Volume 50 — Washington Reports

<p>Witnesses — Credibility—Evidence of Animosity. In a prosecution for forgery of an order for witness fees, it is proper to exclude cross-examination of state’s witness to show her animosity to the accused by evidence that she was a friend of a party unsuccessfully defended by the accused.</p> <p>Appeal — Review—Harmless Error. It is not error to exclude the answer to a question that has already been answered.</p> <p>Criminal Law — Venue—Evidence. The venue of a forgery is sufficiently established, although no witness testified directly that the crime was committed at a designated place, where there were many inferences from the testimony and a great deal of direct proof that it was committed in a certain county.</p> <p>Criminal Law — Appeal—Review—Verdict. A verdict in a criminal case cannot be set aside because of the vague, inconsistent and contradictory statements of the principal witness for the state, where there was sufficient evidence, if uncontradicted or if believed by the jury, to sustain it.</p> <p>Criminal Law — Sentence—Change of Law. Where the crime of forgery was committed on April 11, 1907, the accused cannot be sentenced under the law approved March 13, 1907, p. 341, which went into effect June 11, 1907; since § 8 provides that a person found guilty of a crime committed prior to the taking effect of the law shall be sentenced under the law in force at the time of the offense.</p> <p>Same — Appeal—Decision—Sentence—Remand. Upon reversing a criminal conviction because of an improper sentence, the case will be remanded for the imposition of 3, proper one.</p>

, entered October 9, 1907, 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. Reversed.

<p>Eminent Domain — Parties Entitled — Public Purposes — Power eor Commercial Uses. Laws 1907, p. 349, authorizing public service corporations to condemn property for commercial purposes, as a mere • incident to their business as public service corporations, does not authorize a condemnation by a private corporation for the purposes of generating power for commercial purposes.</p> <p>Same — Private Corporations — Oeeer to Serve Public. A corporation engaged in a business essentially private, viz., the establishment of a power plant for generating power to be sold for a profit, cannot by an offer to serve the public and submit to legislative control, convert itself into a public service corporation so as to acquire the right of eminent domain conferred on public service corporations by Laws 1907, p. 349.</p>

, entered December 16, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a chattel mortgage. Affirmed.

, entered December 14, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action, for personal injuries sustained by a passenger ejected from a street car. Reversed.

, entered April 16, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an electric light trimmer through defective insulation of electric wires. Affirmed.

, entered January 6, 1908, upon the verdict of a jury assessing nominal damages in a proceeding to condemn a l'ight of way for a county road.

, entered January 17, 1908, granting a new trial, after a judgment rendered by direction of the court in favor of the defendant, in an action for personal injuries sustained by an employee of a logging camp.

<p>Appeal and Ebkor — Right to Appeal — Giving of Stay Bond— Effect. The giving of a bond to stay execution of a judgment, does not operate to prevent an appeal from the judgment, since the statute, Bal. Code, §§ 5205, 5206, does not so provide and the stay bond only creates an obligation to pay the judgment at the end of the period fixed for the stay, which assumes a valid judgment existing at that time.</p>

Application filed in the supreme court June 8, 1908, for a writ of mandate to compel the superior court for Spokane county, Sullivan, J., to enter judgment as directed in an opinion rendered on appeal.

, entered June 4, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon an employer’s liability policy.

, entered November 1, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action upon a policy of life insurance.

, entered November 30, 1907, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action of replevin.

, entered August 3, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a benefit insurance certificate.

, entered October 5, 1907, upon findings in favor of the plaintiffs, quieting title, after a trial on the merits before the court without a jury.

, entered January 4, 1907, in favor of the defendants, upon overruling a demurrer to the answer, dismissing an action for an injunction.

, entered August 1907, in favor of the defendants, upon sustaining a challenge to the sufficiency of the evidence, in an action for personal injuries sustained by a switchman through the derailment of a railway engine.

, entered November 25, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the breach of a contract to convey land.

<p>Marriage — Evidence—Sufficiency — Presumptions. The uneontradicted testimony of both parties that they were married by a minister authorized by law to solemnize marriage and that they lived together as husband and wife for some years, is sufficient to establish the validity of a marriage, even although there was to be overcome the presumption arising from a second marriage by the husband without having obtained a divorce; and it is not necessary to show the publication of banns, license, or qualifications of the minister, all of which will be presumed until the contrary appears.</p> <p>Same — Estoppel. One who has unlawfully contracted a second marriage while his first wife is living is not estopped to deny his second marriage, as against the administrators of the second woman’s estate and her heirs, upon final distribution of the estate, although he joined in the petition for administration, describing the deceased as his wife.</p> <p>Husband and Wife — Community Property — Lawful Marriage. There can be no community property without lawful marriage; hence where a woman contracted marriage with a man knowing that he had a wife living, and they agreed to keep their property separate in view of such relation, her heirs by a former husband are not entitled to inherit from her, as community property, any property acquired by the husband.</p> <p>Witnesses — Transaction With Deceased. The son of one of the parties is not incompetent to testify as to conversations had with the deceased, since a prospective heir is not a party in interest.</p>

, entered July 3, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an implied contract of employment.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 2, 1907, directing the issuance of a writ of mandamus to compel reinstatement in a fraternal benefit society.</p>

<p>States — State Dental Board — Authority to Employ Attorney— Criminal Law — Prosecutions—Private Counsel. The authority of the state dental board to employ private counsel does not depend upon the consent of the prosecuting attorney, under Bal. Code, § 3031, requiring the consent of the prosecuting attorney to assistance by private counsel in prosecutions by the state dental board; consent being necessary only to participation in the prosecution.</p> <p>Criminal Law — Prosecutions—Private Counsel. Where private-counsel of the state dental board asisted in prosecutions instituted by the board, it will be presumed that the prosecuting attorney consented thereto as required by Bal. Code, § 3031.</p> <p>Judgments — Collateral Attack. A judgment cannot be attacked by objection to the sufficiency of the complaint in the action, in a collateral proceeding brought to enforce the judgment.</p> <p>States — Action Against Board. An action and judgment against the state dental board is not against the state, and the state is not. bound thereby.</p> <p>Same — State Boards — Actions—Capacity to be Sued. The state-dental board has incidental capacity to be sued by individuals, independently of statute, as a corporation sub modo.</p> <p>Same — Judgments—Against State Dental Board — Enforcement-—Supplemental Proceedings. Bal. Code, § 5676, providing for the manner of enforcing judgments against public corporations paying claims and demands by orders or warrants drawn on the treasurer, does not preclude supplemental proceedings to enforce a judgment: against the state dental hoard, which under Bal. Code, §3031, handles its funds and satisfies its claims the same as any individual or corporation. .</p> <p>Same — Mandamus—Concurrent Remedy. If judgment against the state dental board may be enforced by mandamus proceedings, under Bal. Code, § 5755, it is no more than a concurrent remedy, and does not exclude proceedings supplementary to the judgment.</p> <p>Same — Receivers—Funds of State Board. Where the state dental board refuses to apply, in satisfaction of a judgment, funds received and collected by it which are not public or state funds, the court has jurisdiction in supplemental proceedings to appoint a receiver to collect and apply the funds.</p>

, entered May 28, 1907, 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 pledge.

, entered March 7, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a defective sidewalk.

, entered October 28, 1907, upon findings in favor of the plaintiff, against a garnishee defendant, after a trial on the merits before the court without a jury.

, entered June £9, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to redeem from a real estate mortgage.

, entered January 23, 1908, in favor of the defendants, upon the pleadings and plaintiffs’ opening statement to the jury, dismissing an action for conversion.

, entered April 22, 1907, in favor of the plaintiff, upon sustaining a demurrer to the affirmative answer, in an action to enjoin the collection of a special assessment for a local improvement.

, entered November 4, 1907, upon the verdict of a jury for $1,500 damages for personal injuries sustained by an employee engaged in removing copper bars from a conveyor.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 11, 1907, after a. hearing on the merits, confirming a special assessment for a. municipal improvement.</p>

, entered December 7, 1906, upon the ' verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action to determine the damages to abutting property owners from the regrade of street.

, entered July 12, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover the purchase price of real property.

, entered December 20, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to set aside a tax deed and to quiet title.

, entered June 29, 1907, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger through the negligent starting of a street car.

,- entered February 27, 1908, upon granting a nonsuit at the close of plaintiff’s testimony, in an action for personal injuries sustained by an employee in a sawmill.

, entered June 16, 1908, upon sustaining a demurrer to the complaint, dismissing an action to annul a street railway franchise.

, entered March 6, 1908, upon overruling a demurrer to the petition, granting a writ of mandate to require the listing of property for the purpose of taxation.

, entered November 6, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enforce a materialman’s lien.

<p>Evidence — Judicial Notice — Geographical Facts. The court will take judicial notice that the Snohomish river is a tributary to Puget Sound, and of the ebb and flow of the tide below the city of Snohomish.</p> <p>Fish — Puget Sound — Estuaries—Fishing Locations — Statutes —Application. Fishing locations within the ebb and flow of the tide in Snohomish river are in the waters of Puget Sound, within our statutory definitions of Puget Sound, which include all portions of tide waters emptying into the Straits of Fuca, and the bays, inlets, streams, and• estuaries thereof (Bal. Code, § 7381) or emptying into the bays and estuaries thereof (Bal. Code, § 3343); an estuary being that portion of the lower course of a river subject to tides.</p> <p>Same — Fisheries—Locations—Requisites—Surveys—Rights Acquired. Laws 1895, p. 255,. § 2, requires that an accurate survey and map be prepared and filed of set-net fishing locations in the waters of Puget Sound, and a locator failing to comply with the provisions of the statute is not entitled to an injunction to protect his location, as the same constitutes such property as may be held only by continued compliance with statutory regulations.</p>

. Appeal from a judgment of the superior court for Yakima county, Itigg J., entered September 23, 1907, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for an injunction.

, entered January 7, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in consolidated actions, for damages sustained in a collision with a street car.

, entered January 9, 1908, upon sustaining a demurrer to the complaint, dismissing an action for the possession of real property and to quiet title.

, entered December 17,1907, in favor of the defendant, notwithstanding a verdict for the plaintiff, in an action for personal injuries sustained by a pedestrian through a collision with a laundry wagon.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered April 11, 1908, granting a writ of mandate to compel the filing of articles of a banking corporation.</p>

, entered February 17, 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 laborer’s lien.

, entered December 19, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions for the annulment of a marriage and a division of property.

<p>Extortion — Evidence—Sufficiency—Criminal Law — Failure of Proof — Arrest of Judoment. Upon a trial and conviction of a coroner upon a charge of extortion in having exacted $100' as a fee for services in connection with an inquest upon one McG., in violation of a statute against the exaction or extortion by an officer of “any greater fees for services than by law stated and allowed,” there is a total failure of proof, and motion in arrest of judgment should have been granted, where it appears that the defendant rendered no services and was not entitled to any fees whatever for services in connection with an inquest, and the.re was no legal obligation on the part of the prosecuting witness to pay any fee in the matter.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 26, 1907, upon a trial and conviction of the crime of ¡resisting an officer.</p>

, entered October 1, 1907, in favor of the defendant, upon granting a nonsuit at the close of plaintiffs’ evidence, in an action for damages for the death of a fireman employed on a logging train.

Appeal by plaintiff from a judgment of the superior court for Pierce county, Clifford, J., entered July 10, 1907, upon the verdict of a jury rendered in favor of the plaintiff, after the withdrawal of certain issues at the instance of the defendant, in an action on contract.

<p>Partnership — Receivers-—Appointment—Showing—Sufficiency. The appointment of a receiver in a suit between alleged partners in the publication of a book, upon the allegation that defendant denies the partnership and refuses to recognize the plaintiff or to account to him, is not warranted where it is not shown that the defendant was insolvent, and it appears that the book is not yet completed and cannot be without additional funds, that the partnership is without funds, and that the receivership would only result in failing to complete the book and realizing anything on the venture; since clear necessity must be shown for the appointment.</p>

, entered November 19, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a contract of employment.

, entered September 24, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover money loaned to the defendants.

, entered September 9, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover a balance left in a local improvement fund.

, entered July 2, 1907, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort, after a trial on the merits.

, entered September 25, 1907, upon sustaining a demurrer to the amended complaint, dismissing an action upon promissory notes.

, entered October 4, 1907, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to set aside a tax deed.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 16, 1907, upon findings in favor of the defendants, in an action for rescission.</p>

, entered April 3, 1908, upon sustaining a demurrer to the complaint, dismissing an action for the wrongful diversion of a special assessment fund.

, entered November 2, 1907, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to recover a broker’s commission.

, entered September 3, 1907, granting plaintiif a new trial, after a verdict rendered in favor of the defendant, in an action of forcible entry and detainer.

, entered October 21, 1907, in favor of the plaintiff, upon sustaining demurrers to the affirmative defenses, in an action to foreclose a mortgage.

, entered June 28, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to set aside a conveyance of real property.

, entered November 29, 1907, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for an accounting and the appointment of a receiver.

Appeal by plaintiff from a judgment of the superior court for King county, Joiner, J., entered November 1, 1907, upon findings by the court, after a trial on the merits before the court without a jury in consolidated actions, awarding a divorce to the plaintiff and making a division of the property in favor of the defendant.

<p>Appeal from an order of the superior court for Spokane county, Huneke, J., entered April 7, 1906, refusing a discharge in habeas corpus, after a hearing on the merits.</p>

<p>Appeal from a judgment of the superior court for Jefferson county, Still, J., entered November 6, 1907, in favor of the defendant upon granting a nonsuit.</p>

<p>Sales — Warranty—Evidence—Sufficiency. There is not sufficient evidence that the sale of a stallion was upon a warranty that he would get with foal sixty-five per cent of all mares bred to him, where it appears that notes and a mortgage were given for the price and a written contract was made which did not contain the warranty, and there is a direct contradiction of defendants’ evidence that the contract was rescinded and $100 returned and that later the oral warranty was substituted and the $100 again paid, and where the defendant who claimed the horse was worthless kept the horse and used him for two seasons without complaint or offer to return him, and then sold him to one of his attorneys for $250.</p>

<p>Criminal Law — Trial—-Directing Statement oe Defense. Under Bal. Code, § 4993, the accused has no option to refuse to state his defense upon the close of the plaintiff’s case.</p> <p>Trial — Misconduct of Court — Comments. It is not unlawful comment on the evidence for the court, in directing the defendant to state his defense, to say that the nature of the case is such that the jury ought to know how defendant intended to meet the state’s case.</p> <p>Same — Province of Court and Jury — Instructions—Credibility of Witness. It is prejudicial error, in giving an instruction as to an alibi, to preface the same by a remark that the court did not think it necessary, where the credibility of the accused on that point was directly in issue; as the same disparages the defense and infringes upon the province of the jury.</p> <p>Same — Misleading Instructions — Alibi — Materiality of Time. Where the state’s evidence fixed the date of an offense as being between the 12th and 15th of a certain month, and upon the defense of an alibi there was evidence that the defendant was home, sick in bed, during that period, it is misleading and error, instructing upon the subject of the alibi, to state that the exact date is immaterial and it is sufficient if the defendant committed the crime at any time within three years, etc.</p> <p>Same — Appeal—Decision—Improper Sentence — New Trial. A new trial will not be ordered, where the sentence is improper, but the case will be remanded for a proper sentence.</p>

, entered October 11, 1907, upon the special verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action in tort.

<p>Deeds- — -Validity-—-Principal and Agent — Liability op Agent to Third Person — Fraud—Misrepresentations. A complaint by mortgagors, who had deeded certain mortgaged premises to the mortgagee, states a cause of action for fráud in securing a conveyance of five acres of land not covered by the mortgage, where it appears that the defendant was the agent of the mortgagee, a nonresident, duly authorized to accept from the plaintiffs a deed of the mortgaged property in satisfaction of the debt, and that defendant, as such agent, without the knowledge of his principal, secured á deed from the plaintiffs to the five-acre tract, for his own use and benefit, by falsely representing that the mortgagee would not-discharge the debt without such additional conveyance, and that, relying thereon, the plaintiffs made the deed to defendant’s married daughter (who after-wards deeded to defendant) upon defendant’s false representations that such third person, unknown to plaintiffs, was the person to whom the mortgagee desired conveyance made.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Chadwick, J., entered November 29, 1907, upon a trial and conviction of the offense of family desertion.</p>

<p>Municipal Corporations — Assessments—Appeal—Review. An assessment by a commission of the benefits to property by reason of a local improvement will not be set aside as excessive upon conflicting evidence unless tlie evidence clearly preponderates against its correctness.</p>

, entered August 12, 1907, upon findings in favor of the defendants, after a trial before the court without a jury, in an action upon contract.

, entered November 8, 1907, in favor of the defendant upon sustaining a demurrer to the complaint, dismissing an action on contract.

, entered September 20, 1907, upon findings in favor of the defendants, upon granting a nonsuit, after a trial on the merits, dismissing an action for partition.

, entered September 23, 1907, upon findings in favor of the defendant, dismissing on the merits an action to foreclose a mechanics’ lien, after a trial before the court.

, entered January 8, 1908, upon granting a nonsuit at the close of plaintiff’s case, in an action for personal injuries sustained by a shoveler at an engine ash-pit.

, entered November 18, 1907, in favor of the defendant, on motion for judgment on the pleadings, dismissing an action upon a policy of fire insurance.

, entered March 28, 1908, upon granting a nonsuit, after a trial on the merits, dismissing an action to recover taxes paid.

, entered December 10, 1907, granting anew trial upon motion of the defendant, after a trial on the merits and the verdict of a jury in favor of the plaintiff, in an action on contract.

<p>Counties — Commissioners—Duty to Provide Surveyor with Instruments — Mandamus—When Lies. Under Bal. Code, § 499, providing that the county surveyor shall be furnished with “all necessary cases and other suitable articles,” and Bal. Code, § 342, giving the county commissioners general charge of county property and business, mandamus will lie to compel the county commissioners to provide the county surveyor with a transit, where it is admitted that it is necessary to the proper discharge of his official duties, as it is duty enjoined by law as to which there is no discretion; and the fact that the surveyor procured an instrument of his own, and presented a bill therefor, which was disallowed, is no defense.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered November 6, 1907, upon sustaining a demurrer to the complaint, dismissing an action for specific performance.</p>

<p>Adpeal — Review—Objections to Pleadings — Waiver—Pleading Over — Venue. Error in overruling a demurrer to a complaint which failed to show jurisdictional facts as to venue, is Waived by answering over and trial on the merits, where the defendant was not misled and had full opportunity to present the merits of his case, and the jurisdictional facts were established, so far as the record discloses.</p>

, entered January 27, 1908, 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.

, entered January 9, 1908, dismissing upon the merits an action for specific performance, after a trial before the court without a jury.

Appeal' from an order of the superior court for King county, Albertson, J., entered February 6, 1908, denying an application to modify a judgment, after a hearing upon affidavits.

, entered April 20, 1907, upon findings in favor of the defendant, after a trial before the court without a jury, in an action for an accounting.

, entered September 17, 1907, upon findings in favor of thé defendant, after a trial before the court without a jury, in an action for an injunction.

, entered June 19, 1907, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury.

<p>Garnishment — Discharge—-Issuing—Sufficiency. Garnishments issued upon the ground that defendant was about to dispose of his property with intent to defraud creditors, and was guilty of a fraud in contracting the debt, are properly discharged as improperly issued, where it appears upon a showing by affidavits, that the defendant, a long-time resident of the county, was a man of means, without creditors, and able to pay plaintiff’s claim, and denied that he was about to dispose of his property.</p>

Appeal .from a judgment of the superior court for King county, Gilliam, J., entered October 11, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action upon contract.

, entered September 7, 1907, upon findings in favor of the plaintiff, after a trial before the court-without a jury, in an action for services.

, entered August 6, 1907, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing an action for an injunction.

, entered October 23, 1907, upon findings in favor of the defendant, after a trial before the court without a jury, in an action for specific performance.

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered October 11, 1907, confirming an assessment roll, after a hearing before the court on the merits.</p>

, entered September £8, 1907, upon findings in favor of the defendants, after a trial before the court, dismissing on the merits an action for specific performance.

<p>Statutes — Title—Reference to Subjects. The title to the anti-cigarette law, “to regulate and in certain cases prohibit” sales, does not violate the constitutional requirement that the subject shall be expressed in its title, even if the law is unconstitutional in part or contains prohibitive provisions only and the title takes a broader scope than its valid provisions actually cover; since the unconstitutionality of part of a statute does not render invalid other portions unless all are necessarily connected, and the title may properly refer to all its provisions.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 21, 1907, upon the pleadings, in favor of the plaintiff.</p>

, entered September 28, 1907, upon findings in favor of the plaintiffs, after a trial before the court, in an action to foreclose liens on logs.

, entered June 27, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on a certificate of deposit.

, entered May 22, 1908, upon a trial and conviction of the misdemeanor of soliciting passengers for hire in a railway station, after a trial before the court upon an agreed statement of facts.

<p>Appeal from a decision of the superior court for Spokane county, Poindexter, J., made February 27, 1901, in favor of the plaintiffs, after a trial on the merits before the court.</p>

, entered August 7,1907, upon findings in favor of the defendants, after a trial before the court without a jury, in an action of ejectment.

, entered September 24, 1907, upon the special verdict of a jury in favor of the plaintiff, after a trial on the merits,-in an action for damages for breach of contract.

, entered December 3, 1907, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger alighting from a street car.

, entered March 19, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to set aside a tax title.

, entered January 24, 1908, upon findings in- favor of the defendants, after a trial before the court without a jury, in an action to set aside a tax title.

Motion to dismiss an appeal from an order of the superior court for King county, Morris, J., entered May 6, 1908, dismissing an application to vacate a judgment.

<p>Fraud — Damages. The measure of damages for obstructing a logging road built partly on the lands of another in reliance upon fraudulent representations by defendant that he was the owner of the land, includes only that portion of the road built on the land in question, or at most, the part of the road that was rendered valueless by the obstructions.</p> <p>Damages — Evidence—Sufficiency-—-Trial—Nonsuit. In an action for damages for obstructing portions of certain logging roads, the measure of which was plaintiffs expense in building the portions of the roads obstructed, a nonsuit is properly ordered where the only evidence of damage was the entire cost of building the roads, and plaintiff persistently refused to give any evidence or estimate of the cost of the portions of the road in question.</p> <p>Appeal — Review—Harmless Error — Damages. In an action for substantial damages, it is not prejudicial error to grant a nonsuit where the plaintiff was entitled to only nominal damages.</p>

, entered May 16, 1907, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action on contract, establishing a claim against an estate.

, entered December 26, 1907, upon granting a nonsuit, after a trial before the court and a jury, in an action for personal injuries sustained by an employee in the fall of a scaffold:

, entered March 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for the wrongful death of an employee.

, entered March 8, 1907, in favor of the defendants upon the pleadings, in an action to set aside deeds and recover lands.

, entered May 10, 1907, upon findings in favor of the plaintiff, after a trial before the court, in an action to quiet title.

, entered December 17, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action upon a judgment.

, entered August 12, 1907, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action for injuries sustained by an employee in a mill.

<p>Frauds, Statute, of — Sale of Real Estate — Memorandum—Sufficiency- — Contract foe Commissions — Brokers. The words “commission to he paid when 2d payment is made to M. & M., $625,” after the signature of the vendor at the foot of a contract to purchase real estate, constitute a substantial compliance with Laws 1905, p. 110, providing that an agreement for a broker’s commission on the sale of real estate shall be void unless the contract or some note or memorandum thereof shall he in writing, and signed by the party to be charged-therewith, or some person thereunto 'by him lawfully authorized (Rudkin, Fullerton, and Crow, JJ., dissenting).</p>

, entered February 17, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to foreclose a mechanics’ lien.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered November 25, 1907, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to set aside an execution sale.</p>

, entered October 16, 1907, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to quiet title.

Original applications filed in the supreme court, October 3d and 5th, 1908, for writs of prohibition or mandamus -to the secretary of state. AlsoJ application for a writ of certiorari on behalf of the relator White, to review a judgment of the superior court for King county, Rice, J., entered October 5, 1908, upon sustaining a demurrer to the petition, dismissing an application for a writ of mandamus to the county auditor.

<p>Original application filed in the supreme court September 14, 1908, for a writ of mandamus to the secretary of state.</p>

<p>Taxation — Enforcement of Taxes — Statutory Provisions — Tax Deed — By Whom Executed — City Taxes. Under the express provisions of Laws 1893, p. 167, which is prospective only, city taxes levied under prior laws must be collected and enforced in the manner provided by the city charter; and for taxes levied in Seattle in 1891, the tax deed must be executed by the city treasurer (Root, J., dissenting).</p>

, entered December 4, 1907, granting a new trial on motion of the plaintiff, after a verdict of the jury rendered in favor' of the defendant, in an action for personal injuries.

<p>Master and Servant — Vice Principáis — Operation op Railroads —Sudden Stopping oe Car. A section foreman in charge of a hand car, which all of the men are propelling by hand on their way to their work, is a vice principal, and the master is liable for injuries sustained by one of the crew through his negligence, where it appears that, by his direction, knowing that he would soon meet a freight train, the car was being driven at a reckless rate of speed, down grade, where there were many curves and bluffs obstructing the view, in an endeavor to reach his destination before arrival of the train, and that, upon the train’s appearing in sight, he suddenly applied the brakes without warning, whereby the plaintiff was thrown from the ear.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $26,985, for personal injuries, reduced to $20,000 by the trial court, is not excessive, where it appears that' the plaintiff, a section man, forty-three years of age, in good health, earning $2.25 per day, was run over by a hand car, dislocating his vertebra, that he is paralyzed from his hips down, has completely lost the control of his bowels, urinary and other organs, and is completely helpless and will be confined to his bed for the remainder of his life, and suffers constantly.</p>

, entered December 3, 1907, upon the verdict of a jury rendered in favor of the plaintiff, after a trial on the merits, in an action in tort.

, entered December 9, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for specific performance.

, entered September 23, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action,upon a promissory note.

<p>Livery Stable Keepers — Restrictions — Consent of Property Owners — Ordinance—Definiteness. An ordinance prohibiting the keeping of a livery stable in any block in which two-thirds of the buildings are residences, “within two hundred feet of any such residence on either side of the street,” unless owners of a majority of the lots “in such block” consent, is not void for indefiniteness as to the blocks to be considered in determining the number of the residences; as it is clear that consent is to be obtained of the owners of the block in which the stable is to be located.</p> <p>Same — Validity—Municipal Corporations— Ordinances — Delegation of Legislative Powers. An ordinance prohibiting the keeping of a livery stable in a block in which two-thirds of the buildings are used for residence purposes, unless the owners of a majority of the lots in such block consent thereto, is not an unlawful delegation of the legislative powers of the city council.</p>

, entered October 28, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained through a fall on a cellar door.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 10, 1908, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries.</p>

, entered October 4, 1907, upon granting a nonsuit at the close of plaintiff’s case, in an action for the wrongful death of an employee in a mill.

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered April £, 1907, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered July 3, 1907, in favor of the defendant by direction of the court, after a trial before a jury, in an action for injuries sustained by an employee.

, entered November 30, 1907, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action to enjoin the operation of a railroad.

Appeal by defendant from a judgment of the superior court for King county, Tallman, J., entered November 16, 1907, upon the verdict of a jury, rendered for nominal damages by direction of the court, in condemnation proceedings.

Motion to dismiss an appeal from a judgment of the superior court for King county, Albertson, J., entered April 11, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

Motion to dismiss an appeal from a judgment of the superior court for King county, Albertson, J., entered April 18, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Courts — Rule of Decisions — Federal Question. Questions involving interstate commerce must be controlled by the decisions of the United States supreme court.</p> <p>Commerce — Interstate Commerce — Soliciting Orders for Nonresident. The business of soliciting orders for goods by one in the employ of a nonresident of this state, to be filled by the employer and shipped by him into this state, if the orders are accepted, is interstate commerce, and is not subject to regulation by the enactment of an ordinance requiring the payment of a license fee therefor, regardless of whether there is any discrimination between residents and nonresidents.</p>

Appeal by defendant from a judgment of the superior court for Clallam county, Still, J., entered July 9, 1907, upon findings made by the court after a trial on the merits without a jury, dismissing the complaint and defendant’s counterclaim, in an action on contract. Affirmed.

, entered July 20, 1907, upon findings in favor of the plaintiff, after a trial before a court without a jury, in an action on contract.

, entered October 12, 1907, in favor of the defendant, upon withdrawing issues from the consideration of the jury, dismissing actions for wrongful death and personal injuries, resulting from a collision at a railway crossing.

, entered November 30, 1907, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained by a railroad conductor in a rear end collision.

, entered July 3, 1907, upon the verdict of a jury rendered in favor of the plaintiif, for personal injuries sustained by a pedestrian run down by a team at a street crossing.

, entered February 18, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for damages and foreclosing a chattel mortgage given to secure the same.

<p>Receivers — Actions—Pleadings—Parties—Right to Intervene — Representation of Creditors. Where an action is brought against the receiver of an insolvent, to recover property of the insolvent, and the receiver defends for the benefit of creditors, a complaint in intervention on behalf of certain creditors is demurrable as showing no right to intervene, where it sets up the same claims made on their behalf by the receiver in an answer filed in their interest and in the interest of all creditors who file their claims; since the receiver represents the creditors.</p> <p>Costs — Persons Entitled — Interveners. Persons improperly intervening are not entitled to costs from the insolvent’s estate.</p> <p>Fraudulent Conveyances — Sales — Conditional Sales — Subsequent Bona Fide Purchasers. Where the vendor, in a conditional sale, delivers possession to the vendee and fails to file in the auditor’s office a memorandum of the sale, as required by Laws of 1903, p. 6, the sale becomes absolute as to subsequent creditors in good faith.</p> <p>Replevin — Alternative Judgment — Amount — Fraudulent Conveyances. In an action of replevin against a receiver, where it appears that he was entitled to possession so far as he represented subsequent creditors in good faith, it is error to enter judgment in the alternative for the total amount of the claims of all creditors, in case return of the property to the receiver cannot be had, but the judgment must be reversed with directions to determine the amount of the claims of creditors entitled to the possession, in order to limit the alternative money judgment to such sum.</p> <p>Bankruptcy — Courts—Jurisdiction—Receivers. After the ap- _ pointment and qualification of a receiver in a state court, the appointment of a trustee in bankruptcy by the Federal court does not deprive the state court of jurisdiction, or the receiver of the right to possession of the property.</p> <p>Costs — Parties Entitled. Where a trustee in bankruptcy claims property in the hands of a receiver appointed by the state court, and is denied the relief asked, it is error to award the trustee costs as against the insolvent’s estate.</p>

Petition for a writ of prohibition to the superior court for Pierce county, Clifford, J., filed in the supreme court July 6, 1908, to prevent a hearing in the superior court upon a writ of certiorari to review the revocation of a liquor license by a city council.

, entered February 29, 1908, in favor of the plaintiffs, upon stipulation and a trial on the merits before the court without a jury, in an action on fire insurance policies.

, entered December 18, 1907, upon findings in favor of the plaintiff, after a trial before the court, in an action for specific performance of a contract to convey land.

, entered May 25, 1908, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained in falling into a sewer manhole in a public street.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered February 5, 1908, upon a trial and conviction of obstructing a public highway.</p>

, entered February 20, 1908, in favor of. the defendant, upon granting a nonsuit, after a trial before the court and a jury, in an action for personal injuries.

, entered March 23, 1908, in favor of the defendant, after a trial before the court without a jury, dismissing an action on contract.

<p>Eminent Domain — Proceedings—Appeal—Time for Taking. An appeal from an order setting aside a verdict and judgment and dismissing condemnation proceedings, on motion of the plaintiff, is governed by Laws 1907, p. 338, providing that all appeals in condemnation proceedings shall be taken within thirty days from the date of the rendition of the judgment appealed from; and the general act allowing appeals from orders vacating a judgment within ninety days has no application.</p>

, entered June 11, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages from a collision.

, entered March 28, 1908, in favor of the defendants, upon an agreed statement of facts, dismissing on the merits an action of ejectment.

, entered July 1, 1907, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for conversion.

<p>Appeal from a judgment of the superior court for Skamania county, McCredie, J., entered May 31, 1907.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered January 9, 1908.</p>

, entered October 19, 1907, 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 September 7, 1907, in favor of the defendant, after a trial before the court without a jury, dismissing an action for specific performance.

, entered July 29, 1907, upon findings in favor of the plaintiffs, after a trial before the court, in an action to quiet title.

, entered September 10, 1907, upon findings in favor of the defendant, after a trial before the court without a jury, in an action upon a judgment.

<p>Appeal from a judgment- of the superior court for King county, Albertson, J., entered March 19, 1908.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Rice, J., entered April 21, 1908, upon a trial and conviction of the violation of an ordinance regulating peddlers.</p>

Motion to dismiss an appeal from a judgment of the superior court for King county, Albertson, J., entered April 17, 1908, upon the verdict of a jury rendered in favor of the plaintiff in an action for personal injuries.