Volume 43 — Washington Reports

, entered July 8, 1905, upon findings in favor of the plaintiff after a trial on the merits before the court without a, jury, in an action to foreclose a mechanics’ lien.

<p>Appeal from a judgment of the superior court for King county, Rigg, J., entered February 15, 1906, in favor of the plaintiff, upon stipulated facts, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered December 28, 1905, upon findings in'favor of the defendants, after a trial on the merits before the court without a jury in an action for the rescission of a sale of land.</p>

Application filed in the supreme court April 1, 1906, for a writ of mandamus to the Honorable John B. Yakey, judge of the superior court for Kitsap county, to compel a hearing on an application for a warrant of arrest in King county.

, entered October 23, 1905, dismissing an action for the vacation of a judgment, upon sustaining a demurrer to- the petition.

<p>Appeal from a judgment of the superior court- for King county, Griffin, J., entered March 9, 1906, upon findings in fav-or of the plaintiff, after a trial on the merits, adjudging null and void a municipal election annexing property, and enjoining the city from dealing with said property as a part of its territory.</p>

, entered January 3, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action by a passenger for damages for removal from a train-.

, entered April 6, 1906, after a hearing on the merits, denying relator’s application for a temporary injunction to' restrain the grading of a street.

<p>Cancellation oe Instruments — Pleading—Amendment—When Not a Departure. In an action to set aside a deed made by a wife to a third person, where the complaint alleges that the deed was made to enable the grantee to sell it for the benefit of the grantor, it is not error to allow an amended complaint setting up that the deed was procured by artifice and fraud, although the amendment contradicts the original complaint, when the material questions in issue were whether the deed was founded upon a valuable consideration, whether the property was community property, and whether the husband was estopped to deny the validity of his wife’s deed.</p> <p>Appeal — Review—Findings. Findings of the trial court upon conflicting evidence will not be disturbed where the principal witnesses were foreigners, who understood but little English, and the lower court had superior opportunities for weighing the evidence.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered September 7, 1905, in favor of the defendants, upon, sustaining a demurrer to the complaint, dismissing an action brought by a stockholder against a third party for defrauding the corporation.</p>

<p>Sales — Acceptance—Consideration—Parol Evidence to Explain. If a contract of sale of two vehicles for one sum is entire, the acceptance of one is equivalent to the acceptance of both, and parol evidence is inadmissible to explain the consideration.</p> <p>Same — Severable Contract. Where two vehicles were sold at the same time and the contract recited a single consideration for both, parol evidence is admissible to show that a separate price was agreed upon for each, as that does not contradict the writing; and in such case the contract is severable, and may be rescinded for sufficient «ause as to part and enforced as to the remainder.</p> <p>Same — Written Contract — Stipulation as to Parol Contemporaneous Agreement. A written order or contract entered into with an agent for the purchase of two vehicles, reciting on a printed form that no agreement shall be recognized unless written thereon, and that no verbal agreements will he recognized, cannot he varied by evidence of contemporaneous oral agreements.</p> <p>Sales — Defenses — Conformity to Contract — Answer—Sufficiency. Where a written contract for the sale of a vehicle calls for a regulation track and contains a memorandum for a “15 in. extension,” and, also, “Don’t want stiff bar Brake” an answer alleging a breach of the contract in that the wheels did not have the regulation track, and that it did not have the fifteen inch extension, and was equipped with the stiff bar brake, is sufficient to admit proof that the vehicle did not conform to the contract, justifying its nonacceptance.</p>

, entered June 21, 1905, upon- the verdict of a jury rendered in favor of the plaintiffs in an action to recover possession of unsurveyed government coal lands.

, entered March 29, 1906, in favor of the plaintiff, a taxpayer, upom overruling, a demurrer to the complaint, in an action to enjoin a county from issuing’ bonds for the construction of an armory.

, entered January 2, 1906, upon a trial and conviction of the crime of conniving at the prostitution of defendant’s wife.

, entered July 13, 1905, in favor of the defendant, after a hearing on the merits, denying an application for a writ of prohibition to prevent a justice of the peace from trying a cause.

A. Stratton, judge pro tempore, entered June 15, 1906, in favor of the defendant, upon sustaining a demurrer to the complaint, in an action to enjoin tbe issuance of municipal bonds.

<p>Motions to dismiss appeals from a judgment of the superior court for Pierce county, Huston, J., entered March 19, 1906.</p>

, entered Hovember 18, 1905, in favor of the defendant, granting a nonsuit at the dose of plaintiff’s case, in an action for personal injuries sustained hy the operator of a mangle in a laundry.

<p>Eminent Domain — Certiorari—To Review Adjudication of Public Use. Certiorari to review an adjudication of public use in condemnation proceedings does not lie in tbe absence of any claim of error upon tbat subject.</p> <p>Same — Review—Errors Assigned. A claim of error upon certiorari to review an adjudication of public use cannot be based upon a claim of want of personal service upon a resident defendant, when the statute allows a service by publication in case tbe defendant’s residence is unknown or cannot be ascertained, and tbe relator shows affirmatively tbat tbe notice was published and fails to show tbat it was not published within tbe statute.</p> <p>Same — Appeal—Review on Propriety of Damages. Upon a condemnation proceeding error in irregularly drawing a jury from an open venire is reviewable upon appeal, under Bal. Code, § 5645, providing tbat an appeal shall only bring before tbe supreme court tbe propriety and justness of tbe amount of tbe damages, since tbe error relates to tbe procedure or trial by which tbe damages are ascertained.</p>

<p>Appeal — Appealable Oedees — Ex Paete Dismissal. No appeal lies from an ex parte voluntary dismissal, where no motion to vacate or set aside the order is made.</p>

, entered duly 28, 1905, upon findings in favor of the plaintiffs, after a trial on the merits her fore the court without a jury, in an action to quiet title.

'Appeal from a judgment of the superior court for Chelan county, Steiner, J., entered October 3, 1905, upon a trial and conviction of the offense of selling liquor to a minor.

, entered Hovember 18, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by a workman on a building, through the operation of a derrick.

, entered February 10, 1906, upon sustaining a demurrer to tbe petition, dismissing a condemnation proceeding instituted by a city for tbe purpose of straightening tbe course of a river.

, entered January 18, 1906, in favor of the defendant, on appeal from a conviction before a justice of the peace, dismissing a prosecution for the violation of the eight-hour law, upon sustaining a demurrer to the information.

<p>Appeal from a judgment of the superior court for Okanogan county, Steiner, J., entered Hovember 10, 1905, upon a trial and conviction of the crime of perjury.</p>

, entered October 18, 1905, in favor of the defendants, after a hearing on the merits, denying an application for an injunction to restrain the issuance of execution on a judgment.

, entered Uovember 1, 1905, in favor of the defendants, after a hearing on the merits, denying an application for a writ of certiorari to review an order of the board of county commissioners awarding a lease of county property.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered March 29, 1906, in favor of the defendants, upon sustaining a demurrer to the complaint.</p>

Application filed in the supreme court June 8, 1906, for a writ of mandamus to compel the superior court for Chelan county, Poindexter, J., to fix the amount of a suptersedeas hond, pending an appeal from a judgment suspending the relator from practicing as an attorney at law.

, entered October 12, 1905, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by the operator of a sticker in a sawmill.

, entered November 20, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by the indorsee of a draft to enforce payment against the drawer.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 14, 1905, upon a trial and conviction of the crime of rape.</p>

, entered December 22, 1905, dismissing an action for an accounting upon granting a motion to strike plaintiff’s amended complaint.

<p>Aippeal from a, judgment of the superior court for Pierce county, Huston, J., entered September 13, 1905, upon the verdict of a jury, rendered by direction of the court in favor of the defendant, in an action for personal injuries sustained by an employee in a factory.</p>

<p>Ap;p|eal from a judgment of tie superior court for Spokane county, Huneke, I., entered September 26, 1905, upon findings in favor of a garnisbee defendant, after a bearing on tbe merits, dismissing a garnishment proceeding.</p>

<p>Chattel Mortgages — Foreclosure—Insecurity. A loan is sufficiently insecure to warrant the commencement of an action, before maturity, to foreclose a chattel mortgage upon a leasehold and the furnishings of a lodging-house where the mortgagors were behind in their rent and about to be ejected'by their landlord.</p> <p>Alteration op Instruments — Burden op Proof. Upon the foreclosure of a mortgage, the burden of proving an affirmative defense to the effect that 'a waiver of exemptions had been inserted after execution is upon the defendant.</p> <p>Appeal — Review—Findings—Presumptions. The failure to find upon a certain point in an ecfuity case does not raise the presumption that the point was established, since no findings are necessary.</p> <p>Exemptions — Waiver—Statutes—Validity. The territorial act (Bal. Code, § 5251), providing that a mortgagor may waive the benefit of all his exemptions, is repugnant to and annulled by Const., art. 19, providing that the legislature shall protect from sale a portion of the homestead and other property of all heads of families and making any such waiver in a mortgage void.</p>

<p>Adoption — Consent of Pabents. Where, in proceedings for the adoption of a minor child, no guardian was appointed, the consent by both parents must appear, as required by Bal. Code, § 6480.</p> <p>Pabent and Child — -Abandonment. A parent does not abandon his infant child by leaving it for five or six months in the care of his mother without communicating with her, while seeking employment.</p> <p>Pabent and Child — Infants—Pboceedings to Commit to Chabitable Society — Complaint. Under Laws 1903, p. 60, in order to authorize a charitable society to have the exclusive possession of a child it must be alleged that both of its parents have abandoned the child or are unfit, etc., to have its custody.</p> <p>Same — Notice to Pabent — Judgment—Jurisdiction. The statute requiring notice of at least five days to be given to the parents of application to award the custody of a child to a charitable society, the proceedings and order are void for want of jurisdiction where the order was made on application of the mother alleging that the father had abandoned the child, notice was then given to the mother, who accepted service, and the hearing was thereupon had and order made immediately without any notice to the father.</p> <p>Same — Surrender—Notice. Laws 1903, p. 59, § 1, authorizing the surrender of a child by the mother in case of legal incapacity or abandonment by the child’s father, could not deprive the father of his right to the child’s custody without an adjudication by a court of competent jurisdiction as to his unfitness or abandonment, and without giving him his day in court.</p> <p>Same — Judgments—Recitals as to Service — Jurisdiction—Collateral Attack. An order awarding the custody of a child to a charitable society, reciting due service of notice, can be collaterally attacked for want of service, where it appears conclusively that no service was made, in that the law required at least five days notice, and the order was made immediately upon making the application.</p> <p>Adoption — Consent op Charitable Institution — Validity. Proceedings for the adoption of a child held by and upon the consent of a charitable institution, as authorized by Laws 1903, p. 59, § 1, are void as against the parents, where the institution had no right to the custody of the child.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, L, entered December 27, 1905, granting a motion for nonsuit in an action for damages resulting to a riparian owner from the driving of shingle holts in a stream, and for an injunction to prevent further use of the stream for such purpose.</p>

<p>Criminal Law — Conspiracy—Definition. Conspiracy is not a statutory hut a common law offense, in this state; and includes either a combination to do an unlawful act or to do a lawful act by unlawful means.</p> <p>Same — Information—Sufficiency. An information charging a conspiracy to cheat and defraud by obtaining a mortgage, under false pretenses, need, not .set out the false pretenses or description of the property; since if the object of the conspiracy is the accomplishment of an unlawful act, the means by which such act is accomplished need not he set forth.</p> <p>Same — Trial—Instructions. In a prosecution against three defendants for a conspiracy, it is error to instruct that the jury must find the defendants guilty, if it appears that they, or any two of them, conspired as alleged in the information; and such an instruction would he specially injurious to one of the defendant» who was not connected with all the acts of the other conspirators, and against whom there was no corroboration of the testimony of the prosecuting witness.</p> <p>Same — Defendant’s Theory of Case. In a prosecution for a conspiracy to raise money on a mortgage for the purpose, as claimed by the prosecuting witness, of securing bail, bribing oficiáis, and aiding in an escape, it is error for the trial court, after instructing on that theory of the case, to refuse to give instructions requested by the defendant as to his theory of the case, it appearing in the evidence that he was endeavoring to raise money for a cash bail and to pay the fees of the attorneys upon an appeal.</p> <p>Same — Evidence—Sufficiency—Corroboration. It would seem that, upon a prosecution for a conspiracy, the testimony of the prosecuting witness, who was one of the conspirators and discredited, must he corroborated as to the unlawfulness of the purpose of the conspiracy.</p>

<p>Pleadings — Answers—Denials—Negative Pregnant. In an action for personal injuries caused by defendant’s runaway team, an answer admitting t£ie ownership of the teg,m and denying that part of the complaint (quoting the same) stating that the horses were wild and ungovernable and were well known so to he by the defendant, and had a habit of running away, is not bad as a negative pregnant, under code provisions abrogating that doctrine, to the effect that the pleadings shall be liberally construed, shall he subject to motion to make more definite, and that no variance shall be material unless the adverse party is misled to his prejudice; the answer sufficiently advising plaintiff of the allegations of the complaint he intended to deny, and no motion to make more definite having been made.</p> <p>Same — Motion to Make More Definite. Where an answer to a complaint admits part of a paragraph and denies the remainder, and there exists in the mind of the plaintiff any doubt as to the meaning of such denial, it is his duty under Pierce's Code § 402, to move to make the answer more definite and certain.</p>

Application filed in the supreme court, June 20, 1906, for a Avrit of prohibition directed to the superior court for Chehalis county, Chapman, J., to prevent the suspension of a prohibitory injunction pending appeal.

, entered October 31, 1905, in favor' of the defendants,' after a hearing before the court, dismissing an applieation for a writ of certiorari to review an order of the ■board of fire commissioners of the city of Spokane, discharging (plaintiff from the fire department.

, entered December 19, 1905, upton findings in favor of tbe plaintiff, after a trial on the merits before the court without a jury, in an action against a school district by a discharged teacher to' recover salary.

county, Black, J., entered January 3, 1906, upon findings in favor of the plaintiff after a trial on the merits before the court without a jury, in an action on a mutual benefit insurance policy.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered December 18, 1905, in favor of tbe plaintiff, after a bearing on the merits, decreeing a lien against land for taxes and assessments plaid by the holders of an invalid tax title.</p>

<p>Fkadulent Conveyances — Sales in Bulk — Ckeditobs. Where one is not shown except by inference, to have been at any time a creditor of the vendor of a stock of goods in bulk, it cannot be claimed that the sale was fraudulent as to him as a creditor for failure to comply with the sales in bulk act.</p> <p>Same — Pbefebence—When Not Sale In Bulk. A failing debtor may prefer one of his creditors by transferring to him his stock of goods in bulk without complying with the “sales-in-bulk” act, where the stock was of less value than the preferred debt, there being no sale in bulk within the meaning of the act in such case.</p>

, entered June 2, 1905, upon the verdict of a jury, rendered in'favor of the plaintiff for personal injuries sustained by a knot sawyer in a sawmill.

, entered December 15, 1905, upon tbe verdict of a jury rendered in. favor of tbe plaintiff for personal injuries sustained by an. employe© engaged in constructing a gas tank.

<p>Appeal from a judgment of the superior court for Okanogan county, Steiner, L, entered August 26, 1905, upon a trial and conviction of the crime of arson.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered October 14, 1905, upon a trial and conviction of assault with' intent to commit raipie.</p>

<p>Appeal and Error — Record—Affidavits. Affidavits used on a motion for a new trial must be brought up by bill of exceptions or statement of facts, or they will be struck out.</p> <p>Criminal Law — Trial—Exclusion of Witnesses. The exclusion of witnesses from the court room rests within the discretion of the trial court, and is not a matter of right, although it should be granted in all proper cases.</p> <p>Same — Abuse of Discretion. It is not an abuse of discretion to refuse a request to exclude the witnesses from the court room in a trial for murder, when no reasons are assigned, and the request was directed principally against one witness, an officer whose presence may have been necessary to the prosecuting attorney.</p> <p>Criminal Law — Unwilling Witness. Upon a trial for murder, where an unwilling witness for the state refuses to answer questions, upon the defendant’s signal, it is not error for the trial court to direct him to look at the jury and stop looking at the defendant, and to attempt to make him testify, and to punish the witness for contempt in the presence of the jury, where nothing was said prejudicial to the defendant in passing sentence.</p> <p>Witnesses — Hostile Witness — Leading Questions. It is discretionary to allow leading questions to a hostile witness controlled by the other side.</p> <p>Same — Credibility—Inducements. Where a witness hostile to the state refused to testify, it is not error to refuse to allow the defendant to show that inducements to testify had been made to the witness, since that affects only his credibility.</p> <p>Criminal Law — Evidence—Confessions Including Other Crimes. Upon a trial for the murder of a police officer, evidence of confessions by the defendant are not inadmissible because of the fact that they included statements of other crimes, where the confession stated to the witness where he could find a kit of burglar’s tools used by the accused at the time of the murder, and which would certainly convict him if found, and contained references to other crimes, the mention of which were mere incidents. .</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 15, 1905, upon the verdict of a jury rendered in favor of the defendant in an action for libel.</p>

<p>Counties — Indebtedness—Bonds—Power to Issue. Bonds issued by a county for the purpose of taking up and cancelling its outstanding «indebtedness constitute an increase of the indebtedness, and not merely a change in its form; since the debt is necessarily increased while the exchange is being made, and its permanency depends upon the fidelity of the ofiieers in making proper application of the funds.</p> <p>Courts — Decisions as Precedents. The rule of stare decisis ought not to he departed from unless grave necessity exists therefor.</p>

<p>Apip|eal from a judgment of the superior court for Spokane county, Huneke, J., entered March 2, 1906, upon findings in favor of the defendant, after a trial on the merits before' the court without a jury, in an action for divorce.</p>

, entered October 3, 1905, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by thei operator of a planer in a mill.

<p>Vendor and Purchaser — Contract—Repayment on Failure of Title — Default in Payment. The vendee of land is not entitled to repayment of tbe sums paid where be makes default in payments prior to tbe determination of a suit involving the title, when tbe contract for tbe sale, in which time is of tbe essence, was subject to such suit and provided for forfeiture of sums paid as liquidated damages on default in paying installments, and for repayment in case of failure of title, and where tbe vendor bad, after default, served notice of forfeiture.</p> <p>Same — Consideration. Such a contract is not unilateral or without consideration, where at the time it was made a court of competent jurisdiction had sustained the title, from which judgment an appeal was pending; since the vendor’s agreement to sell, and the surrender of its rights to sell to another, constitute two considerations for the vendee’s agreement to purchase.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered November 20, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, refusing to enjoin the operation of a sawmill- as a private nuisance.</p>

, entered March 6, 1906, in favor of the defendant, granting a nonsuit at the close of plaintiff’s case, in an action of trover and conversion.

<p>Injunction — Notice — Requisites— Executions — Supplemental Pboceedings. An injunction issued against one not a party to proceedings supplemental to execution, without notice, or showing an emergency, and without bond or naming a return day, is void.</p>

<p>Appeal from a judgment of the suipierior court for King county, Gilliam, J., entered November 14, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance.</p>

<p>Taxation — Certificate of Delinquency — Foreclosure—Parties— Process — Deceased Owner. The foreclosure of a delinquency tax certificate by an individual owner, being a proceeding in rem, a summons for publication addressed to the person appearing on the rolls as owner, as required by Laws 1901, p. 386, is sufficient, although such person is dead at the time, and is binding upon the heirs, there being no charge of bad faith or attack upon the validity of the statute (Rudkin, J., dissenting).</p>

, entered May 19, 1905, in favor of the plaintiffs, after a hearing on the merits before the court -without a jury, enjoining the prosecution ,of a proceeding in another state attacking a will.

<p>Appeal from an order of the superior court for Walla Walla county, Brents, J., entered December 1, 1905, in favor of the defendant, after a hearing on the merits, denying an application for an allowance for the support of children of divorced parents.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered January 20, 1906, in favor of the plaintiffs, after a hearing on the merits before the court without a jury, enjoining the interference by the lessor with the entrance or hallway of a building, and awarding damages.</p>

, entered October' 14, 1905, in favor of the defendants, granting a nonsuit after a trial on the merits, in an action for the division of certain property as the propierty of a partnership.

<p>Appeal from a judgment of the superior court for Pierce county, Huston, J., entered January 20, 1906, upon findings in favor of the plaintiff, after a trial on the merits, before the court without a jury, in an action to. foreclose a tax lien.</p>

<p>Landlord and Tenant — Unlawful Detainer — Right of Action-The summary action of unlawful detainer, authorized by Bal. Code, § 5525 et seq., for the recovery of the possession of leased premises cannot be maintained unless the conventional relation of landlord and tenant exists between the parties.</p> <p>Landlord and Tenant — Existence of Relation — Tenancy by Sufferance. The owner of the premises which had been sold under foreclosure is not shown to be a tenant by sufferance to one who took the title while rooming on the premises, pending proceedings to recover possession, where the owner never recognized the validity of the sale, or such title holder as landlord, hut maintained possession at all times under claim of ownership, and where such title holder made statements indicating that he took the same for the owner’s benefit, to whom he had attempted to convey the property.</p> <p>Appeal — Record—Statement of Facts. The refusal to allow an amendment to conform to the proof cannot be reviewed in the absence of a hill of exceptions or statement of .facts.</p> <p>Unlawful Detainer — Issues—Trial of Title. The title to property cannot he tried in an action of forcible entry and detainer.</p>

<p>Appeal from an order .of the superior court for Clallam county, Hatch, J., entered January 9, 1905, in favor of the defendants, after a hearing before the court, vacating a detfault judgment.</p>

of the superior court for King county, Albertson, J., entered July 20, 1905, up'on findings in favor of the defendant, after a trial on the merits before the court without a jury in an action on contract.

<p>Appeal — Review—Verdict. A verdict upon conflicting evidence will not be set aside by the appellate court where there was sufficient competent evidence to sustain it.</p> <p>Highways — Injury by Runaway Team — Contributory Negligence. A woman driving in a buggy with a baby in her lap is not, as a matter of law, guilty of contributory negligence in • not looking back upon hearing the noise of an approaching runaway team, where there was nothing to indicate to her that the team was running away.</p> <p>Trial — Verdict—Special Interrogatories. Answers by the jury to special interrogatories to the effect (1) that the defendant was not so intoxicated that he could not control his team, and (2) that the loss of such control was due to his intoxication, and not to the dropping of the conveyance into a hole, are not, in the light of the evidence, so conflicting as to be insufficient to sustain a general verdict based upon the defendant’s negligence and intoxication.</p> <p>Death — Damages—Excessive Damages. A verdict for $2,160 for the death of a child one year of age will not be held excessive, where no complaint is made of the instructions, and there is nothing to indicate passion or prejudice.</p> <p>Jury — Examination of Jurors. Upon the voir dire-of a juryman, it is not error to refuse to permit him to answer a question as to whether he wanted to sit on the jury.</p> <p>Appeal — Harmless Error--Trial — Argument of Counsel. Improper argument of counsel is not ground for reversal when it was not susceptible of any injury to the appellant.</p>

Appeal — Liabilities on Bond — Dismissal — Jubisdiction. No action can be maintained upon an appeal and supersedeas bond ■where the appeal was dismissed on motion of the respondent for want of jurisdiction in the supreme court to hear the appeal, as there is then no consideration for the bond; and it is immaterial that the bond was treated as a supersedeas of the judgment until the dismissal, as the bond was ineffectual for that purpose.

<p>Appeal from a judgment of the superior court for Chehalis county, Lice, J., entered March 14, 190S, upon the verdict of a jury rendered in favor of the defendant by direction of the court at the dose of plaintiff’s case, in am action •for personal injuries sustained by an offbearer in a sawmill.</p>

<p>Appeal — Bond—Exemption. Upon an appeal by the mayor and council from a judgment ordering an election to disincorporate a city, the appeal is on behalf of the city and no bond is required.</p> <p>Appeal — Briefs—Printing—Findings. Rule 8, subd. 5, of the supreme court does not require the printing of all the findings of fact, but only those on which any question is sought to be raised.</p> <p>Municipal Corporations — Disincoepoeation—Proceedings. Where, before the hearing of a petition to disincorporate a town containing less than 250 qualified voters, signed by a majority .of the voters therein, it appears that part of the signers have voluntarily withdrawn their names by filing with the city council a writing to that effect, sufficient in number to reduce the same to less than one-half of the voters of the town, the council properly dismissed the proceedings, and it was error to mandamus the council to order an election for disincorporation.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered August If, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for insurance agent’s commissions.</p>

, entered February 2, 1905, in favor of the defendant, granting a nonsuit at the close of plaintiff’s case, in an action on an oral contract of life insurance.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J.', entered Rovember 3, 1905, upon a trial and conviction of the crime of embezzlement.</p>

<p>Appeal from a judgment of the superior court for Cheihalis county, Irfwin, Jl, entered October 30, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by the operation of a cut-off saw in a sawmill.</p>

<p>Negligence — Elevator Shaft — Safety op Place — Contributory Negligence. An employee, working at tbe bottom of an' elevator shaft in a building in tbe course of construction, is not guilty of contributory negligence, as a matter of law, in working there while lumber was being hoisted in the shaft, when the shaft had been covered at the first floor to prevent the fall of lumber to the basement, a portion of which covering was removed on the morning of the accident, and where, at the time of the fall, he was working four or five feet without the shaft in a place ordinarily safe with nothing to indicate any danger.</p> <p>Same — Safe Appliances — Rope poe Hoisting — Question fob Juey. Whether there was negligence in the use of a rope for hoisting lumber in the construction of a building is a question for the jury, where the evidence was conflicting as to whether the knot used was reasonably safe, and some of the witnesses testified that the rope was stiff and unsuitable and others that it was pliable and safe.</p> <p>Same — Safe Appliances — Evidence — Admissibility — Appeal— Cueing Ebbob. In an action for negligence through -the use of an unsafe knot in tying packages of lumber for hoisting, it is not error to admit evidence as to the kind of knot used just previously to the one used on the package which fell; and if so, it was cured where it was subsequently shown that the same knot was used on all the packages.</p> <p>Evidence — Opinions—Expert as to Hoisting Lumber. Upon a question as to the proper method of tying packages of lumber to he .hoisted, it is proper to allow experts to express an opinion as to whether the method employed was safe.</p> <p>Damages — Excessive Verdict — Injury to Foot. A verdict for $1,600 for injuries to the foot, resulting in the loss of a toe and some ' impairment and pain, is excessive^ where the loss of time and expense did not exceed $400; and the same should be reduced to the sum of $1,000.</p> <p>Appeal — Record—Matters to Be Shown — Refusal to Strike Cost Bill. Error in failing to strike the cost bill of the prevailing party will not he reviewed on appeal where there is nothing in the record to show that the court has yet passed on the motion.</p>

<p>Feauds, Statute of — Contract to Convey Land — Part Performance. Where the plaintiffs, having an advantageous contract to buy real premises and being unable to raise the price, entered into an oral contract whereby defendant agreed to advance the price, take title and give a bond for a deed, in consideration of a return of tbe advance plus one hundred dollars within one year, there was such a part performance of the oral agreement as to take the case out of the operation of the statute of frauds, where 'the plaintiffs took peaceable possession and made improvements by papering rooms and repairing buildings.</p> <p>Trusts — Constructive Fraud — Specific Performance — Statute of Frauds. Where defendant advances money and takes title to premises purchased at a profit by the plaintiffs, agreeing orally to make a bond for a deed to them in consideration of the repayment of a certain sum within one year, which premises the defendant could have secured in no other way, a constructive fraud arises, upon defendant’s refusing to make the bond for a deed, sufficiently to create a constructive trust in favor of the plaintiffs, which would not fall within the statute of frauds, regardless of the taking of possession by the plaintiffs; and specific performance of the oral agreement will he decreed.</p> <p>Principal and Agent — Husband and Wife — Ratification. Where the defendant’s wife avails herself of an oral contract made by her husband whereby she invested her separate property in real estate in ignorance of the terms of the agreement, she cannot ratify his acts in part, retaining the property, and at the same time deny his authority to make the agreement and refuse to carry out its terms.</p>

<p>Highways — Injuries—Bridges—Condition—Proximate Cause-Runaway Team. A county is not liable for personal injuries sustained in the overturning of a wagon through, the running away of a team, the pole having dropped from the neck yoke and the end sliding along the ground until it caught in the loose and warped planks of a small drainage bridge or culvert, where it appears that the bridge, while somewhat decayed and uneven, was reasonably safe for ordinary travel for any conveyances driven at ordinary speed; since its condition was not the proximate cause of the injury.</p>

<p>Appeal from a judgment of the superior court for King county, Hatch, J., entered December 20, 1905, upon findings in favor lof the plaintiff, after a trial on the merits bet-fore the court without a jury, in an' action for divorce.</p>

, entered October 5, 1905, upon motion of the defendant, after a hearing on the merits, directing the discontinuance of alimony awarded by a decree of divorce.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 16, 1905, upon the verdict of a jury rendered in. favor of the plaintiff for personal injuries sustained by an employee through the fall of a scaffold.</p>

, entered June 24, 1905, in favor of the defendants, on the pleadings, after sustaining a demurrer to the affirmative matter in plaintiffs reply, in an action of ejectment.

, entered March 3, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, denying an application for an injunction to restrain school directors from enforcing certain regulations against members of high school secret societies.

, entered August 9, 1905, upon findings in favor of the defendant, after a trial on thei merits before the court without a jury, in an action for the rescission of a contract for the sale of land and the recovery of purchase money plaid.

<p>Cross-appeals from a judgment of the superior court for Spokane county, Kennan> J., entered September 13, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages for falsa representations in the sale of a horsa</p>

, entered January 6, 1906, in probate, setting aside a homestead to a widow, after a hearing before the court oni the merits.

, entered December 18, 1905, dismissing the action upon sustaining demurrers to a petition to vacate a tax sale and to redeem from the tax judgment’.

<p>Malicious Prosecution — Probable Cause — Inference of Malice. In an action for malicious prosecution, the law does not necessarily impute malice from proof sufficient to make out a prima facie case of want of prohable cause.</p> <p>Same — Malice—Evidence—Sufficiency. Evidence is insufficient to show malice in swearing out a search warrant to search plaintiff’s house for a shotgun and other personal property that had been stolen at a fire of a mill, at which the plaintiff had worked and had assisted in fighting the fire, where the plaintiff quit his employment without explanation, and where the defendant was not personally acquainted with the plaintiff, and had directed that he wished no one arrested but simply wanted to find his property.</p> <p>Same — Liability—Unauthorized Acts of Officers in Executing Search Warrant — False Imprisonment. One who swears out a search warrant for the search of plaintiff’s house, to recover stolen property suspected to be concealed therein, is not liable for malicious prosecution, where no search of the house was ever made, and the plaintiff’s arrest and incarceration was wrongfully effected by the officers before executing the warrant, and without any direction so to do, or any approval thereof by the defendant; since the officers were guilty of a false imprisonment for which they alone would he liable.</p>

Aplpjeal from a judgment of the superior court for Spokane county, Poindexter, J., entered September 29, 1905, after a trial on the merits before the court without a jury, in an action upon a written contract of guaranty.

<p>Appeal — Notice—Proof of Service — Time of Filing — Dismissal of Appeal. Failure to file proof of service of the notice of appeal within five days after the service of the notice will not justify the dismissal of an appeal.</p> <p>Appeal — Bond—Time of Filing — Dismissal. Upon failure to file the bond on appeal within five days after service of the notice of appeal, the appeal becomes ineffectual for any purpose, under Bal. Code, §6505, and the appeal will be dismissed.</p> <p>Same — Record—Correcting by Supplemental Record. Where the record shows that the bond on appeal was not-filed within five days after service of notice, the same cannot be contradicted by affidavits in the supreme court to the effect that it was actually filed on the day of the service and was not marked filed through the inadvertence of the clerk of the court, which was unknown to the appellant; but in such case the appellant may have leave to apply to the court below for an order correcting the record, to be brought up in a supplemental transcript.</p>

, entered October 21, 1905, in favor of the defendant, upon sustaining a demurrer to the plaintiff’s complaint, in an action for the specific performance of a contract by an Indian to convey land.

, entered July 10, 1905, upon, findings in favor of the plaintiff, after a trial on the merits before tiie court without a jury in an action on contract.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered. November 29, 1905, in favor of the defendant, after a trial on the merits before- the court without a jury, in an action for the cancellation of a deed.</p>

, entered December 20, 1905, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained through falling into an opening in a sidewalk.

, entered Hovember 2, 1905, in favor of tko relator, after a hearing on the merits, granting a writ of mandamus to compel the payment of municipal warrants with interest.

<p>Appeal from a judgment of the superior court for Snor homish county, Black, J., entered January 12, 1906, upon a trial and conviction of the crime of attemut to commit burglary.</p>

, entered Eovember 30, 1904, in favor of the plaintiff, after a trial on the merits before the court without a jury, cancelling a contract for the purchase of tide lands.

Oross-apipleals from a judgment of the superior court for King county, Morris, J., entered August 14, 1905, upon findings in favor of tbe plaintiff, after a trial on the merits before the court without a jury, in an action on an indemnity bond.

, entered August 25, 1905, upon the verdict and special findings of a jury rendered in favor of the plaintiff, in an action of replevin.

; entered January 6, 1905, upon granting a nonsuit at the close of plaintiff’s case, in an action against the drawee of a draft.

, entered June 7, 1905, up¡on findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet titiei

, entered May 17, 1905, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to' foreclose a mortgage.

, entered January 30, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for breach of contract.

Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered January 30, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an accounting.

, entered November 15, 1905, in favor of tbe plaintiffs, granting a new trial, after sustaining a motion for nonsuit., in an action for personal injuries sustained by a locomotive fireman by reason of gas in a tunnel.

, entered December 1, 1905, in favor of tbe defendants, upon sustaining an objection to tbe introduction of testimony on tbe part of tbe plaintiff, in an action on contract

, entered January 19, 1906, upon findings in favor of the plaintiff, after a trial on the merits, before the court without a jury, in an action against a retiring partner, on partnership liabilities.

, entered January 18, 1906, in favor of the defendant, upon granting a nonsuit at the close of plaintiff’s case, in an action for breach of a marriage promise.

<p>Pleadings — General Denial — What May Be Proved. Under a general denial of a complaint alleging a contract of employment for one year, the defendant may introduce evidence tending to show a contract of employment for an indefinite time, without affirmatively alleging the same.</p> <p>Appeal — Review — Harmless Error — Instructions. Where an answer by a general denial raises an issue as to whether a contract of employment was for a fixed period or for an indefinite time, inadvertently instructing the jury that such issue was raised by an affirmative allegation of the answer, is not prejudicial error.</p> <p>New Trial — Grounds—Instructions. A new trial should not be granted for an inadvertent error in the instructions that was not prejudicial to the moving party.</p> <p>Appeal — Review—Grounds Not Considered Below — New Trial. Where a new trial is expressly granted upon a single question of law, and it was error to grant it upon that ground, the order will be reversed on appeal without determining whether the motion should have been granted upon any other ground.</p>

, entered June 9, 1905, in favor of the defendant, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Rape — Evidence—Complaints Made. In a prosecution for rape it is error to permit the witnesses to whom the prosecutrix had made complaint to state the name of the person whom she claimed to have committed the offense.</p> <p>Same — Complaints—Delay in Making. While ordinarily complaints made by the prosecutrix for an alleged rape are to be submitted to the jury under proper instructions, they should be excluded where no complaint was made for a year and a half after the defendant first took liberties with her person, and eight months after his first felonious assault, and six months after the consummated offense, where her age and surroundings furnished no sufficient excuse for the delay; since in such case the evidence of complaints ceases to be corroborating.</p> <p>Same — Instructions. In such a case, it is error to submit to the jury the question whether the complaints were seasonably made.</p> <p>Same — Trial—Instructions. In a prosecution for rape upon one under the age of consent, claimed to have been made by force and notwithstanding resistance and outcry, it is error to refuse to instruct that the jury should take into consideration whether there was injury to the person or clothing, whether complaint was seasonably made, whether persons in the house could have heard outcry, if any were made, and whether the prosecutrix did make outcry in resisting assault.</p> <p>Same — Issues and Proof — Question eoe Juey. In a prosecution for rape it was error to withdraw from the jury the theory of the defense that the prosecution was instigated to shield another party, where there was evidence that she was surprised in a compromising position with another man shortly before the charge was preferred against the defendant.</p> <p>Criminal Law — Evidence—Fabrication oe Evidence. An attempt to obtain a flash-light photograph of the defendant in a compromising position with a female under the age of consent, whom it was alleged he had assaulted and raped, would not be a conspiracy to fabricate testimony, in case he voluntarily assumed the position.</p> <p>Witnesses — Cross-Examination—Impeachment. In a prosecution for rape, a very wide latitude should be allowed to the defendant in cross-examining his nephew, who owed no duty to the prosecutrix, but spent half his time for several months in working up evidence against the defendant and manifested unusual interest in the case; and the defendant should be permitted to impeach his testimony as to any matter bearing directly on the case.</p>

, entered December 4, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by an 'officer against a municipality to recover a salary.

Cross-appeals from a judgment of the superior court for Yakima county, Rudkin, J., entered January 10, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in* an action to rescind a contract for the sale of land.

, entered February Y, 1906, in favor of the defendant, upon overruling a demurrer to the plea of former adjudication, dismissing an action for the nondelivery of a consignment of freight.

, entered September 28, 1905, in favor of the defendantSj upon granting a nonsuit at the close of plaintiff’s ease, in an action for libel.

, entered March 20, 1906, in favor of the defendant, after a trial on the merits before* the court without a jury, in an action for conversion.

, entered September 29, 1905, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for damages1, for the original grading of a street.

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered December 2, 1905, upon default of defendant and findings in favor of the plaintiff, in an action for an accounting, pending the determination of property rights in a divorce proceeding; also from an order of said court entered January 6, 1906, refusing to vacate said default and judgment»</p>

, entered June 16, 1905, upon, findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for the cancellation of an assignment of a land contract.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, «L, entered November 20, 1905, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, awarding to the vendee the ownership of property levied upon under the sales-in-bulk act.</p>

, entered June 3, 1905, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries inflicted by a vicious steer running at large on the highway.

, entered September 30, 1905, in favor of the plaintiffs, requiring payment by a receiver of taxes against the property of an insolvent.

<p>Carriers —- Charges — Regulation — Constitutional Law — Due Process op Law. Laws 1905, p. 238, § 2, arbitrarily fixing the weight of standards for lumber cars at one thousand pounds, and requiring such weight to be deducted from the net weight of the lumber on all car loads received for shipment, regardless of the actual weight of such standards, is unconstitutional as unreasonable and requiring the carriage of part of the lumber without reward, being a taking of property without due process of law.</p> <p>Same — Reasonableness op Regulation. Any regulation of rates which arbitrarily fixes the weight of cars or equipment at more or less than the actual weight is unreasonable, notwithstanding the difference between that and the actual weight is small as compared with the weight of the cargo; and six hundred pounds per car to be carried free is a substantial amount and a confiscation of property.</p> <p>Same — Statutes—Construction. The fact that § 1 of the act provides that the shipper shall furnish such standards, and that the weight of the equipment shall be added to the weight of the car, “so that the freight shall be charged by the carriers only on the cargo carried,” does not obviate the defect in § 2 requiring one thousand pounds to be deducted from the “net weight of the lumber carried,” which is an unreasonable regulation and in violation of art. 14, § 1, of the Federal constitution.</p>

, entered November 7, 1905, upon sustaining a demurrer to the information in a prosecution of a building contractor for the violation, of “an act for the protection of builders.”

<p>Quieting Title — Unoccupied Land — Remedy. An action to quiet title cannot be dismissed on the theory that the land was occupied and ejectment the proper-remedy, where the evidence established that the land was unoccupied when the suit was commenced.</p> <p>Adverse Possession — Cotenant—Action to Quiet Title — Limitation. Where the mother and wife died possessed of an interest in community real property, the husband and father and his successors in interest are not prevented from claiming title against the children of the deceased mother, on the theory that he was a tenant in common and had never ousted the children, where it appears that none of the children had heen under disability or had been in possession of the land for more than ten years prior to the commencement of their action to quiet title.</p> <p>Quieting Title — Laches—Limitations—Equity. In an action to quiet title, laches or long acquiescence in the assertion of rights, for a time less than that prescribed by the statute of limitations, may be held a bar to the action, by virtue of the inherent power of a court of equity to discourage ancient demands.</p> <p>Equity — Laches—Stale Demands. A suit by children to quiet title to land, claimed by descent from their mother, which was commenced fourteen years after her death, thirteen years after the execution of a mortgage by their father, who claimed the full title, and seven years after the foreclosure of the mortgage, during which time plaintiffs asserted no claim and paid no taxes, all having knowledge of adverse claims and acts of ownership, is properly dismissed as a stale demand, and for laches and unexcusable delay.</p>

, entered October 14, 1905, in favor of the defendants, on the pleadings, in an action to restrain the construction of a grade or fill by a railroad company.

, entered February 20, 1906, upon the verdict of a jury rendered in favor of the defendant by direction of the court at the close of plaintiffs ease, in an action of forcible entry and detainer.

, entered December 30, 1905, upon the verdict of a jury rendered in favor of the defendant, in an action on promissory notes.

, entered September 14, 1905, upon the verdict of a jury rendered in favor of the plaintiff, in an action for an accounting.

, entered November 25, 1905, in favor of the defendant, upon stipulated facts, denying an application to enjoin the opening of a street.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered July 13, 1905.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Miller, J., entered October 25, 1905, in favor of the plaintiff, after a trial on the merits, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Rudkin, J., entered January 10, 1905.</p>