Refusal to Produce Instrument. In replevin for certain tools, claimed hy the defendants to have been sold to them by the plaintiffs and to have been mentioned in a quitclaim deed of the quarry, oral evidence on the part of the defendants as to the contents of such deed is admissible where the plaintiffs had obtained possession of the deed, which was not recorded, and plaintiffs failed to produce it at the trial after being requested to do so.</p> <p>Attorney and Client — Representing Adverse Interests. The fact that an attorney had represented the plaintiff, hy courtesy, in another action between other parties respecting certain personal property, would not preclude his appearance for the defendants in an action of replevin for the same property, where he had in the former action particularly represented the defendants, and no inconsistency appears in such representation.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Neal, J., entered January 2, 1905, upon findings by the court after a trial on the merits without a jury, in an action of ejectment.

<p>Certiorari to review a judgment of the superior court for Skagit county, Joiner, J., entered December 29, 1905, ordering the establishment of a drainage district and the assessment of damages by a jury, after a hearing on the merits.</p>

Appeal by defendants from a judgment of the superior court for Spokane county, Huneke, J., entered April 12, 1905, upon findings in favor of the plaintiff, after a trial before the court- without a jury, assessing the damages of the defendants from a change in grade, etc.

, entered June 3, 1905, upon granting a nonsuit in an action to- recover damages for the fraud of a vendor in the sale of lands.

, entered July 6, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover money fraudulently obtained.

, entered November 14, 1905, adjudging a public use' and ordering an assessment of damages for lands taken for the purpose of a public street.

<p>Appeal from a judgment of the superior court for Adams county, Warren, J.? entered June 9, 1905, upon findings in favor of the plaintiffs, after a trial on the merits, in an action for an accounting of profits received in a trade.</p>

, entered June 9, 1905, upon findings in favor of the plaintiff after a trial before the court without a jury, in an action to recover damages from a fire set out by an adjoining landowner.

<p>Appeal — Notice—Statement oe Facts — Parties. No notice of appeal or proposed statement of facts need be served upon a party who was voluntarily dismissed from tbe action by tbe appellant at tbe trial.</p> <p>Negligence — Dangerous Premises — Entrance to Basement — Fall Down Stairway. The owner of premises is not liable to a pedestrian on tbe sidewalk who falls down a stairway in attempting to escape from a runaway horse, where it appears that tbe stairway was in a private alley at tbe side of a building, protected on all sides except its entrance, which was over four feet from tbe line of tbe sidewalk and was a necessary or proper entrance to tbe basement of tbe building; since tbe owner is not required to guard against such an extraordinary accident.</p>

<p>Municipal Cohpokations — Local Assessments — Cancellation— Judgment — Right to Reassess. A judgment cancelling a void assessment is erroneous in enjoining the city from collecting anything further on account of the improvement, since it has the right to make a reassessment.</p> <p>Appeal from a judgment of the superior court for Eing county, Erater, J., entered June 19, 1905, upon findings in favor of the plaintiff in an action to eancel a municipal assessment. Modified.</p>

<p>Jubors — Criminal Law — Accused's Right to Demand List. Bal. Code, § 6879, providing that au accused shall on demand he served with a list of the petit jurors returned, does not entitle him to he tried by a jury selected solely from the names so returned, nor to demand that such list he exhausted before a special venire he issued, where part of such jurors are in attendance upon another department of the court.</p> <p>Criminal Law — Dying Declarations — Knowledge oe Impending Death. A dying declaration is sufficiently shown to have been made in the realization of impending death where the doctor in attendance informed deceased that he was about to die, and the deceased -stated that he realized it.</p> <p>Same — Failure to Identify- Accused — Admissibility. A dying declaration is not inadmissible because it failed to identify the accused, where it adds a link in the chain of evidence and made it possible to -identify the person who committed the crime.</p> <p>Same — Impeachment—Inconsistent Statements — Admissibility. A dying declaration may he impeached by showing other statements inconsistent therewith.</p> <p>Same — Method of Impeachment. In a prosecution for homicide, it is error to require the defendant, in offering evidence of statements by the deceased which were inconsistent with his dying declaration, to introduce them after the manner of impeaching evidence; but he is entitled to ask the witness directly what statements were made by the deceased.</p> <p>Trial — Instructions—When Required in Writing. Under Laws 1903, p. 120, subd. 4, requiring the court, upon request, to instruct the jury in writing, unless the same is taken by the stenographic reporter, the employment of a private reporter who is not subject to the control of the court will not excuse the failure to instruct in writing. '</p> <p>Criminal Law — Right to Appear and Defend — Limiting Argument to Jury — Abuse of Discretion. In a capital case in which twenty witnesses were examined and four days were consumed in the trial, it is an infringement of the constitutional right of the accused to appear and defend, and an abuse of discretion, to limit the time for argument to the jury to an hour and a half on each side.</p> <p>Criminal Law — Instructions—Presumption of Innocence. In a criminal case it is the duty of the court to instruct the jury as to the presumption of the innocence of the accused.</p> <p>Same — Dying Declarations — Instructions. It is error to refuse to instruct that the dying declarations should be received with caution.</p>

<p>Municipal Corporations — Local Assessments — Benefits to Land Not Taken — Due Process. After the assessment of damages hy a jury for the condemnation of property for the purposes of widening a street, in which proceeding the jury finds that the remainder of the lands was not damaged hy the improvement, such remainder is liable to an assessment if found to he specially benefited hy the improvement, and such an assessment is not a taking of private property without due process of law.</p> <p>Same — -Answer—Striking—Harmless Error. In a proceeding to condemn land for the purpose of a street, the striking of an answer alleging that the defendant’s property would be damaged in a certain sum, is not prejudicial error, where the defendant was permitted at the trial to introduce his evidence of such damage.</p> <p>Same — Assessment of Damages to Property Not Taken — Issues Determined. In a proceeding to condemn land for the purpose of a street, it is not error to exclude evidence as to the damages to defendant’s remaining property, at the time of the consideration of the assessment roll, since that question should have been tried hy the jury at the time of assessing the damages for the property taken.</p> <p>Same — Charging Municipality With Portion of Expense. Upon exceptions to the assessment of abutting property, for benefits from a local improvement, it is competent for the court to deduct a certain per cent of the assessment and charge the same against the general fund of the city, as a general benefit to the city from the improvement.</p>

, entered July 18, 1905, upon findings in favor of the plaintiff, in an action of ejectment tried before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Honorable Eenley Bryan, Judge pro tempore_, entered March 18, 1905, upon, findings in favor of the defendants, dismissing an action of forcible entry and detainer, after a trial before the court without a jury.</p>

<p>Bonds — Injunctions—Action Upon — Preventing Cutting of Timber — Right to Cut — Nonsuit. In an action upon an injunction bond, for damages sustained by reason of an order temporarily restraining the cutting of timber on certain lands, a nonsuit is properly granted, where the complaint alleged that the plaintiff was engaged in cutting timber as it lawfully might do, and where it was denied that the plaintiff had any right so to do, and no evidence was offered of any right in the plaintiff to cut such timber.</p> <p>Same — Attorney’s Fees — Costs—When Not Covered by Bond. In an- action upon an injunction bond, given upon show cause orders temporarily restraining the cutting of timber, the plaintiff cannot recover for the fees of attorneys employed in the matter, where their efforts were directed against the issuance of an injunction pendente lite, and no motion was made to dissolve the temporary orders; nor could the usual costs of the action he recovered as an expense growing out of the orders and covered by the bond.</p>

<p>Carriers — Bile oe Lading — Authority oe Agent to Issue. The agent of a railway company bas no authority to issue a bill of lading for goods to be transported unless the goods have been actually received, even as to an innocent transferee of the bill of lading.</p> <p>Same — Negotiability. Bal. Code, § 3598, makes bills of lading negotiable for the purpose of transferring the title to the goods actually represented thereby, hut not in the sense that hills and notes are negotiable and proof against defenses in the hands of dona fide purchasers.</p> <p>Same — Estoppel to Dispute Authority. A railway company is not estopped to dispute the authority of its agents to issue bills of lading without the actual receipt of any goods for transportation, and a purchaser without knowledge of the facts respecting the agent’s authority takes a bill of lading at his own risk.</p> <p>Same — Defenses — Fraudulent Issue. Where no goods have actually been received for shipment, the carrier may show that a hill of lading has been fraudulently or erroneously issued, as a defense against liability to a dona fide purchaser or holder.</p> <p>Same — Pleading—Answer. It is not necessary to plead a defense to liability upon a bill of lading when all the facts constituting the defense appear on the face of the complaint.</p>

, entered April 15, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enforce an,equitable redemption of property sold on mortgage foreclosure.

<p>Divorce — Settlement by Parties — Attorney’s Fees — No Eight in Attorneys to Intervene. Where a wife settles with her husband, her actimn for a divorce, her attorneys cannot intervene in the suit and obtain judgment for their fees and costs advanced; Bal. Code, § 5722, requiring the husband to pay the reasonable expenses of the wife therein not applying; and it being the policy of the law not to discourage such settlements.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Richardson, J., entered May 27, 1904, upon the verdict of a jury for $33,000 damages for personal injuries.</p>

<p>Master and Servant — Youthful Employee — Duty to Warn as to Dangers of Operation of Re-Saw. The court cannot say, as a matter of law, that as to a youth of the age of sixteen years, without any experience under the existing conditions, a master owes no duty to instruct him as to the apparent dangers in connection with the operation of a re-saw.</p> <p>Damages — Excessive Verdict — Loss of Ends of Fingers. A verdict for $5,000 damages for the loss of the ends of three fingers of the right hand and the stiffening of the joints of the thumb is excessive, and should reduced to $3,500.</p>

<p>Criminal Law — Conspiracy—Information—Sufficiency. An information sufficiently charges a conspiracy to defraud when it alleges that two persons conspired to cheat and defraud a person of a certain sum of money, particularly setting forth the acts and things done pursuant thereto.</p> <p>Same — Evidence—Notice of Name of Party Defrauded. Where persons conspire to defraud whomsoever may be entrapped by their schemes, it is not necessary to prove that any particular person was in their minds at the time.</p> <p>Venue — Prejudice—Sensational Newspaper Articles and Association to Create Public Sentiment. Where public sentiment has been aroused in the community by sensational newspaper articles, and by an association organized for the purpose of creating public sentiment against the accused, to such an extent that it appears that they cannot have a fair trial, it is error to refuse to grant a change of venue.</p>

<p>Featjds, Statute oe — Sale oe Lands by Corporation — Memorandum oe Sale — Resolution oe Directors — Sufficiency. A resolution of the board of directors of a corporation authorizing the sale of lands of the corporation, stating the terms of sale, a copy of which signed by the president as the represntative of the corporation, was delivered to the purchaser, constitutes a sufficient memorandum of sale to take the sale out of the operation of the statute of frauds, and the same can he specifically performed.</p> <p>Same — Mutuality of Contract — Acceptance of Purchaser — ■ Bringing Action for Specific Performance. A resolution by the board of directors of a corporation authorizing the sale of its lands, is not insufficient as a memorandum of sale, or void for want of mutuality, because not signed by the purchaser, where the purchaser’s assent thereto is shown by promptly bringing an action for the specific performance of the contract of sale.</p> <p>Vendor and Purchaser — Contract of Sale — Acceptance—Evidence — Sufficiency. The evidence, although conflicting, is sufficient to establish that the purchaser of lands from a corporation accepted a contract of sale, where it appears that the hoard of directors of the corporation adopted a resolution authorizing the sale, and witnesses testified that it was accepted by the purchaser, that the notes were executed and cash procured for the payments, and that the vendor only rescinded the sale after it had received a better offer, pending negotiations to perfect the title, which it had fully intended to perfect.</p> <p>Vendor and Purchaser — Corporations—Sale by Officer — Authority — Ratification. Where the principal stockholder and president of a corporation arranges an oral sale of its lands, his acts are ratified by the adoption of resolutions by the board of directors authorizing the sale, and the acceptance of the terms by the purchaser.</p> <p>Same — Acceptance by Purchaser. Upon the sale of lands of a corporation, authorized by resolutions of the hoard of directors, the fact that the purchaser asked the adoption of further resolutions, upon the advice of attorneys examining the abstract, does not show that the sale was not accepted by the purchaser, but rather the contrary.</p>

<p>Eminent Domain — By Street Railway for Power Purposes — - Right — Necessity of Antecedent Franchise. Upon a proceeding by a street railway company to condemn land for the purpose of creating the necessary power to operate a street railway system, it is not necessary to show, that the company has acquired all its right of way or obtained all franchises from the cities in which it expects to operate, where it appears that it was proceeding diligently to secure right of way and franchises which had been practically agreed upon.</p> <p>Same — Condemnation for Public Uses by Corporation Organized for Public and Private Purposes. A street railway company, organized for purposes partly private and partly public, may acquire land by the right of eminent domain where the proceedings show that the power is exercised only for its use as a common carrier, and which are not so combined with its private purposes as to he inseparable.</p> <p>Same — Right to Condemn — Possibility oe Diversión to Private Use. The prevention of the diversion to private uses of private property taken for a public use, rests in the supervisory power of the state rather than in the denial of the exercise of the right of eminent domain.</p> <p>Same — -Public Necessity — Evidence—Sufficiency. The uncontradicted testimony of the president of a street railway company to the effect that all the power that could he developed by a proposed dam would he required for the uses of the company is sufficient proof that there was a necessity for the taking of the land sought.</p> <p>Same — Public Use — Creation of Power for Use of Street Railway. Under Laws 1903, p. 366, authorizing street railway companies to condemn land for right of way “and other corporate purposes,” a street railway company may condemn land not adjacent to its right of way, for the purpose of developing a water power to create the power for the system, the public being directly interested in such use as a means of acquiring cheap transportation.</p>

, entered December 18, 1905, after a trial on the merits before the court without a jury, dismissing an action for specific performance.

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered December 9, 1905, upon findings in favor of the defendants after a trial on the merits before the court without a jury, dismissing an action of forcible entry and detainer.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered October 6, 1905, upon findings in favor of the plaintiff, after a trial on. the merits before the court without a jury in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered December 8, 1905, after sustaining a demurrer to the application, dismissing an action for a writ of mandamus to compel the clerk of the superior court, without separate appearance fees, to file joint objections of several defendants in a special assessment proceeding.</p>

, entered March 22, 1906, in favor of the petitioner*, adjudging a public use and directing the assessment of damages by a jury in a condemnation proceeding.

<p>Appeal from a judgment of tbe superior court for Pierce county, Huston, J., entered July 18, 1905, upon tbe verdict of a jury rendered in favor of tbe plaintiff, in an action on promissory notes-.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered March 6, 1906, upon a trial and conviction of the crime of burglary.</p>

<p>Eminent Domain — Condemnation by Rahway — Fahure to Comply With Corporation Laws — Filing and License Fees. Upon certiorari to review a proceeding by a foreign railway company to condemn lands, it cannot be objected that the company failed to show the payment of a license fee and the issuance by the secretary of state of a license to do business in this state, where (1) the objection is raised by private parties; (2) the application avers that tne company is so authorized; (3) the articles of incorporation were filed prior to the enactment of the law requiring a license; and (4) where the law requires, and the court will presume, the payment of a fee and issuance of a license prior to the filing of the articles, which were shown to have been filed.</p> <p>Pleabing — Answer in Condemnation Proceedings. In condemnation proceedings no answer is required, and it is not error to strike the same.</p> <p>Eminent Domain — For Rahboad — Public Use and Public Necessity — Evidence— Sueeiciency. Sufficient proof of public use and necessity is shown for the condemnation of a railroad right of way, for a branch three miles long, although there is at present hut one factory in the territory to he served, where it appears that the territory is tide lands of considerable extent, peculiarly adapted to manufacturing purposes, and it is conceded that the branch when completed will he a commercial railroad, and that the use is a public one; since the question of public use is determined by the character and not the extent of the use.</p>

, entered May 11, 1905, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, in an action on contract.

, entered February 26, 1906, after a hearing on the merits, adjudging a public use, etc., in a proceeding to condemn land for railway purposes.

<p>Appeal — Dismissal—Cessation op Controversy. An appeal will not be dismissed on the ground that the controversy has ceased, by reason of a settlement where the record fails to show any such settlement.</p> <p>Pleading — Estoppel—Inconsistent Positions. After interposing a demurrer on the ground that a certain party was a necessary party plaintiff, the defendants, after such party has been brought in as a party plaintiff, are estopped to claim the original complaint fails to state any cause of action as to such party.</p> <p>Parties — Action on Joint Bond — Necessary Parties Plainthtb. Where the interests of two obligees, named in a statutory bond, are several and not joint, or if the separate property of only one is affected, such party may maintain an action alone, to recover his damages sustained, without joining his co-obligee.</p>

, entered February 24, 1905, upon tbe verdict of a jury rendered in favor of the defendant, in an action to annul a special assessment.

<p>Appeal from a judgment of tbe. superior court for King county, Frater, J., entered May 6, 1905</p>