Volume 52 — Washington Reports

, entered April 2, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to quiet title.

, entered June 8, 1908, upon a verdict rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective sidewalk.

, entered June SO, 1908, in favor of the defendant by direction of the court, after a trial on the merits before a jury, in an action for injuries sustained by a teamster.

Application filed in the supreme court, January 25, 1909, for a writ of mandamus to compel the superior court for Clallam county, Still, J., to enter a judgment of default.

, entered March 5, 1908, affirming on certiorari an order of the state railroad commission respecting trackage connections, after a hearing before the court.

, entered March 19, 1908, affirming, on certiorari, rulings of the state railroad commission, fixing certain joint freight rates, after a hearing before the court.

, entered March 19, 1908, striking out an answer and cross-complaint, on motion of plaintiff, in an action to quiet title.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Irwin, J., entered August 24, 1908, upon findings annuling a marriage, and denying a writ of habeas corpus sought by the husband to secure the release of his wife, after a trial on the merits of habeas corpus proceedings, consolidated for trial with an action by the wife’s parents for the annulment of the marriage.</p>

<p>Eminent Domain — Proceedings — Costs — Immunity of Landowner — Costs on Appeal. Const, art. 1, § 16, providing that private property shall not be taken or damaged without just compensation having been first made or paid into court, prevents the taxation of costs in condemnation proceedings against the landowner only in the lower court, and does not exempt him from the costs of his appeal to the supreme court, when, under Bal. Code, § 5643, he fails to recover a greater amount of damages on the appeal.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered November 7, 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 tax sale and recover possession of real property.</p>

<p>Appeal from an order of the superior court for Spokane county, Sullivan, J., entered September 1, 1908, setting aside a sale on execution, on motion of the defendant.</p>

<p>Rape — Evidence-—-Complaint Made by Prosecutrix — Corroboration Connecting Defendant With Crime. Evidence of complaint made by the prosecutrix, soon after a rape, is admissible only as corroborative proof that the complainant was raped, and it is not such, corroboration as “tends to convict the defendant of the commission of the offense,” within the requirement of Laws 1907, p. 396; since some substantial fact or circumstance independent of the statement of the prosecutrix is required.</p> <p>Same — Instructions. An instruction which singles out and makes prominent the complaint made by the prosecutrix, without qualification or explanation of its character as evidence, as a “corroborating circumstance, tending to support her testimony . relating to the alleged crime of rape having been committed upon her,” is prejudicial error tending to mislead the jury into finding therefrom corroboration tending to connect the defendant with the crime (Fullerton and Dunbar, JJ., dissenting).</p> <p>Statutes — Rule of Construction. In construing a statute, the courts must look to the old law, the mischief and the remedy.</p>

<p>Appeal — Dismissal—Time fob Motion. A motion to dismiss an appeal because of imperfections in the record comes too late, where after an oral argument, with the records before him, respondent’s counsel had asked leave to file a brief and stipulated that a reply brief could be filed, and in his brief submitted the motion to dismiss.</p> <p>Criminal Law — Defenses—Insanity—Instructions—Contradictory and Misleading Instructions — Partial Insanity. Upon the defense of insanity, an instruction is contradictory and misleading where the jury is told that the defendant would not be accountable for his crime if he was suffering from mental disease so complete that every faculty and power of his mind was affected by it, and that in consequence he was not capable of a single sound, healthy mental action, although other instructions favorable to the defendant were given; since it denies to him the defense of partial insanity.</p> <p>Same — Defense of Insanity — Instructions. The jury should be instructed that the test .of defendant’s sanity is whether he had sufficient capacity at the time to distinguish between right and wrong with reference to the act charged.</p> <p>Criminal Law — Evidence—Insanity—Nonexpert Opinion. The testimony of nonexpert witnesses is competent to show insanity.</p> <p>Same — Defense of Insanity — Instructions. Upon the defense of insanity, the power to choose between right and wrong being a relative question of fact to be determined by the jury, any instruction that invites the jury to go further than to answer the question, Had the accused sufficient capacity at the time to distinguish between right and wrong with reference to the act committed? or that leads the jury into unknown paths, is prejudicially erroneous, even though involved instructions may be regarded as more favorable to the accused than those requested; since he was non compos mentis and entitled to the protection of the law if he did not have the mental power to choose between right and wrong with reference to the act charged, and if such affection was the efficient cause of the act.</p> <p>Same — Defense of Insanity — Burden of Proof — Instructions. Upon the defense of insanity it is proper to refuse to instruct that if the defendant’s evidence raises a reasonable doubt as to his sanity, the state must remove the doubt by the preponderance of the evidence.</p> <p>Same — Evidence—Hearsay. It is inadmissible, as hearsay, for a prosecutrix to testify that a third person told her that the accused had said he would not continue relations with her.</p>

, entered October 26, 1908, upon defendant’s motion for a nonsuit, after a trial before a jury, dismissing an action for damages to an automobile run into by a street car.

, entered March 24, 1908, upon findings in favor of the plaintiff, in an action to recover for services performed and to foreclose a hen therefor.

<p>Constitutional Law — Dub Process — Physicians—Dentistry—• Requiring License — Reasonableness. Requiring a diploma from a dental college as a prerequisite for examination for a license to practice dentistry does not violate the 14th Amendment and is not an unreasonable exercise of the police power, although there is no such college in the state, and although the applicant might be as , qualified and able to pass the examination as any holder of a diploma.</p> <p>Indictment and Information — Sufficiency—Practicing Dentistry Without License. An information for practicing'dentistry without a license, in the language of the statute, is sufficient without alleging the nature of the disease or lesion or the treatment.</p> <p>Witnesses — Cross-Examination. It is not error to limit the cross-examination of a prosecuting witness who had dentistry done for the purpose of prosecuting, where the range of inquiry showed the motives of the witness and tested his credibility.</p> <p>Physicians — Dentists—Practicing Without a License — Prosecution — Evidence of Inducements. That a witness went to a dentist’s office and had a cavity filled, is not evidence that he offered inducements to the defendant to commit the crime of practicing without a license. ■</p> <p>Same — Defenses. That a witness had dentistry work done with a view to prosecuting the dentist for practicing without a license, is not a defense nor any objection to conviction.</p> <p>Same — Absence of License — Evidence—Admissibility. Bal. Code, § 3030, making the certificate of the county auditor that no license to the defendant to practice dentistry was on file in his office prima facie proof of the absence of such license, is not exclusive and does not preclude evidence of the deputy auditor that there was no such certificate of record.</p> <p>Same — Evidence of Tbeating of Disease — Sufficiency. That a dentist filled a cavity in the teeth of the prosecuting witness is sufficient evidence that he treated a disease or lesion of the teeth, within the statute prohibiting the same without first securing a license.</p>

, entered November 13, 1907, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, judge pro tempore, entered May 20, 1908, 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>Appeal from a judgment of the superior court for Clallam county, Still, J., entered July 10, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

, entered April 30, 1907, 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>Appeal from a judgment of the superior court for What-com county, Neterer, J., entered January 14, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

, entered May 5, 1908, in favor of the plaintiff, after a trial before the court upon stipulated facts, in an action upon an indemnity insurance policy.

<p>Rape — Evidence—Conduct at Other Times. In a prosecution for statutory rape, evidence is admissible of the prosecuting witness’ conversations with accused at other times than the one upon which the state elected to rely.</p> <p>Evidence — Handwriting—Identification. A witness who has seen a party write and knows his handwriting is competent to identify letters written by him.</p> <p>Criminal Law — -Appeal—Harmless Error — Rape. In a prosecution for rape, the erroneous admission of evidence that defendant was married and that the prosecutrix was acquainted with his wife, is harmless.</p> <p>Appeal — Harmless Error — Evidence. Error in the admission of evidence otherwise fully established is harmless.</p> <p>Same — -Witnesses—Competency. The competency of a physician who testified to the pregnancy of a prosecutrix is immaterial where the fact of pregnancy was not disputed.</p> <p>Same — Harmless Error — Evidence. It is harmless error to exclude impeaching evidence as to a witness who testified to a mere negative, and to no affirmative fact prejudicial to the appellant.</p> <p>Evidence — Handwriting—Instructions. It is proper to refuse to instruct that a jury may not resort to a comparison of any writing not admitted by the defendant to be genuine, with any other writings not admitted by him, for the purpose of determining the genuineness of any or either of such writings.</p> <p>Trial — Instructions. It is not error to refuse requested instructions covered in the general charge.</p> <p>Criminal Law — Trial. The jury may take the exhibits to the jury room, under Bal. Code, § 5004.</p> <p>Rape — New Trial — Affidavits—Sufficiency. It is not a ground for a new trial in a prosecution for rape that it is shown by affidavits that the ordinary period of gestation had elapsed since the act and the prosecutrix had not yet been delivered of her child.</p> <p>New Trial — Affidavit — Impeaching Verdict — Evidence of Handwriting. That two jurors were not satisfied with evidence of the genuineness of certain writings received in evidence until after resorting to a comparison with writings erroneously admitted, is not ground for a new trial.</p> <p>Same — Incapacity of Juror — Hearsay. An affidavit of an attorney to the effect that a juror had become so ill as to be unable to participate in the deliberations of the jury -is hearsay and insufficient as ground for a new trial.</p>

, entered March 31, 1908, 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.

, entered January 18, 1909, after a hearing on the merits, denying a petition to dismiss proceedings for the probate of a will.

<p>Appeal from a judgment of the superior court for Lewis county, Bice, J., entered June 8, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Sheriffs — Neglect of Duty — Escape of Prisoners — Official Bonds — Liability to Persons Entitled to Reward. A sheriff is not liable on his official bond to parties entitled to a reward for the capture of criminals, turned over to him, for damages suffered by the escape of the prisoners, under the conditions of his official bond to “well, truly, and faithfully perform all of his duties as sheriff,” and of the statute giving a right of action on the bond in favor of all persons injured or aggrieved by his wrongful act or default; since the duty to keep the prisoners is not direct, or to the plaintiffs, but to the public, and damages recoverable on the bond must be measured by the wrongful act itself and not by loss of profits anticipated under an independent contract between third parties.</p>

, entered .March 18, 1908, upon findings in favor of the plaintiff, in an action for a divorce, after a trial before the court without a jury.

, entered April 1, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a passenger through the derailment of a car.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered October 14, 1908, in favor of the plaintiff, upon the pleadings, after sustaining a demurrer to the answer, in an action upon contract.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered July 9, 1908, upon the verdict of a jury rendered in favor of the plaintiff against one of the defendants, after the granting of a nonsuit in favor of the other defendant, in an action to recover for personal injuries.</p>

<p>Indemnity — Bonds — Building Contracts — Default of Contractor — Completion of Building by Owner — Liability. Indemnitors, who give a bond to a surety company to indemnify it against loss upon a contractor’s bond guaranteeing the construction of a building contract, are liable over to the surety company for the amount it was compelled by judgment to pay on default of the contractor, where the owner, under the terms of the building contract, took. possession and completed the building, putting another in charge of the construction without withholding the contract price until completion, although the indemnitors were not parties to agreements made with the surety company consenting to that arrangement; since the contract gave the owner the right to so do without such consent, the two bonds, the contract, and the plans and specifications definitely referring to each other and being all one transaction, and authorizing all that the owner did to complete the building himself.</p> <p>Same. In such a case, the indemnitors are not discharged because the building, which was to be a “brick veneer,” was referred to in the indemnitor’s bond as a “two-story frame dwelling,” it being the same building described in the contract, and properly described either way.</p>

, entered December 23, 1908; decreeing a public use and necessity, in proceedings to condemn wafer rights for an electric power plant.

, judge pro tempore, entered August 2, 1904, upon ' granting a nonsuit, after a trial before the court without a jury, dismissing an action upon an official bond.

<p>Homicide — Self Defense — Evidence — Fight With Deceased. Upon a plea of self defense, evidence of a fight between deceased and the accused, two hours before the homicide, is admissible as a circumstance from which malice might, be inferred.</p> <p>Criminal Law — Appeal—Harmless Error. In a prosecution for manslaughter, it is harmless error to admit in evidence the details of a previous fight between the deceased and accused where the same was favorable to the accused.</p> <p>Homicide — Evidence. An assignment of error in excluding evidence of the details of a fight between the deceased and accused is without merit where the details were not presented by the state, the conversation sought to be brought out was not part of the res gestae, and the accused was permitted to go into the details of the fight.</p> <p>Same — Self Defense — Evidence. Where the accused claimed that the killing was in self defense and that deceased advanced with his hand behind his back as if in the act of drawing a weapon, it is admissible for the wife of the deceased to testify that her husband never owned a revolver, as a circumstance tending to show that the accused was not in actual danger, and that the deceased was not armed, to offset cross-examination seeking to establish that a weapon had subsequently been taken from deceased.</p> <p>Same — Clothing of Deceased. Upon the plea of self defense the clothing of the deceased worn at the time of the shooting is admissible upon an issue as to whether the deceased was in a striking attitude when shot.</p> <p>Same — Disposition of Deceased. It is not error to exclude evidence of fights and quarrels which the deceased had had with others, where it does not appear that the accused was informed thereof and the evidence does not go to the point as to who was the aggressor.</p> <p>Same — Reputation of Deceased. Upon an issue of self defense it is not error to exclude evidence of the reputation of deceased as to “using unfair means in fights”, as calling for the conclusion of the witness; especially where the witness testified to his reputation as a “gun fighter.”</p> <p>Criminal Law — Trial—Reading Evidence. It is not reversible error for the prosecuting attorney to read a correct copy of the evidence to the jury, where the court at the time instructed that the jury were the exclusive judges of what the testimony was.</p> <p>Homicide — Self Defense — Instructions. Where the only evidence as to deceased’s carrying a gun was a statement on cross-examination that none was found on his body and evidence of his wife that he never owned any, it is not error to refuse to instruct that such evidence was to be considered only to determine whether he was a dangerous man; since it also bore upon the question whether accused was in actual danger.</p> <p>Same — Appearance of Danger. Instructions on the right of self defense are correct where they authorize the accused when attacked to act upon reasonable appearances of danger, judged from the accused’s standpoint.</p> <p>Same. The criterion of apparent danger is the situation as viewed from defendant’s standpoint, or danger apparent to his comprehension as a reasonable man in his situation.</p> <p>Same — Belief in Danger. An instruction as to the right of the accused to act in self defense if in the “honest belief” of danger, is equivalent to requiring a “reasonable belief,” and both may be used conjunctively.</p> <p>Same — Bodily Harm. An instruction on self defense properly requires apparent danger of “great” bodily harm.</p> <p>Criminal Law — Appeal—Instructions. Error cannot be predicated upon the failure of the court to define the word “feloniously,” in the absence of any request therefor.</p> <p>Same — Knowledge of Accused. An instruction upon self defense directing the jury to consider “all” the facts and circumstances bearing on the question and surrounding defendant at the time, sufficiently includes defendant’s “knowledge derived from personal observation.”</p> <p>Homicide — Self Defense. A simple assault or an ordinary battery do not justify the taking of life in self defense.</p> <p>Criminal Law — Trial—-Instructions. It is not error to repeat the instructions on request of the jury.</p> <p>Same. It is not error to refuse an instruction which, in legal meaning and effect, has already been given.</p>

Appeal by an abutting owner from a judgment of the superior court for King county, Griffin, J., entered January 20, 1908, upon the verdict of a jury, awarding damages to its property by reason of a change of grade of a city street, after a trial on the merits in condemnation proceedings.

, entered July 16, 1908, granting a new trial for error of law, after a nonsuit, upon a trial before the court and a jury, in an action for goods sold and delivered.

<p>Appeal from a judgment of the superior court for Jefferson county, Albertson, J., entered May 15, 1908, upon findings in favor of the plaintiff, in an action to quiet title.</p>

<p>Pleading — Amendment — After Trial — Discretion. It is discretionary to refuse to allow an amendment of the complaint, after the defense of an account stated had been tried out, where it would have necessitated a retrial on new issues, with a shifting of the burden of proof.</p> <p>Pleading — Inconsistent Defenses — Departure. In an action for an accounting, in which the defense was an account stated, a reply denying the statement of the account and a defense that the account stated was procured by fraud, are inconsistent defenses.</p>

, entered November 9, 1907, in favor of the defendants, after a trial before the court without a jury, dismissing an action for cancellation and rescission.

, entered February 8, 1908, dismissing at the close of plaintiff’s case, an action for specific performance or in the alternative for a rescission of a contract to convey land, after a trial before the court without a jury.

, entered May 1, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action upon an indemnity bond.

, entered March 28, 1908, upon findings in favor of the plaintiff, granting a deficiency judgment, in an action on a note and to foreclose a chattel mortgage, after a trial before the court without a jury.

<p>•Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered April 10, 1908, upon findings in favor of the plaintiffs, after a trial on the merits, in an action to foreclose a mechanics’ lien.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered June 8, 1908, upon findings in favor of the plaintiffs, in an action to- declare a trust and quiet title,.after a trial before the court.</p>

, entered April 17, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of an employee.

, entered January 25, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action by an employee for injuries sustained in a railway collision.

, entered January 25, 1908, upon findings in favor of the plaintiff, and a stipulation, in an action to recover for expenses and loss of services of a minor child.

<p>Divorce — Vacating Judgment — Action to Vacate — Pleading — Demurrer to Defenses. In an action to set aside a divorce for fraud, a demurrer to tbe defense of laches in prosecuting the suit is properly overruled, although it may have been unnecessary to affirmatively plead it.</p> <p>Same — Defenses—Laches—Evidence. In an action to set aside a divorce obtained, as claimed, by the duress of threatened false charges of adultery, evidence of such adultery is properly admitted in defense of the action to show that the charges were not false, and that defendant had good grounds for divorce.</p> <p>Appeal — Review—Harmless Error. Error in admitting evidence is harmless where the case is tried de novo on appeal.</p> <p>Divorce — Vacating — Attorney and Client — Appearance — Authority. A decree of divorce, entered without service of process and upon defendant’s appearance by attorney, will not be set aside for want of authority for the attorney to appear, where the defendant verified the answer and knew of the purpose of the suit and knew of the decree, and shortly after was apprised of her rights, and it appears that she only became dissatisfied later when the husband refused to carry out promises with reference to a settlement.</p> <p>Divorce — Vacating—Cancellation of Settlement — Duress—Evidence — Sufficiency. The dismissal of an action to set aside a settlement between the parties to a divorce and the deed made by the wife, for alleged fraud and duress by false charges of adultery, ia sustained where it appears that she had the property settlement under consideration for some time, knew the character of the property and contents and effect of the deed, which she finally acknowledged, after first protesting she did not do so “freely and voluntarily” and where she acquiesced in the settlement for some two years after being advised as to her rights by an attorney, and there was evidence warranting the husband’s belief in the charges which he made, and for which he divorced her.</p>

<p>Habeas Corpus — Warrant — Sufficiency — Remedy by Appeal. The sufficiency of a warrant will not be inquired into upon an application for a writ of habeas corpus to release a prisoner held thereunder, the remedy being by appeal.</p> <p>Constitutional Law — Imprisonment for Debt — Fraudulent Contraction of Bills' — Innkeepers—Statute—Construction. Laws 1903, p. 244, making it a misdemeanor punishable by imprisonment for any person to fraudulently incur an innkeepers’, boarding or lodging house bill or secure accomodations by false pretenses without paying for the same, or to surreptitiously remove baggage without such payment, does not violate Const., art. 1, § 17, prohibiting imprisonment for debt except in the case of absconding debtors; since the imprisonment is for the fraud committed.</p> <p>Constitutional Law — Imprisonment for Debt. “Debt” within the meaning of the constitutional provision that there shall be no imprisonment for debt refers to contract obligations and not to obligations arising from fraud or in tort.</p> <p>Constitutional Law — Encroachment on Judiciary- — Rule of Evidence. Laws 1903, p. 244, § 2, providing that refusing or neglecting to pay a bill, or surreptitiously removing baggage, shall be primet facie evidence of intent to defraud in contracting an innkeeper’s bill, is not unconstitutional; as the legislature may prescribe the quantum and order of proof.</p>

, entered July 11, 1907, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action for conversion.

, entered December 6, 1907, upon findings in favor of the defendants, after a trial on the merits before the court without a jury» dismissing an action to restrain a city from improving a strip of land as streets.

, entered July 13, 1908, 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 under a contract to purchase land.

, entered May 5, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to reform a deed and to quiet title.

, entered January 30, 1908, granting a nonsuit at the close of plaintiff’s case, dismissing an action on contract, after a trial before the court without a jury.

, entered May 18, 1908, granting a nonsuit at the close of plaintiff’s case, after a trial before the court and a jury, in an action for personal injuries.

, entered April 11, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover damages for loss of property destroyed by fire.

, entered May 5, 1908, granting a temporary injunction, in an action to require the removal of obstructions placed upon a private right of way.

, entered July 3, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to cancel promissory notes, and for damages.

, entered August 15, 1907, upon findings, in favor of the defendants, after a trial on the merits, in an action to quiet title.

, entered March 24, 1908, in favor of the defendants, upon sustaining a demurrer to the complaint, dismissing an action to quiet title.

, entered March 10, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for damages for the breach of a contract to convey real estate.

<p>Cancellation of Instruments — Deeds—Undue Influence — Evidence — Sufficiency. There is no evidence that undue influence, induced a conveyance of real and personal property, reserving a life estate in the land, in consideration of an agreement for support and pin money during the life of the grantors, where it appears that one of the grantors was sick and 70 or 80 years old, and executed the agreement after long consultation with three of his lifelong friends, prominent business men, who had no interest in the matter, and the same was carefully explained to his wife, a half-breed Indian, who was not coerced in any way and fully understood the matter, if capable of doing so.</p> <p>Same — Consideration—Adequacy. A conveyance by an old couple of a farm of the value of about $2,000 or $3,000, and $700 worth of farm implements and personal property, to the husband of a niece, who was their sole beneficiary in a will, is not void for inadequacy of consideration, where a life estate in the land was reserved, and the grantee agreed to work the place and share the profits in the chickens, board and lodge the grantors and the survivor for life, and pay a certain small monthly sum; especially where three prominent business men, friends of the grantors, advised the arrangement.</p>

<p>Appeal — Record—Statement of Facts — Affidavits. The supreme court will not review an appeal from an order quashing a writ of attachment, on a motion based upon affidavits, where the affidavits are not brought up by bill of exceptions or statement of facts.</p>

, entered July 10, 1908, upon findings in favor of the defendants, after a trial before the court, refusing to cancel an assessment for the maintenance of a drainage district.

<p>Carriers — Passengers—Setting Down Intoxicated Passenger. Where the jury, upon conflicting evidence, must have found that a street car was suddenly started while the plaintiff was in the act of alighting, the company would be liable for negligence causing injuries whether the plaintiff was drunk or sober.</p> <p>Evidence — Admissibility—Responsiveness. Where a witness is asked if he noticed plaintiffs condition as to sobriety, an answer that he thought he was drunk may properly be stricken as not responsive.</p> <p>Appeal — Review—Harmless Error — Evidence—Facts Otherwise Established. It is not prejudicial error to strike the statement of a witness that he thought the plaintiff was drunk, where afterwards he was asked what indications made him know plaintiff’s condition, and he answered that he smelled as if he was drinking whiskey.</p> <p>Same — Failure to Ask Proper Question. Defendant cannot complain of the striking of an answer of a witness that he thought plaintiff was drunk, where he did not pursue the inquiry, or ask whether plaintiff was intoxicated.</p> <p>Trial — Misconduct op Counsel — Argument to Jury — Harmless Error. It is not ground for reversal that counsel, in argument to the jury, stated that he had been a superior judge, and would not believe a certain witness under oath, where the court upon request at once instructed the jury that the witness had not been impeached and to disregard the statement, and the testimony of the witness related only to an incidental fact, and not to the pivotal question in issue.</p> <p>Appeal — Review—Harmless Error — Instructions. It is not error to refuse to give an instruction in the form requested, if given in language of the court’s own choosing.</p> <p>Carriers — Contributory Negligence — Instructions as to Proximate Cause. Upon an issue as to the contributory negligence of a passenger in alighting from a street car, an instruction allowing recovery if the plaintiff was not guilty of negligence “which was the proximate cause of the accident,” is not erroneous' in failing to qualify' “proximate cause,” when considered in connection with another instruction to the same effect referring to “any negligence on his part which proximately or naturally contributed to his injury, and without which such injury would not have happened.”</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $9,500 for the loss of a foot by a man sixty-four years of age, engaged in the real estate business and earning $150 to $200 per month, is excessive, and should be reduced to $6,000.</p>

, entered October 17, 1908, upon granting a nonsuit, after a trial before the court without a jury, dismissing an action on contract.

<p>Appeal — Decisions Appealable — Default After Sustaining Demurrer — Dismissal. A judgment of dismissal, for default in amending a complaint, after sustaining a demurrer thereto, is appealable; since no exception was necessary to the order sustaining the demurrer and no further steps are necessary to secure a review, excepting an appeal (Overruling Pacific Supply Go. v. Brand, 7 Wash. 357, and Ball v. Skavdale, 21 Wash. 203).</p>

, entered January 24, 1908, in favor of the plaintiff, upon the pleadings and defendant’s opening statement to the jury, after the close of plaintiff’s case, in an action upon a promissory note.

<p>Master and Servant — Fellow Servants — Duty of Master — Presumption — Occurrence of Negligent Act — Burden of Proof. While it is the duty of the master to make a reasonable effort to ascertain the competency of a servant, negligence in that respect is not presumed from the occurrence of an accident through such servant’s neglect, blit the burden is on plaintiff to prove (1) the fellow servant’s incompetence; and (2) that the master knew or should have known thereof.</p> <p>Trial — Province of Court and Jury — Nonsuit. While courts may not determine the weight of the evidence, if there is no evidence of a fact essential to sustain liability, they must so declare the fact.</p> <p>Master and Servant — Fellow Servants — Master's Knowledge of Incompetency — Presumption—Evidence—Sufficiency—Opinions. The opinion of a single witness that a fellow servant was timid and therefore incompetent to drive a winch, without proof of a single prior negligent act, is not sufficient to charge the master with notice of his incompetency, or overcome the presumption that the master had performed his duty in employing competent fellow servants.</p> <p>Same — Negligence of Master in Employing Servant — Evidence— Sufficiency — Negligent Acts. The rule that evidence of negligent acts of a fellow servant from which incompetency might be inferred makes a prima facie case that the master was negligent in employing him, is not to be extended to a case where his only negligent act was the act complained of.</p> <p>Trial — Province of Court and Jury — Prima Facie Case — Shifting Burden of Proof — Questions of Law. Where the burden of proof is shifted from the plaintiff to the defendant by a prima facie case sufficient to overcome a presumption in favor of the defendant, and is then shifted back to the plaintiff by defendant’s counter evidence, plaintiff’s prima facie case must, on demurrer to the evidence, be' measured by defendant’s evidence, and determined as a matter of law in the light of defendant’s explanations.</p> <p>Master and Servant — Fellow Servants — Negligence of Master — Shifting Burden of Proof — Explanations of Defendant — Evidence — Sufficiency. Negative evidence of the incompetence of a fellow servant to run a winch, consisting of the opinion of a single witness that he was incompetent, the fact that witnesses had never seen him run a winch, the fact that he asked instructions how to run it, and the fact of the negligent act complained of, if sufficient to cast the burden of proof upon the master to show the exercise of due care in employing him, is destroyed and overcome, as a matter of law, by defendant’s positive evidence that the servant had driven winches off and on for twenty years, that he had driven winches on specified vessels, and for several hours on one vessel with the plaintiff, and that he had a good reputation and was qualified as a winch driver, and that the act complained of was done according to a fixed custom to carry an empty sling out over the deck without stopping for a second signal; and the burden having again shifted and so still being upon the plaintiff to establish his case, a nonsuit is properly granted; since negative evidence must give way to positive evidence, and what amounts to a prima facie case may not be so when rebutted.</p> <p>Fulleeton, J., dissents.</p>

, entered May 27, 1908, upon granting a nonsuit, after a trial before the court and a jury, in an action to recover damages from delay in the shipment of horses.

<p>Cancellation of Instruments — Deeds—Fraud—Evidence—Sufficiency. There is no such clear, unequivocal and convincing evidence as to warrant the setting aside of a quitclaim deed, on the ground that the grantor supposed it to he a guaranty of a debt, and signed it without reading because he did not have his glasses, and the grantor is guilty of negligence precluding relief, where it appears that he had lived in this country forty years, could read and speak English, was engaged in business, had average experience and had conveyed property, and did not read the deed or ask to have it explained; the cashier of the grantee testifying that the deed was given voluntarily as security for the debt.</p> <p>Deeds — Consideration—Seal. A deed under seal imports a consideration.</p>

<p>Appeal by the state railroad commission from a judgment of the superior court for Thurston county, Linn, J., entered February 19, 1908, in favor of the relator, annulling an order of the commission establishing certain terminal freight rates, upon certiorari to review the order of the commission.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 25, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover real property and to quiet title.</p>

, entered May 5, 1908, in favor of the defendant, dismissing an action to enjoin the removal of a frame building within the fire limits of a city after partial destruction by fire, after a trial on the merits before the court.

<p>Appeal — Review—Harmless Error — Notice of Signing Judgment. Failure to give notice of the signing of findings and judgment, after a hearing on proposed findings and the taking of the same under advisement, is error without prejudice, where the party was deprived of no substantial right.</p> <p>Judgment — Clerk’s Minutes — Conclusiveness—Subsequent Entry of Conflicting Judgment. A clerk’s entry in the journal that the court ordered the case dismissed on defendant’s motion, at the close of plaintiff’s case, is not conclusive evidence of the actual judgment, and does not preclude the court from subsequently making findings and entering judgment granting the defendant affirmative relief; and the formal judgment controls the clerk’s entry.</p> <p>Judgment — Recitals—Judgment on Merits — Effect—Appeal— Harmless Error. In an action to quiet title a recital in a judgment for the defendant, that “plaintiffs were duly sworn and offered evidence in support of their case” whereupon they rested and the court granted defendant’s motion for judgment, authorizes a judgment on the merits, barring the plaintiff from the prosecution of any further action; hence it is harmless error for the court to include in the judgment a provision quieting defendant’s title.</p> <p>Appeal — Review—Defective Findings — Effect — Record — Evidence — Presumption in Support of Judgment. In an equitable action, incomplete or defective findings are not ground for reversal, where the evidence is not brought up, as it will be presumed that the evidence supports the judgment.</p>

<p>Carriers — Of Passengers — Persons Riding on Engine — Authority op Engineer — Contributory Negligence. Where a freight train is in charge of a conductor, and has in it a caboose for the carriage of passengers, one who rides upon the engine at the invitation of the engineer and without the knowledge of the conductor is guilty of contributory negligence and is not a passenger, although he rode there for fear he would not have time to board the caboose before the train started; as it is not within the scope of the engineer’s authority to consent to carry passengers on the engine, and a man of mature years must take notice of that fact and of the impropriety of riding there.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered February 10, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to vacate a tax judgment.</p>

, entered December 9, 1907, 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 contract to sell land.

<p>Certiorari — Proceedings—Right to Instructions — Parties Interested — Prosecuting Attorney — Duties Before Grand Jury. Instructions to a grand jury directing them, in effect, not to permit the prosecuting attorney or his deputy to take a stenographic report of the evidence of the witnesses produced before the grand jury, are not matters reviewable on certiorari at the instance of the prosecuting attorney, or orders directed against him in a proceeding in which he is a party in the sense that he would have any reviewable interest therein (Morris, Fullerton, and Dunbar, JJ., dissenting).</p> <p>Same- — Instructions to Grand Jury — Formality of Orders Reviewable on Certiorari. Such instructions stating the views of the court as to the grand jury’s duty, not in the form of a final order or judgment against the prosecuting attorney, are not so specific or certain as to present any question for review on certiorari (Morris, Fullerton, and Dunbar, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered October 18, 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.</p>

, entered October 6, 1908, in favor of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action to recover earnest money paid under a contract to purchase land.

<p>. Principal and Agent — Sales by Agent — Warranty—Authority oe Agent — Evidence—Sufficiency'—Implied Warranty of Title. An agent had authority to warrant a cargo of coal as free from incumbrances (including an unpaid duty) where it appears that a representative .of the company testified that he had absolute authority to dispose of the coal, that he instructed the agent to make the best settlement possible, had wired him that the duty was paid, and the company failed, after opportunity, to show that the representative did not have the authority claimed by him; especially where it had constructive possession, which raises an implication of warranty of title.</p> <p>Customs Duties — Rebate—Expiration of Time-Limit for Rebate —Statutes—Construction. Foreign coal discharged in October, 1903, from a disabled vessel at a port other than her destination, and kept in the custody and control of the government, is not relieved from the payment of duty by Act of Cong. Jan. 15, 1903, (32 Stat. 773) which provides for a full rebate of duties on coal for the period of one year, where no entry of the coal had been made and no rebate made by the collector until after-said statute had expired by limitation; and the same was subject to duty when sold on March 4th, 1904.</p> <p>Sales — Warranty Against Incumbrances — Payment of Duty— Failure of Vendee to Give Notice. Where the purchaser of foreign coal was not notified within ten days of the reliquidation of duty on the coal, and the statute made the decision of the collector final unless appeal was taken in ten days, the purchaser’s failure to notify the vendor of the lien for the duty within time to enable the vendor to take an appeal and contest the duty will not deprive the purchaser of his right to recover the duty which he was required by the government to pay, under the vendor’s warranty that the coal was free from incumbrances.</p>

<p>Appeal — Record—Statement oe Facts. In the absence of a statement of facts or bill of exceptions only errors predicated on the pleadings and orders can be considered.</p> <p>Partnership — Actions—Conditions Precedent — Filing Certifícate of Firm Name — Statutes—Compliance After Suit Brought. Where copartners did business under a firm name other than the true name of the firm members, without filing a certificate in the county auditor’s office designating their true names, as required by Laws 1907, p. 288, which further provides that they shall not be entitled to maintain any suit without alleging and proving the filing of such certificate, there is such a substantial compliance with the statute as to prevent dismissal of an action, commenced before the filing of the certificate, where long before trial they filed the certificate and obtained leave to amend their complaint, which amendment was made before the statute of limitations had run against their action and after answer by the defendants, who did not stand upon the demurrer; since the defendants are not prejudiced thereby.</p> <p>Mechanics’ Liens — Notice—Amendments-—After Suit — Error in Description. Under Bal. Code, § 5904, authorizing the amendment of lien notices where interests of third parties are not affected, a lien notice and complaint to foreclose the same can be amended to. correct an erroneous description of the property, after answer by the defendant disclosing the error in the notice.</p>

<p>Taxation — Tax Title — Action to Set Aside — Conditions Precedent — Tender of Tax. An action to set aside a tax deed and quiet title is properly nonsuited where it is not alleged or proved that the plaintiff tendered to the defendant holders of the tax title all taxes, penalties, interest, and costs, paid by them at the tax sale, the same being made a condition precedent to action by Bal. Code, § 5679.</p>

, entered February 7, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to quiet title.

<p>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 the death of plaintiff’s husband killed in a collision of a street car and an automobile.</p>

<p>Cebtioraki — When Lies — Cessation oe Controversy — Executed Court Martial. Certiorari does not lie to review a sentence of a court martial reprimanding the relator, after the reprimand has been administered, the court dissolved, and the sentence fully executed, the relator not being deprived of any dignity or rank; as the controversy has ceased to exist.</p>

, entered November 23, 1908, in probate, granting letters of administration, upon denying a petition for the probate of a will, after a hearing on the merits before the court without a jury.

<p>Motion to dismiss an appeal from a judgment of the superior court for King county, Morris, J., entered March 6, 1909, denying plaintiff’s application for a temporary restraining order.</p>

<p>Insurance — Marine Insurance — Policy—Modification by Parol —Authority of Agents — Evidence—Question for Jury. A policy of marine insurance restricting the vessel to navigation in certain waters may be modified by parol by general agents having authority to write insurance, fix rates, collect premiums and adjust losses, where the policy did not require modifications to be in writing; and there was sufficient evidence to make a question for the jury where it appeared that such agents consented to a voyage to prohibited waters, stating that there would be additional premiums to be paid, which the agents collected after notice that the vessel was in the prohibited waters and before notice of the loss of the vessel.</p> <p>Same — Pleading—Issues and Proof — Reply Setting Out Modification of Policy. In an action upon a policy of marine insurance which had been modified by parol so as to permit a voyage to prohibited waters, it is proper for the plaintiff to allege the effect of the contract without setting it out, and upon an answer setting out parts of the policy and a breach by the voyage, to reply by setting out the original contract and the modification and waiver respecting the prohibited waters.</p> <p>Same — Policy—Prohibited Waters — Waiver of Deviation — General Agents. There is a waiver of restrictions in a marine policy respecting prohibited waters, where general agents made no objection to the fact that the insured vessel was in the prohibited waters, collected additional premiums therefor, stated that the vessel was insured, and received proofs of loss stating that the loss would undoubtedly be paid.</p>

<p>Appeal — Review—Findings. Findings upon conflicting evidence will not be reviewed on appeal where the trial judge was much better able to judge the evidence, and the supreme court cannot say that the evidence preponderates in favor of the appellant.</p> <p>Mechanics’ Liens — Subcontractor-—Lien for Sums Paid for Labor. A person employed to do the plastering upon a building for the contractor, to be paid therefor the amount paid out to his men and a further sum for his own work and superintendence, is entitled to a lien for the amounts paid by him for the labor of his men, and for his own labor, according to the terms of the contract, although he did none of the actual work of the plastering, under Bal. Code, § 5900, giving a lien to any laborer for labor performed, and Bal. Code, § 5909 giving a lien to a contractor for any sum due on his contract after deducting claims of other parties for labor performed, and Bal. Code, § 5917, requiring the lien laws to be liberally construed.</p>

, entered February 18, 1908, upon findings in favor of the defendant, after a trial before the court without a jury, in an action of replevin.

Cross-appeals from a judgment of the superior court for Spokane county, Huneke, J., entered January 3, 1908, upon findings awarding the plaintiffs damages for breach of contract, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for Adams county, Zent, J., entered February IS, 1908, in favor of the defendants, dismissing on the merits an action to foreclose a mortgage.</p>

<p>Appeal — Review—Findings of Fact — Sufficiency. In the absence of the evidence, a finding of fact that a deed was given and Intended as security for a debt is not bad as a conclusion of law.</p> <p>Same — Findings in Equity — Necessity. Incomplete or defective findings are not ground for reversal in an equity case, since no findings are necessary to support the decree.</p> <p>Evidence — Parol Varying Writing — Deed and Option Given as Mortgage. Where a deed was given as security for a debt, the grantee giving bach to the grantor an “option to purchase,” oral evidence showing that the intent of the parties was to consider the two instruments as a mortgage is not inadmissible as varying the terms of the written option.</p> <p>Quieting Title — Deeds Intended as Mortgage — Issues—Judgment — Unnecessary Parties. Where the owners of premises had successively given two deeds thereof to secure debts to different parties, an action brought by the first grantee against the second grantee to remove the cloud of the latter’s deed is properly dismissed, where it is shown that both deeds were intended as mortgages; and it is immaterial that the mortgagors were not parties to the action.</p>

, entered December 18, 1907, in favor of the defendant, dismissing an action on contract, after a trial on the merits before the court without a jury.

, entered January 17, 1908, upon findings awarding damages to one of two claimants of property, after a trial of issues raised in interpleader in condemnation proceedings.

, entered April 18, 1908, in favor of the defendant, upon granting a nonsuit, in an action to recover for damages to horses transported.

, entered November 16, 1907, upon granting a nonsuit, after a trial before the court and a jury, dismissing an action against a city for personal injuries sustained through obstructions in a street.

, entered April 6, 1907, in favor of the defendant, upon sustaining a demurrer to the amended complaint, dismissing an action for personal injuries.

, entered January 81, 1908, upon granting a nonsuit, after a trial before the court without a jury, in an action upon an indemnity bond.

, entered July 23, 1908, upon findings favorable to defendant, after a trial before the court without a jury, in an action for the loss of furs shipped by plaintiff over defendant’s railway.

, entered May 4, 1908, upon .findings in favor of the plaintiff, in an action for damages for condition broken as to the quality of shingles sold and delivered by the defendant.

<p>Adverse Possession — Claim op Right — Settlement on Public Lands — Mistake. The settlement without color of title upon government land, in good faith, believing it to be such when it in fact belonged to a private owner, is not such a taking under “claim of right” as would constitute an adverse possession; since there is, in its inception, no disseizin by possession adverse to the government, and no claim of right thereafter upon discovering the mistake (Overruling Johnson v. Conner, 48 Wash. 431, 93 Pac. 914).</p>

, entered September 3, 1908, dismissing an action by stockholders to set aside a contract and appoint a receiver for a corporation.

, entered March 21, 1908, dismissing, on the merits, an action to contest a will, after a trial before the court without a jury.

, entered June 3, 1907, upon the verdict of a jury rendered in favor of the defendant, in an action to recover a broker’s commission.

<p>Appeal from a judgment of the superior court for What-com county, Kellogg, J., entered February 26, 1908, upon granting defendant’s motion for judgment on the pleadings, dismissing an action of replevin.</p>

, entered February 1, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee on a tugboat.

, entered March é, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained through a contractor’s negligence in carrying on street work.

, entered December 3, 1907, denying an application to modify a decree of divorce as to the custody of children, after a hearing on the merits.

, entered January 25, 1908, dismissing an action for an injunction, after a trial on the merits before the court without a jury.

, entered April 17, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover the value of baggage lost in transit over defendant’s railroad.

, entered February 19, 1908, after a hearing on the merits before the court without a jury, vacating and setting aside an order of the state railroad commission fixing certain freight rates.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 14, 1908, upon findings in favor of the ■defendant, in an action for an accounting.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered February 10, 1908.</p>