the case had been fully heard, and submitted for final determination of the question of title, before the order to transfer was made upon the court's own motion, and all benefit of the hearing was threatened to be lost, which threat was so far realized that upon the jury trial the most important witness had gone home to another state, whence he refused to return. Holding these views, we shall sustain the motion to strike the statement of the jury trial, and retain the other as the statement in the case.

2. The complaint shows, on the face of it, that the respondents had been since 1883 in possession of the land sought to be partitioned, under a conveyance of the whole tract from the father of the appellant, who claimed a half interest, as sole heir of his mother, deceased in 1883, before the conveyance. These facts, respondents claim, precluded any suit for partition until there had been an action at law to try title. Our statute (Code Proc. § 577) provides: "When several persons hold and are in possession of real property as tenants in common," there may be a partition; and the common-law rule is well settled that, where the party seeking partition has been ousted of possession by his alleged tenant in common under a claim of adverse title to the whole estate, equity will not determine the legal rights of the parties. Freem. Coten. § 447. Where the pleadings of the defendant disclosed the adverse claim, the practice was to stay the partition proceeding until the plaintiff got his judgment for possession at law, (Brown v. Cranberry Co., 40 Fed. Rep. 849;) but where the complaint itself failed to allege possession, or, as in this case, alleged adverse possession in the defendant, naturally, a dismissal followed. Such has been the construction under statutes having the same language as that above quoted. Florence v. Hopkins, 46 N. Y. 182. Freem. Coten. § 450, however, shows that the rule has been to the contrary in Massachusetts and Maine, and closes thus: "In truth, the limitations attending proceedings in partition are constantly weakening, and the tendency to do full and complete justice to the parties in one action is becoming irresistible. Wherever the question has recently arisen as a new question, the answer to which the courts were free to give without consulting decisions made at an early day, when the common-law rules were more potent than at present, it has been resolved in favor of taking jurisdiction whenever the complainant shows himself seised of the requisite title, whether the lands sought to be partitioned are held adversely to him or not." This new practice has long been in vogue in California, where Bollo v. Navarro, 33 Cal. 459, and Martin v. Walker, 58 Cal. 590, were decided; and it would seem to be the only rational practice under a Code, especially when our Code Proc. § 583, is considered, that section providing as folv.34P.no.1-10

lows: "The rights of the several parties plaintiffs as well as defendants may be put in issue, tried and determined in such suit." This law exists in California, and the court, in Martin v. Walker, alludes to it as an additional reason for its ruling, confirming many preceding cases on the same subject. 3. It was not necessary to allege that there was necessity for a sale in lieu of partition, or that partition could not be made without great prejudice to the owners. Code Proc. 584, provides that if such a state of facts appears from the evidence, without allegations in the complaint, a sale may be ordered.

4. There had been no administration of the estate of Mrs. Hill, deceased. We hold, however, that where the wife died in 1883, leaving an only child and her husband surviving, and there had been no administration upon her estate, or upon the community property, there was a clear presumption in 1891 that, as to the community real property, there was no necessity for administration, and that the right of the child to the possession of his share in the community real estate, as heir of his mother, was complete. The husband alone has the power to manage and control community real property, and he alone can incur indebtedness which would become a charge upon such property, except for family necessities. These are his debts, and to him they are presented for payment. Statutes of limitation will run against them while he lives and remains in the state; and after so long a time, and no petition for administration having ever been filed, it ought to be presumed, in favor of the child, either that there were no community debts, or that they have been paid or barred. We so rule in full view of Balch v. Smith, 4 Wash. 497, 30 Pac. Rep. 648.

5. The land in controversy was acquired in 1871, being conveyed to the husband by deed of purchase. The act of 1869, "defining the rights of husband and wife," declared that property acquired by either husband or wife, except that acquired by gift, bequest, devise, or descent should be "common" property. Section 2. It also provided that the husband should have the same absolute power of disposal of the common property as he had of his separate estate. Section 9. Respondents maintain that this power to dispose was a vested right in the husband, which could not be taken away by any subsequent statute. But it is not necessary to decide this point. The act of 1869, having declared certain property "common" property, did not make provision for the disposal of such property upon the death of either spouse, as was done by later laws on the same subject; but we think that, without anything further than was contained in that act, the courts of the territory would have been bound to administer upon such property, after the death of husband or wife, according to the established rules of those

states and countries where common or community property laws had existed. The first and cardinal of such rules was that the community was dissolved by the decease of either spouse; next the right of disposal in either spouse was ended; and, third, the property became vested by moieties in the survivor and the children. Therefore, upon the death of Mrs. Hill, in 1883, even if the act of 1869 was the only law applicable to this land, the right of the husband to dispose of the whole estate terminated. And it may be further stated that the purchaser, in this instance, knew of the marriage relation which existed between his grantor and Mrs. Hill, and knew, also, that the appellant was their only child.

6. Whatever objections may have been well founded as against the sufficiency of the reply are obviated by the fact that this was an equity cause, and that upon the trial the respondents wholly failed to substantiate the allegations of their answer, which they claim were not met by the reply.

7. Appellant produced the deed to his father, which showed on its face a conveyance of land for a valuable consideration, and, prima facie, the land conveyed was common property. Yesler v. Hochstettler, 4 Wash. 349, 30 Pac. Rep. 398. The burden, then, was upon respondents to show that the money paid for the land was the separate property of John S. Hill. The Hills were married in 1859, at which time the husband owned one-third of a small steamboat, worth about $2,000. In 1860 the interest in the steamer was exchanged for 50,000 feet of lumber, worth about $1,250. The lumber was sold, and $800 of the money derived therefrom was used to buy a farm in King county. In 1866 the farm was sold for a cash payment of $900, and a credit which was never collected. This $900 was perhaps used to pay part of the cost of a steamboat called the "Gem," the whole cost of which was between three and four thousand dollars. The testimony of Hill, as to where he got the balance of the money paid for the boat, was that "he didn't know; he expected he made it somewhere." He owned the Gem until 1872, and from the time he bought her, about 1866, until 1872, he operated her on Puget sound, himself acting as captain. Over and above the operating expenses, he received about $100 a month for his labor and the earnings of the boat; and he testified that the money he paid for this land must have been money acquired from his use and operation of the Gem, as he was then in no other business. But, again, he said that in the years in which he was not steamboating-1860 to 1866-he made money right along in other business; that he never kept any account of any moneys made in any transaction; and that he could not tell whether his money came from his steamer, or whether it was money made before.

Under every consideration of the law, such a state of facts left it entirely uncertain whether the property which Capt. Hill owned before marriage had anything to do with earning him anything in 1871, and the presumption of the deed was undisturbed.

Upon the whole case, therefore, we are of opinion that the court erred in dismissing the action, and that the cause should be remanded for an interlocutory judgment establishing appellant's title to an undivided one-half of the tract in question, and his right of possession as tenant in common with the respondents, and for further proceedings in the matter of the partition. So ordered.

HOYT, SCOTT, and ANDERS, JJ., concur. DUNBAR, C. J., concurs in the result.

WILLSON v. NORTHERN PAC. R. CO. (Supreme Court of Washington.. May 20, 1893.) CARRIERS-EJECTION OF PASSENGER-DAMAGES.

In an action for wrongful ejection from a train, it appeared that plaintiff had purchased of a connecting carrier a ticket to S., on defendant's road, and that defendant's ticket exchanger, by mistake, gave plaintiff, in exchange for her ticket, one only to M. When the train reached M. the conductor offered to carry plaintiff, without a ticket, to the end of his division, and that in the mean time he would try to correct the error by telegraphing, but advised plaintiff that it would be less trouble for her to buy a ticket to S., and that she would afterwards get her money back when the facts could be ascertained. Plaintiff not having sufficient money to buy the ticket, a fellow passenger offered to loan her the amount. She refused to accept such offer, or to ride to the end of the division without a ticket, but asked the conductor to put her off the train. The conductor said, "Come on, then," and walked out, followed by plaintiff. Held, that plaintiff was entitled to no more than nominal damages, aside from the cost of her ticket from M. to S. Per Stiles and Hoyt, JJ., dissenting.

Dissenting opinion. For majority opinion, see 32 Pac. Rep. 468.

STILES, J. I dissent. With the law of this case, as laid down by the majority of the court, I have no controversy. The weight of authority in such cases is that where a common carrier, by mistake, gives a passenger a ticket short of the destination for which he has paid for transportation, the ac tion is in case, for the tort in the company's failure to perform what was its duty as a carrier; and it is also well established that, where there are circumstances such as would cause inconvenience, distress, or mortification to the passenger, the measure of damages includes compensation therefor. But I deny that this case furnishes any facts sufficient to justify the verdict rendered, or even the judgment entered, upon any theory of compensation. The evidence shows that the mis

take was not discovered until the train had passed west of Helena, between which place and Missoula the distance is about 100 miles. As soon as the conductor learned of respondent's claim, he, of his own motion, telegraphed to St. Paul, with a view of having the error corrected. While awaiting the reply, the respondent rode comfortably along in the sleeping car, and was in the dining car when the train reached Missoula, and the conductor received his answer from St. Paul, and read it to her. This answer said, "She will have to purchase another ticket to Seattle, and take receipt, and take matter up with selling agent;" and it left the conductor no alternative in the line of his duty, which he proceeded to perform in a gentlemanly and entirely friendly manner. He, upon his own responsibility, offered to carry her to Hope, Idaho, 173 miles beyond Missoula, and where his division ended, without a ticket, because, in the mean time, he expected, by telegraphing again to St. Paul, to be able to straighten the matter out; but he advised her that Hope would be reached about 3 o'clock in the morning, and that it would be less trouble to her if she bought a ticket from Missoula, and afterwards got her money back. The talk about the matter took some 15 minutes, during which the train was held to await her decision. But other passengers' advice prevailed, by holding out the idea of damages, and she determined to stand upon her legal rights, and be "put off." Now, it is perfectly idle to say that this young lady was ever put off the train. She had been told she could continue her journey at least as far as Hope, and the train was standing at Missoula. But she determined not to go on, and, in order to make out the necessary case of ejection from the car, was compelled to ask the conductor to put her off, which he obligingly did, by saying, "Come on, then," and himself walking out. She followed, without wraps or baggage, which she left in her seat; and when she had reached the platform the gentleman who afterwards bought her ticket said, "Well, have you put her off?" to which the conductor pleasantly answered, "Yes." That is absolutely all there was of it, and constitutes the sole basis for this extraordinary recovery. As to the elements of damage, it is said that she suffered from the apprehension that she might have to leave the train, that she was under the imputation of having told an untruth about her ticket, that she had to step out of the car, and that she was humiliated by having to accept a loan from a stranger. As to the first matter, her disturbance of mind could not have been very severe, and it certainly continued less than half an hour. Concerning her veracity, there is no evidence whatever that anybody doubted it. The conductor believed her, and said so, and proved it by offering to carry

her nearly 200 miles west of Missoula, at the risk of having to pay her fare himself; and she says herself that all the other passengers believed her, and sympathized with her, and one of them, a perfect stranger, voluntarily paid upwards of $30 for her account. She need not have stepped out of the car at all, for, as was held in Railroad Co. v. Griffin, 68 Ill. 499, cited above, her cause of action was completed by the requirement to pay fare a second time. She left the car solely for the purpose of perfecting her right to substantial damages, fearing that the technical wrong that had been done to her in taking away her ticket, and returning the short check, would not sustain a suit, unless she actually left the car. Doubtless, her mind and those of her advisers would have been made easier if the conductor could have been induced to put his hand upon her, however formally, during the process of ejection. The last item, the acceptance of the loan from Mr. Adams, is unworthy of consideration. She was not com. pelled to do so, and no such thing was ever contemplated in the contract. She could have ridden on to Hope, and probably, in the time it took to go there, the conductor could have had his order to carry her through to Seattle. The loan was simply another means of making up a case. Technically, nominal damages over the cost of the ticket from Missoula to Seattle, $30.30, should have been allowed, perhaps; but the jury, under a general instruction that they could find damages for "injury to her feelings for the indignity suffered, and for humiliation, for disgrace, and for wounded pride," without any fact upon which to base a finding of even a sentimental injury, and disregarding the law as laid down by the court,-that compensation only could be recovered,-assessed the damages at an outrageously punitive sum, a very substantial part of which is still permitted to stand. I see no reason why railroad companies should be subjected to such penalties for unintentional mistakes, and in my judgment it is idle to say that the submission of the case to a jury makes such an excessive judgment any the less a rank injustice. If the jury had brought in a verdict for $100, and the trial court had not interfered, I should have been willing to accept it, although not by any means admitting that injury to any such extent was suffered by respondent. For a recent case where there was an actual injury occurring through negligence of the railroad company to perform a duty, the passenger being actually put off and left, and where the supreme court of Minnesota divided a judgment of $500 in half, with evident doubt whether so much should be allowed, see Finch v. Railroad Co., 49 N. W. Rep. 329.

HOYT, J. I concur in the above.

MEEKER et al. v. JOHNSON. (Supreme Court of Washington. May 22, 1893.)

SALE-DELIVERY AND ACCEPTANCE.

A contract for the sale of hops provided for their delivery between September 20th and October 20th, payment to be made on delivery "and" acceptance. Held, that where the hops were delivered on Saturday, October 17th, and payment was tendered on Monday following, before the hops were removed by the seller, the title passed to the purchaser, and the seller could not then rescind; since, under the contract, the purchaser could defer acceptance until October 20th. Per Stiles and Hoyt, JJ., dissenting.

its business, will be held responsible for his acts in its name, unless it affirmatively shows that such acts were unauthorized.

Appeal from superior court, Clallam county; James G. McClinton, Judge.

Action by M. J. Carrigan against the Port Crescent Improvement Company on a contract. From a judgment for plaintiff, de fendant appeals. Affirmed.

Geo. C. Hatch and Harry E. Lutz, for appellant. Benton Embree, for respondent.

HOYT, J. All of the errors assigned by appellant, excepting those relating to the evi

STILES, J., (dissenting.) I cannot but think that the court, in its opinion, has begged the whole question at issue. It cites all the cases which hold that a contract to pay "immediately upon demand" means reasonable notice and time to procure money after the notice, and then proceeds to bar the appellants of their rights under that rule upon two grounds: First, they knew the hops were coming; second, they signified that they accepted them. I said all I care to say upon the first point when this case was here before. 28 Pac. Rep. 542.

As to the second point. The letter of the contract is that payment is to be made "upon delivery and acceptance of the same by said parties of the second part." Thus, the acceptance by appellants was just as important to the completion of the transac tion as delivery by the respondent; and there can be no question, and the majority do not deny, that Meeker & Co. could have postponed their acceptance at will until October 20th. Under the contract they controlled the situation that far, and the owner of the hops could do nothing but wait if they had chosen to say that they would not accept until that day. Now, is it not a refinement of technicality to hold that because they did not take advantage of their full rights under the express terms of the contract, and keep Johnson dancing attendance until the last day, they lost all rights of every kind because they did not produce their money "immediately upon demand?" I cannot look upon business transactions between men in any such light, and I do not think the law contemplates the bestowment of any such unfair advantage upon one party to a contract over another, and therefore I dissent.

HOYT, J. I concur in the above.

CARRIGAN v. PORT CRESCENT IMP. CO. (Supreme Court of Washington. June 30, 1893.) CORPORATIONS-LIABILITY FOR ACTS OF OFFICERS. A corporation which names one as manager, and allows him as such to largely control

of offset, were founded upon the rulings of the court upon objections by the appellant to the introduction of evidence to show that the contract sued upon, which purported to be executed by John E. Lutz, its manager, was so executed by him by express authority of the board of directors, or that it had been fully ratified by the action of the company. Before the introduction of any such testimony, the plaintiff had shown that the contract in question had been in fact signed in the name of the company by said Lutz as its manager, and that said Lutz was in fact the acting manager of the company, having control of all or nearly all of its transactions. Under these circumstances, it will be presumed that it was the contract of the corporation until the contrary is made to appear. When a corporation names some person as its manager, and, as such, allows him in a large measure to control all its business transactions, it must be held responsible for the acts of such manager in the name of the company until it has been affirmatively shown by it that, as a matter of fact, such acts were unauthorized. This is, perhaps, an extension of the general rule, but, in our opinion, such extension is necessary to prevent great hardships being cast upon those who deal with corporations. The very use of the word "manager," as applied to the officer, conveys the idea to the ordinary mind that to one thus named has been committed the management of the affairs of the compa ny; and to hold that one dealing with a person so held out must, before the company can be held liable for his acts, show affirmatively that it had authorized them, would often result in great hardship. The books of many of the smaller corporations are very imperfectly kept, and from them it is sometimes impossible to determine as to just what authority is vested in the manager and to require of one who deals with the corporation to show affirmatively the authority thus given would often require of him something that it was next to impossible for him to ascertain. But if we hold that the acts of the person thus held out as manager are prima facie those of the company, but that such presumption can be rebutted by affirmative proof on its part that in fact they were unauthorized, it will greatly sub

serve the public interests and convenience, and at the same time impose no hardship upon the corporation. The corporation can much better be charged with knowledge of what its books show than can one dealing with it; and if, in fact, the act of the manager has never been authorized by the company, it will be easy for it to show such fact, and thus overthrow the prima facie presumption of liability arising from his having acted in the name of the company. This has been held to be the rule in many of the courts when the act of the officer is authenticated by the seal of the corporation, but we see no reason whatever, in the manner in which corporations now so large ly transact their business, to draw any distinction between a contract executed by an officer, and authenticated by the seal of the corporation, and one not so authenticated. It follows that the plaintiff had made a prima facie case before the offer of any of the evidence to which objection was made, and, the defendant having put in no proof tending to rebut it, all such evidence was absolutely harmless, as it could not affect adversely any right of the defendant.

As to the exceptions growing out of the claim of offset set up in appellant's answer, we have carefully examined all the proofs offered in regard thereto, and we think the finding of the court was abundantly warranted by competent testimony contained in the record, and, such being the case, his findings thereon are conclusive upon us. We find no error of record which could have affected adversely any right of the defendant, and the judgment against it must be affirmed.

an assignee in place of the one named by the assignor in his deed of assignment, and asked the court to fix the amount of the supersedeas bond on such appeal. This the court refused to do, and this proceeding has been instituted to compel such action on the part of the court by mandamus. The general rule which requires superior courts to recognize attempted appeals, and do all things necessary to give full effect thereto, is well established by the authorities, and has been recognized and enforced by this court. There is, however, in proceedings by mandamus, another rule of equally general application, fully established by the authorities, and that is that the courts will not compel, by their order in such proceedings, the lower court to do a vain and useless thing. Applying this rule to the facts shown by the petition in this case, and it will be seen that if, as a matter of fact, in the opinion of this court, no appeal would lie from the order made by the superior court, we would not compel the court below to take any steps in furtherance of the attempted appeal therefrom. Such steps on the part of the lower court would be absolutely useless, if in fact there could be no appeal from the order which was sought to be reversed thereby. It will therefore become necessary for us to determine in this proceeding whether or not the order in question is one from which an appeal will lie. If it is not, then, under the rule above announced, it will follow that the application for mandamus to compel the court to take action in pursuance of the attempted appeal must be denied. Our constitution provides that an appeal will lie to this court from the superior court in all actions and

STATE ex rel. VOTAW et al. v. PARKER,

Judge.

(Supreme Court of Washington. May 24, 1893.) MANDAMUS TO COURT-RIGHT TO APPEAL - FINAL JUDGMENT.

1. The superior court will not be required by mandamus to recognize an attempted appeal from an order which is not appealable.

2. An order of the superior court appointing an assignee in insolvency in place of one named by the assignor in his deed of assignment is not a final judgment, from which an appeal will lie.

Original petition in the name of the state, at the relation of H. L. Votaw, assignee, and others, for mandamus to Emmet N. Parker, judge of the superior court of Pierce county. Denied.

Carroll & Carroll and H. M. Hagerman, for petitioners. Stevens, Seymour & Sharpstein, for respondent.

HOYT, J. Relators sought to appeal from an order of the superior court appointing

preted, both by the legislature and the courts, to provide for appeals only from final judgments and orders in such actions and proceedings. It follows that if the order in question is a final one in any action or proceeding, an appeal therefrom will lie. What was the action or proceeding pending in the superior court? Substantially it was the surrender by the assignor of his property to his creditors, and everything required by the statute to be done by the superior court was incidental to the main object of the statute and of the assignor, to the application of such property to the payment of his obligations to all of his creditors equally. Incidental to such main object, the statute has provided for the choice of an assignee, first, by the assignor himself, and, second, by the creditors and the court; and such choice of assignee, whether made by the assignor himself, or in any other manner, is simply an incident to the main object of the proceeding, and cannot, in our opinion, be held to be a separate proceeding, within the meaning of our constitution, or the statute enacted in pursuance thereof, giving this court

secure