Volume 82 — Washington Reports

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered December 7, 1912, dismissing a proceeding to review an order of the state board of equalization in fixing the value of relator’s properties for the purpose of taxation.</p>

<p>Appeal from a judgment of the superior court for King county, Pendergast, J., entered July 17, 1913, dismissing an action for money paid, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered March 2, 1914, dismissing an action in equity, upon sustaining a demurrer to the complaint.</p>

Application filed in the supreme court September 19, 1914, for a writ of certiorari to review a judgment of the superior court for Cowlitz county, Darch, J., entered September 9, 1914, in favor of a diking district, notwithstanding the verdict of a jury rendered in favor of the defendant, in condemnation proceedings.

, entered April 14, 1914, upon findings in favor of the plaintiff, after a trial to the court, in mandamus proceedings to correct an assessment roll.

<p>Burglary — Evidence—Intent—Course of Conduct — Admissibility. Upon a prosecution for burglary, committed by an employee in a harness shop, who was furnished a key and authorized to open and close the shop, at certain hours, it is admissible, as proving a course of conduct tending to show the intent of the defendant in entering the shop at unusual hours and upon the occasion charged, for the state to prove, although it shows the commission of other offenses, that defendant had padded an inventory made by him of stock about his work bench and in the basement, that he had entered the shop when no one was present at unauthorized hours, and taken articles therefrom, and had concealed finished goods which were afterwards taken away; and such intent may be shown notwithstanding Rem. & Bal. Code, § 2580, providing that an unlawful breaking and entering shall be deemed to be with intent to commit a crime.</p> <p>Burglary — Unlawful Entry — Restricted Right to Enter — Evidence — Question for Jury. In a prosecution for burglary, whether the defendant, who had a key to the premises, had an unrestricted and unlimited right of entrance thereto and could not therefore be guilty of the crime of burglary in carrying away goods or whether the right of entry was limited to the’ usual hours of employment, are questions for the jury, where the evidence showed that he was furnished a key by the prosecuting witness and told to open the store in the morning at about seven o’clock, and that the closing time was in the evening about six o’clock, but that the defendant had entered the store at five o’clock in the morning and in the evening when no one was present, remaining a short time, and taking articles therefrom, and that while there was testimony to the effect that the prosecuting witness had knowledge that defendant had entered the store after the closing time, and made no objections, the times in question were special occasions when the defendant worked overtime.</p>

<p>States — Building Contracts — Performance—Pinal Acceptance —Action on Bond — Materialmen. The architect’s final certificate of construction is a conclusive acceptance of a building erected under the direction of the state board of control, where the contract gave the architect complete control of the work, and provided for payments on the architect’s certificates, the final payment to be made when the work was completed, and accepted by the “owner and architect,” and that no certificate except the final one shall be conclusive evidence of the performance of .the contract; hence a materialman, in order to maintain an action on a bond given to secure the performance of the contract, must file a claim within thirty days after such acceptance of the work, as required by Rem. & Bal. Code, § 1161.</p> <p>Same — Contracts — Pinal Acceptance — Delegation to Architects. Where the state board of control has been given power to contract for public buildings, without limitations forbidding such-delegation, it may delegate to the architects the right to determine when the work contracted for conforms to the contract and specifications, and to finally accept the work if the contract was satisfied in that regard.</p> <p>Same — Acceptance “by Board” — Delegation — Claims Against Contractor’s Bond. Rem. & Bal. Code, § 1161, providing that claims against a bond for the protection of materialmen furnishing supplies to contractors on public work shall be filed within thirty days after completion of the work and acceptance “by the hoard” is not a limitation on the right of the state board of control to delegate to the architects the right to accept the building.</p> <p>Municipal Corporations — Improvements — Contractor’s Bond— Time for Piling Claim. A materialman furnishing supplies to a contractor on public work, and entitled to file a claim against the contractor’s bond within thirty days after completion and acceptance of the work, must take notice of the architect’s acceptance as the act of the board where acceptance had been delegated to the architect; especially in view of his right to file a claim against the bond at any time after the completion of his contract, regardless of completion of the work of the contractor.</p>

, entered September 12, 1913, in favor of the defendant, dismissing an action upon a fire insurance policy, tried to the court. ■

<p>Mortgages — Foreclosure—Decree—Sale for Installments Due After Judgment. Under Rem. & Bal. Code, §§ 1126-1128, providing for tbe foreclosure of a mortgage for an installment of interest due, and that tbe decree should remain and be enforced against tbe mortgaged property in tbe event of default in tbe payment of any subsequent installment, upon application and a bearing to be bad, tbe court has jurisdiction, after final decree and satisfaction of judgment for tbe installment then found due, to direct a sale to satisfy subsequent installments in which defaults have since occurred, and application therefor need not be based upon a new summons and complaint.</p> <p>Mortgages — Foreclosure — Decree — For Installments — Payment — Satisfaction. Payment of tbe amount of a personal judgment for tbe first interest installment due, under a decree of foreclosure of a mortgage, does not satisfy tbe judgment of foreclosure, so as to prevent a second sale for subsequent installments, where tbe decree showed that no part of such principal and interest bad been paid.</p> <p>Compromise and Settlement — Consideration — Discharge of Judgment — Payment of Less Sum. Payment of tbe amount of a personal judgment for tbe first interest installment due, under a decree of foreclosure of a mortgage showing that no part of tbe principal or other interest installments bad been paid, cannot be taken as a compromise and settlement of tbe foreclosure suit, satisfying the judgment, since there was no consideration for a compromise, there being no dispute as to the sum to become due.</p> <p>Same — Foreclosure—Attorney's Fees. Under a mortgage allowing an attorney’s fee of $i00 in case the judgment is paid before any property is ordered sold, and $200 in case the property is ordered sold, does not permit an attorney’s fee of $300, but the same is limited to $200, in any event.</p> <p>Same — Foreclosure—Decree—Subsequent Insurance Premiums. Under a final decree of foreclosure of a mortgage, providing, as required by Rem. & Bal. Code, §§ 1127, 1128, at what time and upon what default subsequent execution shall issue for installments not due and that the judgment shall remain and be enforced upon any subsequent default, which decree did not provide for the payment of' premiums upon insurance, such premiums cannot be collected upon subsequent executions; since provisions therefor in the note and mortgage are merged in the final decree.</p> <p>Appeal — Review—Harmless Error. Error in directing a mortgage foreclosure sale is cured by a refusal to confirm the sale.</p>

<p>Chattel Mortgages — Validity—Lack of Affidavit and Recording — Mortgagee in Possession — Rights of Subsequent Creditors. Where a chattel mortgage was invalid as to creditors for lack of an affidavit of good faith and because of failure to record it, it is nevertheless valid as between the parties, and becomes effective as to a subsequent general creditor, where, with the consent of the mortgagor, the mortgagee took possession of the property before such creditor acquired a specific lien on the property.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered July 2, 1913, upon findings in favor of the plaintiff, annulling a marriage, upon a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered September 9, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for breach of contract.</p>

<p>Appeal — Review—Waiver of Error. Error cannot he predicated upon the giving of oral instructions to the jury, “by agreement of counsel,” since the right given by Rem. & Bal. Code, § 339, to have the jury instructed in writing may be waived.</p> <p>Appeal — Review—Verdicts. The verdict of a jury upon an issue on which the evidence was conflicting is conclusive, where there was abundant evidence, if believed, to support the verdict.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Wright, J., entered September 24, 1913, upon a trial and conviction of contempt, after a trial to the court.</p>

<p>Quieting Title — Evidence oe Title — Necessity. In an action to quiet title, plaintiff must recover on the strength of his own title, and not on the weakness of that of his adversary.</p> <p>Dedication — Acceptance—Necessity — Revocation. Dedications by deed of property to a village and later to a city, for the uses of a public park, are revoked, where there was no acceptance, either formal or by user, and the intention not to accept was shown by the levy and collection of taxes by the city and the property was finally sold at a tax foreclosure sale.</p> <p>Same — Conditions — Acceptance — Necessity. A dedication by deed to a city for a public park, with conditions requiring action by the city, does not become effective until accepted by the city.</p>

<p>Appeal — Record—Statement oe Pacts — Certification. A motion to strike a statement of facts because it did not contain all the evidence will be denied, where it was certified to contain all the material facts and all the evidence both oral and in writing, and no amendment was proposed by the respondent.</p> <p>Fraudulent Conveyances — Contracts Arising Out of — Relief. Where plaintiff and defendant acquired property on a joint venture, under an agreement to share the profits equally, and the title was taken in the name of defendant for the primary reason of placing the entire title beyond the reach of the judgment creditor of the plaintiff, a court of equity will not compel a conveyance of a half interest, as the contract was against public policy.</p> <p>Same — Relief—Parties Not in Pari Delicto. In such a case, the rule that equity grants relief from fraudulent transactions if the parties are not in pari delicto does not apply where the actor in the present suit is the one who was guilty of the fraud, the defendant having no intention to defraud plaintiff’s creditors.</p> <p>Pleading — Affirmative Defenses — Waiver—Issues, Proof and Variance. In an action for specific performance, the defense that the transaction was fraudulent and against public policy, is available to defendant' without being specially pleaded as an affirmative defense, where an issue was made by denial of the contract, and the fraudulent nature of the transaction was brought out upon plaintiff’s direct examination and further developed on cross-examination without objection.</p> <p>Appeal — Review—Relief to Respondent — Cross-Appeal—Necessity. In an action for specific performance, and for money had and received where there is no cross-appeal by plaintiff, error in denying plaintiff a money judgment cannot be reviewed on defendant’s appeal from the judgment granting specific performance.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered January 13, 1914, in favor of the defendants upon cross-complaints, in an action to establish a boundary line.-</p>

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered February 26, 1914, dismissing an action to recover possession of personal property, upon sustaining a demurrer to the complaint.</p>

<p>Counties — Commissioners — Decisions — Lack oe Rulings — Course of Conduct. It is a reasonable inference that the board of county commissioners had determined that three deputy sheriffs and one jailer were necessary to a proper conduct of the sheriff’s office, although no formal order was entered to that effect, where it appears that the board had monthly for eight years audited and allowed payrolls for their services.</p> <p>Same — Commissioners—Continuing Existence — Change of Personnel. The county board of commissioners has a continuous existence so that a change in its personnel does not abrogate its findings or resolutions.</p> <p>Same — Findings by Commissioners — Abrogation—Construction. A finding by the county commissioners that three deputy sheriffs and one jailer were necessary to a proper conduct of the sheriff’s office is not abrogated by a resolution to the effect that the appointment of three certain deputies and a jailer were inimical to the best interests of the county, and that they would not he allowed any pay, but that the board was willing to allow or pay any other persons appointed by the sheriff.</p> <p>Sheriffs — Deputies—Power to Appoint — Statutes — Construction. Under Rem. & Bal. Code, § 4032, providing when county officers may employ necessary help, at just and reasonable compensation, by and with the consent of the county commissioners, and making the officer responsible upon his official bond for the acts of his employees, and Id., § 4065, providing that the county commissioners may allow a county officer such deputies as may be required to do the business of the office, at such salary as they may designate, the officer has the absolute right to determine the personnel of such deputies as may have been allowed.</p>

, entered November 15, 1913, in favor of the plaintiff upon the pleadings, in an action for an injunction, tried to the court.

<p>Elections — Primary Elections — Contests — Certiorari — Time eor Taking. Under Rem. & Bal. Code, § 4829, providing for contests in primary elections, without making any provision for appeal or review of the judgment, certiorari to review the judgment must be applied for within ten days, the time for taking appeals under the general election laws, Rem. & Bal. Code, §§4956, 4957, providing for appeals in election contests within ten days, and that the election certificate or commission shall be null and void until the judgment is set aside or vacated; under the rule that a writ of certiorari must be applied for within the time allowed for taking an appeal, when not otherwise fixed by law.</p> <p>Certiorari — Proceedings—-Time eor Taking. An unauthorized appeal does not extend the time for applying for a writ of certiorari.</p>

<p>Counties — Indebtedness—Limitation — Submission to Voters— Necessity — Statutes—Construction. Under Const., art. 8, § 6, providing that no county shall become indebted to an amount exceeding one and one-half per centum of its taxable property, without the assent of three-fifths of the voters voting at an election for that purpose, and that with such assent the total indebtedness shall not exceed five per cent, the submission to the voters of a proposition is presumed to be for the incurring of a debt beyond the first limitation, unless it clearly appears from the proposition or surrounding circumstances that it was the intention to include the first limitation; hence where the county commissioners submitted a proposition to issue bonds in the sum of $300,000, for roads and bridges, which was authorized by three-fifths of the voters, the commissioners thereafter had authority by proper resolution to issue bonds in the sum of $65,000 for a courthouse, without submitting the same to the electors, where such $65,000 indebtedness with all other indebtedness, excluding the $300,000, did not exceed one and one-half per centum of the taxable property.</p> <p>Same. Rem. & Bal. Code, § 5085, giving the board of county commissioners, without the assent of the voters, the power to create a county indebtedness, which “together with existing indebtedness” shall not exceed one and one-half per centum of the taxable property, means the “existing indebtedness” incurred without, the assent of the voters; so that propositions to exceed that limit may be submitted to the approval of the voters before the lower limitation has been reached; and after additional indebtedness has been authorized by the voters, the commissioners may, without assent of the voters, incur indebtedness within the one and one-half per centum limitation of § 5085.</p>

, entered October 17, 1914, directing the county auditor not to print names of certain candidates on the general election ballot.

<p>Appeal from a judgment of the superior court for Jefferson county, Ralston, J., entered October 14, 1913, dismissing an action to quiet title, after a trial on the merits to the court.</p>

<p>Infants — Offenses — Juvenile Delinquents — Statutes — Construction. The juvenile court law, 3 Rem. & Bal. Code, § 1987-1, is not punitive in its nature or purpose, but protective, and while strictly construed as to restraint of liberty without due process, is, in other respects, to be liberally construed to effectuate its beneficent purpose.</p> <p>Same — Juvenile Delinquents — Statutes—Application — Effect of Marriage. The juvenile court law, 3 Rem. & Bal. Code, § 1987-1, defining delinquent and dependent children under the age of eighteen years, makes the age, not minority, the controlling element, and applies to a girl under eighteen years of age married to a man of full age, notwithstanding Rem. & Bal. Code, § 8744, declaring “all females married to a person of full age shall be deemed and taken to be of full age.”</p> <p>Same — Juvenile Delinquents — Statutes — Construction — “Place” Where Liquor Is Sold. The juvenile court law (subdiv. 10 of 3 Rem. & Bal. Code, § 1987-1) making it unlawful for children under eighteen years of age to habitually visit “any billiard room or pool room or any saloon, or place where spirituous . . . liquors are sold” applies to restaurants where such liquors are sold, and it is immaterial that the delinquent child under the age of eighteen habitually visited such restaurant as a singer for hire; as singing by juveniles in such places is no necessary part of the business and is without any exculpatory element.</p>

superior court for Pierce county, Easterday, J., entered June 20, 1913, upon findings in favor of the plaintiff, in an action to recover unpaid stock subscriptions.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 7, 1913, upon findings in favor of the plaintiff, in an action to cancel a tax deed and quiet title.</p>

, entered November 18, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a section hand, thrown from a hand car.

<p>Appeal from a judgment of the superior court for Okanogan county, Pendergast, J., entered February 3, 1913, upon findings in favor of the plaintiff, in an action to quiet title, tried to the court.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Hinkle, J., entered January 11, 1913, upon findings made after a trial to the court without a jury, in an action to recover damages and to cancel a mechanics’ lien upon a building.

<p>Cross-appeals from a judgment of the superior court for Snohomish county, Alston, J., entered June 15, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for breach of contract, after a trial on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered November 20, 1913, upon findings in favor of the defendant, in an action for conversion, tried to the court.</p>

<p>Abatement and Revival — Defects as to Parties — Representative Capacity — -Trustees—Termination of Trust. An action to recover possession of personal property does not abate because the evidence shows that defendant obtained possession as trustee and was not sued in that capacity, where presumptively he was acting as trustee fór a corporation, and his powers as such had ceased upon his becoming receiver for the corporation, and he defended the action as receiver.</p> <p>Same — Representative Capacity — Defendants—Waiver of Objections. One defending his possession of property in his right as receiver of a corporation cannot claim that, in an action brought against him as receiver, he was sued in the wrong capacity, in the absence of direct evidence that he holds in some other capacity.</p> <p>Appeal — Preservation of Grounds — Waiver. Objection that the defendant had not been sued in the right capacity, cannot be made on appeal when not raised below.</p> <p>Replevin — Title to Property — Evidence—Sufficiency. In an action to recover the possession of two rings, the evidence justifies the finding that they belonged to the plaintiff, where it was practically undisputed that she purchased one of the rings in another state with her own funds, and that the other was taken by her, while president of a jewelry company, from its stock with the consent of the company while it was perfectly solvent.</p> <p>Pledges — Redemption—By Third Person — Rights of Parties— Subrogation. Where the plaintiff, as president of a jewelry company, had pledged her personal property to secure a loan to the company, and later a “trustee” of the company redeemed the pledge with money of the company before the rights of creditors attached, the redemption relieved the property of the lien of the pledge and vested the right of possession in the plaintiff; hence the “trustee” after being appointed receiver of the company in the interests of creditors, cannot be subrogated to the rights of the pledgee.</p> <p>Set-Off and Counterclaim — Causes Arising Out of Same Transaction — Contract or Tort — Replevin. In an action against the receiver of a jewelry company to recover the possession of two rings, at one time pledged by the president to secure a loan to the company, but redeemed from tbe lien of the pledge prior to tbe receivership, the defendant cannot counterclaim for debt, due from plaintiff to tbe company, as shown by the boohs of the company; since the counterclaim did not arise out of the transaction set forth in the complaint as plaintiff’s cause of action, nor was plaintiff’s cause of action one arising on contract, within Rem. & Bal. Code, § 265, allowing counterclaims only in such cases.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Grady, J., entered February 19, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered December 27, 1913, in probate, dismissing a citation to the administrator to correct the inventory, upon sustaining a demurrer to the petition.

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

<p>Municipal Corporations — Improvements — Assessments — Arbitrary and Unequal Assessments — Review. An assessment is so excessive on its face as to show that it was arbitrary and disproportionate to benefits of the owners of property taken, where the lots of such owners were assessed at a greater sum than their award of damages for property taken, while property of others across the street having the same frontage was assessed only ten or twelve per cent as much, and this after the supreme court had already set aside a practically similar assessment and ordered a reassessment on account of the arbitrary and unequal nature of the assessment on the same lots.</p> <p>Same — Reassessments—Costs—Interest. Where an award for property taken for opening and improving a street, equalled or exceeded the assessment for benefits, and was not paid, and after appeal to the supreme court, a reassessment was ordered reducing the assessment for benefits, the reassessment cannot, under Rem. & Bal. Code, § 7787, authorizing the inclusion of all costs and expenses and interest,' include supreme court costs and interest on the assessment, since the award was presently due on the termination of the condemnation suit, which was a proceeding distinct from the assessment for benefits, and the city had not incurred any obligation on which interest had accrued or was running.</p> <p>Same — Review—Decision—Remand. Upon reversing for the second time on appeal the confirmation of an assessment for improvements on the ground that one block was arbitrarily assessed an excessive amount, the supreme court will, if there is enough in the record to warrant it, order an arbitrary reduction of the assessments and order the roll confirmed.</p>

<p>Sales — Conditional Sales — Subsequent Mortgages — Rights and Liabilities. A creditor of the vendee, in a conditional sales contract, violates no rights of the vendor by taking from the vendee a chattel mortgage of all its property, including the property conditionally sold, and later assigning the mortgage to creditors under an agreement relieving him of liability as guarantor of the vendee’s debts; since these acts could not disturb the possession or rights of the vendor under its conditional sales contract.</p> <p>Same — Conditional Sales — Rights op Vendor — Actions—Pleading — Fraud. In such a case, a complaint hy the vendor to recover of the mortgagee the amount due on the conditional sales contract, is not aided hy alleging that the mortgage was taken and assigned as the result of a conspiracy to defraud, since they are merely empty accusations to stigmatize acts that appear regular and legitimate, in the absence of allegation of any act on which fraud could justly be founded.</p> <p>Receivers — Sales—Title op Purchaser — Liens and Claims op Others. Where title to property of an insolvent is deraigned through an authorized receiver’s sale, regular in all things, and purporting to convey an absolute title free of all incumbrances, the title conveyed is an absolute title, making priorities between a chattel mortgagee and the conditional seller immaterial.</p> <p>Sales — Conditional Sales — Filing—Place op Filing. A conditional sales contract, filed in the county where the property is situated, but not in the county of the vendee’s residence, as required hy Rem. & Bal. Code, § 3670, is void as to subsequent creditors in good faith.</p> <p>Receivers — Representations op Creditors — Sales—Title op Purchaser. Where a conditional sales contract to a vendee was void as to subsequent creditors in good faith, a receiver of the vendee upon insolvency representing such creditors, takes the title to which the creditors were entitled; and hence purchasers at the receiver’s sale take the title freed of the claims of the conditional vendor.</p> <p>Flection op Remedies — Issues Submitted — Estoppel. Where a conditional sales vendor seeks in a receivership case, to have his claim against the insolvent vendee allowed as a preferred claim or, in the alternative, a return of the property, and the issues are tried out in that form, and it is decided that his conditional sales contract is void as against creditors, and that he is not entitled to a return of the property, there is an election of remedies, which estops him from attempting in another proceeding to follow the property in the hands of a purchaser at the receiver’s sale, had after an adjudication that he had no preference rights to the property; and it is immaterial that by stipulation he had restricted the issues to the determination of his preference rights.</p>

<p>Accord and Satisfaction — Receipt on Account — “Without Prejudice” — Evidence—Sufficiency. Where $500, offered as a payment in full of a disputed account, was refused, there is no accord and satisfaction by payment of the sum and passing a receipt for the amount, “on act.” which the debtor refused to accept until “without prejudice” had been added; the reasonable construction being that the debtor reserved the right to contest the creditor’s claim that payment was on account only; especially where the debtor’s subsequent letters indicated that the controversy was still unsettled.</p> <p>Limitation of Actions — Accrual of Obligation — Starting of Limitation. Under a contract to hold certain of plaintiff’s pianos on sale, and pay for them when sold, the cause of action does not accrue and the statute of limitations does not begin to run until the pianos were sold.</p> <p>Same — Presumption—Pleading and Proof. The courts will not indulge in any presumptions in favor of the statute of limitations, and the bar must be clearly pleaded and proven by the preponderance of the evidence.</p> <p>Sales — Contracts—Terms—Construction. Where an option was given and accepted to take a certain stock of pianos at list prices and pay for them as sold, a subsequent agreement to take another stock on the same terms is controlled by the former agreement as originally made and not as subsequently modified by a sale in a lump sum, with discount.</p>

, entered November 14, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a child through an electric shock from a street railway trolley.

<p>Master and Servant — Injury to Servants — Employers’ Liability Act — Negligence op Fellow Servants — Acts Outside Employment. Under the Federal employers’ liability act, intended to render an employer engaged in interstate commerce liable to an employee injured in the course of his employment by the careless and negligent acts of other employees, a carrier is not liable to an employee who sustained a fall while in the course of his employment, by reason of the negligent acts of fellow servants, who were wrestling and scuffling in the car; since the statute contemplates liability for negligent acts of others only when such negligent acts occur while they were doing some act required in the prosecution of the carrier’s business.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered October 4, 1913, upon findings in favor of the plaintiff, in an action for the cancellation of a deed.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Blake, J., entered January 30, 1914, in favor of the plaintiff, in an action on contract, after overruling a demurrer to the complaint.</p>

<p>Grand Jury — Selection—Statutes. A grand jury is illegally drawn where the necessary seventeen grand jurors were arbitrarily selected by the court from forty of the attending qualified jurors drawn by the clerk by chance, as required by 3 Rem. & Bal. Code, §§94-4 and 94-5; since an essential in the selection of jurors is the element of chance, and the judge has no power in the matter except to pass upon their qualifications.</p> <p>Same — “Impaneled” or “Drawn.” While the statute, 3 Rem. & Bal. Code, §§ 94-4, 94-5, provides for the selection of petit and grand jurors by drawing names by chance without use of the word “impaneled,” there is no such distinction between the words “drawn” and “impaneled” as here used, as to permit the judge to select without chance, a grand jury, in view of Const, art. 1, § 21, guaranteeing the right of trial by jury as a right inviolate, meaning as it existed at common law, and Rem. & Bal. Code, § 2099, subd. 5, especially reeognizing the right to challenge the legal standing of a grand jury, and Id., § 2025, specifying as one ground of challenge, that the clerk had not drawn from the jury box the requisite number to constitute a grand jury, meaning the grand jury as finally selected.</p> <p>Same — Selecting—Methods op Dbawing. A grand jury may be selected by the clerk’s drawing a certain number from the jury list, and qualifying them singly until sufficient jurors are obtained; or all drawn might be first qualified, and a sufficient number drawn by chance to make up the grand jury.</p>

<p>Monopolies — Contracts—-Varidity—Constitutional Provisions— Construction. A contract between two steamship companies operating boats between the same points, whereby one, in consideration of .?1,500, agreed to withdraw its boats from the route for a period of three years, contravenes Const., art. 12, § 22, prohibiting monopolies and providing that no incorporated company shall directly or indirectly combine or make any contract with another for the purpose of fixing the price, or limiting the production, or regulating the transportation of any product or commodity.</p> <p>Contracts — Validity—Public Policy — Restraint op Competition —Relief. A note based upon a contract, knowingly made in restraint of trade, which so recited and showed that the note was part of the contract, is void as against public policy, and will not be enforced by the courts.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered March 8, 1913, dismissing an action to cancel a local improvement assessment, tried to the court.</p>

<p>Insurance — Indemnity Insurance — -Injuries to Employees — Policy — Construction. A policy of indemnity insurance issued to a logger and insuring against losses arising from claims of damages by the insured’s employees on account of accidental injuries suffered by the employees while in the prosecution of the insured’s logging business, does not cover a loss sustained by the insured’s negligent failure to furnish an employee with hospital, medical and surgical services, under a special contract with employees so to do; and it is immaterial that the insurance company knew that it was the custom of loggers to deduct hospital fees from wages and furnish such hospital and medical treatment.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Kennan, J., entered December 6, 1913, dismissing an appeal from a decision of the city council confirming an assessment roll, after a hearing before the court.</p>

, entered January 24, 1914, upon findings in favor of the defendant, in an action for services rendered, tried to the court.

<p>Master and Servant — Workmen’s Compensation Act — “Fortuitous Event.” A rupture, sustained while engaged in moving a heavily loaded truck, which ran harder than usual, whereupon the employee exerted all his strength and gave a jerk, is a “fortuitous event” within the meaning of the workmen’s compensation act, 3 Rem. & Bal. Code, § 6604-3, granting compensation for injury resulting from “some fortuitous event as distinguished from the contraction of disease;” the event being an accident and there being no distinction between accidents and fortuitous events, used in this connection; especially in view of the expressed intent of the act to provide compensation for workmen injured in hazardous undertakings reaching "every injury sustained, regardless of the manner in which it was received.”</p> <p>Same — Decision oe Commission — Review—Burden oe Proof. 3 Rem. & Bal. Code, § 6604-20 of the workmen’s compensation act, providing that in court proceedings the decision of the department shall be prima facie correct and the burden of proof shall be upon the party attacking the same, has no application where the facts were undisputed, leaving only a question of law in interpreting the statutes.</p> <p>Same — Rules of Commission — Conclusiveness—Review. While the court will not control the rulings of the industrial insurance commission upon administrative features and matters peculiarly within its control, its decisions interpreting the laws are reviewable by the court, acting on its own interpretation of what the law means.</p> <p>Same — Rules of Commission- — “Accidents.” A rule of the industrial insurance commission that “hernia coming on while a man was following his usual work is not an accident,” does not prevent recovery of compensation by an employee who was following his usual work, and hernia resulted from a fortuitous event or accident to which the result might be directly traceable.</p> <p>Appeal — -Review—Harmless Error. Error in submitting to a jury the interpretation of a statute, is harmless, where the verdict correctly decided the question.</p>

<p>Railroads- — -Accidents at Crossings — Contributory Negligence. A boy, sixteen years of age, struck and killed at a double track railroad crossing, is guilty of contributory negligence, as a matter of law, precluding any recovery by his representatives, where it appeared that decedent was riding a bicycle “quite fast,” and slowed down to allow a south-bound train on the far track to pass over the crossing; that decedent did not stop or look for a train on the near track, and as soon as the first train had passed, he rode onto the near track and was instantly struck by a north-bound train on that track, such approaching train being in full view in ample time to have avoided it, if the least attention had been paid to it.</p>

<p>New Trial- — Grounds—Excessive Verdict — Discretion of Court —Abuse. It is not an abuse of discretion for the court to refuse a new trial on the ground of excessive damages given under the influence of passion or prejudice, merely because the lower court’s views differed from those of the jury; and abuse is not shown, where the remarks of the court, as a whole, did not show that he denied the motion for lack of power to do so, but had in fact exercised his discretion.</p> <p>Trial — Conduct — Reopening — Discretion. After the case is closed by both sides, and an adjournment taken over Sunday, it is not an abuse of discretion to refuse to reopen the case for further evidence, where there was no showing that the evidence was newly discovered or had been overlooked.</p> <p>Appeal — Record—Aeeidavits. The denial of a motion for new trial will not be reviewed on appeal, where the affidavits on which it was based were not made part of the record on appeal.</p>

<p>Application for a writ of certiorari to review a threatened order of the superior court for Kitsap county, French, J., discharging a prisoner upon return to a writ of habeas corpus.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Holcomb, J., entered November 4, 1913, upon findings in favor of the defendant, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 6, 1913, upon findings in favor of the plaintiff, in an action for money received.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered June 16, 1911, upon a trial and conviction of violating the local option law, after submitting the case to the court without a jury.</p>

■Appeal from a judgment of the superior court for Mason county, Claypool, J., entered May 5, 1914, dismissing as insufficient an information for taking oysters from state oyster land reserves.

Application filed in the supreme court October 9, 1914, for a writ of mandate to the state tax commission to compel an apportionment of certain railroad property for the purposes of taxation.

Application filed in the supreme court October 29, 1914, for a writ • of mandamus to compel the superior court for King county, Dykeman, J., to proceed with a cause, after ordering a change of venue.

<p>Certiorari to review a judgment of the superior court for Jefferson county, Ralston, J., entered April 28, 1914, against a surety on a nonresident cost bond, after a reversal of a judgment on appeal.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered April 10, 1914, upon a trial and conviction of grand larceny.</p>

<p>Appeal from a judgment of the superior court for King county, Humphries, J., entered June 18, 1913, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Appeal from an order of the superior court for Spokane county, Kennan, J., entered June 24, 1913, granting defendant a new trial unless plaintiff remitted $3,500, after the verdict of a jury for $6,000 for personal injuries sustained in a fall down an elevator shaft.</p>

<p>Appeal — Review—Harmless Error — Instructions. Failure to instruct that an affirmative defense was denied by a reply, is harmless, where the jury were told that the burden of proof rested upon the defendants to establish the affirmative defense, and appellant made no request for a further statement of the issues and did not call attention to the matter when the instructions were given.</p> <p>Trial — Instructions—On Unsupported Issues. In an action for damages through a collision of automobiles, it is not error to submit the defendant’s liability upon the sole question of alleged excessive speed, where there was no evidence to sustain allegations of negligence in other respects.</p> <p>Municipal Corporations — Streets — Negligent Use — Collision. Negligence of the defendant in failing to sound a horn in approaching a street crossing is not the proximate cause of an automobile collision, where the plaintiffs saw and were already aware of the approaching car of the defendants.</p> <p>Appeal — Review—Harmless Error — Instructions. It is harmless error, in prefacing an instruction as to a rule of law, to state that defendant lifted a little girl “in his arms” instead of “by the arms,” where the jury could not have been misled.</p> <p>Appeal — Preservation of Grounds- — -Instructions — Requests. Error cannot be predicated upon the failure to give an instruction that a person is not required to use the same degree of care in emergency as when he had time to deliberate, in the absence of any request therefor.</p> <p>Same. Error cannot be predicated upon the incompleteness of an instruction as to the credibility of witnesses in the absence of a request for a more complete one.</p> <p>Appeal — Review—Harmless Error — Evidence. Where the verdict of a jury denied the right of recovery, error in excluding evidence going only to the extent of plaintiff’s injuries, is harmless.</p> <p>Appeal — Record—Statement of Facts — Affidavits. Affidavits used on a motion for a new trial cannot be considered on appeal when not made part of the record by being embodied in the statement of facts.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered November 25, 1913, upon a trial and conviction of willful wife abandonment and nonsupport.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered January 12, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered February 27, 1914, in favor of the plaintiff, upon allowing claims against an estate, after a trial to the court.

<p>Injunction — Bonds — Liability on Dissolution — “Wrongfully Sued Out”' — Matters Occurring Subsequent to Action — Judgment— Bar. Where an action for injunction in the Federal court was dismissed, on a plea of estoppel by reason of an adverse decision in an action in the state courts between the same parties, the effect of the dismissal is that the injunction was wrongfully sued out, and liability therefor arises on the injunction bond; and it is immaterial that the estoppel arose subsequent to the institution of that suit; since the matters arising subsequently had a direct bearing upon the merits of the suit; the judgment in the state court being a bar between the parties and conclusive upon courts of concurrent jurisdiction.</p> <p>Same — Bonds—Wrongfully Sued Out — Good Faith — Justification. The fact that ordinances authorizing the collection of license fees for the use of trading stamps had been held void in the Federal courts, does not justify the simultaneous prosecution of an action in both state and Federal courts for an injunction to restrain enforcement of such an ordinance, or show that the application in the Federal court was in good faith, where the action was first brought in the state court.</p> <p>Same — Bonds—Condition—Damages—Measure. In an action to restrain the enforcement of an ordinance for the collection of license fees for the use of trading stamps, an injunction bond, conditioned to pay all damages that may accrue to the city by the issuance or continuance of the order, not exceeding $1,000, entitles the city to collect the amount of the bond, where they were prevented from collecting forty-two license fees from various parties using trading stamps, aggregating more than the amount of the bond; and it is immaterial that the city had never before collected from these people.</p> <p>Interest — On Bonds — When Accrues. In an action on an injunction bond, the plaintiff may recover the amount of the bond, with interest from the time the action was commenced.</p>

<p>Attorney and Client — Client’s Recovery of Parers — Proceedings. Where the attorney has no lien upon warrants of his client in his hands, except the statutory lien provided by Rem. & Bal. Code, § 136, the court wherein the action is pending may enter an order requiring him to deliver the warrants to his client, within a specified time, under penalty of commitment for contempt, as expressly provided in § 137.</p> <p>Same — Recovery of Papers — Evidence—Admissibility. In a proceeding to require an attorney to deliver warrants in his hands belonging to his client, under Rem. & Bal. Code, § 137, evidence of the amount reasonably due the attorney for his fees is inadmissible, where he had already instituted an independent suit to determine that matter.</p> <p>Same — Dealings Between- — Possession of Papers- — Right to— Lien — Contract for —Evidence—-Sufficiency. No attorney’s lien upon warrants of his client in his hands is shown by express contract therefor, where, upon a dispute as to the fees, the attorney retained two $1,000 warrants giving a signed receipt therefor, describing the warrants and reciting that they were to be held by him “until the final settlement after the assessment is made and warrants due,” and where at the same time he delivered up $18,990 of warrants, taking a receipt therefor from one of his clients reciting that it left in his hands two warrants of $1,000 each, “giving him the right to sell same at any time and to account to us for the proceeds;” and the client denied that the last quoted words were on the typewritten receipt at the time he signed the same, or that the attorney had been given any right to sell the warrants, and the attorney admitted that he shortly after sold the warrants without giving any notice or accounting therefor; since the two receipts are directly contradictory and raise an ambiguity, which should be construed most strongly against the party preparing it, especially where such party is an attorney dealing with a client as to the client’s property, and the contract as drawn does not clearly show that the minds of the parties ever met.</p>

<p>Trial — Province of Court and Jury — Directed Verdict. Tbe verdict of a jury is conclusive upon all disputed facts, but tbe court may direct tbe judgment when warranted by tbe undisputed facts and tbe law applicable thereto.</p> <p>Physicians and Surgeons — Malpractice—Abortion—-Proximate Cause — Evidence — Sufficiency. In an action for malpractice, in giving a wrong diagnosis and in causing an abortion by negligent application of electrical treatment, tbe evidence is insufficient to show that sucb treatment was tbe proximate cause of tbe injury, or to sustain judgment for plaintiff, where there was evidence to tbe effect that, at her first visit, plaintiff was advanced in pregnancy about two months, that defendant advised that she was not pregnant but suffering from delayed menstruation, and that, while taxing mild applications of electricity for tbe latter trouble, tbe plaintiff, as she admitted, bad, without obtaining a physician’s prescription, purchased an ounce bottle of extract of cotton root, which she took in certain doses until all bad been taken, and, according to all speaking with knowledge of the subject, cotton root is an abortive medicine, and when taken internally as plaintiff took it, will produce an abortion within the time of plaintiff’s miscarriage, depending somewhat upon the physical condition and susceptibility of the patient; since the proximate cause of the injury cannot he left to speculation and conjecture.</p>

<p>Sales — Construction and Liability —■ Conditions — Evidence— Sufficiency. The evidence is insufficient to establish a contract for the sale of gasoline, pearl-oil, naphtha and distillate, at a certain per cent below the market value, as claimed by defendant in an action for a balance due, where it appears from the evidence of the defendant’s manager that plaintiff’s offer of the discounts was made in consideration of the defendant’s giving them also their lubricating business; that an offer of a discount for lubricating oils was held under consideration until samples could be given and prices agreed upon, that the parties agreed to sign a contract if the samples were satisfactory, and that in the meantime, the gasoline, etc., was to be invoiced at the old prices and a credit memo, for the difference given if the contract was signed, that defendant placed orders for the gasoline, etc., with that understanding, and that the parties later failed to agree upon the quality and prices for the lubricating oils, and no contract therefor was ever signed; since it is plain that the agreed discount was not to be given unless the contract for lubricating oils was entered into, failing which the billed goods were to be paid for at the higher rate.</p>

<p>Vendor and Pdbchasee — Rescission —- Fbatjd — Representations as to Future Events. A vendee is not entitled to rescission of a contract for the sale of lands, for fraudulent representations inducing the sale, where the representations were as to improvements to be placed on land in the neighborhood greatly enhancing its value, and all related to events to occur in the future, or promises on the part of the vendor to be performed in the future, and not as to any existing fact.</p> <p>Pleading — Construction—-Demurbee Obe Tenus. The rule of a liberal construction of a complaint upon demurrer ore terms is of no avail, where, upon making all his proof, the plaintiff could not recover in any event.</p>

, entered December 9, 1913, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a passenger knocked down and run over by street cars.

<p>Robbery — Evidence—Identification of Property — Admissibility. In a prosecution for robbery, tbe introduction in evidence of certain property, taken from the accused, and belonging to tbe companion of tbe prosecuting witness who was robbed at tbe same time, is not inadmissible because not sufficiently identified, merely because evidence of identification was somewhat meager.</p> <p>Criminal Law — Evidence—Other Crimes — Admissibility. Where tbe robbery of two persons was but one transaction, evidence of articles taken from either of them, is admissible under an information charging robbery of tbe other.</p> <p>Criminal Law — Trial—Misconduct of Counsel. It is not reversible error that tbe prosecuting attorney answered a question of tbe prisoner’s counsel as to what certain things consisted of, in tbe presence of tbe jury, when tbe jury would not have understood it as being part of tbe evidence.</p> <p>Appeal — Preservation of Grounds — Exceptions. Error cannot be predicated upon tbe argument of counsel to which no exception was taken; nor where tbe court removes any prejudice that might arise.</p> <p>Appeal — -Review—Error Invited by Appellant. Error in argument to tbe jury cannot be urged where it was invited by unsparing remarks of opponent’s counsel; since tbe court has a large discretion in such matters, and need not be over-querulous with complaints made by one whose argument bordered on tbe illegitimate.</p>

Application filed in the supreme court October 13, 1914, for a writ of mandamus, upon denying an application for a change of judges, after a hearing upon affidavits.

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered December 11,1913, upon a trial and conviction of rape.</p>

<p>Eminent Domain — Compensation—Set-Off of Benefits — Drainage Districts — Condemnation by Municipal Corporation — Public Nature of Use. Under Const., art. 1, § 16, providing that, on condemnation of rights of way, to the use of any corporation other than municipal, full compensation therefor must first be paid in money, irrespective of any benefits from any proposed improvement, it is proper to offset the benefits accruing to the property owners by reason of the improvement of a drainage district, as determined by a jury in condemnation proceedings for a right of way for a ditch, prosecuted by the county “in behalf of the proposed improvement district,” as provided in 3 Rem. & Bal. Code, § 4226-13, although Id., § 4226-14, further provides that the decree of appropriation vests the title in the county “for the benefit of the improvement district;” since the above quoted words mean no more than that the county takes the title to be used for ditches of the irrigation district just as a city takes condemned streets in aid of local improvement districts in trust for street purposes; and the nature of a drainage improvement district is not less public and is not differentiated because all its costs may be assessed against the district.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered November 26, 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 King county, Frater, J., entered November 1, 1913, upon a trial and conviction of selling impure food.</p>

, entered September 17, 1913, upon findings in favor of the defendant, dismissing a mandamus proceeding to secure reinstatement in office.

<p>Eminent Domain — Proceedings—Decree—Appeal—Review—Combined Judgment. In eminent domain, there is no right of appeal under the general statutes of appeal, as the eminent domain act is a special act, contemplating three judgments in the course of the proceedings, viz: (1) the decree of public use; (2) the award of damages; and (3) appropriating the title; and provides for an appeal only from the second, bringing up the propriety and justness of the award, which right of appeal is waived by acceptance of the award; hence one final judgment, incorporating all three of the judgments contemplated by statute, entered after an acceptance of the award, is not reviewable by appeal, but only by certiorari, if at all.</p> <p>Same. In eminent domain proceedings, it is not reversible error to combine the judgment for damages on the award with the final decree of appropriation, since an appeal, allowable on the former, may be taken from the combined judgment pro tanto.</p>

Appeal by plaintiffs from a judgment of the superior court for King county, Dykeman, J., entered January 21, 1914, upon the verdict of a jury, awarding plaintiffs one dollar as damages sustained in an automobile collision.

<p>Criminal Law — Appeal—Right op State to Appeal — Statutes— Construction. Under Rem. & Bal. Code, § 1716, giving the state the right of appeal in a criminal case where the error is in setting aside the indictment or information, or in arresting the judgment on the ground of insufficiency of the facts alleged, “or in some other material error not affecting the acquittal of the prisoner on appeal,” the state has a right to appeal from a dismissal on the ground that the defendant was not brought to trial within sixty days after a remittitur was received from the supreme court under Id., §2312; since the error arising on the construction of the statute was one of law, and judgment of dismissal on that ground in no sense affected the acquittal of the prisoner upon the merits.</p>

<p>Principal and Agent — Relation—Evidence—Sueeiciency—Liability of Principal. Where, in closing a deal for land, involving a large purchase money mortgage, the vendee brought in one K. requesting that the deed was to be made to K. simply to have K. make the mortgage in order that as to third persons the vendee’s credit might not be disturbed, K. must be taken as the agent of the vendee, as between him and the vendor, where the credit was not given to the agent, but to his principal, who at the time and for a year subsequent thereto, did not inform the vendor that, by the shift of names, he was seeking to avoid personal liability, but permitted the vendor to believe that he was buying the property for himself and that the liability was his own.</p>

<p>Criminal Law — Venue-—Evidence—Sufficiency. Tbe venue is sufficiently proven in a criminal case, altbougb no witness testified directly tbat tbe offense was committed in tbe county, where tbe testimony was replete with expressions showing tbat fact, and tbe evidence as a whole was sufficient to satisfy tbe jury.</p> <p>Obstructing Justice — Statutory Provisions — Solicitation by Witness. One who for a consideration offers to make an affidavit to be used on a motion for a new trial, stating tbat bis former testimony in tbe case was a fabrication, is a “witness,” within tbe meaning of, and is guilty of violating, Rem. & Bal. Code, § 2324, providing that “every person who is or may be a witness upon a trial .... or other proceeding before a court who shall ask any compensation . . . . upon an agreement or promise tbat bis testimony shall be influenced thereby .... shall be guilty” etc.; since by Id., §§ 399, 401, an affidavit is made a distinct means for bringing tbe testimony of witnesses before tbe court on motions for a new trial, and one who testifies by affidavit is a witness.</p>

, entered December 31, 1913, upon findings as to title, and the verdict of a jury failing to award damages to certain defendants, after a trial on the merits, in condemnation proceedings.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 21, 1914, upon a trial dismissing a prosecution for violating the statutes relating to the filing of certificates entitling physicians to practice medicine, upon sustaining a demurrer to the information.</p>

<p>Certiorari to review a judgment of the superior court for Spokane county, Blake, J., entered August 6, 1914, adjudging a public use and necessity in condemnation proceedings, after a trial to the court.</p>

, entered October 16, 1914, adjudging a public use and necessity in condemnation proceedings, after a trial to the court.

, entered September 9, 1914, denying the right of eminent domain, in proceedings to condemn shore rights to be used by a boom company in extending and maintaining its booming facilities.

<p>Divorce — Grounds — Incompatibh,ity ■— Causes Arising Subsequent to Marriage. Incompatibility, alone, not being ground for a divorce unless traceable to some cause fixed by statute as sufficient, a divorce cannot be granted upon the ground of incompatibility existing prior to a marriage entered into merely for the purpose of legitimizing a child; since a divorce can be granted only for causes arising subsequent to the marriage.</p>

<p>Venue — Change — Bias of Judge — Disqualification. Upon an affidavit for a change of judges on account of the bias of the trial judge, and asking that a judge of some other county be called because the judge of department No. 2 would be called as a witness, the trial judge has no jurisdiction other than to send the case to the judge of department No. 2; since he cannot pass upon the qualifications of such judge.</p> <p>Judges — Disqualification—Judge as Witness. In making an affidavit to disqualify a trial judge on the ground that he would he a witness in the trial, the defendant, .especially in a criminal case, need not divulge any part of his evidence in advance of the trial; nor should a judge be required to pass upon the materiality or admissibility of his own testimony.</p> <p>Appeal — Review—Harmless Error. Error in overruling a motion to call in a new judge, because of the disqualification of the trial judge by reason of the fact that he would be called as a witness at the trial, is not prejudicial where, when called to testify, the trial judge ruled, as the fact was, that the matter was entirely immaterial.</p> <p>Libel and Slander — Criminal Prosecutions — Malice—Truth of Charge — Information—Sufficiency. Malice being the gist of the offense of criminal libel at common law and under Rem. & Bal. Code, § 2424, defining the offense as a “malicious publication” without making any reference to the truth or falsity of the publication, it is not necessary to allege in the information that the publication was false; especially in view of Id., § 2425, providing that every publication having the tendency mentioned in § 2424 shall be deemed malicious unless justified or excused, and that such publication is justified -when the matter charging the commission of a crime is true, and was published with good motives and with justifiable ends; since the truth is made material for the first time only as a defense overcoming the presumption of malice.</p> <p>Same — Criminal Libel — Libelous Per Se. A publication is criminally libelous per se, where it charges a prosecuting attorney with the crime of nonfeasance in office in wilfully neglecting to prosecute a criminal, and tends to expose him to hatred, contempt, or ridicule, or deprive him of public confidence.</p> <p>Same — Criminal Prosecution — Malice—Privileged Communications — Statutory Provisions. A publisher of a newspaper is afforded no immunity for the publication of matter libelous per se different from the immunity afforded other persons, by Rem. & Bal. Code, § 2430, providing that communications between persons concerned therein or who stood in such a relation as to offer reasonable ground for supposing an innocent motive, shall not be presumed malicious, but shall be termed privileged communications.</p> <p>Same — Criminal Prosecution — Malice — Justification — Issues and Proof — Burden of Proof of Malice. Though the occasion be one of privilege, but the publication itself was not privileged in that it charged a crime and imputed moral delinquency to a public officer, an information charging that the publication was maliciously and unlawfully printed is sufficient to put in issue the good faith of the publication as a justification; and when there was evidence tending to establish the defense, the question of actual or express malice was a question for the jury, with the burden of proof beyond a reasonable doubt upon the state.</p> <p>Same — Criminal Libel — Privilege—Reports of Court Proceedings — Statutory Provisions. Rem. & Bal. Code, § 2428, providing that no prosecution for libel shall be maintained against a publisher of a newspaper for the publication therein of a fair and true report of any judicial .... proceeding, the privilege is to be confined strictly to a fair report of the actual proceedings in court, and is no defense to the publication of a charge that a prosecuting attorney refused to prosecute a criminal, the purport of which was not to report proceedings but to criticise the official.</p> <p>Same — Criminal Libel — Malice — Justification — Issues—Evidence — Admissibility. In a trial for criminal libel, upon an issue of justification, evidence of investigations by the defendant of other charges against the prosecuting witness, as showing grounds of defendant’s lach of confidence in the prosecuting witness, are inadmissible, as they are irrelevant to the issue of malice or absence thereof in the admitted publication, or to the issues of justification by proof of the things charged and excuse by belief in the truth, based upon a fair and impartial investigation.</p> <p>Same. Such evidence is not admissible on the theory that it bore upon a general charge of official misconduct alleged in the first sentence of the information, where, read in its context, the information cannot be so construed.</p> <p>Same — Evidence—Justification—Admissibility. Upon a prosecution for criminal libel in the publication of an article relating to the conduct of the prosecuting attorney in the prosecution of a cause, evidence is inadmissible as to a story related to the defendant on the subject of wrongs by the prosecuting attorney in a civil cause not relating to his official duties (which story was included in the publication) in the absence of evidence of its truth, or of its investigation by the defendant and belief in its truth; as it would be but hearsay and insufficient as justification or excuse.</p> <p>Witnesses — Cross-Examination—Scope—Matter of Defense. In a prosecution for criminal libel, it is not error to refuse to allow the prosecuting witness to be cross-examined in relation to the truth of the publication, which was a matter of defense.</p> <p>Libel and Slander — Criminal Prosecution — Evidence — Prima Facie Case. In a prosecution for the publication of matter libelous per se, passing beyond any occasion of privilege, an admission of its publication and general circulation of the paper, together with the tendency of the article itself, is sufficient to make a prima facie case to be submitted to the jury.</p> <p>Same — Evidence—Express Malice — Sufficiency. In a prosecution for criminal libel, evidence that the defendant, in an altercation with the prosecuting witness, had threatened to “show you up yet,” and had said “I will get you yet,” is some evidence of express malice, sufficient to go to the jury. ■</p> <p>Same — Criminal Libel — Trial—Issues — Instructions. Where, in a prosecution for libel, in publishing of a prosecuting attorney that he had refused to prosecute a rapist, a vital question in the case was the question of the sufficiency of the evidence which the prosecuting witness might have secured in corroboration of the girl’s story, going to the good faith of the defendant in publishing the article, and the good faith of the prosecuting witness in refusing to prosecute the rapist, it is reversible error for the court, after instructing that no conviction could have been had for the offense of rape without corroboration of the female, to single out one incident in a long chain of circumstances (all having a clear corroborative tendency connecting the rapist with the offense, and which the complaining witness could have ascertained by a reasonable investigation of the facts) and instruct the jury that such incident did not, as a matter of law, constitute corroborative evidence of the commission of the crime of rape.</p> <p>Rape — Corroboration—Evidence—Sufficiency. The fact that the one accused of the rape of a girl under fifteen years of age, was found with the girl, locked in a bath room, in connection with other circumstances showing intimacy, and that accused had persistently followed the girl and finally secretly obtained possession of her, is sufficient corroborative evidence of the testimony of the girl that she had been raped after being taken by the accused to his home.</p> <p>Libel and Slander — Criminal Libel — Trial—-Issues—Instructions. Where, in a prosecution for libel, in publishing of a prosecuting attorney that he had refused to prosecute a rapist, a vital question in the case was the question of the sufficiency of the evidence which the prosecuting witness might have secured in corroboration of the girl’s story, going to the good faith of the defendant in publishing the article, and the good faith of the 'prosecuting witness in refusing to prosecute the rapist, it is reversible error to instruct the jury that, if they found that the only evidence of corroboration of the girl’s story was the evidence of witnesses to prove the existence of opportunity and that of physicians able to testify from a physical examination that the crime had been committed by some one, then such corroboration was not, as a matter of law, sufficient corroborating evidence to convict the accused; where the record not only discloses these facts, but many other facts, all of which constituted a chain of corroborative circumstances; since it singles out the mere circumstances of opportunity and the girl’s condition, and carries the inference that no other evidence could have been procured by the prosecuting attorney tending to corroborate the girl’s story; especially in view of the fact that the prosecuting attorney had been allowed to testify that he had laid before a superior court judge and the attorney general of the state a hypothetical case, in which the corroborative evidence was confined to evidence of acquaintance, opportunity, and the physical condition of the girl, and that in each instance he had been advised that such corroboration was insufficient to convict; since the judge, if he desired to mention any of the circumstances, should have mentioned all of them.</p> <p>Same — Criminal Libel- — -Instructions—Considering Publication as a Whole. In a prosecution for libel in publishing of B., a prosecuting attorney, that he had refused to prosecute a rapist, including also a statement that “Is it true, as is charged by a woman who claims that B. wronged her aged mother .... in disposing of an estate .... that F. (the rapist) knows too much about B., an instruction that, if the jury find the above language, when used in connection with the balance of the published article, refers to B. as a private citizen or an attorney at law, and that the same tends to expose the said B. as such citizen or attorney to hatred, contempt, or obloquy, or to deprive him of the benefit of public confidence, the defendant was not privileged to publish such language under the law of privilege as heretofore defined (relating to libel of one acting in an official capacity) and the publication is deemed malicious and cannot be excused as excuse was heretofore defined, and the burden of proof is upon the defendant to show that he published the same without malice, is not erroneous in that it authorized the jury to consider part of the publication separate and apart from the other portions; since its clear import was to require the consideration of matter relative to B.’s private capacity in connection with the balance of the article.</p> <p>Same — Instructions—Privilege. Such instruction is not erroneous in that it deprived defendant of his privilege, since reflection upon the acts as a private citizen are not within the privilege in case of fair discussion upon a person’s conduct in respect of public affairs.</p> <p>Same — -Instructions-—Malice. Such instruction is not erroneous in that it takes from the jury the question of malice, since it but declares the rule of the statute providing that malice is presumed, in which case the burden of proof is shifted to the defendant.</p> <p>Same — Criminal Libel- — Excuse. The fact that a publication libelous per se disclaims knowledge of the facts stated, and declares they are so serious as to be difficult of belief, is no excuse or defense for the publication.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered May 29, 1913, upon findings in favor of the plaintiff, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 11, 1914, upon findings in favor of the defendant, in an action on a fire insurance policy.</p>

, entered October 20, 1913, in favor of the defendants, in an action for specific performance and for damages, tried to the court.

, entered October 4, 1913, 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 engaged in railroad construction work.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 30, 1914, quashing a summons.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, McCroskey, J., entered November 8, 1913, upon the’ verdict of a jury rendered in favor of the plaintiff, in an action for money paid.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 5, 1914, in favor of the plaintiff, upon reviewing by certiorari a judgment of a justice of the peace.</p>

<p>Municipal Coepobations — Steeets — Improvement — Obiginal Gbade — Right of Abutters. In the absence of negligence, the city is not liable to abutting owners for the removal of lateral support in making the original grade of a dedicated street wholly within the limits of the street; and since the dedication implies the right to make an original grade, Const., art. 1, § 16, prohibiting the taking or damaging of property for public use without just compensation has no application.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered February 11, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages through the removal of lateral support.</p>

<p>Master and Servant — Injured Servants — Liability for Medical and Hospital Services — Contract—Performance or Breach. A mill company, wbicb bad agreed to furnisb hospital and medical attention to injured employees, deducting one dollar a month from their pay for such purpose, is not liable for the services of doctors and a nurse who were employed by the family of the injured employee after his arrival at the hospital, because they were not satisfied with the company’s physician, who tendered his services free, since the company had fully performed its contract, so far as permitted.</p> <p>Master and Servant — Scope op Employment — Authority of Servant. A lumber salesman, directed by a mill company to take an injured employee to a hospital where the company had already arranged for medical and hospital services, has no authority to employ some other physician, especially where the higher officers of the company could have been easily reached by telephone.</p>

<p>Rape — What Constitutes — '“Resistance.” Under Rem. & Bal. Code, § 2435, which, in defining rape, states disjunctively that the offense may be committed (1) when without consent and against will, (2) when resistance is forcibly overcome, and (3) when resistance is prevented by threats and fear of immediate and great bodily harm, the “resistance” spoken of is not one of the essential elements of the crime, but is evidence of want of consent, which is one of the essential elements.</p> <p>Indictment and Information — Alternatives. Under Rem. & Bal. Code, § 2435, providing that rape may be committed in one of several ways, it is proper to charge the commission of the offense in one or all of the ways, where they are not inconsistent or repugnant, although they are stated disjunctively in the statute.</p> <p>Rape — Information—Repugnancy. Upon a charge that rape was committed without consent, and that resistance thereto was forcibly overcome and was prevented by fear of immediate and great bodily harm, the charges are not inconsistent or repugnant.</p> <p>Witnesses — Cross-Examination—Scope. Where part of a conversation is brought out on cross-examination, on redirect the opposite party has the right to the whole thereof.</p> <p>Trial — Reception of Evidence! — Motion to Strike. A motion to strike an answer to a question relates only to the last answer preceding the motion.</p> <p>Appeal — Review—Harmless Error — Objections. Error cannot be predicated on a motion to strike an answer to a question when no reason was given therefor.</p> <p>Witnesses — Cross-Examination—Scope. The latitude to be allowed on cross-examination of an accused person, will not be disturbed except for abuse of discretion, and none appears where the facts drawn out went to his credibility and the weight to be given his evidence.</p> <p>Trial — Misconduct of Counsel — Request for Instruction. A reversal for misconduct of counsel in argument to the jury cannot be urged, where the bounds of legitimate argument were not transgressed; nor unless after protest, there is an instruction requested that the jury disregard the statement, unless the conduct was so flagrant that it could not be cured by instructions.</p>

<p>Appeal — Bond—Sufficiency. On appeal from a judgment for $724, with interest and costs, a bond on appeal conditioned also as a supersedeas bond, in the sum of $1,600, is insufficient to support the appeal, which must he dismissed; the statute requiring a bond in double the amount of the judgment, and $200 additional; which would amount to $1,648, without taking account of costs.</p>

<p>Jury — Challenge to Panel — Method op Selection — Statutes— Construction. 3 Rem. & Bal. Code, § 94-3, requiring the clerk to make up the jury list from the latest tax-rolls and poll-books of the county or from any other official sources of information, and prescribing qualifications for jurors that cannot be ascertained alone from the tax-rolls or poll-books, is directory merely; and a list made up from additional sources of information, such as memoranda by deputy assessors and the personal knowledge of the clerk, does not render the panel subject to challenge, where there was no attempt to show any prejudice or consequent injury.</p> <p>Trial — Misconduct op Counsel. Counsel in addressing the jury have no right to réad from law reports or authorities, in view of Rem. & Bal. Code, §§ 342 and 343, vesting the decision of questions of law in the court, and questions of fact in the jury, and the amendment of 1909, Id., § 339, requiring written instructions on the law to be taken into the jury room.</p>

, entered July 9, 1913, upon an agreed statement of facts, in favor of the plaintiff, in mandamus proceedings to secure salary warrants.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered October 31, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained when run down by an automobile.</p>

<p>Execution — Sales — Vacation — Inadequacy of Price — Fraudulent and Unfair Methods. Where a judgment for costs in the sum of $132 was granted a corporation against certain minority stockholders, and in the interests of majority stockholders, who desired to wipe out the minority interest for a nominal sum, the judgment was assigned to a third person who brought suit against the minority stockholders on the judgment and garnisheed their stock, whereupon the stock of defendants was sold on execution at a grossly inadequate price, and the defendants, immediately on hearing.of the sale, attacked the sale as for an inadequate price and tendered the amount of the judgment, upon the principle that the law requires and will hold men to a just standard of right when seeking aid in the courts, the circumstances vested the trial court with a discretionary power to set aside the sale, which will not be controlled where it appears that the sale would outrage the rights of the judgment debtor.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered July 13, 1914, dismissing an action of trespass, on overruling a demurrer to new matter in the answer.</p>

<p>Statutes — Title and Subjects — Scope. The title to a game code, indicating its broad scope as a complete code regulating the protection and taking of game birds and fish is sufficient to embrace as germane thereto, 3 Rem. & Bal. Code, § 5395-4, authorizing county game commissioners to set aside limited game preserves wherein game shall not be taken within such time as they may fix.</p> <p>Game — Title to — Constitutional Law — Vested Rights — Police Poweb. There being no private right in the citizen to take game, the title being in the state, the state’s right to control or prohibit the taking of game is an inherent incident of the police power; and 3 Rem. & Bal. Code, § 5395-21, to the above effect, is but declaratory of the common law, and therefore does not deprive any one of property rights or vested privileges.</p> <p>Constitutional Law — Class Legislation — Creation of Game Pbeseeves. 3 Rem. & Bal. Code, § 5395-4, providing that the county game commission shall have power to set aside limited game preserves wherein no game bird, animal, or fish can be taken or killed within such times as the commission shall determine, is not unconstitutional as class legislation in that it bears unequally upon persons smilarly situated, since a person having land peculiarly suited for game preserves occupies a different relation to the purpose of the law from others whose lands are not so suited, and the law operates equally on all persons similarly situated.</p> <p>Constitutional Law — Legislative Powebs — Delegation. 3 Rem. & Bal. Code, § 5395-4, providing that the county game commission shall have power to set aside limited game preserves wherein no game bird, animal or fish can be taken or killed within such times as the commission shall determine, is not unconstitutional as an unlawful delegation of legislative power, since the law is a complete law in itself delegating the making of no substantive law, but only the power to determine a fact or condition upon which it shall operate.</p> <p>Constitutional Law — Police Poweb — Reasonableness. 3 Rem. & Bal. Code, § 5395-4, providing that the county game commission shall have power to set aside limited game preserves wherein no game bird, animal or fish can be taken or killed within such times as the commission shall determine, is not unconstitutional as granting such an arbitrary and unlimited power as to be an unreasonable exercise of the police power; since reasonably construed to bring about a construction compatible with the obvious purpose of the legislature — the protection, propagation and restoration of game— the power to set aside lands as a game preserve necessarily implies not an arbitrary selection, but one peculiarly suitable for the purpose, which furnishes a guide and marks a limit to the discretion vested in the commission.</p> <p>Game — Game Preserves — Establishment—Discretion—Abuse—■ Evidence- — Sufficiency. The evidence is insufficient to show that the game commission of S. county acted arbitrarily in setting aside as a game preserve the lands owned or leased by a gun club, influenced thereto, as alleged, by the fact that members of the gun club had refused to comply with an order of the commission to desist from “feeding” their grounds prior to the opening of the season, which order was without authority and was rescinded, where every member of the commission testified that he was not influenced by the matter of “feeding,” and it clearly appears that this land was selected only after a thorough investigation, and many testified that it was better adapted for a refuge, nesting, and breeding place for birds than any other tract in the county, and that many varieties breed and nest there.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Darch, J., entered October 27,1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered January 14, 1914, upon findings in favor of the defendant, in an action for an accounting, after a trial on the merits before the court.

<p>Fish — Fisheries — Begulations — “Set Nets” — “Fixed Appliances” — Construction. A “set net” one end of which was fastened to a fixed object on the bank of a river, and the other end to a buoy in the river held in place by an anchor which was removable, so that salmon could be caught in the net without the aid of a human being, is a “fixed appliance” within the meaning of Bern. & Bal. Code, § 5183, making it unlawful to maintain in specified waters any pound net, trap, weir, fish wheel or “other fixed appliance” “set lines excepted;” in view of the ordinary meaning of “set” and the history of our statutes classifying set nets among fixed appliances, and in view of the provision excepting all “set lines;” notwithstanding a law for the collection of licenses enumerates the set net with the less permanent appliances; and notwithstanding § 5216, providing that nothing in the act shall prevent fishing with set nets in any of the rivers of the state, except when specially prohibited by law etc.; since the latter section was not intended as an exception to the prohibitions of § 5183, but as an independent provision relating to other waters.</p> <p>Same. Bern. & Bal. Code, § 5193, determining the size of set nets allowable in certain waters, has no bearing upon the prohibition of set nets in portions of such waters.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered February 14, 1914, upon findings in favor of the plaintiff, in an action to cancel a mortgage, tried to the court.</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 Whitman county, McCroskey, J., entered February 28, 1914, dismissing an action in equity, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered September 4, 1913, dismissing an action for breach of contract, after a trial on the merits to the court.</p>

, entered March 3, 1914, upon sustaining a demurrer to the information, dismissing a prosecution for the illegal taking of fish.

<p>Appeal from a judgment of the superior court for Clarke county, McMaster, X, entered January 9, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered December 9, 1913, dismissing an action for a divorce, after a trial to the court on the merits.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Hardin, J., entered May 25, 1914, upon a trial and conviction of maintaining a common nuisance.</p>

<p>Appeal from a judgment of the superior court for Whatcom county, Alston, J., entered July 6, 1914, upon a trial and conviction of maintaining a common nuisance.</p>