Volume 58 — Washington Reports

<p>Appeal from an order of the superior court for Lincoln county, Neal, J., entered April 29, 1909, granting a new trial, after dismissing the jury and directing judgment in favor of the defendant, in an action for wrongful death.</p>

, entered June 5, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by reason of defendant’s ditch across a highway.

<p>Telegraphs and Telephones—Wrongful Opening of Telegram—• Evidence—Sufficiency. The evidence is sufficient to show that defendant opened a telegram making plaintiff a cash offer for land, where it appears that it was delivered to defendant upon his' offering to deliver it to the plaintiff, that he did not deliver it, but on the next day defendant closed a trade with the plaintiff for the land, which trade he had just previously refused to make, and after the trade attempted to dispose of the land to the party who had made the offer in the. telegram.</p> <p>Same—Measure of Damages. Under Rem. & Bal. Code, § 2977, giving treble damages for all loss and damages sustained by the wrongful opening of a telegram, where defendant, 'by wrongfully opening a telegram making plaintiff a cash offer for land, induced plaintiff to trade the land to the defendant for less than was offered, the measure of damages is the difference between the value of the land given and the value of that received, irrespective of the tentative offer, where it was probable plaintiff could have sold for its full value.</p> <p>New Trial—Misconduct of Counsel—Discretion. It is not an abuse of discretion to refuse a new trial, asked because of a conversation held by respondent’s counsel with a juryman, in a public place, in the presence of appellant’s counsel, no reference to the case being made in the conversation.</p>

Appeal by intervener from a judgment of the superior court for Adams county, Kennan, J., entered December 8, 1909, upon findings in favor of the plaintiff, in garnishment proceedings, after a trial on the merits before the court without a jury.

<p>Intoxicating Liquors—Sales—Statutes—Implied Repeal. The pharmacy act, Rem. & Bal. Code, § 8459, relating to the drug business and authorizing the sale of spirituous liquors by druggists for medical purposes, does not impliedly repeal Rem. & Bal. Code, § 6275, relating to the sale and disposal of intoxicating liquors and requiring sales by druggists for medical purposes to be upon the written prescription of a reputable physician; since repeals by implication are not favored, and this rule has special application where the laws relate to different subjects.</p> <p>Intoxicating Liquors — Sales—Licenses—Druggists—Prescriptions. Rem. & Bal. Code, § 8459, amending the pharmacy law so as to provide that “no other license shall be necessary under any ordi-. nance of any city” to make sales of intoxicating liquors under the pharmacy act, merely means that the state law 'shall govern, and was not intended to authorize sales without a state license and physician’s prescription.</p>

<p>Counties—Commissioners—Powers—Justices of the Peace— Appointment of Assistant Clerks. Justices of the peace not being count}' officers, under our constitution, their offices pertaining to judicial business, the county commissioners, under their general authority and control over county business and officers, are not authorized to employ bailiffs or assistant clerks for justices of the peace, the legislature having expressly authorized the employment of one clerk for each justice of cities of the first and second classes.</p>

, entered August 14, 1909, granting defendant a new trial, after judgment entered upon the verdiet of a jury rendered in favor of the plaintiff, in an action upon a contractor’s indemnity bond.

, entered June 10, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal from a judgment of the superior court'for Wahkiakum county, Rice, J., entered April 10, 1909, upon a trial and conviction of manslaughter.</p>

, entered July 22, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for a writ of mandate to release exempt property held under a writ of attachment.

, entered June 17, 1909, in favor of the defendant, after a .trial on the merits before the court without a jury, dismissing an action for specific performance.

<p>Appeal from a judgment of the superior court for Pierce county, Shackleford, J., entered June 3, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a sawmill.</p>

, entered February 16, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to enjoin the diversion of the waters of a stream, and for damages.

, entered August 6, 1909, upon findings of a referee in favor of the plaintiff, after a hearing before the court without a jury, in an action on a fidelity bond.

, entered March 11, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, entered February 3, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to foreclose logger’s liens.

, entered January 15, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for fraud.

, entered March 26, 1909, upon the verdict of a jury awarding damages in a proceeding to condemn land for railroad purposes.

, entered April 27, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action in tort.

King county, Morris, J., entered January 16, 1909, in favor of the defendant, upon stipulated facts, in an action to determine the preference rights to purchase shore lands.

Application filed in the supreme court December 9, 1909, for a writ of prohibition to the superior court for King county, Gay, J., to prevent the entry of a judgment in a divorce proceeding.

<p>• Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July Í27, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on policies of life insurance.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Linn, J., entered June 10, 1908, upon the verdict of a jury rendered in favor of the defendants, in an action of ejectment.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 28, 1908, 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.</p>

<p>Appeal from an order of the superior court for Adams' county, Holcomb, J., entered August 16, 1909, sustaining a demurrer to the petition, in an action to vacate a judgment.</p>

, entered November 13, 1909, granting a non-suit at the close of plaintiff’s case, dismissing an action for personal injuries, after a trial before the court and a jury.

, entered March 12, 1909, upon a conviction of the crime of assault and battery, after a trial on an information charging mayhem.

, entered April 23, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Indictment and Information—Requisites—Verification. The verification of an indictment is sufficient when the jurat is signed by the deputy clerk as such.</p> <p>Homicide—Degrees—Justification—Burden of Proof—Instructions. In a prosecution for homicide, it is proper to instruct that upon proof of the killing being established beyond a reasonable doubt, the presumption of law is that it was murder in the second degree, and that the burden-is upon the defendant to justify it or reduce it to manslaughter, where there were other proper instructions as to the presumption of innocence, burden of proof, and the definitions of the various degrees of homicide.</p> <p>Criminal Law—Trial—Jurors—Separation. Rem. & Bal. Code, § 2159, providing that jurors shall not be allowed to separate except by consent of the accused, applies only to jurors sworn to try the cause, and not to jurors sworn on their voir dire, as to whom it is discretionary to allow a separation on adjournments before the paneí is complete.</p>

<p>Principal and Agent—Authority—Sale—Apparent Authority to Fix Price. Where the owner of a horse intrusted it to an agent to take to a place one hundred miles distant, where he had exclusive possession of the horse and certificates of its registration for six or eight weeks, for the purpose of selling it and making delivery to any purchaser he might find, it is a question for the jury to determine whether the agent was clothed with apparent authority to agree upon the price; and the fact that he first asked $3,000 and sold it for $1,000, is not sufficient to suggest to the purchasers that he was exceeding his authority.</p> <p>Same—Apparent Authority to Take Notes. Where an agent was orally authorized to sell a horse in his possession, and take notes in payment, without any special instructions as to the form of the notes, it is for the jury to determine whether he had apparent authority to take notes payable to himself.</p>

, entered June 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action fox personal injuries sustained by an employee through the premature explosion of a blast.

, entered November 12, 1907, in favor of the defendants, upon an agreed statement of facts, dismissing an action for the foreclosure of a mortgage.

, entered March 30, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through an explosion of dynamite.

, entered April 14, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered March 20, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to foreclose an indemnity mortgage.

, entered September 13, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained in the collision of an ice wagon and a street car.

, entered June 2, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover a penalty.

, entered July 3, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered February 20, 1909, awarding costs and attorney’s fees in the contest of a will, after a trial on the merits before the court- without a jury.

, entered April 26, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on an accident insurance policy.

<p>Schools and School Districts—Contracts—Limit of Indebtedness—Employment of Teacher. Under Laws 1893, p. 266, § 3, the contract of a school district with a school teacher to teach school for a period of eight months is void, when the limit of indebtedness contracted in any one year payable out of the general fund had been reached and exceeded in the aggregate the amount apportioned for the district, as provided in said section.</p> <p>Same—Limit of Indebtedness—Necessary Expenses. The maintaining of a school for a period of eight months is not such a necessity as to render valid a teacher’s contract therefor when the indebtedness incurred exceeded the limit authorized by law.</p>

, entered April 2, 1909, in favor of the defendant notwithstanding the verdict of a jury rendered in favor of the plaintiffs, in consolidated actions on contract.

, entered May 17, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on an account.

<p>Sales—Delivery—“F. O. B.” An accepted order for shingles “f. o. b. cars” means that the seller shall do all that is necessary to load the cars, including the securing of the cars, especially in view of the universal usage in this state.</p> <p>Contracts—Writing—Construction—Province op Court. Where an order and acceptance is in writing and not ambiguous, it is for the court to construe it, and it is error to instruct the jury that they are to determine what the contract was.</p> <p>Contracts—Construction—Printed Headings. Printed matter on letter heads not referred to either in an order for the sale of goods or in the acceptance is not a part of the contract.</p> <p>Custom and Usage—Evidence—To Vary Writing—Sales. Parol evidence of a general or special custom in the shingle trade that accepted orders were contingent upon the exigencies of transportation and expired where delivery was unavoidably delayed for a reasonable time, is inadmissible to vary or control the terms of an unconditional written acceptance, as the same would be repugnant to the contract.</p> <p>Sales—Action for Breach—Defenses—Failure to Deliver—Excuses. In an action to recover for breach of a contract to deliver shingles, no specific date for delivery having been agreed upon, the defense that washouts, mountain snows and slides prevented a delivery within a reasonable time is unavailable, where the plaintiff was not complaining of a failure to deliver while such conditions existed.</p> <p>Same—Damages—Assessment. Upon breach of a contract to deliver carload lots, the size of the car not being specified, damages are assessable on the basis of an average sized car.</p> <p>Same—Breach—Measure op Damages. The measure of the buyer’s damages for breach of a contract for the sale of shingles, no definite time for delivery being fixed, is the difference between the contract price and the value of the shingles at the date of the demand and refusal to perform the contract.</p> <p>Chadwick, J., dissents.</p>

<p>Gaming—Playing Game—Statutes—Construction. Playing at a game of poker, without having any interest in the place or conducting the game, warrants a conviction under Rem. & Bal. Code, § 2924, providing that each person who “shall deal, (play), or carry on . . . conduct ...” etc., shall be guilty, etc., the word “play” being part of the original law as enacted in 1881.</p> <p>Gaming—Verdict—Form—Sueeiciency. Where an information charged but one offense, the misdemeanor of playing, opening or conducting the game of poker as defined by Rem. & Bal. Code, § 2924, a verdict of “guilty of conducting a game of poker” is sufficient, although by Id., § 2172, the form of “guilty” or “not guilty” is contemplated.</p> <p>Same—Verdict—Sueeiciency—Oeeense Charged — Instructions. Upon an information charging only the misdemeanor of playing or conducting a game of poker, defined by Rem. & Bal. Code, § 2924, in which the court erroneously assumed that it charged the felony of keeping a gambling place as “owners, proprietors,” etc., and so charged the jury, submitting three forms of verdict, a verdict in the form instructed for the misdemeanor, showing that the jury clearly intended to find the defendants guilty under § 2924, is sufficient to sustain a conviction of the misdemeanor, although technically defective.</p>

<p>Carriers—Of Live Stock—Contracts—Exemption from Liability—Public Policy. A statute providing that a railway carrier of live stock cannot exempt itself from liability for losses or injuries caused by its own negligence is a rule of public policy in this state.</p> <p>Same—Contracts—Validity—What Law Governs. An exemption by contract from liability for negligence by a railroad transporting live stock into this state, contrary to the provisions of Rem. & Bal. Code, § 8648, is void as against public policy, although valid under the laws of the state Where the contract was made; and comity, does not require its enforcement in this state.</p> <p>Same—Claims for Loss—Evidence—Admissibility. In an action for injuries to live stock transported by defendant under a contract requiring claims for loss sustained to be made in writing within ten days after unloading the stock, evidence of abnormal shrinkage in weight is admissible without a bill of particulars or specification of the item, where the claim was for loss and damage due to rough handling, bruises, and depreciation in value, and opportunity was given to inspect the, stock on arrival at its destination.</p> <p>Same—Evidence of Negligence—Sufficiency. The evidence is sufficient to sustain a verdict for loss and damage to cattle transported, through negligent rough handling of the train by the carrier, although the testimony of the shipper’s representative accompanying the stock could not be obtained, where there was evidence tending to show the condition of the cattle when shipped, and when delivered, and that a great number were so seriously bruised as to be unsalable.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Yakey, J., entered March 23, 1909, decreeing the specific performance of a contract, after a trial on the merits before the court without a jury.

, entered April 17, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, for $26,750 for breach of contract, after granting a nonsuit in favor of certain of the defendants.

, entered June 14, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the diversion of waters used for irrigation purposes.

, entered June 24, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by an assault.

<p>Appeal—Decisions Reviewable—Vacation oe Default—Finality. An order quashing the service of summons and vacating a default judgment, leaving the case pending for further proceedings, is not appealable, as it can be reviewed on appeal from the final judgment.</p> <p>Same—Finality oe Order. Where the record shows that defendant is out of the state and cannot he served, an order quashing service of summons and opening a default does not in effect determine the action and prevent final judgment, where it does not appear that substituted service by publication and attachment could have been had; since finality of the order must appear on the face of the record.</p> <p>Certiorari—When Lies—Orders Reviewable on Appeal. A writ of certiorari does not lie to review an order that is not appealable because reviewable upon appeal from the final judgment.</p>

, entered May 8, 1909, dismissing, on motion of the plaintiff, an action and appellant’s cross-complaint therein seeking injunctive relief. Also, appeal from an order of said court, Sullivan, J., entered May 22, 1909, denying a temporary injunction to the appellant in a subsequent action commenced by him against the former plaintiff.

, entered April 5, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

, entered May 7, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

, entered February 25, 1910, in favor of the plaintiff, upon sustaining a demurrer to the affirmative defense, in an action of replevin.

, entered December 7, 1908, in favor of the defendant notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee by falling from a scaffold.

, entered December 15, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for negligence.

, entered May 17, 1908, directing the payment of an inheritance tax by the devisees of a will, upon the final settlement of an estate.

, entered January 5, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.

, entered March 18, 1909, sustaining an order of the railroad commission requiring the construction and operation of a spur track to facilitate the shipment of timber products.

, entered June 26, 1909, upon findings in favor of the plaintiff, in an action to enjoin interference with the waters of a stream, after a trial on the merits before the court without a jury.

, entered July 24, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to establish rights as a stockholder in a corporation, for an accounting and other equitable relief.

, entered November 27, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover possession of real property and to quiet title.

, entered April 5, 1909, in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, entered October 28, 1909, upon sustaining a demurrer to the complaint, dismissing an action to enj oin the payment of warrants drawn on the current expense fund of a county for the use and benefit of a state fair association.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered December 4, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon contract.</p>

Appeal by plaintiff from judgments of the superior court for Thurston county, Chapman, J., entered December 20, 1909, adjudging a public use, and awarding damages to defendants, in condemnation proceedings.

<p>Criminal Law—Appeal—Record—Review—Bill of Exceptions. While a statement of facts or bill of exceptions furnishes the only method of preserving exceptions for review, upon appeal from a ■conviction of murder in the first degree, the state’s motion to «trike such matter in the transcript as could only be brought up by bill or statement may be denied by the supreme court, and such exceptions reviewed as are sufficiently shown by the transcript and ■other matter not within the record.</p> <p>Courts—Jurisdiction—Departments. There being but one superior court in a county, it is not error to refuse to transfer a cause for trial from one department to another in which preliminary orders had been made, as the court has jurisdiction.</p> <p>Jurors—Selection—Jury of County—Districts. Const., art. 1, § 22, guaranteeing to accused the right to a trial before “a jury of the county,” is not violated by Rem. & Bal. Code, § 94, which provides that the county shall be divided into jury districts, and that •an equal number of the jurors shall be drawn from each district for ■service in any month.</p> <p>Constitutional Law—Ex Post Facto Law—Jurors—Selection. An act changing the method of selecting jurors in criminal cases is not an ex post facto law, as it affects only the remedy or method of procedure.</p> <p>Constitutional Law—Rights of Accused—Criminal Law—Notice of Nature of Offense—Waiver. Const., art. 1, § 22, providing that the accused shall have a right to demand a copy of the charge against him, and Rem. & Bal. Code, § 2091, providing that such copy shall be served, merely grant a privilege that is waived by plea and entering upon the trial without request for the copy, service of Which is not jurisdictional.</p> <p>Jueobs—Qualifications—Name. A juror, described in the jury list and summoned as, and answering to the name of, Hall Horton, who was examined and accepted by both sides as satisfactory without either side asking his name, was qualified and competent, notwithstanding his name may have been Horton Hall.</p> <p>Witnesses—Impeachment—Experts—Reputation. It is not error to permit a medical expert to be impeached upon his general reputation for truth and veracity, the same as in the case of any other witness.</p> <p>Criminal Law—Trial—Separation of Jurors. It is not error to allow jurors in a criminal case to separate during a recess after being selected, before they are sworn to try the case, as the statute applies only to juries selected and sworn.</p> <p>Criminal Law—Statutes—Repeal—Savings Clause. The savings clause in the penal code of 1909 (Rem. & Bal. Code, §2294), providing that nothing in this act shall apply to an offense committed before the day when this act shall take effect and that such offense shall be punished under existing laws as if this act had not been passed, is sufficient to continue in force the penal provisions xepealed by the act until the date when the new act went into effect.</p> <p>Same. Rem. & Bal. Code, § 2006, passed at the extraordinary session of 1901, was a general savings clause applicable to the repeal or amendment of all criminal statutes unless a contrary intention is expressly declared therein, and is sufficient to continue in force the laws repealed by the penal code of 1909 during the interim between the passage and the taking effect of such penal code.</p> <p>Criminal Law-—Trial—Instructions—Comment on Pacts—Appeal—Record—Statement of Pacts—Necessity. In a prosecution for murder, an instruction that there is no evidence to justify a verdict of manslaughter is not improper comment on the facts, if such is the ease; and error cannot be predicated thereon where the evidence is not brought up by bill of exceptions or statement of facts.</p> <p>Appeal—Record—Instructions. Error cannot be predicated on the refusal to give requested instructions when the instructions given are not brought up in the record.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered January 26, 1910, in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action to cancel a deed for fraud.</p>

<p>Contracts—Oral Rescission—Consideration. Where a subcontractor refused to perform and was about to abandon a written contract, the contract may be orally rescinded, and the principal contractor’s oral agreement to pay an additional sum is not without consideration or nudum pactum, but an election to make a new contract rather than recover damages.</p> <p>Trial—Verdict—Special Damages—Inconsistency—Contracts— Consideration. In an action by a subcontractor to recover additional compensation promised him after undertaking the work, a special finding by the jury that the consideration for the promise was the fact that the principal contractors were under bond to complete the work within a stated time does not control a general verdict for the plaintiff, where the jury were instructed that they must find some consideration for the promise and that one promise is a good consideration for another; since (1) the consideration for the promise was a legal question for the court, (2) the special finding implies that the minds of the parties met and that mutual promises were made, and (3) the consideration found was sufficient.</p> <p>Appeal—Review—Pasties Entitled. Railroad contractors, upon appeal from a judgment against them in favor of a subcontractor, cannot urge error in the granting of a nonsuit as to the railroad company, joined with them as defendants in the action.</p> <p>Appeal—Review—Verdict. A verdict upon conflicting evidence will not be set aside when supported by sufficient direct and circumstantial evidence.</p> <p>Appeal—Preservation of Grounds—Estoppel. Where appellants requested an instruction that a preponderance of the evidence was sufficient, they cannot complain of the failure of the court to instruct that it requires clear, positive, and satisfactory evidence to establish a rescission of a written contract.</p>

, entered December 29, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for an assault.

, entered September 25, 1909, upon findings in favor of the plaintiffs, in an action of ejectment, after a trial on the merits before the court without a jury.

, entered October 11, 1909, upon the verdict of a jury assessing damages in a proceeding to condemn land for railroad purposes.

<p>Appeal from a judgment of the superior court for King ■county, Tallman, J., entered January 18, 1910, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action of forcible entry and detainer.</p>

, entered October 18, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered October 27, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Municipal Corporations—Special Charters—Local Self-Government—Public Plans Commission—Validity—Membership. The amendment to the city charter of Seattle creating a municipal plans commission, does not violate Const., art. 11, § 10, guaranteeing local self-government, in that part of the members of the commission are to be appointed by associations, clubs, and public service corporations some of which are nonresidents of the state and of the United States; since the commissioners are all required to be citizens of the city, and are appointive, not elective, officers, with only advisory powers, whose plans are to be submitted to a vote of the people, and no legislative authority is delegated to it. . «</p> <p>Same—Approval oe Vouchees—Tax. Such amendment is not objectionable by reason of conferring authority upon the commission to approve vouchers for all expenditures incurred, and requiring the comptroller to issue warrants to be paid out of the municipal plans commission fund, raised by a tax levy therefor.</p> <p>Same—Special Pbivileoes—Constitutional Law. Such amendment does "not violate Const., art. 1, § 12, providing that no law shall grant special privileges to any citizen or class of citizens, in that certain designated associations and corporations are granted the privilege of participating in the selection of the commission; since' the right simply of recommendation is not such a right or privilege as comes within the prohibition of the constitution.</p>

Appeal by plaintiff from a judgment of the superior court for Pierce county, Chapman, J., entered July 12, 1909, for the sum of $1,000 damages for malpractice, upon special findings and the verdict of a jury rendered in favor of the plaintiff for $7,000, after a trial on the merits.

, entered October 26, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.

, entered December 8, 1908, in favor of the plaintiff, upon withdrawing the case from the jury at the close of the evidence, in an action on a promissory note.

, entered May 3, 1910, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the holding of an election under the provisions of the local option law.

Application filed in the supreme court May 11, 1910, for a writ of mandate directing the superior court for King county, Main, J., to certify certain exhibits and affidavits to be used on appeal, also for a writ of certiorari, and for other relief.

<p>Constitutional Law-—Class Legislation —Licenses —Occupation Tax—Discrimination. A city ordinance providing a license tax upon the sale of goods of any kind by means of any automatic device violates the constitutional prohibition against granting to any citizens special privileges and immunities which upon the same terms do not equally belong to all citizens; since it discriminates against a simple mode of doing business which is conceded to be lawful and fair, and in no way involves the police power.</p>

, entered May 11, 1909, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to compel the equalization of an assessment roll and the levying of a special assessment upon property benefited by a local improvement.

<p>Jury—Competency'—Opinions—Presumption oe Innocence. A juror is not disqualified by the opinion that, when a homicide is admitted by the accused, it will be presumed that he was guilty of a crime until evidence of justification is submitted; and this does not conflict with the rule that the juror must, in proper cases, accord the accused the presumption of innocence (Chadwick, J., dissenting).</p> <p>Criminal Law—Instructions'—Comment on Evidence—Withdrawing Issue prom Jury. Where the accused admitted committing a homicide, following a dispute relative to articles of property alleged by the deceased to have been stolen by the accused’s son, it is not an unlawful comment on the evidence for the court to withdraw from the consideration of the jury the merits or demerits of the controversy over the articles, as having nothing to do with the issue of self-defense, which was the only issue.</p> <p>Criminal Law—Statutes—Repeal—Savings Clause. The savings clause in the penal code of 1909 (Rem. & Bal. Code, § 2294), providing that nothing in this act shall apply to an offense committed before the day when this act shall take effect and that such offense shall be punished under existing laws as if this act had not been passed, is sufficient to continue in force the penal provisions repealed by the act until the date when the new act went into effect.</p>

<p>Appeal from a judgment of the superior court for Chehalis ■county, Sheeks, J., entered December 29, 1909, dismissing an action to enjoin a city from the prosecution of a public improvement, after a trial on the merits before the court without a jury.</p>

, entered December 27, 1909, adjudging a public use and necessity in condemnation proceedings, after a hearing on the merits before the court.

, entered March 25, 1910, in proceedings to condemn the right to flood and damage lands for the use of a booming company, after a hearing on the merits.

, entered September 7, 1909, upon findings in favor of the petitioner, in habeas corpus proceedings by a father to obtain possession of his minor son, after a hearing on the merits.

<p>Judgments—Vacation—Courts—Terms. Under the Washington practice, the superior courts having no ¡terms, their judgments have no probationary period in which they are subject to the control of the courts, except under the statutory right to vacation or modification.</p> <p>Judgments—Vacation—Persons Entitled. The superior court has no power, on its own motion or at the instance of a stranger appearing as amicus curiae, to vacate a judgment for fraud and collusion, there having been no real controversy between the parties.</p> <p>Judgments—Conolusiveness—Parties Bound. Judgments fix-* ing the rights of the parties to the action in the waters of a lake, although general in form, are binding only upon the parties and their privies.</p>

Lindsay, Court Commissioner, entered December 2é, 1909, approving the final account of an executor, and allowing attorney’s fees, after a hearing before the court.

, entered January 4, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered October 21,, 1909, upon the verdict of a jury assessing damages in a proceeding to condemn land for public improvements.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered March 15, 1910, upon sustaining a demurrer to the reply, dismissing an action for money had and received.</p>

, entered June 28, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered November 20, 19.09, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action of replevin.

, entered February 8, 1910, dismissing, at the close of plaintiff’s case, an action for separate maintenance, after a hearing before the court.

<p>Contracts—Building Contracts — Construction — Indemnity — Breach op Contract—Actions—Accrual. A contract whereby defendant was to furnish all labor and material to completely finish the painting, tinting, and staining of a building, for a consideration of so much per hour for his own labor and his workmen, and actual cost of material, etc., to be advanced by the plaintiff, “guaranteeing and agreeing” that the total cost should not exceed $1,500, is one to fully perform for the sum of $1,500 or less, and not merely a contract of indemnity; and the owner’s right of action to recover as damages the difference between the contract price and his actual cost in completing the work accrues as soon as the contract is breached.</p> <p>Attachment—Grounds—Dissolution—Evidence—Suppicdsncy. It is not an abuse of discretion to refuse to dissolve an attachment sought on the ground that defendant was guilty of a fraud in entering into a contract whereby he was to finish a house, and that defendant was about to dispose of his property, where the evidence tended to show that materials not used were charged against the owner, that he misappropriated funds supplied to pay labor claims, and was attempting to dispose of his property, and it appears that the attached property might have been squandered and dissipated.</p>

Appeal .from a judgment of the superior court for Pierce county, Easterday, J., entered February 5, 1910, upon sustaining a demurrer to the information, dismissing a prosecution for selling intoxicating liquor to an Indian.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered January 10, 1910, upon the verdict of a jury rendered in favor of the plaintiif, in an action for goods sold and delivered.</p>

, entered January 3, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

, entered November 4, 1909, upon granting a nonsuit, dismissing an action to vacate a tax foreclosure judgment, and to quiet title, after a hearing before the court.

, entered January 17, 1910, upon findings in favor of the plaintiff, after h trial on the merits before the court, in proceedings in the nature of quo warranto.

, entered January IS, 1910, 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 November 13, 1909, upon findings in favor of the defendants, dismissing an action to cancel an assignment of a contract, after a trial on the merits before the court.

, entered November 22, 1909, in favor of the defendant, upon granting a nonsuit in an action for personal injuries sustained by an employee engaged in unloading barrels of tar.

, entered January 18, 1910, upon findings in favor of the defendants, in decreeing the final settlement and distribution of a decedent’s estate, after a hearing on the merits before the court.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered October 16, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for King county, Holcomb, J., entered August 19, 1909, dismissing, at the close of plaintiff’s case, an action to cancel a tax deed.</p>

<p>Homicide—Degrees—Evidence—Admissibility. In a prosecution for tbe murder of the accused’s divorced wife, where evidence that the divorce was granted three years before on the ground of the husband’s cruelty was admitted to show probable premeditation and a hostile mental attitude, it is error to refuse to allow the accused to rebut the same by proof of good will and apparent kindly feeling for a year previous to the homicide, in order to reduce the crime to the legal presumption of a lower degree.</p> <p>Evidence—Orinions—Mental Attitude. The feeling or apparent mental attitude of people who are in frequent association may be shown by the opinions of acquaintances who had opportunity to observe and measure their emotions.</p> <p>Venue—Local Prejudice—Showing. Upon a strong prima facie showing of local prejudice for a change of venue, the state should make a counter showing.</p> <p>Criminal Law—Trial—Misconduct of Counsel. It is not misconduct of counsel requiring a new trial for counsel for the state in argument to the jury to state his opinion that the accused is guilty of murder in the first degree.</p> <p>Appeal—Review—Insteuctions. Error cannot he predicated upon the refusal to give requested instructions covered in the general charge.</p>

, entered April 12, 1910, denying an application for a writ of habeas corpus to release a person held in custody upon a charge of selling intoxicating liquor without a license, upon sustaining a demurrer to the petition.

, entered October 23, 1909, upon the verdict of a jury rendered in favor of the defendants, in an action to recover possession and quiet title to land.

<p>Appeal from a judgment of the superior court for King county, Morris, X, entered January 16, 1909.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered November 15, 1909.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered May 27, 1909.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered September 29, 1909.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered July 8, 1909.</p>

, entered December 9, 1908, allowing compensation to a receiver appointed pending the foreclosure of a mortgage, after a trial on the merits before the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered January 28, 1910, dismissing an action to vacate a deed for fraud.</p>