Volume 78 — Washington Reports

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 17, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered October 1, 1912, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee engaged in unloading a vessel.

<p>Fraud — Evidence—Sufficiency. An action for fraud in tbe trade of properties, by falsely representing that a mortgage for $1,000 constituting part of the consideration was a first lien, cannot be sustained, where abstracts of the properties were furnished to plaintiff’s agent and retained by the plaintiff for three years without objection, and there was no evidence that the mortgages or personal property taxes constituting alleged prior liens were executed by or assessed against parties in the chain of title or having any interest in the land.</p> <p>Limitation of Actions — Relief on the Ground of Fraud. An action for fraud in misrepresenting that a mortgage was a first lien upon property cannot be maintained, where more than three years had elapsed since the plaintiff had, pursuant to the contract, received and retained abstracts of title to the property, an examination of which would have disclosed the falsity of the representations.</p>

<p>Municipal Corporations — Actions — Conditions Precedent — Claims — Damages or Contract. Where a city purchased buildings agreeing to pay a stipulated sum therefor when it took possession or when the property should be abandoned or destroyed, an action to recover the stipulated sum, after the destruction of the buildings by fire, is an action on contract, and not to recover damages, within a charter provision requiring “all claims for damages” against the city to be presented to the city council before action brought.</p>

Cross-appeals from a judgment of the superior court for Franklin county, Holcomb, J., entered February 14, 1913, upon findings allowing portions of plaintiff’s claims, in an action on contract, tried to the court.

<p>Bills and Notes — Rights or Accommodation Maker — Attorney’s Fees — Subrogation. A co-maker of a joint and several note wko signed for accommodation and was only secondarily liable thereon, upon being compelled to pay the note, is subrogated to the rights of the creditor, and entitled to recover, as owner and holder of the note, the stipulated attorney’s fee in an action thereon against the principal maker; especially in view of Rem. & Bal. Code, § 3509, providing in what manner a negotiable instrument is discharged, and § 3511, providing that it is not discharged when paid by the party secondarily liable thereon, who may thereupon strike subsequent indorsements and negotiate it.</p>

<p>Vendor and Purchaser — Contracts — Assignment by Vendor — • Liability of Assignee — Defects in Title, The assignees of vendors under an executory contract of sale are not bound to make the vendors’ title good unless they have expressly agreed to do so; and they do not assume the vendors’ obligation to convey a perfect title, where the vendors had made their warranty deed to the vendee and put it in escrow, and upon assigning the contract (in-order to convey title in case of the vendee’s default) made a general warranty deed to the assignees, who at the same time made to the vendee a special warranty against incumbrances arising by, through or under them.</p> <p>Bankruptcy — Discharge of Husband — Liability of Wife — Community Debts. A discharge ih bankruptcy of a husband from the obligation of a community debt also discharges the wife; as her separate property is not subject to the community debts or the separate debts of the husband.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered April 5, 1913, in favor of the defendant, upon an agreed statement of facts, in an action for conversion.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Back, J., entered April 3, 1913, upon findings in favor of the plaintiff, in an action on contract tried to the court.</p>

, entered June 23, 1913, dismissing an action to restrain the collection of a tax for destroying noxious weeds, upon sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered March 18, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for money had and received.</p>

<p>Railroads — Injuries to Licensees — Negligence — Contributory Negligence. In an action for personal injuries sustained by a railroad employee, tbe negligence of tbe defendant and tbe contributory negligence of the plaintiff, are questions for the jury, where it appears that plaintiff was riding home on the engine by consent after hours, and was thrown to the ground when the engine was started with a violent jerli, while he was in the act of stepping off after the engine had stopped at the usual place for employees to alight.</p> <p>Same — Action by Licensee — Complaint—Sufficiency. A complaint by a railroad employee for injuries sustained after hours, in riding home on the engine by consent, states a cause of action at common law, where it shows that the injury was due to the carelessness of the engineer in starting the engine with a sudden jerk while plaintiff was in the act of alighting, after the engine had stopped for the purpose of letting him off.</p> <p>Same — Injury to Licensee — Pleading—Variance. In an action against an interstate railroad by an employee for personal injuries alleged to have been sustained while engaged in interstate commerce, in which it is doubtful if the complaint states a cause of action under the Federal statute, but does state a cause of action at common law, and the defendant so construed it, setting up common law defenses without asking for an election, evidence sustaining the right of action at common law is not a departure.</p> <p>Same. In an action for personal injuries sustained by a railroad employee after hours while being transported from his work, it is not a fatal variance that the complaint alleged as a conclusion that he was at the time in the defendant’s employ, and that the proof showed that he was a licensee, riding by invitation, where the complaint set out the facts, and the defendant could not have been surprised.</p> <p>Master and Servant — Fellow Servants — Existence of Relation. A workman in a railroad gravel pit who had ceased his labors and was riding home on the engine by permission, and the engineer in charge of the engine, are not fellow servants;» since the relation of master and servant had ceased.</p> <p>Appeal — Harmless Error — Evidence. In an action by a railroad employee, riding home on the engine after hours, and injured through the negligence of the engineer, the admission in evidence of a rule of the company as to the engineer’s duty toward employees on or working about trains, is not prejudicially erroneous, where the jury were fully instructed that the defendant owed no duty to transport the plaintiff, and if he was riding by consent or invitation, the defendant would not be liable unless the defendant was guilty of some positive act of negligence causing the injury.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $4,000 for personal injuries sustained by a laborer in a gravel pit, it not excessive, where his wrist was broken, resulting in a permanent limitation of motion amounting to about 30 per cent, and prevented the doing of heavy work.</p>

<p>Elections — Voting Machines — Vote by “Ballot.” 3 Rem. & Bal. Code, § 4910-1 et seq., providing for tbe use of voting machines, does not violate Const., art. 6, § 6, requiring that all elections shall be by “ballot.”</p> <p>Same — Voting Machines — Statutes—Validity. 3 Rem. & Bal. Code, § 4910-1 et seq., providing for the use of voting machines, cannot be declared unconstitutional because it is involved and will embarrass election officers in attempting to apply it to local conditions; since, if the act is not plain, they must be guided by the general and municipal law, and ignore, as directory, provisions that cannot be complied with.</p> <p>Mandamus — Relief. Upon issuing a writ of mandamus to compel compliance with the act for the use of voting machines, the court will not define all the officers’ duties under the law.</p> <p>Elections — Voting Machines — Use. Und'er 3 Rem. & Bal. Code, § 4910-5, the city council may provide for the use of voting machines in a limited number of voting places.</p> <p>Same — Voting Machines — Iebegularity. Where voting machines have been approved by the examining board as required by 3 Rem. & Bal. Code, § 4910-2, their use without being purchased by the city is an irregularity only that would not affect the validity of the election.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered May 25, 1912, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Municipal Corporations — Employees—Hours op Service — Firemen — “Laborer.” Members of a city fire department, paid monthly salaries, are not “laborers upon public works” within Rem. & Bal. Code, § 6575, fixing an eight-hour day for laborers upon public works done by “contract or day labor done.”</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 2, 1913, upon findings in favor of protestants, setting aside a reassessment roll, upon appeal from the order of the city council confirming the roll.</p>

Application filed in the supreme court December 2, 1913, for a writ of mandamus to the state auditor to secure the issuance of a warrant.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered March 20, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.</p>

<p>Biils and Notes — Orders—Acceptance—What Constitutes. It is not an acceptance of an order, within the negotiable instruments act, to return the same with the statement that the amount due is same as the order, but that the drawee did not know if the drawer’s hands had been paid and will have to wait until thirty days are up; Rem. & Bal. Code, §§ 3522, 3531, defining an acceptance as the signification of the drawee’s assent to the order, which must not express a promise to perform other than by payment in money, and providing that a qualified acceptance is one that makes payment dependent upon a condition therein stated, or which agrees to pay only part of the amount.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered December 23, 1912, dismissing an action to declare a trust, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Pendergast, J., entered October 4, 1912, upon findings in favor of the plaintiff, in an action to foreclose chattel mortgages and establish their priority.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered February 24, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Municipal- Corporations— Improvements — Petitions — Sisners. The provision in art 8, § 11, subd. 2, of Seattle Charter, that the petition of property owners for an improvement may be signed by an executor if property stands in the name of the estate, is applicable to the subsequent provisions of the same section authorizing an assessment in excess of fifty per cent of the value of the property, where the petition is signed by three-fourths of the property owners.</p> <p>Same — Petitions—Signers—Husband and Wife. Where a city charter provides for a petition for an improvement to be signed by property owners, according to the transfer books in the office of the county auditor, the husband alone may sign the petition as the owner of community property which stands in his name on the transfer books.</p> <p>Same — Signers—Executors. Where a city charter authorizes a property owner’s petition for an improvement to be signed by an executor of an estate, the estate is bound by his signature.</p> <p>Same — Improvements—Limitations—Plans. Where a petition and ordinance for an improvement specified that the street mentioned was to be improved by grading and constructing a plank trestle, in accordance with plans to be prepared by the city engineer, plans cannot be made to materially extend the nature of the improvement; and where the total assessment was $56,312, the inclusion of $8,400, for the construction of approaches at various streets, is a material change not authorized by the petition; and an item for the construction of sidewalks is, also, not reasonably incidental to the grading of the street.</p> <p>Same — Improvements—Assessments—Benefits. Benefits that a particular piece of property may receive from an improvement are not measured alone by the physical character or cost of the work in front of the property; the question being to what extent it is benefited and whether it is assessed proportionately with other property.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Smith, J., entered January 7, 1913, granting a new trial after the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in alighting from a street car.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered October 22, 1913, upon a trial and conviction of manslaughter.</p>

, entered January 2, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.

<p>Executions — Judgments— Issuance — Limitations — Statutes— Implied Repeal. Rem. & Bal. Code, § 510, providing that after a period of five years shall have elapsed without an execution having been issued, execution shall not issue on a judgment until it shall be revived in the manner provided by law, is superseded by Rem. & Bal. Code, §§ 459, 460, providing that a judgment shall cease to be a lien after the expiration of six years from its rendition, and that no action or proceeding shall ever be had on any judgment by which its lien shall be extended or enforced for any greater period than six years after entry of the original judgment.</p>

<p>Schools and School Districts — Taxes—General and Special Laws. Rem. & Bal. Code, §§ 9208,'9209, 9212, being a general law relating to the annual levy of taxes in school districts, yields to Id., § 4521, of the “Code of Education,” passed at the same session, and being a special law relating to tax lévies by school districts of the second class.</p> <p>Same — Taxes—Levy—Statutes—Construction. The provisions of Rem. & Bal. Code, § 4521, requiring the board of directors to make an estimate to the county commissioners, who shall levy a school tax, is directory, in view of the provisions that, if the directors fail to make the report, the school superintendent shall make the estimate; hence it is immaterial that the estimate was reported to the county assessor, where the county commissioners based the levy upon it.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered September 24, 1913, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee in a railway blacksmith shop.</p>

Stedman, Esq., judge pro tempore, entered September 11, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 12, 1912, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered October 21, 1912, upon findings in favor of the defendant, dismissing an action for an injunction, after a trial on the merits to the court.</p>

<p>Continuance — Absence of Party — Abuse of Discretion, It is an abuse of discretion to refuse to grant a continuance until depositions could be taken, asked on account of the absence of a party who was a material witness upon an issue as to alleged false representations made by her, where it appears that she was too ill to attend court, if present, and was out of the state on the advice of her’ family physician, and that the only other witness was residing out of the state, and that the testimony of one or both of them was necessary.</p> <p>Husband and Wife — Tobts of Wife — Liability of Husband. The husband is not liable for fraudulent representations of the wife, in the absence of evidence of her authority to manage community affairs.</p> <p>Same — Family Expenses — Joint and Several Liability. Under Rem. & Bal. Code, § 5931, making the expenses of the family a charge upon the property of both husband and wife, either by a joint or several action, a joint judgment may be entered against husband and wife for the reasonable value of the rent of a dwelling occupied by them.</p>

<p>Estoppel — In Pais — Representations. A mortgagee of property, to whom fire insurance policies were payable as its interest might appear, is estopped to assert that it had transferred the note and had no insurable interest at the timé of the fire, in order to escape liability to a contractor for repairing the building, where it appears that it represented to the contractor, both before and during the time he was working, that it owned the mortgage, and it made sworn proof of its loss and asserted such ownership, and agreed to pay the insurance money to the contractor, although it failed to collect the insurance because it transferred the note without notice to the insurance company.</p> <p>Banks and Banking — Authority of Officers — Contracts. The officers of a bank, holding a mortgage upon insured property, act within the apparent scope of their authority in contracting for repairs of the building after a fire, and agreeing to pay the insurance money to the contractor.</p> <p>Appeal — Review—Objections Not Ubsed Below. • Where the authority of officers of a bank to make a contract was not questioned in the lower court, it cannot be urged on appeal, in support of a motion for a nonsuit by the bank, that the contract was outside the scope of their authority.</p> <p>Chadwick, J., dissents.</p>

<p>Sales — Action fob Breach — Damages—Measure—Loss of Bargain. Upon breach of a contract to sell an established business in the coffee and spice trade, at the wholesale price of the goods, which were to be resold at retail, the purchaser is entitled to recover the loss of his bargain, which is the fair net return on the goods sold at retail; and the business being a profitable one, the seller cannot defend on the ground that the purchaser could not have sold the goods at a profit.</p> <p>Arbitration and Award — Effect. Upon breach of a contract to sell an established business, including a lease of the building, damages may not be recovered for loss of the lease, where the contract provided that the value of the lease was to be determined: by arbitration, which was done.</p> <p>Sales — Action fob Breach — Damages—Loss of Good Will. Upon breach of a contract to sell the stock and good will of an established business, at the wholesale price of the goods, damages in the amount of the fair net profit on reselling the goods at retail compensates for the loss of the good will, further allowance for which would be speculative, especially where the seller had agreed to remain out of business for only two years.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 10, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered January 21, 1913, upon findings in favor of the plaintiffs, after dismissing the jury, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered July 7, 1913, upon the verdict of a jury rendered in favor of the plaintiff in an action for contribution.</p>

<p>Municipal Corporations — Taxation—Statutes—Implied Repeal. 3 Rem. & Bal. Code, § 5131, authorizing a tax levy in cities of less than twenty thousand inhabitants, of 15 mills on the dollar for current expenses, is a general law, and conflicts with and is impliedly repealed! by 3 Rem. & Bal. Code, § 7685, approved one day after, limiting the tax in cities of the third class to 10 mills for all purposes.</p> <p>Statutes — Implied Repeal. The later of two conflicting general acts passed at the same session impliedly repeals the earlier one, especially where it contains an emergency clause.</p> <p>Statutes — Titles—Amendments. An erroneous reference to a former statute which had been impliedly repealed may be treated as surplusage where the title to the amendatory act was sufficient to give the act validity as an independent act.</p> <p>Statutes — Amendments. The legislature may amend an original act that has been amended without regard to the intervening amendatory act.</p>

Application filed in the supreme court January 23, 1914, for a writ of mandamus to the superior court for Kitsap county, French, J., for a change of judges.

<p>Husband and Wipe- — 'Separate Property op Wipe — Personal Earnings — Agreements. A husband and wife may orally agree that the wife’s personal earnings shall be her separate property; and where evidence of such an agreement is undisputed, the jury is warranted in following it.</p> <p>Work and Labor — Action por Compensation — Reasonable Value —Recovery. In an action for the reasonable value of services rendered, under a contract of employment which did not fix the specific amount of the compensation, the jury may award a less sum than the amount claimed.</p> <p>Appeal — Review—Objections—Waiver. Appellant cannot allege error in the changing of the issues by the dismissal of a party, where no objection was made below.</p> <p>Appeal — Review—New Trial — Discretion. Tbe refusal of a new trial on tbe ground of newly discovered evidence will not be disturbed where tbe showing was conflicting and tbe trial court did not abuse its discretion.</p> <p>Appeal — Review—Objections—Waiver. Error cannot be predicated on failure to state tbe issues in the instructions, where tbe same bad been changed at tbe trial without objection, and as changed were fairly* stated.</p> <p>Appeal — Review—Harmless Error — Instructions. Appellant cannot predicate prejudicial error in failing to submit an issue as to which the evidence was undisputed, especially where there was only a very general oral request therefor.</p>

<p>Criminal Law — Appeal—Harmless Error. Error cannot be predicated on the admission of evidence where the same fact was established by other evidence admitted without objection.</p> <p>Same. Error cannot be predicated on allowing a question which had previously been answered without objection.</p> <p>Criminal Law — Evidence — Identity — Competency. Upon the question as to the identity of accused, it is competent for a witness to give her “best judgment;” the weight being for the jury.</p> <p>Burglary — Evidence—Possession oe Tools. In a prosecution for burglary, it is competent for a witness to describe articles found in the room of the accused and to state that they were burglars’ tools.</p> <p>Same — Evidence—Aliases. In a prosecution for burglary, it is competent to show that the accused and his confederate registered under assumed names while occupying a room in which burglars’ tools were found.</p> <p>Witnesses — Privileged Communications. Upon a prosecution of one M for burglary, communications between him and an attorney are not privileged, where they occurred one month previous to M’s arrest, when M employed the attorney to secure the release of one T, his confederate, held on a general charge of suspicion, and no suggestion was made that the attorney’s employment was on behalf of M or that M was under suspicion.</p> <p>Criminal Law — Appeal—Record—Statement of Facts — Amendment — Conclusiveness. Where an amendment to the statement of facts was allowed showing that an answer was stricken, it is conclusive on the appellate court, and error cannot be claimed in failing to strike the answer.</p> <p>Criminal Law — Trial—Examination op Witnesses — Duress. Accused is not entitled to object to a witness’ for the state on the ground of duress, or to a preliminary examination to determine whether the witness was under duress, the right of cross-examination being sufficient.</p> <p>Criminal Law — Appeal—Harmless Error — Evidence. Error cannot be predicated on the exclusion of impeaching questions, where the impeachment was fully covered by affidavits and other papers placed before the jury.</p> <p>Criminal Law — Trial—Instructions — Recalling Jury. Where two of the instructions were overlooked, the court may recall the jury, in the presence of the accused, and read the instructions, explaining that they had been overlooked.</p> <p>Criminal Law — Trial—Conduct—Handcuffs. Error cannot be predicated on the fact that accused was led to and from court with handcuffs, where the fact was not known to the jury and he appeared at the trial at all times with no fetters upon him.</p> <p>Jury — Competency—Husband and Wife. The fact that two of the jurors on a panel were husband and wife does not render the verdict illegal.</p> <p>Criminal Law — Habitual Criminals — Sentence—Statutes—Implied Repeal. Rem. & Bal. Code, §§ 2177-2180, relating to habitual criminals and providing that one convicted of being such shall be punished by a sentence of not less than double the time of the sentence upon the former conviction, was not impliedly repealed by the indeterminate sentence act of 1907 (Id., §§ 2193, 8548 et seq.), providing a new method of giving sentence, in that, instead of fixing a definite time, the sentence should be for not more than the maximum nor less than the minimum term provided by law; hence where the former sentence was ten years, a sentence of not less than 20 years and not more than 40 is proper on conviction of being an habitual criminal.</p>

<p>Guardian and Ward — Accounting—Evidence—Sueeicienct. The evidence supports findings that a guardian had fully accounted to his wards for the value of stock in a corporation in which their father had been interested, where it appears that the corporation was insolvent and the stock of no value at the time of the death of the father, and was abandoned, and that the guardian had paid out for their support and in settlement with them more than the full value of the estate in the hands of the guardian.</p>

<p>Municipal Corporations — Improvements—Contracts—Construction. Where a contract for a public improvement provided that the contractor should pay the city a lump sum of $2,500 for all survey and inspection service which might be necessary, and include it in its bids, the city cannot recover of the contractor a sum actually expended in such service in excess of the $2,500.</p> <p>Same — Contracts—Performance—Time Limit — Acceptance. A city cannot claim violation of a contract for an improvement, in failing to finish the work within the 150-day limit for completion of the contract, where it does not appear but what the delay was the fault of the city, the contract was subject to extension, and the city acquiesced in the delay without objection and accepted the work.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered September 7, 1912, upon findings in favor of the plaintiff, in an action to recover mining stock, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered October 30, 1912, upon a trial and conviction of contempt.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered December 6, 1912, upon the verdiet of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered December 28, 1912, upon findings in favor of the petitioner, setting aside the final distribution of an estate.

<p>Assault — Aggravated Assault — Evidence—Sueeiciency. A conviction of first degree assault is sustained by the evidence, where it appears that defendant and the prosecuting witness were rivals for the favor of a young lady, that she and the defendant were talking, when she saw the prosecuting witness approaching, and screamed, whereupon the defendant immediately turned and shot the prosecuting witness twice, once when he was about five feet away, and the second' time in the back when fifteen feet distant and retreating.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 2, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered April 28, 1913, upon findings in favor of the plaintiff, in an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered April 5, 1913, upon a trial and conviction of grafting.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered June, 5, 1913, upon findings in favor of the plaintiff, in an action for equitable relief.</p>

, entered May 15, 1913, upon findings in favor of the plaintiff,, in an action for services rendered, tried to the court.

<p>Nuisance — Private Nuisance — Laundry — Evidence — Sufficiency. Tbe abatement of a laundry in a residence section of a city, as a private nuisance, is not warranted, where the laundry had been operated at the location in question for twenty years without objection by the city authorities, the ten complaining residents were not similarly affected, some objecting to odors, others to smoke and soot, others to loss in rental values, while other residents in the same neighborhood testified that they suffered no inconvenience and there was evidence that the premises were in a sanitary condition, and that the falling off of rentals was due to general reduction in rental values; since the enjoyment of one’s premises must be sensibly diminished by a private nuisance, and it is not enough that the business shocks the tastes or diminishes the rental values.</p>

<p>Municipal Corporations — Public Improvements — Assessments— Benefits — Evidence—Sufficiency. The evidence sustains findings that property upon a bluff was not benefited by a public improvement consisting of grading, bridging, and the construction of a retaining wall, including a subway under an electric railway, where it appears that the subway, having a ten per cent grade, was of no practical value to the lands, which were reached by other roads on a four per cent grade.</p> <p>Same — Assessments—Review. Under 3 Rem. & Bal. Code, § 7892-1 et seq., authorizing the assessment of property specially benefited by a local improvement, and Id., § 7892-22, providing that, on appeal from the city council, the court shall confirm, correct, modify, or annul the assessment in so far as the same affects the property of the appellant, the court may set aside an assessment as arbitrary and made upon a fundamentally wrong basis, where it appears that the property assessed was not benefited at all by the improvement.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered May 15, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

Appeal by defendants from a judgment of the superior court for Lewis county, Rice, J., entered July 3, 1913, upon the verdict of a jury awarding damages in a condemnation proceeding.

<p>Divorce — Alimony — Enforcement of ' Order — Contempt —• Evidence — Sufficiency. A judgment of contempt in failing to pay temporary alimony in the sum of $10 a month for four months is warranted, where.it appears that the defendant was a man of middle age, in good health, earning at least sixty dollars a month, and had incurred much more than $40 expenses in contesting the contempt proceedings.</p>

Application filed in the supreme court November 12, 1913, for a writ of mandamus to the superior court for King county, Tallman, J., to compel a hearing upon a petition for the modification of a decree of divorce.

, entered October 22, 1913, dismissing an action in tort, upon the ground that the complaint did not state a cause of action.

<p>Evidence — Demonstrative Evidence — Experiments — Similarity of Conditions — Offer of Proof. In an action for the death of a person who fell and lay near the street car tracks in the nighttime, and was struck on the head by the running board at the side of the car, upon an issue as to whether the motorman was guilty of negligence in failing to see the deceased in time to have stopped the car, it is error to exclude an offer of proof of experiments with a dummy, made under substantially similar conditions,- tending to corroborate the motorman’s testimony that it was impossible to see the deceased until too late to stop the car.</p> <p>Same — Experiments — Preliminary Evidence of Similar Conditions — Discretion. In such a case, the exclusion of preliminary evidence of the similarity of conditions at the time the experiment was made is not within the discretion of the court, as upon the question of the sufficiency of such evidence to authorize evidence of the result of the experiment.</p> <p>Same — Substantially Similar Conditions. Upon an offer of proof of an experiment to show the effect of conditions at the time of an accident, it is only necessary to substantially reproduce a similarity of the conditions that would have some influence upon the result.</p> <p>Same — Similarity op Conditions — Discretion—Review. The exercise of discretion in the admission or rejection of evidence of experiments made out of court will be viewed more critically when the evidence is rejected than when it is admitted; since it often has more to do with the weight of the evidence than with its relevancy.</p>

<p>Judgment — Actions Upon — Limitations. Under Rem. & Bal. Code, § 460, providing that no suit or action shall ever be had on any domestic judgment by which the lien or duration of such judgment, claim, or demand shall be extended or continued in force longer than six years from the date of the entry of the original judgment, a complaint in an action upon a judgment commenced but one day prior to the expiration of the six years is demurrable.</p>

, entered May 23,1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a street worker, struck by a street car.

, entered November 25, 1912, upon findings in favor of the defendants, dismissing an action in tort, tried to the court.

<p>Appeal — Record—Statement oe Pacts — Certificate. Where an appeal is prosecuted upon an agreed statement of facts, it is necessary that it be properly certified by the trial judge, and the mere signature of the judge at the- end of the statement is not sufficient.</p> <p>Same — Record—Agreed Statement oe Pacts — Consent op Counsel. An agreed statement of facts on appeal signed by the judge cannot be accepted1 where it appears that it was objected to by opposite counsel.</p>

, entered July 16, 1913, upon findings in favor of the plaintiff, setting aside a will in a will contest, tried to the court.

<p>Divorce — Suit Money — Enforcement—Contempt — Conviction— Evidence — Sufficiency. The defendant in a divorce case cannot be adjudged guilty of contempt in failing to pay ?3,000 suit money within three days, upon his appearing and making affidavit that he did not have the money or any part of it, and that all his property had been turned1 over to the receiver appointed by the court to control it; in the absence of any evidence, or any justification in the record, for disbelief in the affidavit.</p>

<p>Appeal — Review—Findings. Findings in a divorce case upon directly conflicting evidence will be sustained on appeal, where there was evidence tending strongly to sustain the findings, and the whole case depends upon the credibility of the witnesses.</p> <p>Ins Pendens — In Divorce — Eppect—Prior Creditors. In a divorce case in which the wife seeks a share of the separate property of the husband, a notice of lis pendens does not affect the right of a creditor of the husband, pending the divorce, to obtain judgments on valid contracts entered into prior to the marriage; and such judgments would be superior to the rights of the wife in the husband’s property.</p> <p>Divorce — Division op Property. Upon granting a divorce to a wife, an equal division of the property is unwarranted, where, at the time of the marriage, the plaintiff was 41 years old and without property, the defendant was 50 years old and possessed of property alleged in the complaint to be worth $200,000, the parties were married only nine months before the action was commenced, and no children were born to them; and a money award of $12,000 in lieu of property, should be made to the wife, where it appears that the defendant’s property was worth much less than $100,000 and was subject to numerous items of indebtedness; the property was scattered in many counties, and could be converted into money more readily by the defendant than by anybody else.</p> <p>Divorce — Division op Property — Receivers. The appointment of a receiver in an action for a divorce is unwarranted1 where the defendant’s property was all real estate, under the jurisdiction of the court, and the defendant was a real estate dealer and able to handle the property better than any one else, and the wife may be given a judgment which will be made a lien on the property.</p> <p>Divorce — Suit Monet — Attorney’s Fees. Where a complicated divorce case, involving property alleged to be worth $200,000, was before the supreme court upon five previous occasions, the allowance of $5,000 as attorney’s fees is reasonable.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered March 18, 1913, upon findings in favor of the plaintiff, in an action for divorce.</p>

<p>Trusts — Resulting Trusts — Establishment— Evidence — Sufficiency. A resulting trust in lands, from the fact that a minor advanced the money to his father, who purchased and agreed to convey the lands to the son when he attained majority, must have arisen, if at all, when the deed' was taken; and is not established by clear, cogent and convincing evidence, where the father denied the agreement, testifying that he purchased with his own money and wages of the son earned while a minor, the father held adversely for over twenty years and paid all the taxes, and was corroborated by other witnesses, and the son made no claim for more than ten years after attaining majority.</p> <p>Adverse Possession — Resulting Trust. An action to establish a resulting trust in lands cannot be maintained more than ten years after the plaintiff became of age, where for over twenty years the defendants had been in open, notorious, exclusive adverse possession under color of title and claim of right, and had paid all the taxes; since the defendants had title by adverse possession.</p>

<p>Contracts — Performance ob Breach — Termination. A contract by plaintiff to furnish a motor truck and work for a baggage company for one year, at a certain rate per day, of specified hours, except one hour off for lunch, is breached and may be terminated, where plaintiff, knowing that defendant had a contract for carrying all the baggage to certain hotels, collected and retained part of the compensation, justifying by saying that he always tried to do that dhring the noon or lunch hour.</p> <p>Contracts — Yacidity—Duress—Evidence—Sufficiency. ’Whére an employee had unlawfully appropriated money belonging to the employer, it is not duress, invalidating a sale of a motor truck, for the employer, in order to force a settlement, to point out to the employee that he was subject to arrest and imprisonment and to threaten the same, where there was no actual arrest or statement that a prosecution had been commenced, and where, after a full discussion, during which the employee twice left the office and voluntarily returned, he mad'e a bill of sale of the truck in settlement of the claim against him, accepting a check for the balance which he retained.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered June 30, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

Cross-appeals from a judgment of the superior court for King county, Humphries, J., entered May 24, 1913, in an action for services rendered, after a trial to the court.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered January 11, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

<p>Principal and Agent — Existence of Agency — Evidence—Question fob Juey. Whether a real estate broker was employed1 or held out as an agent for the defendant company, is a question for the jury, where it appears that he was furnished desk room in the defendant’s office under an arrangement to receive a per cent of all commissions on lands listed or sales made by him, all contracts being made in the name of the defendant, and commissions paid to it, and the agent was permitted1 to use its cards, with his own name thereon as manager of the farm lands of the company; especially where the defendant accepted the benefits of a transaction consummated by the agent through holding himself out as such, of which the defendant was notified before closing the deal.</p> <p>Same — Scope of Authority. It is within the apparent scope of the authority of an' agent for real estate brokers to agree for a division of commissions, according to the custom of brokers, with other agents through whose assistance specific sales are made.</p> <p>Same — Authority of Agent — Ratification. A real estate broker, which accepts the benefits of a transaction conducted by its assumed agent, ratifies the act, and1 is estopped to deny the agent’s authority, where, before closing the deal, it had notice of the agent’s assumption of authority.</p> <p>Same — Proof of Agency. The acts and declarations of an agent are admissible on an issue as to whether he held himself out and made the contract as agent, where there is independent evidence of the fact of agency and that the principal knowingly permitted him to hold himself out as such.</p> <p>Appeal — Review—Exceptions. The failure of instructions to limit the consideration of evidence to its proper purpose cannot be urged1, in the absence of exceptions to the instructions.</p> <p>Appeal — Harmless Error — Dismissal of Party — Issues and Proof. Error cannot be urged in granting judgment in favor of one defendant after verdict against all the defendants, where the issue against such defendant was not presented by pleading or proof and the judgment would not be res judicata upon any cause of action against him.</p>

<p>• Appeal from a judgment of the superior court for King county, Gilliam, J., entered April 18, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by passengers upon a street car in a collision.</p>

<p>Appeal from- a judgment of the superior court for King county, Tallman, J., entered June 3, 1913, upon findings in favor of the defendants, adjudging that property attached was the separate property of the wife, in an action upon a community contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered June 20, 1913, in proceedings to determine the right to a condemnation award, tried to the court.</p>

<p>Waters and Water Courses — Natural Course — Surface Drainage. An old1 dry channel is not a natural water course, where it appears that water never flowed therein except when the ground was-frozen and the snows melted, the channel carrying only surface water occasioned by freshets.</p> <p>Municipal Corporations — Improvements-—Grading Streets — Liability. Abutters are not entitled to damages resulting from the initial grading of streets and alleys, the dedication implying authority to improve the streets.</p> <p>Waters and Water Courses — Surface Waters — Obstructions—■ Damages. Surface water being an outlaw and common enemy against which any proprietor may defend himself, a city is not liable for the collection of surface water caused by the initial grading or improvement of a street.</p> <p>Municipal Corporations — Improvements—Grading Streets — Damages. A city in making street grades, having constructed sufficient culverts to carry off surface waters, is not liable to abutters if other property owners filled up their property and prevented the water from passing off through the culverts.</p>

<p>Corporations — Control—Stock Pooling Contract — Remedies— Specific Performance. The courts will not specifically enforce a pooling contract to control the voting policy of a banking corporation, doing business subject to state regulations, when to do so against the will of one of the parties to it may take the corporation from the control of officers selected by the stockholders and vest it in officers selected by the parties to the contract, one of whom is coerced to act against his will; but the parties will be relegated to their remedy, if any, at law.</p> <p>Specific Performance — Contracts Subject to — Breach of Condition. Where part of plaintiff’s stock in a banking corporation was transferred to defendant under a pooling agreement with plaintiff, which defendant repudiated, the court cannot, upon denying to plaintiff specific performance of the pooling agreement, decree a reconveyance of the stock transferred to the defendant, in the absence of such remedy provided in the contract; since, on breach of condition concerning the transfer of personal property, the general rule relegates the party to his remedy at law; unless the same is inadequate.</p> <p>Same. In such a case, specific performance of the pooling contract, in order that a minority stockholder may become a majority stockholder, is not sufficient to show that the remedy at law for breach of condition is inadequate.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 19, 1913, upon findings in favor of the plaintiff, in an action for partition, tried to the court.</p>

, entered August 6, 1913, upon findings in favor of the defendants, in an action upon unpaid stock subscriptions, tried to the court.

, entered April 14, 1913, upon findings in favor of the plaintiff, in an action upon unpaid stock subscriptions, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered February 5, 1913, upon findings in favor of the plaintiff, in proceedings in garnishment, tried to the court.</p>

<p>Municipal Corporations — Use of Streets — Automobiles—Negligent Driving — Evidence—Sufficiency. The negligence of the driver of a taxicab in striking a pedestrian, within three feet of the curb while rounding a curve, is sufficiently established, where there was evidence that the streets were well lighted' and unobstructed, that the pedestrian was crossing the street at a crossing and for half a block in full view of the driver, who sounded no warning of his approach.</p> <p>Same — Contributory Negligence — Question for Jury. Whether a pedestrian crossing a street at a crossing is guilty of contributory negligence in failing to look a second time, is a question for the jury, where it appears that, when about the middle of the street, he looked and saw a taxicab approaching one block away, and continued in his course without hesitation or vacillation.</p> <p>Same — Collision With Automobile — Proximate Cause — Last Clear Chance. The negligence of the driver of a taxicab which struck a pedestrian at a street crossing, is the proximate cause of the accident, and the pedestrian’s contributory negligence is only a remote cause, if he was proceeding in a way to indicate to the driver that he was unconscious of the approach of the car, and the driver saw or should have seen him, and observed his peril in time to avoid striking him.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $1,000 for personal injuries sustained by a longshoreman, 58 years of age, earning $15 dollars a week, is not excessive, where he sustained a fracture of the elbow, and a sprain of the shoulder, which was slow in repair, he had lost $200 in wages and1 incurred a doctor’s bill of $75, and was earning but $5 per week more than four months after the accident, and might be prevented from performing hard labor for a considerable time.</p>

, entered June 18, 1913, upon the verdict of a jury rendered in favor of the defendant, dismissing an action for personal injuries sustained in a fall upon a sidewalk.

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered June 19, 1913, upon findings in favor of the plaintiffs, in an action to quiet title, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered May 7, 1913, upon findings favorable to the plaintiff, in an action on contract, tried to the court.</p>

, entered October 3, 1913, vacating the satisfaction of a judgment and modifying a decree awarding compensation in condemnation proceedings.

Application- for a writ of prohibition filed in the supreme court November 17, 1913, to the superior court for Pierce county, Clifford, J., to prohibit the entry of an order for the exhumation of a body.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered July 12, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered June 4, 1913, in favor of the plaintiffs, after striking a complaint in intervention.</p>

, entered June 12, 1913, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action on contract.

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered May 22, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

, entered October 24, 1913, vacating an order of adoption, upon petition of the father, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered December 13, 1913, upon a trial and conviction of carrying concealed weapons.</p>

<p>Master and Servant — Injuries — Negligence — Questions eob Jury. The master is liable for the death of an assistant on an edger who was killed when the edgerman, in violation of his duty, lifted the rollers without stopping the saws, thereby allowing a timber to kick back and strike the deceased; on the theory that the ed'german was a vice principal as to his assistant.</p> <p>Same — Contributory Negligence — Question eor Jury. In such a case, the contributory negligence of the deceased in not getting out of the way is for the jury, where it appears that he was inexperienced, that it was the duty of the edgerman to keep the rollers d'own, and the situation was safe had he done so.</p> <p>Same — Fellow Servants — Vice Principal. An edgerman charged with the duty of keeping the rollers down while the saws are in motion, as a matter of safety to the crew, is not a fellow servant, but a vice principal, as to assistants working und'er him.</p> <p>Appeal — Review—Harmless Error — Instructions. In an action for the death of an assistant at an edger, an erroneous instruction submitting an issue as to the defective condition of the machine, when there was no evidence to sustain such issue, is not necessarily prejudicial, where it was apparent from the whole record that no claim was made as to defects in the machine, but the case was rested upon the negligence ot the vice principal.</p> <p>Same. An instruction as to the negligence of the defendant is not prejudicial in that it excludes any reference to contributory negligence, where other instructions fully covered1 the subject of contributory negligence.</p> <p>Death — Damages—Excessive Yerdict. A verdict for $17,500 for the death of a laborer, 33 years of age, earning $2.75 per day, his maximum earning power, is excessive, and should be reduced to $10,000.</p>

<p>Appeal — Notice—Persons to Be Served — Surety. A surety upon a claim and delivery bond, against whom judgment was entered, appears in the action, within the meaning of Rem. & Bal. Code, § 1720; and' a notice of appeal is fatally defective where it was not served upon the surety.</p> <p>Same — Dismissal—Merits—Failure to Give Timely Notice. Rem. & Bal. Code, § 1734, providing for the denial of motions to dismiss an appeal on grounds not going to the merits, except for failure to take the appeal in time, does not authorize the denial of a motion for failure to serve the notice of appeal upon necessary parties within the time limited by law.</p>

<p>Corporations — Stock—Subscriptions —Payment—Trust Fund— Rights of Creditors. The stock of a corporation being a trust fund for the benefit of creditors, it is no defense to a receiver’s action on a stock subscription that the stock was subscribed under an agreement to pay less than par for stock issued as fully paid up, and1 that unpaid balances would not be called for.</p> <p>Same — Action on Subscription — Defenses. That a stock subscription was induced by representations that the stock had been wholly subscribed by responsible people, is immaterial, where it was not claimed that the subscription was void in toto, and the only issue was as to the agreed price.</p> <p>Same — Liability of Stockholders — Extent of Liability — Subscription to Surplus Fund. A stock subscription whereby the subscriber agreed to pay $50 per share over and1 above the par value, to be credited to a surplus fund, is legal and binding, both as to the corporation and creditors, where the surplus fund was intended as an additional asset upon which creditors could rely, and where all the stockholders subscribed proportionately to the fund; and Const., art. 12, § 4, and Rem. & Bal. Code, § 3698, limiting the liability of stockholders for the debts of the corporation to the unpaid balance due on the capital stock is not a limitation upon the power of the stockholder to contract with the corporation in reference to a surplus fund.</p> <p>Same — Liability of Stockholders — Actions—Defenses—Burden of Proof. The burden of establishing that creditors did not rely upon a surplus fund provided by the corporation as an additional asset, or that they were estopped to take advantage of it, is upon the stockholders who had bound themselves to provide the fund.</p> <p>Same — Stockholders—Subscriptions — Liability to Creditors— Estoppel. One who allowed a corporation to hold him out as a stockholder (under a tentative subscription or option to take stock) in order to influence others to take stock or insurance in the company, is estopped1 from asserting, as against creditors, that his stock subscription or agreement was induced by fraudulent representations of the corporation, and that he was not in fact a subscriber.</p> <p>Husband and Wife — Community Debts — Presumption. The presumption is that a stock subscription by a married man was for the benefit of the community and created a community debt.</p>

<p>Landlord and Tenant — Lease—Parties—Execution—Evidence— Sufficiency. A lease, executed by the lessor’s attorney In fact to his wife, and a few days later assigned to a third party, is not shown to have been made in the first instance to the assignee, and' only taken in the name of the agent’s wife for the assignee’s convenience, where the lease called for rent at but $5 per month, and the assignee agreed to pay $15 per month in case he used the building as a store, the excuse for taking it in the name of the agent’s wife was that the assignee desired to conceal his identity, which however he disclosed the next day by offering the assignment for record', and the evidence tends to show that the assignment was an afterthought to evade the possible voidability of the original lease.</p> <p>Principal and Agent — Contracts of Agent — Validity. A lease, executed by the lessor’s attorney in fact to his wife, not engaged in separate business, being presumptively a lease to the community, is voidable as a lease by an agent to himself.</p> <p>Same. A lease by an attorney in fact to his wife is voidable at the instance of the principal, on the ground of the relationship of the lessee to the agent.</p> <p>Landlord and Tenant — Lease — Assignment — Bona Fide Purchaser — Notice of Infirmity. The assignee of a lease, executed by the lessor’s agent to his own wife, takes with notice of the lessor’s right to repudiate the lease, where he knew the relationship between the parties.</p> <p>Same — Lease—By Agent — Revocation of Authority — Assignment. The fact that an assignment of a voidable lease was not recorded until twelve days after a prompt revocation of the power of attorney authorizing a lease, is presumptive proof that it was executed immediately prior to its recording.</p> <p>Damages — Duty to Reduce. Plaintiff cannot recover damages for loss of goods stored in a shed, which he left to the elements and might have saved, after defendant tore down the shed.</p>

, entered September 10, 1913, dimissing mandamus proceedings to secure the issuance of a salary warrant, after a trial upon an agreed statement of facts.

, judge pro tempore, entered October 17, 1911, upon findings in favor of the plaintiff, in an action for an injunction and damages, tried to the court.

<p>Appeal from an order of the superior court for Kitsap county, Yakey, J., entered January 11, 1913, granting a new trial, after dismissing an action for equitable relief, upon granting a nonsuit.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 30, 1912, upon findings in favor of the plaintiff, in an action to recover money paid.</p>

<p>Divorce — -Appeal—Effect. Under Rem. & Bal. Code, § 996, providing that, on appeals from a judgment in a divorce case, the supreme court shall be possessed of the whole case as fully as the trial court was, and may reverse, modify, or affirm the judgment, an appeal does not vacate the judgment, but merely suspends it.</p> <p>Divorce — Death oe Party — Abatement and Survival oe Action. Upon the death of appellant in a divorce case pending appeal, the supreme court cannot review the judgment granting the divorce, since the action proper does not survive; although the action survives as to the amount of the judgment for alimony and as to the rights of third persons in the property.</p> <p>Fraudulent Conveyances — Fraud oe Wiee Pending Divorce. A wife awarded a judgment for alimony is a creditor, so that a conveyance in fraud of her rights may be set aside as fraudulent and the property subjected to the lien of the judgment for alimony.</p> <p>Same — Conveyance in .Fraud oe Wiee — Evidence—Sufficiency. A finding of a conveyance in fraud of the wife is warranted, where the husband, before suit for divorce, transferred all his property to his sons, in consideration of monthly payments for life support, which were less in amount than the income from the property.</p> <p>Divorce — Alimony—Allowance From Separate Property. Four thousand five hundred dollars may be a reasonable allowance as alimony from separate property of the husband valued at $28,000.</p>

<p>Appeal — Record—Statement of Facts — Affidavits. The denial of a motion to vacate a judgment cannot be reviewed on appeal, where the whole record was not brought up and affidavits used were not brought up by bill of exceptions or statement of facts.</p>

<p>Fraud — Misrepresentations—Actions—Complaint—SumciENcy. A complaint for fraud is sufficient where it alleges that, to induce plaintiff to procure a loan, defendant introduced! him to a woman who was falsely represented to be K, the owner of the property, that plaintiff had no means of ascertaining her true identity, while defendant knew, or in the exercise of reasonable caution should have known, that she was an impostor, that plaintiff relied on the representations, induced his client to make the loan, and has since been compelled to repay it.</p> <p>Same — Misrepresentations—Right oe Action. An action for deceit lies for false representations as to the identity of a person, if mad'e with intent that they be acted upon by one having no means of ascertaining the person’s true identity, and who does act thereon to his prejudice.</p>

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered June 14, 1913, requiring the plaintiff to bring in an additional party defendant.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered January 6, 1913, in favor of the defendant, on the pleadings.</p>

, entered June 18, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained in a collision with an automobile.

<p>Appeal from an order of the superior court for King county, Humphries, J., entered June 7, 1913, dismissing disbarment proceedings.</p>

<p>Certiorari to review a judgment of the superior court for Skagit county, Houser, J., entered October 15, 1913, adjudging a public use in condemnation proceedings.</p>

<p>Mortgages — Absolute Deed as Mortgage — Trusts — Evidence— Sufficiency. The evidence is sufficient to show that a deed was intended as a mortgage and that the grantee held the bare legal title in trust for one S., where it appears that the land was purchased for $710, by S. who paid down $110, and borrowed $600 from the mother of the grantee, a relative, whereupon the owners of the property made the deed in question and the grantee gave S. his bond for a deed to be executed within three years on payment of $600 with interest, and that S. went into the open and continuous possession and cleared, fenced and cultivated the land.</p> <p>Execution — Bona Fide Purchaser — Possession. The purchaser at execution sale is charged with notice that the judgment debtor held the bare legal title in trust, where the cestui que trust was in the open, continuous and notorious possession of the land; and hence is not a iona fide purchaser.</p>

<p>Arrest — In Civil Actions- — Right of Arrest — Statutes. Const., art. 1, § 17, abolishing imprisonment for debt except in cases of absconding debtors, abates the right of arrest given by the territorial act of 1854 (Rem. & Bal. Code, §§ 748-757) for certain causes not including absconding debtors.</p> <p>Constitutional Law — Operation—Self-Executing Provisions— Arrest — In Civil Actions. Constitution, art. 1, § 17, abolishing imprisonment for debt except in cases of absconding debtors, not being self executing, there is no statutory authority for the arrest of absconding debtors in this state.</p> <p>Arrest — In Civil Actions — Procedure—Statutes—Common Law. The arrest of an absconding debtor, under the procedure defined by Rem. & Bal. Code, §§ 748-757, which was not applicable to absconding debtors, cannot be justified by the fact that the debtor was subject to arrest at common law and that Id., § 143, makes the common law the rule of decision so far as not inconsistent with the constitution and laws of the state; since there was no attempt to pursue the common law remedy.</p> <p>False Imprisonment — Civil Liability — Defenses — Order of Court — Malice—Probable Cause. It is no defense to an action for an unlawful arrest in a civil suit that it was pursuant to an order of court where the order exceeded the jurisdiction or authority of the court, or that the arrest was without malice and with probable cause.</p> <p>False Imprisonment — Excessive Damages. A verdict for $500 for false imprisonment will not be held excessive, where the plaintiff was unlawfully arrested in a civil suit, at night, and confined in jail with persons accused of crime, and there was nothing to indicate that the jury was influenced' by passion or prejudice.</p>

, entered May 22, 1913, upon findings in favor of the executor, dismissing a will contest, after a trial on the merits to the court.