Volume 83 — Washington Reports

<p>Criminal Law — Trial — Selection op Jury — Number op Challenges — “Capital Offenses” — Statutes —Construction. Under Rem. & Bal. Code, § 2138, providing that, in prosecutions for capital offenses, the defendant may challenge peremptorily twelve jurors, and six jurors in prosecutions for offenses punishable by imprisonment in the penitentiary, “capital offenses” refers only to those punishable by death; and the death penalty having been abolished, the right to twelve peremptory challenges is suspended; and the fact that the crime was committed prior to the abolishment of the death penalty is immaterial, where the accused was not insisting on the application of the capital penalty.</p> <p>Same — Appeal—Preservation of Grounds — Misconduct of Counsel — Record—Waiver of Error. Error in misconduct of the prosecuting attorney in his argument to the jury cannot be urged where the only foundation laid was exceptions to the alleged use of certain language, it was not claimed that the misconduct was so flagrant that it could not be cured by instructions, no instructions were requested, and the offending language was not preserved in the record.</p> <p>Appeal — Record—Affidavits. Misconduct of counsel in argument to the jury occurring in the presence of the court cannot be shown on appeal by affidavits setting forth the acts constituting such •misconduct; since the language used must be certified to by the trial judge.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered January 20, 1914, upon a trial before the court, a jury being waived, and a conviction of a misdemeanor in violating the act relating to building and loan associations.</p>

, entered December 17, 1912, dismissing an action for injuries sustained by a passenger on a street car, upon withdrawing the case from the jury.

<p>Appeal from a judgment of the superior court for Kitsap county, French, J., entered October 23, 1913, dismissing mandamus proceedings, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Grant county, Steiner, J., entered November 1, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for conversion.</p>

<p>Vendor and Purchaser — Rescission by Vendee — Fraudulent Representations — Evidence—Sufficiency. A sale of land may be rescinded by tbe vendee for fraud, where the land was 1,700 miles away and had never been seen by the vendee, and there was clear and convincing evidence that the .representations of the vendor’s agent which induced the sale were to the effect that the land was in the heart of a German Catholic settlement, and were made knowing that to be a material fact in the mind of the vendee, who was of that faith and bought in order to have a home in such a community, when, in fact, the whole country was an unsettled wilderness; and it is immaterial that the vendee did not intend to go there for a year or two.</p> <p>Same. In such a case, the breach of promissory representations that a church would be built there the following year is immaterial except as it threw light on the other representations, and so does not remit the purchaser to an action for damages.</p>

, entered' December 15, 1913, upon findings in favor of the plaintiffs, in an action for conversion, tried to the court without a jury.

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered August 21, 1913, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

, entered November 29, 1913, upon findings in favor of the defendants, upon an advisory verdict of a jury, in an action to obtain title to lands, on a money, judgment, for fraud, etc.

<p>Municipal Corporations — Claims — Presentation — Statutory Provisions. Rem. & Bal. Code, § 7995, providing that claims for damages against a city shall be filed with the city clerk within thirty days, and in cases of cities of the first class, shall comply with its charter provisions, which required the claim to be filed within thirty days and “be sworn to by the claimant” which provisions are made mandatory, is not unreasonable, as applied to a case where the injured person was delirious and so incapacitated as to be unable to make and swear to a claim within the thirty days; and it is not sufficient that, within the thirty days, the claimants filed a claim sufficient in all respects except that it was sworn to by the father and not by the claimant.</p> <p>Statutes — Titles and Subjects — Revision — Amendments. A statute providing that the filing of claims against a city shall be filed with the city clerk and also comply with all valid city ordinances respecting the subject, does not violate Const., art. 2, § 37, providing that no act shall be amended by mere reference to its title, in that it attempts to embody city charter provisions by reference only.</p>

, entered January 9, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by reason of a defective sidewalk.

<p>Appeal — Notice—Oral Notice. An oral notice of appeal at tbe time of the rendition of tbe judgment is sufficient, under Rem. & Bal. Code, § 1719.</p> <p>Pleading — Complaint—Demurrer—Waiver. Under Rem. & Bal. Code, § 263, providing that tbe objection that tbe complaint does not state a cause of action may be taken any time, either in tbe superior or supreme court, pleading over after a demurrer is sustained does not waive tbe objection.</p> <p>Appeal — Record — Statement of Pacts. Where an appeal is based upon tbe insufficiency of tbe complaint, no statement of facts is necessary.</p> <p>Garnishment — Defenses — Assignment of Debt — Default of Garnishee — Judgment—Conclusiveness—Laches—Quieting Title— Adverse Claims. One indebted under a judgment which bad been assigned before entry, who, upon being garnisheed by a third party in a suit against tbe judgment creditor, allowed a judgment to go against him by default as garnishee, cannot, after tbe lapse of two years,, bring an action to determine to whom be must pay tbe judgment, under Rem. & Bal. Code, § 199, providing for an action to determine adverse claims by bringing all parties before tbe court in case more than one is interested in or claims to be tbe owner of tbe subject-matter of tbe suit; since, if he bad notice of tbe assignment of tbe original judgment, be was bound to appear and defend tbe garnishment; and if tbe garnishment judgment was obtained by fraud and without notice to him of tbe assignment or opportunity to defend, bis only remedy was to proceed within one year to set aside tbe judgment of garnishment, under Id., §§ 464, 467; since, by bis own neglect, be allowed two judgments to go against him.</p> <p>Judgment — By Default — Collusiveness-—Collateral Attack. Where a garnishee bad suffered a default, and claimed be bad no notice of tbe defense that bis debt had been assigned, bis action to bring all parties before tbe court to determine to whom be should pay tbe judgment, under Rem. & Bal. Code, § 199, is a collateral attack upon the garnishee judgment, which can only be held void for reasons affirmatively appearing upon tbe record.</p>

<p>Damages — Personal Injuries — Mental Anguish — Instructions. In an action for personal injuries from a blow on the head, resulting in pain, nervousness, and headaches, it is not proper to instruct, upon the subject of damages, that the jury may take into consideration the probable suffering of mental anguish in the future, where there was no evidence tending to show mental anguish other than pain and suffering actually incident to such an injury.</p> <p>Same — Probable Future Suppering — Reasonable Certainty. Damages for future pain and suffering should only be granted when the jury can find from a preponderance of the evidence that future pain and suffering is reasonably certain to result from the injuries and continue in the future.</p>

<p>Death — Wrongful Death — Negligence—Trespassers—Degree of Care — Contributory Negligence — Evidence—Sufficiency. One who goes upon a trestle used in tbe construction of a jetty, in search of employment, and after being refused, loiters about tbe place in a dangerous position for an inexcusable length of time near the sweep of a derrick used in unloading rock from a heavy skip, is a mere trespasser, or at least but a licensee, whom the defendant was only bound to refrain from wilfully and wantonly injuring; and he was guilty of contributory negligence, precluding any recovery for his death, when struck by the skip, where there was no evidence of an intention to wantonly or wilfully injure him, or even that his presence was known.</p>

<p>Certiorari— Record — Scope of Review — Evidence — Necessity. Upon certiorari to review the decision of the commissioner of public lands ordering a cancellation of a state deed of oyster lands, in which the commissioner was unable to make a full return bringing up all the evidence, by reason of the stenographer’s inability to read her notes, the decision of cancellation must be vacated, without prejudice; since Rem. & Bal. Code, § 1010, relating to review of certiorari proceedings depending on the facts alone, contemplates a review of the evidence upon the record below; and findings of the commissioner, cannot, in the absence of the evidence, be taken as the verdict of a jury.</p> <p>Public Lands — Findings of Commissioner — Review—Certiorari —Evidence. Where the commissioner of public lands took evidence, and made findings thereon, certiorari brings such evidence up for review, even if the commissioner might have determined the matter on his own investigation without the taking of evidence.</p> <p>Evidence — Judicial Notice — Practice in Department. The court will take judicial notice of the practice of the commissioner of public lands to subpoena witnesses and administer oaths.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered February 24, 1914, upon findings in favor of the plaintiff, in an action of claim and delivery for property levied upon, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered November 18, 1918, upon findings in favor of the plaintiffs, in consolidated actions upon promissory notes, tried to the court.</p>

<p>Judgment — Vacation—“Proceedings”—Trial—Change of Venue —Bias of Judge. Under Rem. & Bal. Code, §§ 467, 468, providing that proceedings to vacate or modify a judgment for fraud in obtaining it shall he by verified petition, with process, pleadings and issues made up in the same way as in an original action, an application to modify a judgment is a new and independent proceeding within the purview of 3 Rem. & Bal. Code, §§ 209-1, 209-2, providing for a change of judges for bias in any action or “proceeding.”</p> <p>Venue- — Change—Bias of Judge — Time for Application. A motion for a change of judges on account of bias of the judge is timely, where it was made as soon as the cause had been assigned under the rules of court by the presiding judge to a judge of a particular department for trial, although it had been previously assigned for trial on a day certain without designating any department or judge.</p> <p>Divorce — Decree—Modification — Jurisdiction. In divorce, the jurisdiction is continuing, especially where the interests of children are concerned, and the decree may he modified without the necessity for new process.</p>

, entered May 14, 1914, dismissing mandamus proceedings to restore a city official to office, after a trial to the court.

, entered1 January &7, 1914, upon the verdict of a jury rendered in favor of the defendant, in proceedings to condemn lands for street purposes.

, entered November 5, 1914, ordering the prosecuting attorney to return certain money and papers to an accused person, after a hearing on affidavits upon an order to show cause.

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered December 2, 1914, dismissing an action to restrain the issue of municipal bonds, after a trial to the court.</p>

<p>Mortgages — Foreclosure—Sale—Redemption—Subsequent Judgment Sales — Rights op Purchaser — Title. Where a judgment creditor, having redeemed from a mortgage foreclosure sale cutting off his judgments, caused the property to be sold under execution on his judgments to D., and also afterwards assigned to D. his certificates of redemption from the mortgage foreclosure sale, such execution sales passed no more than a right to redeem from the mortgage foreclosure sale, time for which redemption was not extended by the executions upon the judgments; and D. was accordingly entitled to demand the sheriff’s certificate of sale on foreclosure, after expiration of the period of redemption, although in the meantime he had sold his interests by virtue of the judgments and execution sales thereunder to a third party, with notice of all the proceedings.</p> <p>Same — Right op Assignees op Judgment — Estoppel. In such a case, there being no fraud alleged and all the parties having full notice of all the proceedings and the state of the title, the assignment and sale of whatever rights the judgments or the sales thereunder carried, without any intention to release the rights secured by redemption from the mortgage foreclosure sale, does not estop the assignee of the redemptioner from the mortgage foreclosure- sale to assert that his assignment and sale of all interests under the judgments did not convey the title to the land; since estoppel does not operate where all parties had equal knowledge, and no misrepresentations or attempts to deceive were made.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered August 20, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an elevator boy in handling an elevator.</p>

<p>Work and Labor — Quantum Meruit — Effect of Excessive Price —Actions—Issues'—Instructions. In an action to recover the reasonable value of machinery ordered and accepted by the defendants, upon issues as to whether the goods were ordered from plaintiff by defendants and accepted by defendants, and their reasonable value, it is error to instruct the jury that, if they find that the machinery was ordered by defendants, and manufactured and delivered by plaintiff to defendants, they must find for the plaintiff, unless the jury further found that plaintiff charged for the same in excess of the reasonable value thereof; because, if the machinery was ordered, delivered to, and accepted by defendants, they, would be liable for the reasonable value thereof, regardless of the price asked.</p> <p>Same — Quantum Meruit — 'Issues and Proof — Instructions. In an action to recover the reasonable value of machinery delivered to, and accepted by the defendants, upon issues as to whether the goods were ordered from plaintiff by defendants, and accepted by defendants, and their reasonable value, it is error to instruct the jury that if they find defendants could have purchased the machinery on the open market for considerably less than the amount claimed by plaintiff, they could take that fact into consideration in determining whether or not there was a contract entered into between the plaintiff and defendants; since there was no contract in issue and no price had been agreed upon, making the instruction confusing and misleading.</p> <p>Appeal — Review—Prejudice—Presumptions. Prejudice will be presumed from erroneous instructions on material questions, unless it clearly appears from the whole case that there was no prejudice.</p> <p>Appeal — Review—Discretion—New Trial. The discretion of the trial court in granting a new trial will not be disturbed on appeal, unless there was a clear abuse of discretion, or the record discloses that the order was made because of a misconception of the law.</p>

, entered May 28, 1914, reversing, on writ of certiorari, an order of the public service commission fixing rates for public water service.

<p>Appeal — Rehearing — Scope — Matters Not Previously Urged. Where, pending an appeal, the supreme court, in another case, announced a new rule of practice whereby, when a new trial had been granted upon some specific ground, on appeal therefrom the respondent might sustain the order by urging all the grounds covered in his motion, the supreme court will, on granting a rehearing, give respondent the advantage of applying the new rule, although not urged in the briefs on appeal or on oral argument; it appearing that the new rule had not been announced when the briefs were prepared, and was not known to counsel when the cause was first argued, having been promulgated for but a short time.</p> <p>Damages — Personal Injuries — Evidence—Earning Capacity— Prospective Proeits — Admissibility. In an action for personal injuries sustained by a woman who was selling hair goods, evidence that she contemplated opening a place for the sale of hair goods, is competent on an issue as to her loss of earning capacity, as tending to show her ability to work and transact business, and is not objectionable as showing anticipated profits, where no specific statement was made as to amount of anticipated profits lost.</p> <p>Witnesses — Impeachment — Redirect Examination — Scope. Where, on laying the ground for the impeachment of a witness, the witness denied making any such statement as was imputed to her, it is not prejudicial error to refuse to allow the witness, on redirect at that time, to detail a conversation held at the time in question; especially where, after the direct impeachment of the witness, she was not called in rebuttal to give her version of the matter, and no excuse was given for failing to recall her.</p> <p>Release — Fraud — Burden oe Prooe — Instructions. Where one of the defenses in a personal injury case was a release and discharge, alleged by plaintiff to be procured by fraud, a general instruction that the burden of proving the affirmative defenses was upon the defendant, is not misleading or error, where, as to this particular defense, the jury was instructed that the burden was upon the plaintiff to overcome the defendant’s prima facie case by evidence.that was “clear, strong, satisfactory, and convincing.”</p> <p>Same — Fraud—Matters of Opinion — Question for Juey. Notwithstanding that statements of physicians to the effect that plaintiff would probably recover in a few weeks were matters of opinion, a finding that a release was induced by fraud is a question for the jury, where there was other evidence to the effect that plaintiff was further induced by statements that the release was only a receipt for the money paid, to be applied on account in event her injuries were permanent.</p>

<p>Sheriffs and Constables — Attachment — Dissolution — Surrender of Property — Subsequent Appeal — Effect. Upon dissolution of an attachment, the sheriff is bound to return the property to the defendant, upon demand, immediately without waiting for an appeal to be taken and perfected, and is not liable to the plaintiff if, upon appeal subsequently taken, with supersedeas, the order dissolving the attachment is reversed.</p> <p>Same. The fact that the sheriff had been given an indemnity bond by the plaintiff does not put the sheriff under any obligation to hold the attached property after dissolution of the attachment.</p>

<p>Appeal from a judgment of the superior court for Clarke county, Back, J., entered October 23, 1913, upon findings in favor of an executrix, in >a proceeding to compel her to include certain property in the inventory.</p>

, entered February 17, 1914, upon findings in favor of a claimant to funds paid into court upon a condemnation award, after a trial to the court.

<p>Actions — Misjoinder or Parties — Common Interest in Cause. Plaintiffs have a common interest in a cause of action for fraud, under Rem. & Bal. Code, § 189, providing for joinder of plaintiffs in such case, and there is no misjoinder of parties, where they were induced by one of the defendants to take an interest in three sections of timber lands, each taking title to one of the sections and holding as tenants in common; Id., §406, providing that judgment may be given for or against one or more of the several plaintiffs and for or against one or more of the several defendants.</p> <p>Appeal — Record—Statement or Pacts — Necessity—Certiricate. The sufficiency of the evidence to support the verdict cannot be considered in the absence of a properly certified statement of facts; and it is not sufficient to certify that the matters and proceedings embodied in the bill are matters and proceedings occurring in the cause, and that the attached exhibits were all the exhibits “admitted upon the trial of said cause.”</p> <p>Trial — Verdict—Several Verdicts. In an action by plaintiffs, having a common interest in a cause of action for damages for fraudulent representations, the jury may be instructed to return a several verdict as to each plaintiff, under Rem. & Bal. Code, § 364, authorizing the courts to direct special verdicts or findings upon particular facts.</p> <p>Appeal — Review'—Harmless Error. Any error in directing several verdicts for two plaintiffs instead of a joint verdict for the aggregate sum, is harmless.</p> <p>Appeal — Record—Aeeidavits. Affidavits upon a motion for a new trial cannot be considered unless included in the statement of facts.</p>

<p>Wills — Revocation — Marriage— Provision for Wife. Under Rem. & Bal. Code, § 1323, providing that marriage revokes a prior will of the testator, if the wife shall be living at the time of his death, unless provision shall have been made for her by marriage settlement or the wife be provided for or mentioned in the will, an understanding before marriage that, when either should die, the survivor should have no interest in the decedent’s estate, is not a “provision” for the wife by marriage settlement which could toll the revocation of the will.</p> <p>Frauds, Statute of — Contracts in Consideration of Marriage. An understanding before marriage that, when either should die, the survivor should have no interest in the decedent’s estate, is not merely an agreement in contemplation of marriage, but is a promise made “upon consideration of marriage,” and void under Rem. & Bal. Code, § 5289, unless made in writing.</p>

<p>Intoxicating Liquors — Local Option — Shipments — Wholesaler’s Stocks and Deliveries in Dry Units. It is not a violation of the local option law, Rem. & Bal. Code, § 6309, for a common carrier to ship intoxicating liquors in original packages to a wholesaler within a dry unit, to replenish his stock or to make deliveries on orders taken in a wet unit; since the prohibition of shipments into a dry unit excepts shipments or deliveries of unbroken packages at residences by manufacturers or wholesalers or by any common carrier, and only requires “retailers” to' dispose of their stocks, and provides that the act shall not be construed to prohibit the manufacture of intoxicating liquors in any no-license unit, “nor the delivery of the same;” thereby allowing wholesalers to make sales in wet units, and replenish their stocks and make deliveries in dry units.</p>

<p>Partnership — Existence—Proof — Evidence — Sufficiency. As the existence of a partnership depends upon the intent of the parties, and may he established by circumstantial evidence, tending to show a joint or common venture combining property, labor or skill, or some of these elements for the purpose of joint profit, the evidence is sufficient to establish, between an aunt and niece, a partnership relation in the lodging house business, where it appears that the business was started entirely with the money of the niece, then a young girl, who devoted her whole time to the business for fifteen years, and through whose efforts the business gained large profits, and assumed large proportions including several establishments, and the aunt had declared many times in the presence of numerous witnesses that she and her niece were equal partners in all the business conducted; and when, in view of all the circumstances, little weight should be given to the fact that the business was conducted and titles taken in the name of the aunt.</p>

, entered June 6, 1913, upon findings in favor of the plaintiffs, in consolidated actions for injunctive relief, tried to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered December 27, 1913, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered January 26, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in railroad construction work.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered February 27, 1914, upon findings in favor of the plaintiff, in an action to recover rent, tried to the court.</p>

, entered April 8, 1914, applying the proceeds of life insurance policies to the use of a legatee, in a controversy with the administrator and creditors.

<p>Appeal by plaintiff from a judgment of the superior court for Pierce county, Card, J., entered June 4¡, 1914., upon the verdict of a jury rendered in favor of the plaintiff for $8,000, in an ¡action upon a fire insurance policy.</p>

, entered August 8, 1913, in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment and to quiet title.

<p>Appeal from a judgment of the superior court for Cowlitz county, Darch, J., entered December 12, 1913, upon findings in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Appeal — Record—Abstract—Necessity. Where no copy of the abstract was served upon two of the respondents, separately appearing, the appeal will be dismissed as to them.</p> <p>Appeal — Decision—Law of Case. A decision on a former appeal that the court had acquired jurisdiction, becomes the law of the case and is conclusive on a subsequent appeal.</p> <p>Corporations — Stock Subscriptions — -Assessment — Determination — -Res Judicata. Where the validity of claims against an insolvent bank is determined in the matter of the receivership, upon notice to stockholders in proceedings to assess their stock, without any appeal taken, it cannot be litigated in a subsequent action against the stockholders.</p> <p>Same — Assessment of Stock — -Actions—Defenses. In an action for the benefit of creditors upon the unpaid stock subscriptions of an insolvent bank to which no certificate had been issued because all of its stock had not been subscribed, it is no defense that the subscriptions were invalid or that the organization had not been completed.</p> <p>Same. Such a defense could not be made where the court had regularly determined the amount of the debts and subscriptions and authorized an assessment and no appeal therefrom had been taken.</p> <p>Same — Stock Subscription — Actions—Defenses—Estoppel. In an action for the benefit of creditors upon the unpaid stock subscriptions of an insolvent bank, it is no defense in favor of certain stockholders that they signed the subscription list without specifying the amount for which they subscribed, and that the amounts were thereafter written in without authority by the promoter; as they are estopped.</p> <p>Same — Validity of Signature. It is good defense to an action for the benefit of creditors upon the unpaid stock subscriptions of an insolvent bank that the subscription list was not signed by the defendant, or by any one authorized to sign for him.</p> <p>Appeal — Review—Abstracts of Record. Where the abstract of the evidence contains no evidence of a fact in question, the court will not search the statement of facts for testimony therein to which no reference is made in the abstract.</p>

<p>Municipal Cobpobations — Improvements—Proceedings—Notice—• Constitutional Law — Due Process. Under Rem. & Bal. Code, §§ 7772 and 7792, making eminent domain proceedings to condemn property for a local improvement and the proceedings to assess the benefits therefrom two entirely separate proceedings so far as acquiring jurisdiction and the questions involved are concerned, owners in the district assessed for benefits, but whose lands are not taken, are not deprived of property without due process of law in that they were not served with notice of the condemnation proceedings or given an opportunity to be heard therein; notwithstanding that the jury in such a proceeding is authorized to find the damages to the defendants for land taken and to the balance of their lands not taken after offsetting the benefits, thereby precluding the assessment of such lands not taken.</p> <p>Same — Improvements—Assessment of Benefits — Exemptions— Proceedings. An award of damages in eminent domain proceedings to take land for street purposes, after fixing the amount for the land taken, reciting “For damages to remaining land by reason of severance, $150,” must, in the light of instructions directing the jury to offset the benefits against such damages, be construed as a net damage over and above special benefits, exempting the land from assessment, as authorized by Rem. & Bal. Code, § 7782.</p>

, entered January 27, 1914, dismissing an action to enjoin the cancellation of a benefit certificate, after a trial to the court.

<p>Corporations — Stock—Stock Dividends — Legality. Stock dividends, by increasing the capital stock of a corporation and issuing the increase to its stockholders, are lawful, where the same are in good faith and the company’s assets exceed its debts and the amount of the capital stock, including the increase so distributed.</p> <p>Same — Legality of Stock Dividends — Evidence of Good Faith— Sufficiency. Such stock dividends are not shown to be in bad faith, by reason of the failure of the company a year and a half later, where the company at the time was doing a good business, and was in good condition, there was need of increasing the capital stock, persons acquainted with its affairs and business invested in the stock, and there was nothing to indicate that the stockholders were not honest in the belief that the undivided profits exceeded the par value of that portion of the increase which was distributed as a stock dividend.</p>

, entered April 30, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries.

<p>Limitation oe Actions — Against County — Tax Title Held by County — Advebse Possession- — Estoppel. Property purchased hy a county at a general tax foreclosure sale for want of other purchasers, and held in trust for the state, county, and other political subdivisions entitled to an apportionment of the tax on a resale, is taken and held by the county in its governmental capacity, as distinguished from its proprietary capacity, in the exercise of the sovereign power of taxation; hence the statute of limitations does not run in favor of one in the adverse possession of the land while the title was held hy the county; nor would there he any element of estoppel, where the adverse claimant had not made improvements or paid any taxes (Gose and Chadwick, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for Pacific county, Wright, J., entered September 24, 1913, upon findings in favor of the defendant, approving a local improvement assessment roll, upon appeal from the city council.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December £0, 1913, granting a nonsuit in an action for personal injuries sustained by a passenger on a street car.</p>

, entered November 24, 1913, upon granting a nonsuit, dismissing an action for a writ of mandate, after a trial to the court.

<p>Insane Persons — Discharge Prom Hospital — Torts oe Insane Person — Liability of Superintendent. Under Rem. & Bal. Code, § 5967, providing that any patient may be discharged from the state hospital for the insane when, in the judgment of the superintendent, it may be expedient, the superintendent acts in an official capacity in a matter involving his discretion in discharging an inmate, temporarily out on parole; hence he is not liable for damages sustained by a third person by reason of turning the inmate at large, where he did not act maliciously or corruptly.</p> <p>Same — Discharge—Powers of Superintendent — Statutory Provisions. The fact that Rem. & Bal. Code, § 5962, provides for the discharge of inmates of the hospital upon application of relatives, etc., by an order of court, after notice to the superintendent and a hearing with provisions for the return of the inmate in case he is not properly cared for or is dangerous, does not negative the superintendent’s power to exercise discretion other than in relation to an absolute discharge; since the above section has nothing to do with the superintendent’s discharge on his own motion.</p> <p>Same — Discharge—Absolute or Conditional. The power of the superintendent of the state insane hospital, given by Rem. & Bal. Code, § 5967, to discharge inmates includes the power to discharge them conditionally or upon parole.</p> <p>Same — Discharge Prom Hospital — Liability of Superintendent —Negligence. The fact that the superintendent acted negligently in discharging an inmate conditionally, and did not immediately take steps to send a guard for his return, upon hearing that he was giving some trouble (his relatives agreeing to send him East next morning) does not affect the nonliability of the superintendent to answer in damages to one who was injured by an insane attack of the discharged inmate (Fullerton, J., dissenting).</p> <p>Same — Custodian — Duties and Liabilities — Torts of Insane Person — Evidence—Sufficiency. The husband of a woman who had obtained the discharge and custody of her insane son from the.state insane hospital is not liable in damages to one who sustained injuries in an insane attack by the son, where he had nothing to do with securing the discharge, and it appears from the evidence that the son had been afflicted with a mild form of insanity, and had never been considered, dangerous, and after two weeks in the asylum was released on parole as greatly improved, and upon learning that the son was giving trouble by annoying attentions and letters to a young lady, and upon complaint by police officers, in order to avoid the son’s recommitment, he agreed with the officers to send him East to relatives the next morning, and provided him with money therefor, with which he followed the girl, and made an attack upon being prevented from seeing her; since, under all the circumstances, he could not, as a matter of law, be reasonably expected to anticipate the consequences which followed (Fullerton, Chadwick, and Main, JJ., dissenting).</p> <p>Same — Question eor Jury. In such a case, the liability of the mother is a question for the jury, where it further appears that, in order to get her son released from the hospital, she signed an agreement to assume all responsibility for his actions, knowing that he was not fully recovered, and agreed to care for him, and was told that he was writing letters to a young lady with such frequency as to cause her great anxiety; the question whether she performed her voluntary assumed duty with reasonable care, and should have anticipated that he might become dangerous, being questions of fact for the -jury (Parker, Mount, and Morris, JJ., dissenting).</p>

, entered May 7, 1914, upon findings in favor of the defendants, denying plaintiff’s costs, in an action to foreclose a chattel mortgage, tried .to the court.

, entered March 12, 1914, in an action to foreclose a mortgage, upon findings in favor of the mortgagor upon an issue with interveners, claiming the mortgagor’s interest.

<p>Action- — Nature—Legal or Equitable. An action brought for an accounting and the cancellation of a contract resolve's itself into an action at law for the amount due on the contract, where there is neither allegation nor proof to sustain an equitable suit for an accounting, and nothing more is involved than a simple issue of fact as to how much is due plaintiffs under their contract of sale of timber, to be paid for monthly as cut and scaled by defendant.</p> <p>Trial — Findings of Fact — Necessity. In an action at law tried by the court, findings of fact and conclusions of law are a necessity, in order to support the judgment of the court, under Rem. & Bal. Code, §§ 367, 368, requiring findings in such cases and providing that they stand as the verdict of a jury, except as qualified as to their weight by § 1736.</p> <p>Appeal — Review—Errors Not Affecting Substantial Rights— Remand for Findings of Fact. Under Rem. & Bal. Code, § 307, providing that the court shall disregard any error or defect in the proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall he reversed by reason thereof, the supreme court, on reversing a cause for failure of the trial judge to make findings of fact and conclusions of law, will remand the case to the court below with instructions to make such findings and enter judgment thereon.</p>

, entered March 10, 1914, in condemnation proceedings, upon the verdict of a jury awarding damages for a change in a street grade.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 10, 1914, by default, after denying a motion to quash a service of summons.</p>

, entered May 29, 1913, in favor of the defendants, notwithstanding a verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful death.

Cross-appeals from a judgment of the superior court for Yakima county, Grady, J., entered January 22, 1914, in an action to foreclose a mortgage, granting a deficiency judgment against one defendant and denying it as to the other.

Jurey, Esq., judge pro tempore, entered December 19, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.

, entered March 24, 1914, upon the verdict of a jury rendered in favor of a pedestrian injured through the work of removing city wires from poles in the street.

<p>Appeal — Review—Error Invited by Appellant. Appellant cannot urge as error instructions given by the trial court at appellant’s request.</p> <p>Appeal — Subsequent Appeal — Law of Case. Where, upon a prior appeal, the supreme court held that substantially the same evidence was sufficient to raise a question for the jury, it became the law of the case and conclusive.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for $11,500 for personal injuries is excessive, and should be reduced to $8,000, where it appears that the plaintiff was a young man employed as a common laborer, and had never received over $2 per day for his work; that, at the time of trial, he was engaged in light work at a wage of $45 per month; that his injuries consisted in the dislocation of several vertebrae which in healing had united and caused some stiffness in the back, that his leg had been shortened about three-fourths of an inch by reason of a broken ankle, that he was in good shape considering the injury, and that, while the condition in which he was left was permanent, it would never get worse.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Claypool, J., entered February 2, 1914, upon a trial and conviction of “perjury in the second degree.”</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 28, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in- an action for conversion.</p>

, entered April 2, 1914,- upon findings in favor of petitioner and plaintiff, in consolidated actions to vacate decrees of distribution and partition and for money had and received, tried to the court.

<p>Indians — Mixed Blood — Intoxicating Liquors. Rem. & Bal. Code, § 6288, prohibiting the sale or gift to an Indian of mixed blood having more than one-eighth Indian blood applies to all such Indians, regardless of the status of their father or themselves as citizens, the prohibition of such act coming within the police power of the state.</p> <p>Criminal Law — Former Jeopardy — Offense Under Federal and State Laws. Where an offense is created under both Federal and state laws, an acquittal in the court of one jurisdiction does not bar a prosecution in the other for the same transaction.</p> <p>Criminal Law — Punishment—Excessive Sentence. A sentence of two years in the state penitentiary for giving intoxicating liquor to an Indian of mixed blood, being within the limit fixed by law, will be presumed to be not an abuse of discretion, in the absence of any showing to the. contrary.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Sessions, J., entered January 14, 1914, upon a trial and conviction of disposing of intoxicating liquor to Indians.</p>

<p>Eminent Domain — Public Use — Logging Railroad. A logging railroad is entitled to exercise the right of eminent domain to condemn lands for right of way on a showing of a large supply of timber tributary to the road, since the bringing of this timber to mill or market would constitute a public use regardless of the extent of the use.</p> <p>Same — Private Interest of Lumber Company — Effect. The interest of .the stockholders of a lumber company in a logging railroad is no objection to condemnation proceedings by the railroad company, since the latter is a public service corporation bound to give reasonable service to the public and is amenable to control by the public authorities.</p> <p>Same — Selection of Route — Necessity of Taking — Review. The choice by a logging railroad of a route across respondent’s lands as the most feasible and practicable will not be controlled by the courts because it may interfere with, respondent’s contemplated use of a portion of the land for a mill site, when there is no sufficient showing that the land sought is not reasonably necessary, and it was not convincingly shown that a slight change of location would meet the necessity of the taker and cause less damage to the owner; the availability for the owner’s special purpose being an element to be considered in estimating damages, and not as defeating the right of condemnation.</p> <p>Eminent Domain — Compensation—Pkepayment — Damages — Appeal — Costs. Under Const., art. 1, § 16, prohibiting the taking of private property without just compensation being first made or paid into court, the costs of an appeal, successfully prosecuted by the petitioner from an order denying a public use, which was reversed, cannot be taxed against the landowner; since the proceedings to review the order was a necessary part of the petitionerls proceedings to take the land, which the petitioner is required to pay before the taking.</p>

Cross-appeals from a judgment of the superior court for Yakima county, Grady, J., entered December 19, 1912, awarding damages to the plaintiff, in an action for breach of contract, tried to the court.

<p>Master and Servant — Injury to Servant — Federal Employers’ Liability Act — Applicability of State Statute. The Federal employers’ liability act, § S, providing that contributory- negligence is not a defense in any case where the common carrier’s violation of “any statute” enacted for the safety of employees contributed to the injury, has reference only to Federal statutes; hence, in an action under that act, the failure of the employer to safeguard dangerous machinery under the state factory act, Rem. & Bal. Code, §§ 6587-6598, cannot be taken into consideration as excusing the employee’s contributory negligence or his assumption of risks (overruling Opsahl v. Northern Pac. R. Co., 78 Wash. 197).</p> <p>Courts — Rule of Decision — Federal Questions. State courts are required to follow the construction placed upon an act of Congress by the Federal courts.</p> <p>Master and Servant — Actions—Variance—Recovery at Common Law. In an action for personal injuries under the Federal employers’ liability act, in which plaintiff shows that the injury occurred in interstate commerce, he has no right to have the case submitted to the jury as a common law action, upon failure to prove a case under the Federal act.</p>

<p>Indictment and Infobmation — Sufficiency—Included Offenses —Assault—Degrees. Under Rem. & Bal. Code, § 2415, providing that every person committing an assault without amounting to an assault in either the first or second degrees shall he guilty of assault in the third degree, an information charging assault with intent to commit a felony, to wit, a rape, which is a charge of second-degree assault, is sufficient to sustain a conviction for the lesser offense of third degree assault, without specifically defining the crime of assault in the third degree.</p>

<p>Appeal from a judgment of the superior court for Pacific county, Back, J., entered January 28, 1914, upon findings in favor of the defendants, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Baske, J., entered April £3, 191£, dismissing an action for equitable relief, after a trial to the court.</p>

<p>Landlord and Tenant — Repairs — Liability op Landlord — Fire Escapes — Police Regulations. Rem. & Bal. Code, § 6030 et seq., relating to hotels, inns, and public lodging houses, regulating the construction of fire escapes therefor, and providing (§ 6046) that “any owner, manager, agent or person in charge of a hotel” who shall violate the provisions of the act shall be guilty of a misdemeanor, has reference to the owner of a hotel business (under lease without restrictions upon the use or covenants to repair) and not the owner of the building (out of possession); and hence, where fire escapes are required upon a hotel building under the exercise of the police power, the duty and expense of construction devolves upon such a lessee where there is no covenant in the lease imposing such duty on the landlord.</p>

, entered January 14, 1914, upon findings in favor of the plaintiff, upon a contest between creditors and a mortgagee in receivership proceedings, tried to the court.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Albertson, J., entered June 9, 1914, dismissing an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered January 23, 1914, upon the verdict of a jury rendered in favor of the plaintiff for $7,385, in an action for malpractice.</p>

<p>Criminal Law — Trial—Misconduct of Prosecution — Incriminating Evidence — Demand for Production. Under the Federal and state constitutions providing that no person in any criminal case shall be compelled to be a witness against himself, a demand upon defendant, in the presence of court and jury, to produce documents which will tend to criminate him, invades the defendant's constitutional grant of immunity, and hence constitutes reversible error.</p> <p>Witnesses — Privilege—Rights of Accused — Conflict of Constitutional and Statutory Provisions. Although the rules of practice in civil cases, in the absence of a special statute, are made the rule of practice in criminal cases, such statutory rules cannot he given effect where their operation would contravene the constitutional guaranty for the protection of a defendant, on trial in a criminal case, that he shall not be compelled to be a witness against himself.</p> <p>Same — Self-Incrimination-—Waiver. Where the state has placed the accused under the imputation of guilt by demanding on the trial that he produce certain documents, the defendant does not waive objection to the violation of his constitutional guaranty against being compelled to be a witness against himself by subsequently taking the stand in his own behalf and testifying as to the matters inquired into; since placing him under the imputation of guilt forces him to take the stand and he is not a voluntary witness.</p> <p>Criminal Law — Trial—Misconduct of Judge — Comment on Evidence. It is misconduct constituting a comment on the evidence, within the prohibition of Const., art. 4, § 16, for a judge, in a criminal action, to so examine a witness essential to the defense as to suggest a doubt as to the integrity of the witness.</p> <p>Same — Appeal—Exceptions—Comment on Evidence. The action of the court in commenting on the facts in a criminal case, by so questioning a witness as to convey to a jury doubt as to her integrity, being an invasion of the constitutional rights of the accused prohibiting the judge from commenting on the facts, may be reviewed on appeal although no exceptions were interposed at the time; such conduct constituting neither a “ruling” or “decision,” within Rem. & Bal, Code, § 381, requiring exceptions.</p> <p>Witnesses — -Impeachment—Reputation of Witness — Immokality. For the purpose of impeaching a female witness for the state, it is error to refuse to allow the defendant to prove her general reputation for morality in the neighborhood in which she lives.</p>

<p>Wills — Contest-—Forgery—Evidence—Sufficiency. In a contest of a will on the ground of forgery of the testatrix’s signature, evidence examined and found to sustain the finding of the lower court in favor of the validity of the will (Chadwick and Fullerton, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Baske, J., entered December 21, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for wrongful death.</p>

, entered June 14, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on fire insurance policies.

, entered November 11, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in a department store elevator.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered January 17, 1914, upon findings in favor of the plaintiffs, in an action to foreclose a mechanics’ lien.</p>

, entered November 14, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained at a railroad crossing.

<p>Appeal from a judgment of the superior court for Spokane county, Jackson, J., entered January 1914, upon findings in favor of the plaintilf, in an action to foreclose a mortgage.</p>

, entered December 6, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by pedestrians through street construction work.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered November $1, 1913, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful, eviction and for conversion.</p>

<p>Boundabies — Agbeed Boundabt Lines — Estoppel. Where adjoining landowners hired a surveyor to establish the line between them and accepted the survey, each building one-half of the line fence, and farmed their lands and made conveyances with reference to the fence as the true boundary for a period of twenty years, they are estopped to question the line upon its being found by a new survey that the first survey was erroneous.</p>

<p>Appeal — Record—Exceptions—Time eor Taking. Under Rem. & Bal. Code, § 383, exceptions to findings of fact, in order to secure a review of the evidence, must be taken within five days after the findings are filed or notice given, or if notice is not given, then within five days after acquiring notice of the decision in any way.</p> <p>Appeal — Record—Statement oe Facts — Failure to Except to Findings. Failure to except to findings of fact does not preclude all review on appeal or require the statement to be stricken, where the sufficiency of the complaint and of the plaintiffs evidence to support any decree in favor of the plaintiff was raised by demurrer to the complaint and motion for nonsuit, and the record contains the pleadings and all the evidence.</p> <p>Executors and Administrators — Distribution — Decree — Conclusiveness. A decree of final distribution in probate, after due notice and hearing, is of the same force as a judgment in any court of equal solemnity, and cannot be attacked or annulled in any collateral proceeding, except for fraud.</p> <p>Same — Distribution—Decree. A decree of final distribution including the wife’s separate estate as community property cannot be set aside for fraud in procuring it, where it merely appears that the decree was obtained by falsely representing that the property was all community property, and that tbe surviving husband made a statement that the probate was for the purpose of shutting out heirs; since a decree cannot be vacated on the mere ground that it was based upon perjured testimony.</p>

<p>Municipal Corporations — Improvements—Assessments — Jurisdiction — Finding oe Necessity — Conclusiveness. An assessment for the purpose of filling lowlands in cities of the second and third classes, under Rem. & Bal. Code, § 7971 et seq., authorizing it whenever the city council shall deem it necessary or expedient on account of the public health, sanitation, etc., cannot be attacked as beyond the jurisdiction of the council from the fact that it was not necessary for the public health or sanitation, where .the record shows that the council did determine this question of its jurisdiction by finding the necessary facts to exist; since the question of necessity is, in the first instance, a legislative question, and conclusive on collateral attack; Rem. & Bal. Code, § 7905, prohibiting the setting aside of such assessments except on the ground of fraud.</p>

<p>Waters and Water Courses — Obstruction—Action por Damages —Instructions. In an action for obstructing a stream and overflowing plaintiff’s lands, damaging the crops, in which there was evidence of an abnormal rainfall at the time in question, it is error to refuse to give a requested instruction to the effect that, if the jury found that plaintiff’s crops had been damaged by rain as well as by defendant’s acts, the defendant would only be liable for such part of the damage as was caused by his acts.</p> <p>Appeal — -Review—Harmless Error- — Instructions. An erroneous instruction upon an issue as to the partial liability of defendant on the theory of concurrent causes of the damage, is not cured by an instruction upon his nonliability upon the theory of a sole cause for which defendant was not liable at all.</p> <p>Waters and Water Courses- — Obstruction—Liability—Unprecedented • Events — Instructions. While a riparian proprietor, in backing up the waters of a stream so as to cover his own land, is not bound to anticipate unprecedented rainfalls or such as has not occurred within the memory of man, he is not entitled to an instruction to cover his nonliability in such event where the evidence tended to show that the rainfall for the month in question was greater in 1900 than in 1912, the year in question, neither of which could be said to be, as a matter of law, unprecedented or even extraordinary.</p> <p>Trial — Exceptions—Time op Taking Exceptions. The purpose of Rem. & Bal. Code, § 339, providing that a party, at any time before the hearing of a motion for new trial, may except to the instructions or any part thereof, being to allow the court to correct error at the time of passing on a motion for a new trial, exceptions to the refusal to give instructions may be taken at the same time and in the same way.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered February 17, 1914, upon findings in favor of the defendant, granting specific performance, in an action to quiet title.</p>

<p>Divorce — Grounds—Abandonment—Justification. A husband is not entitled to a judgment of divorce on the ground of abandonment on evidence that he and his wife had lived separate and apart for a few years, where it appears that the wife, while objecting to a divorce, had sufficient cause in living apart from the fact that the husband had taken up with another woman whom he wished to marry, and with whom he sustained illicit relations; since the abandonment must be voluntary and without justification; nor would abandonment be shown by refusing a reconciliation which was not offered in good faith.</p> <p>Same — -Inability to Live Together. The fact that a husband and wife have hopelessly drifted apart and can no longer live together as man and wife, is not ground for granting a divorce to the husband, where the conditions were due solely to his wrongful acts.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered July 7, 1914, upon a trial and conviction of grand larceny.</p>

<p>Contracts — Terms — Evidence — Admissibility. Where the evidence as to the terms of an oral contract is conflicting, evidence of the value of the work contracted for is admissible as circumstantial evidence bearing on the contention of the parties.</p> <p>AlKpeal — Review—Error Invited by Appellant. Where appellant first objected to certain evidence as inadmissible, the objection was sustained, and respondent acquiesced in such ruling by withdrawing the question, error cannot be predicated on the rejection of similar evidence offered by the appellant over respondent’s objection; as the error was invited by appellant.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Jackson, J., entered May 8, 1913, upon findings in favor of the plaintiffs, in an action for equitable relief.</p>

<p>Appeal by plaintiff from an order of the superior court for Pierce county, Card, J., entered September 22, 1913, allowing suit money and attorney’s fees in a divorce case pending appeal.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered November 24, 1913, upon findings in favor of the plaintiff, in an action to abate a nuisance under the red light law.</p>

<p>Appeal from an order of the superior court for Snohomish county, Bell, J., entered February 14, 1914, granting a new trial, after rendition of a verdict of a jury favorable to the defendant, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Pemberton, J., entered October 31, 1913, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered November 1, 1913, in favor of the plaintiff, in an action to foreclose a mechanics’ lien, after a trial on the merits to the court.

<p>Limitation of Actions — What Law Governs — Law of Forum. Where a creditor elects to sue in this state, where the debtor had resided ever since the inception of the debt, the statute of limitations of the forum governs.</p> <p>Same — -Defense. The statute of limitations is not an unconscionable defense, but a declaration of legislative policy to be respected by the courts.</p> <p>• Limitation of Actions — Tolling Statute- — Partial Payments— Burden of Proof. Credits of partial payments do not toll the statute of limitations unless a voluntary payment was authorized or ratified by the debtor; mere indorsement is not competent proof of the date of payment, and the burden of proof rests upon the party asserting it.</p> <p>Same — Tolling Statute — Credit on Notes — Intention of Debtor —Evidence—Sufficiency. Indorsements of partial payments upon notes are not sufficient to toll the statute of limitations where it appears that the debtor, then owing $600 on account, without regard to consigned goods, reconsigned the goods held on consignment for sale on commission with directions to credit his account with the proceeds when the goods were sold, and two years later, at the request of the creditor, executed notes for the $600 representing the balance due on account, upon which credits were later indorsed for antecedent sales of the reconsigned goods, the date of which sales were not shown but which must have been more than six years prior to the commencement of the action; since all intention of the debtor to have credits indorsed on the notes was negatived by the fact that the notes were not made until two years after the arrangement for such credits, and that no reference thereto was made at the time the notes were given.</p> <p>Same — Part Payments — Revival of Debt — Evidence — Sufficiency. A barred debt is not revived by part payment unless the circumstances show a clear and unequivocal intention on the part of the obligor to revive the whole debt; and assent to a revival of notes is not shown by the sale of goods and credit of the proceeds, without notice to the debtor, ten years after the notes were given.</p>

<p>Appeal from a judgment of the superior court for Mason county, Claypool, J., entered May 4, 1914, dismissing as insufficient an information for taking oysters from state oyster land reserves.</p>

, entered April 6, 1914, upon a trial before the court, a jury being waived, and a conviction of a misdemeanor in violating the act relating to building and loan associations.