Volume 46 — Washington Reports

, entered June 23, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for the breach of a contract of employment.

, entered July 3, 1906, upon sustaining a demurrer to the complaint, dismissing an action to set aside a judgment determining the preference rights of conflicting claimants to purchase tide lands.

, entered July 23, 1906, upon findings in favor of the plaintiffs, enjoining a riparian owner from diverting the waters of a stream for irrigation purposes.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered June 25, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages.</p>

, entered June 14, 1906,- upon findings in favor of the plaintiff, against a garnishee defendant, after a trial on the merits before the court without a jury.

, entered November 13, 1906, upon findings in favor of the defendants, after a trial on the merits, dismissing an action to enjoin the board of state land commissioners from investing state funds in certain municipal bonds.

<p>Appeal — Review—Discretion-—New Trial. An order granting a new trial, which does not show upon which one, of several grounds it was based, will not be reversed on appeal in the absence of a showing of abuse of discretion.</p>

Application filed in the supreme court March 15, 1901, for a writ of review to correct a judgment and order of the superior court for Pierce county, Chapman, J., in condemnation proceedings, adjudging the use of property for a highway to be a public use, and ordering a jury to ascertain the amount of damages for the talcing thereof.

, entered July 5, 1906, upon findings in favor of the defendant, granting an injunction to compel the removal of an obstruction placed upon a navigable lake, after denying injunctive relief asked for by the plaintiff.

, entered January 31, 1906, upon sustaining a demurrer to the complaint, dismissing an' action to recover money paid to a county clerk in satisfaction of a judgment.

Appeal by defendant from a judgment of the superior court for Walla Walla county, Brents, J., entered June 15, 1906, in condemnation proceedings, upon the verdict of a jury assessing damages to property taken for public use.

, entered April 10, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained by a vendee through false representations in a sale of real estate.

<p>Appeal from a judgment of the superior court for Kittitas county, Itigg, J-, entered- December 19, 1905, upon findings in favor of the plaintiff, enjoining the defendants from obstructing and interfering with the waters of a creek, appropriated and used for irrigation purposes.</p>

, entered June 19, 1906, in condemnation proceedings, confirming an assessment made by a municipality against property benefited through the improvement of a street.

, entered May 19, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover the value of horses lost through the burning of defendant’s livery stable.

, entered January 10, 1906, upon the verdict of a jury rendered in favor of the defendants, in an action for a conversion.

, entered April 6, 1906, in favor of the defendant surety company, after a trial on the merits before the court without a jury, in an action for the breach of a building contract and to recover upon a bond guaranteeing the faithful performance thereof.

, entered May 18, 1906, granting a nonsuit at the close of plaintiff’s case, in an action between partners for fraudulent representations inducing a sale of partnership property.

, entered November 7, 1906, upon sustaining a demurrer to defendant’s answer, affirming upon appeal the action of the state medical board in revoking appellant’s license to practice medicine.

, entered March 21, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a trespasser while riding upon a freight train.

<p>Appeal — Decisions Reviewable — Affecting Substantial Rights. Orders sustaining a demurrer to a complaint in intervention ’and denying leave to amend the complaint are not appealable as orders affecting a substantial right which in effect determine the proceeding or discontinue the action (Fullerton, J., dissenting).</p>

<p>Evidence — Maps—Admissibility. A map upon which a witness designated the location of objects is admissible in connection with his testimony where it is reasonably accurate.</p> <p>Municipal Corporations — Police Power — Ordinances—Blasting. An ordinance prohibiting “blasting” applies to shots so arranged as to make a chamber at the bottom of the drilled hole, technically called a “spring” shot as distinguished from a stronger charge called a “blast,” where it appears that the former hurls pieces of rock a great distance and produces the commonly understood effect of blasting.</p> <p>Same — Master and Servant — Torts oe Servant — Criminal Responsibility oe Master. An employee is guilty of violating an ordinance prohibiting blasting unless the same is properly covered, although the act was done by his servant contrary to his orders and when he was not present, where the general work of blasting was being done by his authority; since the same is a police regulation in which the element of intent is unessential.</p> <p>Same — Partnership—Criminal Responsibility of Partners. It is immaterial that one found guilty of the violation of an ordinance prohibiting blasting was a member of a partnership carrying on the work, or that others with him jointly committed the offense.</p>

, entered July 10, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a city to foreclose assessment liens for local improvements.

, entered June 14, 1906, upon .sustaining a demurrer to the complaint, dismissing proceedings to declare an escheat of real property held by an alien.

, entered April 3, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Corporations — Receivers—Collection of Assets. In an action by a receiver of a corporation to recover money misappropriated by an officer of tbe corporation, a nonsuit should not be granted for failure to show that the receiver was the owner of the claim, where plaintiff’s evidence did not affirmatively show that the corporation had parted with its interest therein.</p> <p>Trial — Reopening Case — Discretion of Court. It is within the discretion of the court to reopen a case' for the introduction of further testimony, after motion for nonsuit is made, and no abuse appears where no prejudice or surprise is shown.</p> <p>Evidence — Hearsay. Declarations claimed to have been made to a disinterested witness by the vendor of logs, since deceased, are inadmissible as hearsay upon an issue as to the making of the sale.</p> <p>Trial — Evidence—Objections—Sufficiency. It is not error to exclude hearsay evidence, expressly stating that ground, although the same was only objected to as evidence of conversations with a deceased person.</p> <p>Trial — Verdict—Excessive Verdict — Mistake—Correction by Court. A verdict for $1,472.80 will not be held to be the result of passion or prejudice from the fact that, from certain figures and argument, counsel seemed to have conceded that the amount should not exceed $1,167.10, but rather of a mistake on the part of the jury, authorizing its correction by the court, where the evidence was very conflicting, many items were in dispute, and the amount found was less than the complaint claimed and which might have been allowed under the instructions.</p> <p>Appeal — Review—Verdict. The weight and preponderance of the evidence is for the jury where the evidence is conflicting.</p>

, entered February 14, 1906, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered June 26, 1906, decreeing the reformation of a warranty deed. •</p>

, entered June 11, 1906, upon sustaining a demurrer to the complaint, and the refusal of the plaintiffs to plead further, dismissing an action to recover a commission on a sale of real property.

, entered August é, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered December 23, 1905, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action against a city to recover the value of a strip of land taken for street improvements.

, entered April 18, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, after a trial on the merits, in an action for personal injuries sustained in a collision with a street car.

, entered June 8, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action by a city to foreclose a local assessment lien.

, entered July 7, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover earnest money advanced on a prospective purchase of real property, and for damages.

, entered June 18, 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 promissory note.

, entered March 16, 1906, in favor of the plaintiff after discharging the jury at the close of the testimony, in an action to recover for legal services.

, entered July 25, 1906, dismissing a condemnation proceeding, after a trial on the merits before the court without a jury.

Motion to dismiss an appeal from a judgment of the superior court for Ferry county, Huston, J., entered April 30, 1906, and application for a peremptory writ to require the signing and certifying of a proposed statement of facts.

, entered March S3, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for the death of plaintiff’s wife.

, entered May 2, 1906, 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 January 30, 1906, upon sustaining a demurrer to the complaint, dismissing an action for the partition of real property.

, entered June 6, 1906, in favor of the plaintiff, upon a challenge to the sufficiency of the evidence to sustain defendants’ affirmative defense, upon a trial before the court without a jury, in an action to recover upon a partnership indebtedness.

<p>Appeal from a judgment of the superior court for Spokane county, Poindexter, J-, entered August 4, 1905, .upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

<p>' Taxation — Foreclosure—Defenses. Laws 1899, p. 299, § 18, providing that if, in a tax foreclosure, a defense in writing specify a particular “cause of objection,” the court shall hear the same in a summary manner without other pleadings, does not restrict defenses to matters pertaining to the levy and assessment of the tax, or preclude the overruling of a demurrer to a cross-complaint.</p> <p>Same — Defenses—Payment—Fraud—Answer—Sufficiency. An answer denominated a cross-complaint, in a tax foreclosure, is in reality a “statement of new matter constituting a defense,” viz., a plea of payment, where it alleges a fraudulent payment of the taxes by one while in possession and receiving rents and profits, who took out a certificate of delinquency in the name of others for the purpose of defrauding creditors of the owners; and under such circumstances a court of equity will not decree 'a sale of the land for the taxes so paid.</p> <p>Same- — Payment. Payment of taxes can oe pleaded to defeat a tax foreclosure, even as against the state.</p> <p>Same — Tender. A tender of a tax is not essential to a defense to a tax foreclosure, where the plea is that the taxes were paid by one in possession having money rightfully applicable thereto, and that the tax title was fraudulently taken in the name of another who was but a dummy for the payor of the taxes.</p> <p>Same — Fraud—Payment to Strengthen Title. One paying taxes for the purpose of defrauding creditors of the owner of the land does not stand in the position of one who acquires a tax title for the purpose of strengthening his own title, and can acquire no rights by such payment.</p>

<p>Appeal — Review—Amendment of Pleadings. In a trial before the court without a jury, defects in the pleadings capable of amendment will be disregarded and the cause tried de novo on the evidence as though the pleadings had been amended.</p> <p>Highways — Over Public Lands — Prescription'—Grant—Acceptance. Adverse user by the public of a road across the public lands for a period of less than seven years does not constitute a highway by prescription or an acceptance of the Congressional grant of the right to establish highways over public lands, which is not a grant in praesenti without any act to establish the highway.</p>

<p>Appeal — Review—Verdicts. The verdict of a jury upon conflicting evidence is conclusive on appeal, even if against the weight of the evidence.</p> <p>Negligence — Contributory Negligence — Burden oe Proof. In this state, the burden of proving the contributory negligence of the plaintiff is upon the defendant.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $500 for injuries to the driver of a delivery wagon, from a fall from his..wagon, is not excessive, although the injuries were not permanent, where he expended $75 for medical attendance and assistance* was kept from his work for six weeks, part of the time in bed, and suffered severely from contusions and wounds.</p>

, entered March 16, 1906,- upon the • verdict of a jury rendered in favor, of the defendant, in an action by a bicyclist to recover damages sustained in being ■ run over by a street car.

<p>Appeal from a judgment of the superior court for Island' county, Hatch, J., entered August 9, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing proceedings to revive a judgment.</p>

<p>Aliens — Right to Acquire Real Estate — Mineral Lands — Constitutional Law — Construction. An alien can acquire lands in this state containing deposits of limestone, silica, silicated rock and clay, to be used in good faith in the manufacture of cement, such deposits being “minerals” within the meaning of Const., art. 2, § 33, and not to be restricted by the words “metals, iron, coal or fire clay,” following; since a construction must be adopted to give effect to every part of the clause and to give words their natural and ordinary meaning.</p> <p>Constitutional Law — Rules of Construction. Contemporaneous construction of words and phrases used in the constitution should have great weight in their construction.</p>

<p>.Appeal from a judgment of the superior court for Clallam county, ■ Hatch, J., entered April 5, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.</p>

<p>Master and Servant •— Injuries — Contributory Negligence — Methods of Work. An employee, injured by contact with a set screw upon a revolving shaft, while attempting to throw a rope over- a beam for the purpose of removing the shaft, is guilty of contributory negligence precluding a recovery, where he placed his ladder against the west side of a post and climbed up and leaned forward in proximity to the collar on the revolving shaft in order to. throw the rope over the beam, when he might have placed the ladder and climbed up on the east side of the post and put the rope over without coming near the shaft; inasmuch as it was contributory negligence for him to voluntarily adopt an unsafe method of doing the work where there was evident a safe way.</p> <p>Same — Factory Act- — Defense of Contributory Negligence. The defense of contributory negligence in the adoption by a servant of an unsafe method of work, when he might have adopted a safe why, is not precluded by the factory act requiring the guarding of dangerous machinery.</p>

<p>Municipal Corporations — Negligence — Defective Sidewalk — Question for Jury. In an action against a city to recover for a fall upon a sidewalk, evidence of the plaintiff that she was on the sidewalk when she fell is sufficient to make a question for the jury as to such fact.</p> <p>Same — Evidence of ‘Negligence — Sufficiency. In an action to recover for a fall upon an icy sidewalk, there is sufficient evidence of negligence upon the part of the city, where it appears that the snow and ice had been piled up for four weeks on the sidewalk, which was very slippery, and that people had to take the middle of the road to avoid falling, nothing having been done to remove the snow and ice for about four weeks.</p>

, entered May 20, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an off bearer in a sawmill.

, entered September 1, 1906, granting a new trial, after a trial on the merits and the verdict of a jury rendered in favor of the defendant, in an action for fraud.

, entered June 9, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to establish and enforce an interest in real property.

, entered November 19, 1906, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for the specific performance of a trust agreement.

<p>Appeal from an order of the superior court for King county, Griffin, J., entered June 2, 1906, appointing a receiver.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered April 27, 1905, dismissing an application for a writ of mandamus, upon sustaining a demurrer to the affidavit.</p>

, entered October 3, 1906, after a trial on the merits, for the amount of damages assessed by a jury for the value of land, in a condemnation proceeding upon the relator’s refusal to elect to take or abandon the land.

, entered December 23, 1905, upon the verdict of a jury rendered in favor of the defendants, after a trial on the merits before the court, in an action on' a promissory note.

, entered June 5, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malicious prosecution.

, entered August 31, 1906, upon findings in favor of the defendants, dismissing an action to quiet title and restrain an execution sale of real estate.

, entered April SO, 1906, upon findings in favor of the defendants, after a trial on .the merits before the court without a jury,- dismissing an action of ejectment.

, entered August 6, 1906, in favor of the defendant, after a trial upon an agreed statement of facts, in an action on a contract of sale.

, entered May 25, 1906, in favor of the defendant, adjudging the constitutionality of the anti-trading stamp act, which makes it a misdemeanor to sell or exchange property under inducement or representations that an unidentified or chance prize or premium, or trading stamp or like device entitling the holder to receive a prize or redemption of stamps, is to be part of the transaction.

<p>Eminent Domain- — -Review—Certiorari—Adequacy oe Remedy by Appeal. Certiorari does not lie to review an adjudication of public use in condemnation proceedings instituted by a city of the third class; since, under Laws 1905, p. 84, § 50, providing that the procedure as to appeals therein shall be the same as in other civil actions, review thereof may be had upon appeal, and the adequacy of the remedy by appeal is not affected by the fact that it is not as speedy, when the delay does not deprive appellant of the fruits of the appeal.</p>

, entered July 19, 1906, upon findings in favor of the plaintiff, after a trial on the merits, in an action to quiet title.

, entered May 28, 1906, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, after a trial on the merits, in an action on promissory notes.

, entered May 12, 1906, upon findings in favor of the defendants, after a trial on the merits, in an action to quiet title.

Application filed in the supreme court, February 1, 1907, for a writ of prohibition to restrain the superior court for Thurston county, Linn, J., from further proceeding in a cause pending appeal; also, for a writ of mandate to require the fixing of a supersedeas bond.

, entered June 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 recover assessments paid to a fraternal benefit society.

Application filed in the supreme court February 9, 1907, for a writ of mandate requiring the superior court for Pierce county, Snell, J., to make an examination as to the defendant’s sanity after a trial for murder and an acquittal on the ground of insanity; also, for a writ prohibiting the entry of judgment prior to such examination.

Cross-appeals from a judgment of the superior court for Asotin county, Miller, J., entered November 18, 1905, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered February 19, 1906, setting aside a verdict in favor of the defendant, and granting the plaintiffs a new trial, in an action against a city to recover damages to real property by reason of a change of grade.

, entered April 13, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to cancel an overissuance of corporate stock.

Cross-appeals from a judgment of' the superior court for Thurston county, Linn, J., entered August 1, 1906, in favor of the plaintiffs, after a trial on the merits, in an action to quiet title to a water right.

, entered October 22, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a fall on a defective sidewalk.

<p>Appeal from a judgment of the superior court for Adams county, Warren, J., entered October 19, 1905, after a trial on the merits before the court without a jury, enjoining an execution sale of real property.</p>

Application filed in the supreme court April 10, 1907, for a writ of mandate to the superior court for Kitsap county, Prater, J., to compel the signing of the findings of fact and decree entered February 4, 1903, in an action for divorce.

<p>Actions — Joinder. A complaint attempting to allege causes of action against the state to annul a judgment of conviction in a criminal case, against the state dental board with reference to the issuance of a license to practice dentistry, and against the members of the board and certain dental societies for damages, is demurrable on the ground of misjoinder of causes of action.</p>

<p>Abatement and Revival — Transfer of Interests — Parties—Substitution — Quieting Title. In an action to quiet title where the plaintiff conveyed the premises pending the suit, an order substituting the purchasers as parties plaintiff, unexcepted to and unappealed from, would probably authorize the prosecution of the suit by the substituted plaintiffs; and certainly, where the conveyance pending the action was satisfactorily proved.</p> <p>Quieting Title — Possession—Action—Form. The failure of the plaintiff in an action to quiet title to prove that he was in possession or that the land was vacant and unoccupied, is not ground for dismissing the action.</p> <p>Adverse Possession — Payment of Taxes — Quieting Title — Defense. In an action to quiet title, the payment .by defendant of seven years taxes on the property is not a defense, when the last payment was made a few days prior to the commencement of the action.</p> <p>Quieting Title — Defenses—Laches. An action to quiet title is not barred by the laches of the plaintiff, if commenced within the period fixed by the statute of limitations, and there is nothing to warrant the court in fixing a shorter period.</p> <p>Mortgages — Foreclosure—Execution—Place of Sale — Property in Different Counties. Real property can be sold under execution in a foreclosure case only in the county in which it is situated and by the sheriff of that county, under Const, art. 4, § 6, providing that process of the superior courts shall extend to all parts of the state, Bal. Code, § 5890, providing that decrees of foreclosure shall be enforced by execution, and Bal. Code, § 5195, and Hill’s Code, §§ 500 and 507, providing that the writ shall issue to the sheriff of the county in which the property is situated, and for notice and sale in such county; and an execution sale in one county, of lands situated in two counties foreclosed in one action, is void.</p> <p>Same — Effect of Decree and Confirmation. A mortgage foreclosure sale of land situated in a county other than the one in which the sale was had is not cured by a direction in the decree that the sale be so made, or by confirmation of the sale.</p> <p>Taxes — Payment—Equitable Lien. The payment of taxes by persons in possession of land under a void execution sale entitles them to an equitable lien for the amount of the taxes paid and interest.</p>

, entered November 12, 1906, upon a trial and conviction of the crime of organizing, maintaining and employing an armed body of men.

, entered October 10, 1906, denying an application for a writ of error coram nobis to set aside a judgment of conviction of larceny.

, entered November 5, 1906, refusing to strike a complaint and dismiss the action, and granting to plaintiffs a new trial.

<p>Appeal from a judgment of the superior court for Pierce county, Linn, J., entered November 15, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for the wrongful death of an employee in a coal mine.</p>

, entered December 24, 1906, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a pedestrian through a defective sidewalk.

, entered February 21, 1907, upon sustaining a motion for nonsuit, dismissing an action for personal injuries sustained by an off bearer in a sawmill.

<p>Limitation op Actions — Statutory Bono. An action upon a statutory bond given to a school district to guarantee a building contract is barred where the same was not commenced within three years from the time that the debt was contracted and the statute had run against such debt.</p>

, entered August 7, 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 mechanics’' lien.

Cross-appeals from a judgment of the superior court for King county, Rice, J., entered July 11,1906, 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>Judgment — Vacation—Recitals—Presumptions. Where a judgment recites due service, of process, and the record shows jurisdiction, an application to vacate the judgment, on the grounds that the service was by publication and the court without jurisdiction, is •demurrable, as the presumption of jurisdiction is not overcome by defects in the record.</p>

, entered October 13, 1906, upon the verdict of a jury in favor of the plaintiffs by direction of the court, in an action of forcible entry and detainer.

<p>Mortgages — Absolute Deed as Mortgage — Evidence—Sufficiency. An absolute deed is not shown, by clear and satisfactory evidence, to be a mortgage, where only the grantor testified to that effect and he was contradicted, by three witnesses, part of whom were disinterested, and where the grantor took the precaution to reserve a gravel bed embracing but a small proportion of the land, which would probably not have been excepted had the transaction been a loan.</p> <p>Same — Inadequacy of Price. In an action to reform a deed of a one-half interest in land, claimed by plaintiff to be a mortgage to secure $100, inadequacy of such sum as a purchase price is not shown, where it appears that the whole property was subject to a mortgage for $1,500, which was at least two-thirds of its value; tnat previously, but subsequent to the mortgage, the grantor had conveyed a one-half interest in the property by warranty deed, which might throw the whole burden of the mortgage on the half interest in question; and where, after the giving of the deed in question, the other half interest was sold for $300, there having meantime been an increase in values.</p>

<p>Executions — v-Sale—Notice—Objections—Return. Objection to an execution sale, on the ground that notice of the sale was not given as required by statute, cannot be made where the sheriff’s return shows substantial compliance with the statute.</p> <p>Exemptions — Liability of Agents — Statutes. An action to recover money paid to a spiritualistic medium, secured by fraud and false representations as to communications received from plaintiff’s deceased husband directing the plaintiff to pay the money to the defendant, is not an action to recover on a liability incurred by an attorney or agent for money of his client or principal coming into his hands, within Laws 1901, p. 323, providing that no property shall be exempt from execution on such a liability.</p> <p>Same — Homesteads—Statutes—Implied Repeal. Laws 1901, p. 323, amending Bal. Code, § 5284a, and providing that “no property” shall be exempt from liability incurred by an attorney or agent on account of money of his client or principal coming into his hands, has no application to homestead exemptions, as Bal. Code, § 5248a, refers only to personal property exemptions, and the repeal of a specified section does not repeal by implication other sections embracing other subject-matter.</p>

<p>Judgments — Recitals—Service oe Process — Presumptions. The presumption of jurisdiction from the recital in a tax foreclosure judgment of due service of summons is not overcome hy defects in the record.</p>

<p>Cancellation of Instruments — Complaint—Sufficiency. A complaint alleging joint ownership and right of possession to real property, an adverse holding by certain defendants under a deed that is void for want of delivery, a refusal of the co-owner to join in the action, who is accordingly made a defendant, states a cause of action for cancellation of the deed and recovery of the property.</p> <p>Divorce — Disposition of Property — Community Property. A decree can make no disposition of the property of the spouses where it is not brought before the court, and failure to do so renders community property the common property of the divorced parties, and waives the right to which the parties might be entitled on considering the merits in the divorce action.</p>

<p>Assault — Civil Liability — Actions—Damages. A judgment for $250, for damages received in a fight which either of the .parties could have avoided, is proper, where the plaintiff’s biting of the defendant was unjustifiable, and entailed a loss of $50 for medical attendance and three months loss of time, worth $50 per month.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered March 29, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of replevin.</p>

, entered August 25, 1906, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits in an action for a mandamus to compel the issuance of warrants by the commissioners of a drainage district.

, entered March 14, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to vacate a judgment foreclosing a tax lien.

, entered July 18, 1906, 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 June 11, 1907, in condemnation proceedings, adjudging a public use and directing a jury to assess the damages.

<p>Larceny — Information — Ownership — Statutory Provisions— Variance. Under Bal. Code, § 6861, providing that, upon prosecutions for horse-stealing- where the ownership is unknown, the property snail be deemed to be owned by the state of Washington, and that proof of the actual owner shall not be deemed a variance where the information alleges the state to be the owner, it is not necessary to allege that the ownership is unknown in an information charging that the horse was the property of the state of Washington.</p> <p>Same. In such a case, the state cannot be held to have known the actual ownership because its witnesses testified that the animal bore the brand of and was owned by S., where defendant denied such fact and claimed the animal to be without brand and an “outlaw.”</p>

, entered September 10, 1906, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained in a sawmill.

, entered March 2, 1907, adjudging a public use etc., in an action to condemn the waters of a river for irrigation purposes.

, entered February 18, 1907, in favor of the petitioner, adjudging a public use and directing the assessment of damages by a jury in a condemnation proceeding.

, entered April 25, 1907, in favor of the petitioner in condemnation proceedings, adjudging certain lands necessary for a right of tvay for railway purposes.

<p>Arson — Corpus Delicti — Evidence. In a prosecution for arson' the corpus delicti is not established by the fact of the burning of a building, as the presumption is that it was by accident or natural causes.</p> <p>Same — Suteiciency oe Evidence. A conviction for arson is not sustained by purely circumstantial evidence creating a suspicion against the accused, unless he is connected with the crime beyond a reasonable doubt, or the circumstances are irreconcilable with his innocence; and where such evidence is consistent with the hypothesis of his innocence, and absolutely no motive was shown, the corpus delicti was not established beyond a reasonable doubt and the supreme court will reverse the judgment; although the trial court refused to set aside a vérdict of guilty.</p>

, entered October 29, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a liveryman for damages for the death of a horse hired by the defendant.

, entered October 19, 1906, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered April 18, 1906, upon the verdict of a jury rendered in favor of the defendant, in an action for libel.</p>

, entered September 20, 1906, 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>Judgment — Res Judicata — Identity of Causes — Actions—Splitting Causes — Remedy fob Mistake. Judgment in an action of ejectment awarding plaintiff the possession of premises along a disputed boundary line, by reason of title by adverse possession, is res judicata in a subsequent suit between the same parties to recover an additional strip claimed to have been omitted by mistake from the former complaint, where plaintiff was dispossessed of both tracts by one forcible trespass by the defendant and the saíne evidence would be required to support both actions; as the plaintiff cannot thus split up his cause of action, and any remedy for the mistake in the first complaint would be by a proceeding to open the former judgment.</p>

, entered December 7, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 13, 1906, granting a new trial, after a verdict of the jury rendered in favor of the plaintiffs, in an action for damages to a house caused by the negligent grading of a street.

, entered November 27, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for breach of a contract of employment.

, entered August 4, 1906, upon findings in favor of the plaintiff, upon an agreed statement of facts, in an action to quiet title.

, entered October 18, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action for divorce.

, entered July 9, 1906, upon findings in favor of' the plaintiff, granting an application to set aside real property as a homestead.

, entered November 14, 1906, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to quiet title.

, entered September 11, 1906, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered October 17, 1906, upon a trial and conviction of the crime of maintaining a nuisance in selling intoxicating liquors without a license.

, entered October 12, 1-906, 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 December 11, 1906, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing on the merits an action on a contract of employment.

<p>Torts — Malice—Wrongful Motive in Lawful Act — Master and Servant — Selection of Hospital. A physician who conducts a public hospital has no cause of action against a lumber and railway company for maliciously paying hospital dues, deducted from the wages of its employees, to a rival hospital, and requiring such employees to receive attendance from such rival hospital, after the employees had requested the payment of such dues to the plaintiff, whose hospital they wished to patronize; since the employer may select its own hospital, is under no contract obligation with the plaintiff, and is not liable for malice in lawfully employing men under agreement to attend a hospital of its own selection.</p>

<p>Adverse Possession — Boundaries—Trial—Instructions—Invading Province oe Jury. Upon an issue as to the adverse possession of land along a boundary line, it is not an invasion of the province of the jury to instruct that one acquires no title by laying his fence by mistake if he makes no claim to the lands up to the fence, but only to the true boundary as it may be subsequently established.</p> <p>Trial — Verdict—Waiver. It is not error to submit two forms for a general verdict in an action of ejectment, in the absence of any request for special findings as provided by Bal. Code, § 5021.</p>

<p>Certiorari — Remedy by Appeal — Adequacy—Officers—Right to Office — Review. Certiorari lies to review a judgment determining the right to a public office where the remedy by appeal would he inadequate because the term of office would expire before the hearing.</p> <p>Officers — Vacancy—Resignation—Necessity of Acceptance. An acceptance of the resignation of a city councilman is necessary in order to create a vacancy, under the common law rule, which is not abrogated by Bal. Code, § 1548, providing that every office shall become vacant on the resignation of an officer before expiration of his term, since nothing is said as to the method of effecting a resignation.</p>

, entered June 25, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an injunction.

, entered September 20, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to recover installments paid on a contract to purchase real property.

, entered December 13, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover damages from fire starting on a railroad right of way.

, entered October 23, 1906, upon the verdict of a jury, awarding damages occasioned to defendants through condemning and appropriating the waters of a lake.

<p>Highways — Location—Width of Road — Notice. Under Code of 1881, § 2971, providing that all county roads shall be sixty feet in width unless, on the prayer of the petitioners, the county commissioners shall determine on a less width, the commissioners have power to fix a less width upon the prayer of any of the petitioners at the hearing, without giving any.new notice, as the law did not require the notice to state the width petitioned for.</p> <p>Same. Upon a prayer by petitioners for a county road, to fix the width at thirty feet, under Code 1881, § 2971, the county commissioners have a discretion to determine upon a width of forty feet.</p> <p>Same — Compensation—Waiver—Eminent Domain. A petition to the county commissioners by an abutting owner to open a forty-foot county road to the width of sixty feet, does not grant the right to take his abutting property without compensation.</p>

, entered December 29, 1906, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a hooktender in a sawmill'.

, entered July 23, 1906, upon' findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered September 8, 1906, 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 paid on forged checks.

, entered April 16, 1906, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon contract.

, entered January 3, 1907, upon findings in favor of the plaintiff, modifying a decree of divorce and awarding to a mother the custody of a minor child.

, entered June 16, 1906, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing an action to recover money paid on a contract to purchase real property.

, entered April 29, 1907, upon sustaining an objection to the introduction of plaintiff’s evidence, dismissing an action for the annulment of a marriage.

, entered February 17, 1906, upon findings in favor of the defendant, after a trial before the court without a jury, confirming a municipal assessment for local Improvements.

, entered September 28, 1906, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to procure the cancellation of a lease and the recovery of real property held thereunder.

, entered March 14, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the obstruction of an alley.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 19, 1905, dismissing an action to set aside a will.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered June 22, 1905.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered April 13, 1906.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Linn., J., entered July 25, 1906.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered October 10, 1906.</p>

, entered August 9, 1906, 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.