Volume 92 — Washington Reports

, entered March 3, 1916, upon a trial and conviction of the crime of unlawful possession of intoxicating liquors, upon overruling a demurrer to the information.

F. Wright, J., entered March 27, 1916, dismissing an action to enjoin the circulation, printing and distribution of a proposed initiative measure, after a hearing before the court.

F. Wright, J., entered March 27, 1916, dismissing an action to enjoin the circulation, printing and distribution of a proposed initiative measure.

, entered January 28, 1915, upon findings in favor of a creditor of an estate, after a hearing upon objections to the final report of the administratrix.

, entered June 30, 1915, granting a new trial, after a verdict rendered in favor of the defendant, in an action on contract.

<p>Appeal — Review—Harmless Error. Error in the exclusion of a contract to prove a fact that was established by other evidence and undisputed is harmless.</p> <p>Witnesses — Credibility—Instructions. It is not prejudicial error, in giving a precautionary instruction on the subject of the credibility of the witnesses, to tell the jury, with unnecessary particularity, to take into consideration the witnesses’ general character, business, antecedents, etc., where it applies alike to witnesses on both sides.</p> <p>Criminal Law — Appeal—Harmless Error — Instructions. An instruction telling the jury to refrain from calling to mind other criminal cases tried at the same term is not prejudicial error.</p> <p>Criminal Law — New Trial — Grounds—Surprise—Waiver. In a prosecution for uttering a forged note, a new trial should not be granted for surprise by evidence of a witness that he saw the accused write the note, admitted for the purpose of proving the accused’s guilty knowledge of the forgery, where no objection was made and no surprise .claimed and no continuance asked at the time.</p>

, entered September 16, 1915, upon findings in favor of the plaintiffs, in an action for rescission, tried to the court.

<p>Husband and Wipe- — Divorce — Conveyance — Consideration — Duress — Evidence — Sufficiency. A deed of community property from wife to husband, in contemplation of a divorce sought by the husband, will not be set aside for fraud and duress in the threat of a criminal prosecution, where the preponderance of the evidence was to the effect that the husband only threatened to obtain a divorce on the ground of adultery unless the deed was made, and that the wife acted freely with full knowledge of the circumstances.</p> <p>Same — Conveyances—-Vacation—Evidence—Admissibility. In an action to set aside a deed made in contemplation of a divorce, evidence as to a defense to the divorce action is inadmissible when the decree of divorce was not attacked.</p>

<p>Pledges — Waiver—Election of Remedies. Where an insurance policy, pledged to a bank as collateral security for a loan, was surrendered to a receiver who collected the amount due on the policy, the bank, by seeking to garnishee the fund, makes an election of remedies and waives its equitable lien under the pledge of the policy.</p> <p>Garnishment — Property Subject — Title of Debtor. Where a mortgagor had agreed that the property should be insured, with loss if any payable to the mortgagee as its interest might appear, a creditor of the mortgagor could not garnishee the fund collected on the policy, as the garnishee could obtain no better right than the mortgagor had.</p>

<p>Divorce — Decree—Vacation—Grounds — Petition — Sufficiency. A petition to vacate a default decree of divorce on the ground of fraud is insufficient where it merely alleged that there was a conspiracy to obtain a divorce and obtain property by false evidence, and that the plaintiff had been guilty of adultery which she had concealed, there was no answer to the plaintiff’s charge of cruelty, and no sufficient excuse for the default; concealment of adultery by the wife not necessarily being a defense to her action.</p>

<p>Executors and Administrators — Right to Possession of Realty —Nonintervention Wills — Time for Administration. Under Rem. & Bal. Code, §§ 1366, 1449, 1534, entitling executors to the possession of the real property during administration, an action for partition does not lie against an executrix in possession under a nonintervention will prior to the expiration of one year after the death of the testator; in view of Id., § 1444, providing that claims against such estates shall he paid within one year from the date of publication of notice to creditors, which is the same time allowed for administering ordinary estates.</p> <p>Same — Nonintervention Wills — Failure to Execute Trust — Relief — Complaint—Sufficiency. A complaint for partition against an executrix of a nonintervention will is insufficient as a claim for equitable relief under Rem. & Bal. Code, § 1444, providing therefor in case the trust is not being faithfully discharged, where it merely alleges lack of harmony between the heirs and threatened foreclosures under which the property may be lost, and does not charge the executrix with any failure of duty required by law.</p>

, entered September 17, 1915, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained in an elevator accident.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 26, 1915, upon findings in favor of the plaintiff, in an action for divorce.</p>

, entered October 1, 1915, upon the verdiet of a jury rendered in favor of the plaintiff, in an action for damages to personal property stored, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Kittitas county, Chapman, J., entered November 20, 1915, dismissing an action for fraud, upon sustaining a demurrer to the complaint.</p>

, entered July 16, 1915, upon findings in favor of the defendant, in an action to vacate a decree of divorce and for support.

, entered October 4,1915, dismissing an ac~ tion upon a claim against an estate, upon sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the superior court for King county, Prater, J., entered December 7, 1915, upon findings in favor of the defendants, in an action of replevin, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster; J., entered October 14, 1914, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered December 31, 1914,.in favor of the defendants, in an action to establish a homestead right in property of an estate, tried to the court.

<p>Sales — Rescission—Fraud — Conditions Precedent — Return op Consideration. A restoration of the consideration for goods, fraudulently sold by tbe secretary of a company without authority, is not a condition precedent to an action to set aside the sale for fraud, where, by fraudulent concealment, the vendee induced the company to give him credit on his indebtedness equal to the amount paid as the price of the goods.</p>

Cross-appeals from a judgment of the superior court for Island county, Ralston, J., entered May 24, 1915, in an action for an injunction, tried to the court.

<p>Corporations — Stock Subscription — Enforcement by Stockholder — Necessity for Call. A call for unpaid stock subscriptions is not a condition precedent to an action by an injured stockholder, who had paid for his stock in full, to collect for the corporation unpaid subscriptions payable on twenty days’ notice, from stockholders controlling the directors who refused to make a call upon demand and necessity therefor; the action being equivalent to a call, which a court of equity had power to order.</p> <p>Appeal — Review—Pleadings—Amendments. Upon a trial de novo on appeal, the complaint will be deemed amended to conform to the proof.</p> <p>Evidence — Parol to Vary Writing — Subscription Contract. In the absence of fraud, a written subscription contract agreeing to pay for the number of shares of stock set opposite the names of the subscribers, cannot be varied by evidence of a contemporaneous oral agreement that the subscribers would not be required to pay more than the sums already paid.</p> <p>Corporations — Stock Subscriptions — Liability — Fraud. An agreement with one subscriber not to enforce his subscription in full, is not such an element of fraud as to release other subscribers, where it does not appear that creditors had notice of the agreement.</p> <p>Same — Stock Subscription — Enforcement by Stockholder — Liability — Extent. In an action by a stockholder who had paid for his stock in full to enforce payment by the delinquent stockholders, in order to pay debts of the corporation, the recovery is not limited to the pro rata amount required to pay creditors and wind up the affairs of the corporation, where it was a going concern and could continue business if the stock was fully paid up.</p> <p>Same — Enforcement by Stockholder — Laches. An action by a subscriber who had paid for his stock in full to enforce payment by delinquent stockholders is not barred by laches in that he had participated with other directors in borrowing money for the corporation and waited seven years before complaining, where there were no changed conditions during such delay inducing any action to the prejudice of the delinquent stockholders.</p> <p>Same — Enforcement by Stockholder — Defenses. A stockholder’s action to collect for the corporation unpaid subscriptions of delinquent stockholders is not prejudiced by the fact that plaintiff’s subscription was not fully paid up.</p> <p>Same — Enforcement by Stockholder — Liability—Interest. In a stockholder’s action to collect for the corporation unpaid subscriptions of delinquent stockholders who controlled the directors and refused to make a call, interest is properly aliowed from the date upon which written demand was served on the directors to make a call and refused, and not from the date when the corporation was wrongfully forced to borrow money by their failure to pay up on the stock.</p>

<p>Limitation of Actions — Arising From Written Contract — Implied Liability — Contribution. An action to enforce contribution from a cosurety upon a bond falls within Rem. & Bal. Code, § 157, subd. 2, providing that an action upon a . . . contract express or implied arising out of a written agreement, may be commenced at any time within six years after the cause of action accrued.</p> <p>Principal and Surety — Contribution—Actions—Laches. An action for contribution from a cosurety on a bond is not barred by laches from the mere fact of delay short of the period of the statute of limitations, where there was no intervening change in the condition or relation of the parties to the prejudice of the party to be charged.</p> <p>Same — Liability of Cosurety — Contribution — Defenses. The liability of a surety on a bond to contribute one-third of the amount paid by two of his cosureties in satisfaction of a judgment entered against all of them is not affected by the fact that by delay the right of action was lost against other cosureties liable whose duty it was to contribute, where he neither paid nor offered to pay his proportion but repudiated the liability.</p> <p>Same. It is not a defense to an action for contribution from a cosurety on a bond that the surety making payment of the judgment did so with the check of a corporation which he reimbursed, as the same was merely advanced as a temporary loan by a party not liable.</p> <p>Same — Liability of Cosurety — Payment—Assignments. Contribution by one cosurety of one-half of the amount of the judgment paid by another cosurety is not a voluntary payment, and he could assign his right to contribution from other cosureties for the purposes of a suit for contribution.</p> <p>Trial — Advisory Verdict. In an equitable action for contribution from cosureties, the verdict of a jury is advisory, and it is not error to direct judgment in disregard of the verdict.</p> <p>New Trial — Grounds—Absence of Witness — Diligence. It is not error to deny a new trial asked on the ground of the absence of a material witness, where the action had been pending for four years, the last continuance was had upon appellant’s request, the witness at all times resided out of the jurisdiction of the court, due diligence required the taking of his deposition, and his testimony would have been contradicted.</p>

, entered April 26, 1916, upon findings in favor of a junior mortgagee, in an action to foreclose a mortgage, tried to the court.

<p>Master and Servant — Injury to Servant — Proximate Cause op Death — Evidence—Sufpiciency. The negligence of a railroad company in nailing boards over the feed holes in the top of a stock car so as to cause an obstruction, is not shown to be the proximate cause of the death of a brakeman who fell while walking on top of the car, but the same is left to speculation and conjecture, where no witness saw the accident, and it was merely proven that it was usual for brakemen to gass over the feed hole, that his lantern was seen to swing violently and disappear at about the time he would have reached the feed hole after boarding the car, and a witness thought he heard a stumble, and the deceased merely said “I fell off; I fell between.”</p>

Appeal by defendants from a judgment of the superior court for King county, Dykeman, J., entered September 1, 1915, upon the verdict of a jury rendered in favor of the defendants, awarding damages in condemnation proceedings.

<p>Physicians and Surgeons — Practicing Without a License — Statutes — Evidence—Sufficiency. One who treats the sick by a method called “Suggestive Therapeutics,” consisting of the laying on of hands and giving mental suggestions, cannot escape conviction for practicing without a license, under Rem. & Bal. Code, §§ 8400 to 8405, by the fact that, before treatment, he assured the patient that the treatment was by prayer only, as that is a mere subterfuge to bring the case within the proviso to the statute.</p>

<p>Receivers — Compensation — Allowance • — ■ Interlocutory Order. An ex parte order approving a receiver’s report and allowing him compensation is not void because made ex parte, as the same is interlocutory and reviewable on the final accounting.</p> <p>Same — Compensation — Allowance — Reasonableness. The reasonableness of an interlocutory allowance to a receiver for services must be viewed as of the date it was made, and not by reference to subsequent claims that came into existence after exhaustion of the assets.</p> <p>Same — Compensation—Amount. An allowance of $750 to a receiver who acted diligently for seven months as his own attorney, held reasonable, although only about $1,300 was collected.</p> <p>Same — Actions—Costs — Personal Liability. A judgment for costs against a receiver is not a personal claim against him where he acted in good faith and in accordance with the orders of court.</p>

<p>Taxation — Recovery of Tax Paib — Mistake—Rights of Payer— Subsequent Conveyance — Statutes. Rem. & Bal. Code, § 9277, providing that a property owner who pays taxes on the land of another by mistake may demand reimbursement and if refused, may surrender the tax receipts and take out a certificate of delinquency, is based on the continuing ownership of the land, and has no application where the land has been transferred to a tona fide purchaser who has relied on the records showing payment of the taxes.</p> <p>Same. The payer of taxes on the land of another by mistake has no common law right of lien or reimbursement, as against a tona fide purchaser of the land who obtained the treasurer’s certificate that the taxes were paid; the state’s lien for unpaid taxes not being transferred in such case, as against an innocent purchaser; especially in view of the maxim that, where one of two innocent parties must suffer through the act of another, the loss must fall upon the party who made the loss possible.</p> <p>Same. Rem. & Bal. Code, § 9233, allowing recovery for taxes paid by persons obligated to pay the same has no application to a property owner paying taxes on the land of another through mistake.</p>

<p>Municipal Corporations — Streets—Collision With Automobile —Contributory Negligence — Evidence—Sufficiency. A pedestrian, struck by an automobile while crossing a street diagonally at a point other than a crossing, is guilty of contributory negligence, precluding a recovery, although she testified she looked back several times, where she was contradicted by the only two witnesses who saw the accident and by her own statements, and it appears that she hurriedly stepped out from a crowd collected in the street without looking back.</p> <p>Appeal from a judgment of the superior court for King county, Alston, J., entered December 16, 1915, upon findings in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile. Reversed.</p>

<p>Liens — Chattel Liens — Priorities — Chattel Mortgages — Statutes. A prior chattel mortgage is superior to the lien given by Rem. & Bal. Code, § 1154, to one furnishing labor and materials on any chattel at the request of the owner, for one year, notwithstanding surrender to the owner, and Id., § 1156, providing that every person in possession under agreement for the purchase shall be deemed the owner and the lien shall be superior “to the rights of th‘e person holding the title or any lien thereon antedating the time of expenditure” by the lien claimant; since “any lien thereon” refers to a reservation of title or lien in aid of ownership, and not to a chattel mortgage, in view of the purpose of the act “to secure and perpetuate” liens depending upon possession and not liens created and protected under independent statutes, and in view of the subsequent act, Rem. 1915 Code, § 3660, reaffirming the standing of chattel mortgages under Rem. & Bal. Code, §§ 3659-3669, which was not intended to be impliedly repealed by the chattel lien law.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Ronald, J., entered November 10, 1915, upon a trial and conviction of attempt to obstruct justice.</p>

<p>Husband and Wife — Alienation of Affections — Evidence—Admissibility. In an action for alienation of a wife’s affections, a letter written by defendant, showing affectionate regard for plaintiff’s wife, is not inadmissible because defendant claims to have written it at plaintiff’s solicitation to enable him to get a divorce, procuring the same by fraud, where defendant’s version was denied and an issue for the jury.</p> <p>Evidence — Documentary Evidence- — Letters — Contents. Error cannot be assigned on the exclusion of a letter written in a foreign language the contents of which were not disclosed or known to the court at the time it was offered, or until defendant stated that he rested his case "with the exception of the translation of the letter.”</p> <p>Trial — Misconduct of Counsel. It is not prejudicial misconduct of counsel, in calling his client to the stand, to direct him to take a certain chair.</p>

<p>Insurance — Agents—Refusal to Cancel Policy — Liability. Insurance agents who failed to cancel policies upon the order of the company, after having agreed to do so, are liable to the company for a loss subsequently occurring.</p> <p>Judgment — Persons Concluded — Tender of Defense- — Participation. Insurance agents liable to the company for a loss, who were tendered and assisted in the defense of an action against the company, are concluded by the judgment upon an issue tried out in that action when subsequently sued by the company, although they refused to assume the defense.</p> <p>Insurance- — Agents—-Liability to Company — Negligence — Evidence — Sufficiency. The negligence of insurance agents in failing to cancel policies upon the order .of the company to do so is sufficiently established, where, although they testified that they immediately mailed out notices, it appears that all three addressees denied receiving the same, no response was made or policy returned, the agents made no report, and two weeks later, they gave notice of loss and suggested adjustment, assuming that there had been no cancellation.</p> <p>Appearance — General or Special — Partners. Under Rem. & Bal. Code, § 241, providing that every appearance is general unless the defendant states it to be special, there is a general appearance by defendant C. E. D., a nonresident member of a partnership who had successfully quashed service against himself, where the answer filed recites, “now comes R. L. D. and C. E. D. as a member of the firm of D. & Co. and not otherwise,” etc.</p>

, entered April 13, 1915, upon findings in favor of the defendant, reversing the revocation of a physician’s license, on appeal from an order of the medical board, after a hearing before the court.

, entered December 24, 1914, upon findings in favor of the defendant, in an action to collect demurrage, tried to the court.

<p>Dedication — By Plat — Sufficiency—“Park”—Statutes. Under Code of 1881, §§ 2332 and 2329, providing that all streets and alleys in a town plat shall he considered public highways, and that every donation or grant to the public, individuals or societies, etc., “marked and noted as such,” shall be considered as a quitclaim deed to the donee, a dedicated plat containing a tract marked “East Park” or Block 32, is wanting in any affirmative words or expressions indicating an intent to donate the tract as a park, as required by the statute.</p> <p>Same — “Park”—Revocation. If such doubtful plat was a donation in intention, it was revoked where, prior to acceptance or use by the public, it was reserved from conveyances and conveyed by deed as the private property of the dedicators, and again conveyed.</p> <p>Same — “Park”—Acceptance—Estoppel. Where there was no acceptance of a doubtful dedication of a tract as a park, the inclusion of the same for many years in the mass of taxable property by the levy and collection of taxes and assessments constitutes a rejection by the public, and estops the city from asserting that it is public property.</p>

<p>Partnership — Dissolution—Agreement—Accounting—Fraud. In the absence of fraud, overreaching, undue influence, or reliance on fiduciary relations, the dissolution of a partnership by mutual agreement whereby one partner, dealing at arm’s length, bought out the other partner, will not be set aside and an accounting had, on the allegation that books of account equally accessible to both parties, were not accurately kept; but there must be clear and satisfactory proof of specific acts of fraud or particular mistakes; nor is it enough that reliance was placed upon an inventory compiled by a bookkeeper employed by both parties.</p> <p>Partnership — Dissolution—Accounting. A partnership dissolution agreement entitling a partner to credits on the loss of five separate items will not be enforced by an accounting where no complete adjustment could be had of those matters owing to their unfinished nature.</p>

Appeal by plaintiff from a judgment of the superior court for Yakima county, Preble, J., entered February 16, 1915, denying the reformation of a mortgage, upon decreeing a foreclosure, after a trial to the court.

, entered December 12, 1914, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Spokane county, Back, J., entered April 29, 1915, upon findings in favor of the defendants, in an action to quiet title and obtain possession of land, tried to the court.</p>

<p>Executors and Administrators — Community Property — ^Liability for Separate Debts. Upon the death of the husband, his one-half of the community estate is liable for his separate debts.</p>

, entered June 15, 1915, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

<p>Frauds, Statute of — Brokers—Commissions—'Agreements Between Brokers. The statute requiring contracts employing a broker for the sale of real estate upon commissions to be in writing, specifying the compensation, etc., has no application to a contract of employment of one broker by another upon a basis of a division of the commissions as compensation.</p> <p>Brokers — Commissions—Contracts Between. An agreement between brokers for the division of commissions is not affected by the fact that the contract as concluded differed in terms from the one originally talked over, where it was one continuous transaction.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered May 18, 1915, upon findings in favor of the plaintiff, in an action of trespass, tried to the court.</p>

, entered May 26, 1915, dismissing an action on contract, upon granting a nonsuit, after a trial on the merits before a jury.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered February 16, 1915, dismissing an action for personal injuries sustained by a section hand, upon granting a nonsuit.</p>

, entered August 9, 1915, reviving a judgment, upon sustaining a demurrer to defendant’s answer tb the motion for revival.

<p>Arbitration and Award — Cancellation of Judgment — Actions. An action to cancel a judgment upon an arbitration and award cannot be maintained upon allegations of unfairness, prejudice and manipulation or other grounds that could have been reached by statutory exceptions on the trial before the arbitrators, under Rem. & Bal. Code, § 420 et seg., where exceptions were wholly omitted and no relief sought under the statute.</p> <p>Same. Under Rem. & Bal. Code, § 420 ei seg., common law arbitration no longer exists, the statute not recognizing the right to revoke the award, or to bring suit to cancel it or proceedings to ignore it, but on the contrary providing for internal review by exceptions.</p> <p>Same — Setting Aside — Action. Failure to use “expedition” in an arbitration trial, as agreed upon, is not ground for an action to set aside judgment on the award; since the objection could be raised by exceptions in the arbitration proceedings.</p>

, entered December 11, 1915, upon findings in favor of the plaintiff, in an action to recover over upon a judgment paid by plaintiff, tried to the court.

, entered June 18, 1915, upon findings in favor of the plaintiff, in an action for equitable relief, tried to the court.

, entered September 1, 1915, upon findings in favor of the plaintiffs, in an action for equitable relief, tried to the court.

<p>Statutes — Construction—Ambiguity — Intent — Extrinsic Evidence — Justice of Peace — Constables—Term of Office. The ambiguity in 3 Rem. & Bal. Code, § 6533-1, providing for the election of justices of the peace and constables “quadrennially” and limiting the term of office to “two years” after election, admits of extrinsic evidence to ascertain the intent; and the intent to provide a four-year term is clear and will be given effect, where it appears from the senate and house journals that the bill as originally introduced provided for elections “biennially,” which was by amendment changed to “quadrennially,” showing that the omission to change the term also was an inadvertence.</p> <p>Justices of the Peace — Term—Constitutional and Statutory Provisions — Counties—Officers. Const., art. 11, §§ 4 and 5, requiring uniformity in county government, and art. 6, § 8, requiring county officers to be elected biennially, apply only to executive and administrative county officers and not to justices of the peace and constables, since they properly belong to the judicial department of the state and are not county officers.</p> <p>Counties — Officers — Statutes. Const., art. 6, § 8, requiring county officers to be elected biennially, must be construed in connection with art. 11, § 5, conferring power on the legislature to prescribe the duty of county officers and fix their term of office.</p> <p>Statutes — Titles and Subjects. The titles of acts “relating to justices of the peace and constables” in cities having a specified population, and “relating to justices of the peace and constables and the compensation of justices,” in cities of a specified population, are sufficient without being a complete index of the acts.</p> <p>Statutes — Amendments—Construction. An amendatory act relating to the election of justices, quoting parts of the act amended, and containing the word “hereafter,” is not ambiguous as providing for a future election to be held at a past time; since “hereafter” means subsequent to the passage of the original act, which is not repealed and reenacted, but is considered as having been at all times in force.</p> <p>Statutes — Title — Amendments. An act amending a section, which sets forth in full the section as amended, does not violate Const., art. 2, § 37, providing that no act shall be revised or amended hy a mere reference to its title, but the section amended shall be ■set forth at full length.</p> <p>Statutes — Partial Invalidity — Effect—Justice of Peace — Salary — Term. If Rem. 19X5 Code, § 6533-5, is unconstitutional in that it authorizes the county commissioners to increase the salaries of -certain justices of the peace, the same does not affect the other portion of the statute fixing the number and term of office of justices and constables in certain cities.</p> <p>Sheriffs and Constables — Number—Statutes. But one constable for each justice was intended, and the limitation of justices limits the number of constables provided for by Rem. 1915 Code, § 6533-1, providing that there shall be, in cities of fifty thousand population, two justices of the peace and two constables, and one additional justice and one additional constable for each additional fifty thousand population, with the proviso limiting the justices that may be elected to five until the population reaches five hundred thousand.</p>

, entered November 8, 1915, granting a new trial, after a verdict rendered in favor of the defendant, in an action of claim and delivery.

<p>Municipal Coepobations — Taxation — Poll Tax. An ordinance levying a poll tax upon all male inhabitants over twenty-one, upon the authority of the act of 1905 (2 Rem. & Bal. Code, §7766), although valid when passed, is repealed or rendered invalid as to males over fifty years of age, by 3 Rem. & Bal. Code, § 7685, subd. 7, passed in 1913, authorizing cities of the third class to levy a street poll tax upon male inhabitants between the ages of twenty-one and fifty years, and no other.</p>

, entered August 11, 1915, upon findings in favor of the plaintiff, in an action to foreclose a mechanics’ lien, tried to the court.

<p>Intoxicating Liquors — Prohibition — Possession — Druggists — Statutes. Rem. 1915 Code, § 6262-1 et seq., regulating the sale of intoxicating liquors by druggists, refers only to druggists or pharmacists actively engaged in business; hence possession of an excess quantity by a registered pharmacist not engaged in business either when the liquors were acquired or seized, is an unlawful possession and not justified by the fact of acquisition before the law went into effect nor by intent to engage in the business.</p> <p>Same — Possession — Intended Use — Statutes. Where a registered pharmacist not engaged in business acquired a stock of intoxicating liquors before the prohibition law went into effect, and admitted that he kept them for a future druggist’s business, instead of shipping them out of the state within ten days as required by law, the liquor is contraband and subject to condemnation in a proceeding in rem, and the owner cannot recant and reclaim the liquor to be kept for personal use in his home, the intent being an important element of the offense.</p>

<p>Mortgages — Foreclosure—Redemption From Sale — Rents — Accounting — Statutes. Under Rem. & Bal. Code, § 600, providing that, upon the redemption of farming land, the purchaser or his tenant in possession shall be entitled to reimbursement for his work and labor, a purchaser who received one-third of the crop from his tenant is not entitled to an item of $50 as an expenditure for looking after and selling the crop, where nothing was actually paid out or expended by him.</p> <p>Same — Rights of Tenant — Option—Possession or Pat — Statutes. Under Rem. & Bal. Code, § 600, providing that upon the redemption of farming land, between the 1st day of April and the 1st day of December, the purchaser or his tenant in possession shall be entitled to reimbursement for his work and labor or the right to retain possession until the 1st day of December following, he has the option to demand the money or hold possession until the 1st day of December next following the date of redemption, in case of redemption between April 1 and December 1 of the current year; but when the crop has been removed, and he has done fall plowing for the next season, he is entitled to reimbursement only, and cannot hold until December 1 of the following year.</p>

<p>Justices of the Peace — Police Justice — Term of Office — Appointment — Revocation—Statutes. Under Rem. & Bal. Code, § 7520, providing that, within ten days after each general election, the mayor of cities of the first class shall appoint one of the justices of the peace so elected the police justice of such city, the term of the appointment is coextensive with the term for which he was elected as justice, and the mayor has no power to remove him or revoke the appointment, in the absence of statutory authority; especially in view of the provisions of the constitution, art. 5, § 3, providing that officers recognized by the constitution shall be subject to removal only for misconduct or malfeasance in the manner provided by law, and the provision that judicial officers may be impeached; there being no implied power of removal by the mayor resting in public policy.</p>

<p>Application filed in the supreme court July 25, 1916, for a writ of mandamus to the secretary of state, to compel the acceptance of a declaration of candidacy, heard upon demurrer and answer to the petition.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered October 27, 1915, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

<p>Sheriffs and Constables — Arrest—Right to Make Abbest — Offices Without Wabeant. A peace officer is authorized to make an arrest without warrant after a felony had been committed where he had reasonable grounds to believe that the party arrested had committed a felony.</p> <p>Same — 'Unlawful Abbest — Action on Oeficial Bond — Acts Coloee ob Vibtute Offich. Where a constable makes an arrest without warrant and without reasonable grounds for believing that the party arrested had committed a felony, he nevertheless acts virtute officii, and renders the surety upon his official bond liable for the trespass committed.</p> <p>Same — Unlawful Abbest — Action on Official Bond — Pleading. A complaint upon the official bond of a constable for making an unlawful arrest without warrant properly alleges that the plaintiffs had not committed a felony and that the constable had no reasonable grounds for believing that they had done so.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 22, 1915, upon findings in favor of the plaintiff, disallowing an attorney’s lien, in a proceeding for the substitution of attorneys, tried to the court.</p>

<p>Statutes — Subjects and Titles. The title of the Torrens Land Act, reading “An act relating to the registration and confirmation of titles to land,” is sufficiently comprehensive to include any incumbrance or instrument affecting the title, but not sufficient to entirely set aside and supersede prior general laws with reference to the enforcement of ■ mechanics’ liens.</p> <p>Mechanics’ Liens — Requisites — Time for Perfecting — Lands Registered Under Torrens Act — Amendment op Lien. Under the Torrens act, Rem. & Bal. Code, § 8875, providing that all liens shall be enforced by any method sufficient or proper to enforce like liens on unregistered lands, and Id., § 1134, providing that claims for mechanics’ liens may be amended by order of court in so far as the interests of third persons are not affected, and Id., § 1147, providing for a liberal construction of the lien laws, a claim for a mechanics’ lien upon registered land, filed within the time and in the manner provided by general law for unregistered lands, may, by order of court, be amended at the foreclosure trial and registered as required by the Torrens act, where no rights of third persons are affected; in view of the. further fact that the Torrens act fixes no time limit for the registration of involuntary liens, and requires the same to be registered in the same office where they would be filed if upon unregistered lands.</p>

, entered October 14, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages, after a trial on the merits.

, entered September 15, 1915, dismissing an action for personal injuries sustained by a railroad laborer, upon granting a nonsuit.

, entered November 5, 1915, in favor of the plaintiff, on motion for judgment on the pleadings, after striking parts of the answers in garnishment proceedings.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 4, 1915, upon findings in favor of the plaintiff, in an action for an injunction and damages, tried to the court.</p>

, entered January 28, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a jitney bond, for personal injuries sustained by a pedestrian at a street crossing.

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheets, J., entered April 15, 1916, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal — Review—Findings. Findings on conflicting evidence will not be disturbed on appeal where supported by the preponderance of the evidence.</p>

<p>Divorce — Appeal—Review—Findings. Since, in divorce, there is a trial de novo on appeal, it is immaterial whether the findings of fact support the decree, as the case, is tried on its merits on the whole record.</p> <p>Same — Custody op Child. The custody of a child may, on granting a divorce, he divided between the relatives of the parties when for the best interests of the child.</p> <p>Appeal — Record—Presumption—Decree. On appeal, the decree must he taken as correctly speaking the judgment of the court.</p>

, entered March 12, 1915, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.

, entered June 26, 1915, upon the verdict of a jury rendered in favor of the defendants, in consolidated actions on contract.

F. Wright, J., entered January 21, 1916, upon sustaining a demurrer to the complaint, dismissing an action to set aside an assessment for a public improvement.

<p>Appeal from a judgment of tbe superior court for King county, Smith, J., entered June 28, 1915, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

, entered November 19, 1915, upon findings in favor of the plaintiff, in an action of claim and delivery, tried to the court.

<p>Divorce — Children-—-Award of Custody — Modification—Discretion — Review. A refusal to vacate a decree awarding the custody of a child in divorce proceedings will not be disturbed on appeal as an abuse of discretion, where the trial court heard the original case and had the witnesses before him, and it is not reasonably plain that the welfare of the child requires the change; and it is not sufficient that a mother had been indiscreet with other men, in the absence of any moral turpitude.</p>

<p>Quo Warranto — Power to Institute — Discretion — Statutes. Ultimate discretion is vested in the court to order the prosecuting attorney to institute quo warranto proceedings, by Rem. & Bal. Code, § 1035, which provides that the information may be filed by the prosecuting attorney upon his own motion whenever he deems it his duty to do so, or shall be directed by the court or other competent authority; “may” being used not in the permissive, but in the alternative sense, and the statute being remedial and to be liberally construed.</p> <p>Same — Proceedings to Compel — Parties Entitled — Interest. Since no peculiar interest need be shown by the petitioner in order to invoke the power of the court to direct the prosecuting attorney to institute quo warranto proceedings against a corporation, it is immaterial that the petitioner is attorney for competitors of the corporation.</p> <p>Same — Proceedings to Compel — Against Banking Corporation— Petition — Sufficiency—Statutes. Under Rem. & Bal. Code, § 1034, authorizing quo warranto against a corporation when it does or omits acts which amount to a surrender or forfeiture of its corporate rights and privileges, or exercises powers not conferred by law, and Id., § 3317, making it unlawful to transact a banking business in cities of 50,000 inhabitants without property of the cash value of $100,000, and requiring the stock to be paid in full within a certain time and providing that failure to comply with the act shall subject it to a penalty of $100 per day, a petition to compel the prosecuting attorney to institute quo warranto proceedings makes a prima facie case, where it alleges that a bank with a capital of $25,000 disposed of its assets, ceased to do business and liquidated its liabilities in 1908, that it surrendered its stock, has not paid its penalty of $100 per day for violations of the act, and is seeking to reissue the stock to others and recommence business with $25,000 capital stock in a city of over 50,000 population; since the same is sufficient to put the bank upon its defense, the merits of that matter not being triable in the present proceedings to which the bank is not a proper party.</p>

Cross-appeals from a judgment of the superior court for Kittitas county, Kauffman, J., entered December 30, .1915, upon findings in favor of the defendant, in an action for equitable relief, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered November 2, 1915, upon a trial and conviction of assault in the third degree.</p>

, entered September 28, 1915, upon findings in favor of the plaintiff, in an action to vacate the assignment of an interest in the estate of a decedent, tried to the court.

<p>Execution — Sale—Confirmation—Homestead Exemption. The right to a homestead exemption, claimed prior to execution sale, may he considered on objections to confirmation of the sale.</p> <p>Same — Sale—Confirmation—Exemptions—Amendment. A motion to vacate an execution sale on account of a claimed exemption may be amended at the hearing by pleading insolvency and bankruptcy proceedings in which the property in question had been set off as exempt.</p> <p>Bankruptcy — Liens — Avoidance — Insolvency — Execution— Sale — Confirmation. It is a good objection to the confirmation of an execution sale to the judgment creditor, upon a judgment recovered in June, that while the confirmation was still pending the debtor had been adjudged insolvent at all times since the suit, in bankruptcy proceedings instituted in August, and the property in question set off to him as exempt; in view of § 67f of the Bankruptcy Act avoiding all liens against insolvents acquired within four months preceding the petition.</p>

, entered September 21, 1915, directing the payment to a mortgagee of the rents and profits collected by a receiver pending foreclosure proceedings.

, entered November 5, 1915, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a j itney.

, entered December 31, 1915, in favor of the defendant, granting a motion to quash a summons and the service thereof, on the ground that no complaint was in existence.

<p>Appeal — Decisions Appealable — Finality—Oral Orders. An appeal cannot be entertained, as from a final judgment, from an oral order denying a deficiency judgment in foreclosure which was never expressed in a formal written judgment.</p> <p>Mortgages — Foreclosure—Decree—Finality — Deficiency Judgment. A money judgment contained in a decree of foreclosure is a final judgment to be enforced by sale and levy for deficiency under the same execution, under Rem. & Bal. Code, § 1119, providing that the court shall direct in the foreclosure decree that any deficiency shall be satisfied from any property of the mortgage debtor; §§ 1120, 1121, declaring that judgments for deficiency shall be similar to other judgments and enforced in the same way; and § 1123, providing that judgments over for any deficiency may be satisfied under the same execution.</p> <p>Appeal — Record—Statement of Facts — Time for Filing. Upon appeal from a foreclosure decree, the time for filing the statement of facts begins to run from the entry of the decree, and not from the denial of a motion for a deficiency judgment after sale.</p> <p>Same — Statement of Facts — Time fob Filing — Extension'—Excuse fob Delay. It is not a sufficient excuse for extending the time for filing a proposed statement of facts, authorized by Rem. 1915 Code, § 1730-8, where failure to file in time “is found to be excusable,” that a mistake of law was made in assuming that an oral decision denying a deficiency judgment, not expressed in a formal written order, was a final judgment from which an appeal may be taken; and that act does not repeal Rem. & Bal. Code, § 393, requiring filing of the statement of facts within thirty days after the time for taking an appeal begins to run.</p> <p>Bills and Notes — Indorsees—Liability—Notice. Indorsers of a promissory note are not liable in the absence of presentment or demand for payment as to one of the makers and no demand made on them as indorsers.</p> <p>Appeal- — Record—Affidavits. The refusal to grant a new trial cannot be considered on appeal where the affidavits were not brought up except in the transcript, and were not identified by the motion or order.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Linn, J., entered November 26, 1915, upon sustaining a demurrer to the complaint, dismissing an action for fraud.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered November 6, 1915, upon findings in favor of the defendants, in an action for rent, tried to the court.</p>

<p>Application filed in the supreme court August 4, 1916, for a writ of mandamus to compel the secretary of state to accept relator’s filing as a candidate for state senator.</p>

<p>Appeal — Amount in Controversy —■ Pleadings — Interest. The amount in controversy limiting the right of appeal being determined by the pleadings, appeal does not lie where the demand in the complaint, with interest thereon to the time of the commencement of the action, was less than $200.</p> <p>Same — Amount in Controversy — Presumption. The amount involved determining the jurisdiction on appeal must affirmatively appear and will pot be presumed where the principal demanded is less than $200, and the date when interest started is not given.</p> <p>Same — Amount in Controversy — Pleadings- — ■ Offer of Proof. Where the complaint fails to show the jurisdictional amount on appeal, the defect is not cured by offer of proofs tending to show a sum due when the action was commenced in excess of the constitutional limit.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered April 12, 1915, confirming an assessment roll for a public improvement upon appeal from the city council, after a hearing before the court.</p>

<p>Railroads- — Operation-—Injury to Licensees — Contributory Negligence — Proximate Cause — Evidence—Sufficiency. A naked licensee, using a railroad switch yard by sufferance, is guilty of contributory negligence which was the proximate cause of his death, where he walked along the middle of a railroad track while on either side were paths equally as good which he might have traveled in safety, and after seeing a switch engine on a parallel track stopping to uncouple a car, he never looked back to see if it was put in motion; since he was bound to exercise the highest degree of care for his own safety.</p> <p>Same — Operation—Injury to Licensee ■ — • Negligence — Comparative Negligence. The failure to ring a bell or carry a forward lookout upon a switch engine in a switch yard, although negligent, does not amount to wantonness or wilfulness in running down a licensee who was not seen by the engineer, and therefore does not render the company liable where the licensee’s own negligence was the proximate cause of his death; as the doctrine of comparative negligence does not obtain in this state.</p> <p>Same — Injury to Licensee — Negligence-—“Last Clear Chance.” In an action for the death of a licensee, run down by a switch engine, the doctrine of “last clear chance” has no application where the defendant had no actual knowledge of the probability of injuring the decedent, whose negligence continued up to the moment of the injury and was the proximate cause of his death.</p>

, entered December 24, 1915, upon findings in favor of the defendant, dismissing an action by a civil service employee to recover a pension, tried to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered February 6, 1915, upon overruling a demurrer to the affirmative defense, dismissing an action for wrongful death.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered July 7, 1915, upon sustaining a demurrer to the answer, affirming upon appeal an order of the state medical board in revoking appellant’s license to practice medicine as an osteopath.</p>

<p>Taxation — Tax Title — Foreclosure of Delinquency Certificate —Unnecessary Parties — Service—Tax Deed — Effect'. The foreclosure of a delinquency tax certificate being a proceeding in rem in which the owner of record described in the certificate is the only necessary defendant, the proceeding is not void or subject to collateral attack because of failure to personally serve the record owner of the property at the time the certificate was foreclosed, notwithstanding he was made a party and was living on the premises; especially in view of Rem. & Bal. Code, § 9267, providing that a tax deed shall be prima facie evidence of the regularity of the proceedings, and the policy of the state to make a tax title a favored title equivalent to a decree quieting title in the purchaser as a grant from the state.</p> <p>Same — Foreclosure—Due Process — Notice to Owner. Tax foreclosure proceedings, being in rem, do not necessarily depend upon the practice acts, and in no way violate the constitutional guaranties of due process through want of personal notice to the owner.</p> <p>Same — Foreclosure—Collateral Attack — Rights of Mortgagee. An attack upon a tax foreclosure judgment and sale, by a mortgagee who does not show a payment by the reputed owner or any attempt to comply with the privileges to pay or redeem given mortgagees by Rem. & Bal. Code, §§ 9258, 9259, is no more than at attempt to redeem in equity after the time of redemption.</p>

, entered April 11, 1916, upon findings in favor of the plaintiff, in an action to compel the issuance of special fund warrants in payment for a public improvement, tried to the court.

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered August 9, 1915, upon the verdict of a jury rendered in favor of the plaintiff for $9,362.75, for trespass to property.</p>

<p>Landlord and Tenant — Reversion—“Waste”—Forfeiture. Waste being an unreasonable or improper use or omission of duty touching real estate resulting in its substantial injury, a tenant does not commit waste upon a town lot 50x137 feet, valued at $2,200, by depositing sand and gravel on it thereby making it less valuable for agricultural purposes; since it is not chiefly valuable for such purposes.</p> <p>Same — Lease—Use of Property. Where a lease of a lot adjoining property of the tenant did not specify the purpose to which the property should be devoted, its use for the deposit of sand and gravel to be used on the tenant’s property is not unreasonable.</p> <p>Same — Lease—Forfeiture—Alterations Without Consent. The making of alterations by a tenant without the consent of the lessor, in violation of the terms of the lease, does not give the lessor the right to terminate the lease where the lease only gives the right to expel the lessee if he fails to pay rent or commits waste.</p> <p>Tender — Check or Cash — Objections—Landlord and Tenant— Payment oe Rent. A tender of rent in tlie form of a check is good if not objected to on that ground, where there was nothing in previous dealings to indicate that a check was not acceptable; and it is immaterial that a mistake was made in the description of the property where the lessor knew what property was intended.</p>

onald, J., entered May 19, 1915, upon findings in favor of the plaintiff, affirming upon appeal an order of the state medical board in revoking appellant’s license to practice medicine as an osteopath.

, entered December 24, 1915, upon sustaining a demurrer to the complaint, dismissing an action to recover an interest in the property of an estate.

<p>Mortgages — Deficiency Judgment — Agreement— Evidence — Sufficiency. While a deficiency judgment will not be prevented by the erasure of a clause in a mortgage note authorizing the same, the court is warranted in finding therefrom that there was an agreement that no deficiency judgment should be taken and that the mortgagee should look alone to the security, the mortgagor and a disinterested witness testifying to that effect.</p> <p>Same — Action on Note — Defenses — Reformation — Reply — Bueden of Proof. Upon a 'defense to a mortgage note seeking refor, mation as to the provision for a deficiency judgment, the burden is upon plaintiff to prove the allegations of his reply that defendants had misrepresented the value of the property and were not entitled to the equitable relief of reformation.</p> <p>Appeal — Review—Findings. A finding sustained by substantial evidence and none preponderating against it .will not be set aside where the trial court had the advantage of hearing the witnesses and weighing the credibility of each.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered September 28, 1915, upon a trial and conviction of murder in the first degree.-</p>

, entered December 3, 1915, denying a motion for judgment notwithstanding the verdict of a jury rendered in favor of the plaintiff, and granting a new trial on the ground of inadequate damages, in an action for personal injuries sustained by a minor while playing with a .scraper.

<p>Indictment and Information — Duplicity—Family Desertion. An information charging family desertion by the abandonment of children and failure to provide support is not duplicitous, under Rem. 1915 Code, § 5933-1, which defines the offense disjunctively by enumerating in separate subdivisions the acts constituting the offense as if “or” occurred between the subdivisions; since several alternative means by which the same offense may be committed may all be included in one charge, and since there is no inherent difference between physical abandonment and actual failure to support.</p>

<p>Taxation — Personal Tax — Lien—Priority—Designation — Statutes. Under the rule that the power of the state to create a priority in aid of its taxing power is dependent upon positive statute without resort to construction, the lien on realty for personal property taxes does not attach until specific real property is selected by the county treasurer and properly charged on the rolls, and then only when the property charged is owned by the person owing the delinquent personal property tax; in view of Rem. & Bal. Code, §§ 9230, 9235, making taxes on real and personal property a lien on the specific property charged from the date of the assessment, and Id., § 9245, providing that to charge a personal property tax upon real property, the county treasurer must select for that purpose some particular tract or lots owned by the person owing the personal property tax in his tax roll and designate the particular tract or lots charged with the personal tax.</p> <p>Same. Under such statute, any lien on real property for personal taxes would be inchoate up to the time of the selection of the real property, and could only attach to the interest of the delinquent tax debtor at the time of its selection.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered December 21, 1915, upon findings in favor of the plaintiff, in an action on a receiver’s bond, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered December 17, 1915, dismissing an action to cancel assessments for a public improvement, tried to the court.</p>

<p>Mandamus — When Lies — Adequate Remedy at Law. Where a city damaged property by the regrade of a street without instituting condemnation proceedings, the owner has a plain, speedy remedy in an action at law, and hence mandamus does not lie to compel the institution of condemnation proceedings to determine the damages.</p> <p>Limitation oe Actions — Damages to Peopeety. An action against a city for damages to property by regrading a street is governed by the two-year statute of limitations.</p> <p>Mandamus —■ Remedy at Law — Adequacy — Bab oe Limitations. The loss of a remedy at law by lapse of time until the statute of limitations has run does not affect the adequacy of the remedy so as to entitle the party to obtain the same relief by mandamus.</p>

<p>Motions to dismiss appeals from judgments of the superior court for King county, Frater, J., entered February 9, 1916, and Kauffman, J., entered November 12, 1915.</p>

<p>Bills and Notes — Actions—Defenses—Fraud in Procurement. A note and its renewal given for stock is shown to have been obtained by fraudulent representations where it appears that the maker relied upon representations that the corporation, capitalized at $2,000,000, had valuable limestone deposits, which a responsible party had agreed to develop by a plant costing $350,000, when no such agreement had been made and the only asset of the company was an option on the deposits of little or no value.</p> <p>Same — Actions—Defenses—Failure of Consideration. There is a practical total failure of consideration for a note for $4,900, given for corporate stock, where nothing was given for the stock originally issued to the officers, and there were no assets or anything back of $2,000,000 in capital stock and $1,250,000 in bonds except an option to purchase lands of little or no value, and the stock was never worth more than $600 paid thereon; partial failure of consideration being a defense pro tanto.</p> <p>Same — Bona Fide Holders — Consideration — Knowledge. The president of a company in active management of its affairs is not a 1bona fide holder of a note which he took from the corporation knowing that it was given for bonds and stock that he knew to he practically worthless, as he is charged with knowledge of failure of consideration.</p>

<p>Saxes — Conditional Sales — Damages to Property — Rights oe Vendee. The vendee of a motorcycle under a conditional hill of sale has no title and cannot recover for damages to the machine, even to the extent of the purchase price paid, although there was no direct evidence that the contract was forfeited, where it appears that he had no interest at the time his suit was commenced or the time of the trial and the vendors had taken possession after the accident.</p> <p>Appeal — Review—Prejudicial Error — Remission oe Damages. In an action for damages sustained in a collision, error in allowing recovery for damages to a motorcycle not owned by plaintiff cannot be cured by a remission from the verdict, where the evidence as to the amount of such damage was conflicting and there was no way of determining the amount allowed therefor, if any.</p> <p>Appeal — Review—Verdict. A verdict upon conflicting evidence will not be disturbed because it may seem against the greater weight of the evidence.</p>

<p>Insurance — Agents—Authority—“Ostensible Agency” — Estoppel to Deny. . Where all the business of a licensed insurance agent, M. P. H., had been delegated to, and transacted in her name by, her husband, C. E. H., who was personally known to the company as “Gene” H., supposing him to be M. P. H., he had ostensible authority to act as agent and the company, having so dealt with him for a term of years, is estopped to deny his authority, through a lack of care in its mistake as to his identity.</p> <p>Same — Regulation — Issuance op Policy — Countersigning. 3 Rem. & Bal. Code, § 6059-36, providing that it shall be unlawful for an insurance company to write a policy unless countersigned by its duly authorized agent does not necessarily avoid a policy not signed by the duly licensed agent, as the statute does not avoid the policy by express terms and was intended as a restriction on insurance companies.</p> <p>Same — Policy—Cancellation—Waiver of Notice. The five-day written notice of cancellation of an insurance policy provided by statute is waived by the insured, where he assented to its cancellation provided the risk was rewritten in another company, which was done; and it is immaterial that the policy was not surrendered at the time, where he did not have it with him and agreed to surrender it as soon as he returned from a trip upon which he was starting.</p> <p>Appeal — Decision—New Tbial. Upon reversing a judgment of dismissal upon granting a nonsuit, a new trial must he granted, where the answer presented an issue of fact.</p>

<p>Easements — Right to Ingress and Egress — Dedication—Estoppel — Rights of Grantees. Since the dedicator of a plat selling lands abutting on a dedicated street cannot defeat the grantee’s right to an easement in the street, common grantees claiming through him cannot, as between themselves, deny the full effect of the deed or question the right of ingress and egress.</p> <p>Same — Streets—Dedication—Vacation—Abandonment. Rem. & Bal. Code, § 5673, vacating county roads which remain unopened for public use for five years, has no application to and does not affect private rights of easement acquired by deed by an abutter upon a street in a dedicated plat.</p> <p>Same — Extinguishment—Streets—Abandonment. The easement of an abutting owner in a street in a dedicated plat is not lost by abandonment or nonuser, however long continued, until the time arrives when it is required for actual use; hence the right is not lost by the fact that half of the road had been fenced by the owner on the opposite side while ingress and egress had been found over lands of other parties.</p>

<p>Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered March 3, 1916, upon findings favorable to the defendant, after a hearing upon the return of a warrant authorizing a search and seizure of intoxicating liquors.</p>

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered May 29, 1915, dismissing an action for specific performance, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered November 3, 1915, in favor of the defendants, dismissing an action to recover money paid and to secure the reduction of a tax, tried to the court.</p>