jurisdiction by appeal from all final orders entered therein. It follows that, under our interpretation of such constitutional and statutory provisions, the order from which this appeal was sought to be taken was not one from which an appeal would lie. As we have before said, the appointment of the assignee is purely incidental to the proceeding, and it can make no material difference to the assignor nor to the creditors as to the person who should discharge the duties of such assignee, and therefore there is no reason whatever for holding that a question growing out of such appointment is so far a separate proceeding that final orders entered therein come within the statutory provision as to appeals. The assignor has surrendered his property to the jurisdiction of the court, and his interest therein is terminated, excepting that he or any creditor would doubtless have the right to ask the court to prevent any improper conduct in relation thereto on the part of the assignee. Whether such assignee Lad been named by the assignor, or in some other manner, the assignor has no such interest in the determination of the question of his continuance in the position as gives him any standing to appeal from any order which the court may make in regard thereto. Such assignee is simply a trustee for the creditors, and is subject to the orders of the court and to the provisions of the statute in discharging such trust, and has no direct personal interest in the subject thereof. It is conclusively presumed that for what he may do in connection therewith he will receive such payment as will justly compensate him for the services rendered, and no more. It follows that an appeal will not lie in his behalf. Besides these reasons, founded directly upon the terms of the statute and the nature of the order, there are other reasons why such appeals should not be allowed. If so allowed, the orderly administration of such estates would be greatly interfered with. In this case, from the facts suown by the record, it appears that the creditors and the court have for some reason found that the assignee named in the deed of assignment is not the one who should administer the trust; and, if an appeal from the order designating some one to administer it in his stead is to be allowed, and upon such appeal the enforcement of such order be superseded, it will follow either that the administration of the estate must be suspended until the determination of the appeal, or that it must continue in the hands of the person whom the creditors and the court have for some reason decided not to be the one who should thus administer it. We have looked somewhat carefully into the authorities upon this subject, but have been unable to find a single case which would warrant us in holding that an appeal would lie from There the receiver orders of this kind. The only case at all in point is one in the supreme court of the United States, in which it was held that an appeal would lie from an order fixing the compensation of a receiver; but this case does not seem to be at all decisive of the question at bar. had a direct pecuniary interest in the subject-matter of the order, and it was held that, in view of the fact that such receiverships frequently continued for years, public policy and justice demanded that orders made from time to time as to the compensation of such receivers for services rendered suould be considered final orders. A further reason for holding that appeals in such cases should be allowed was that no inconvenience could result therefrom, as the administration of the trust would continue, and be unaffected thereby. On the other hand, we have examined numerous cases in which practically the question now under consideration was decided adversely to the contention of the relators. The cases of Brigel v. Starbuck, 34 Ohio St. 280, and In re Graff, (Appeal of Bailey, Pa. Sup.) 23 Atl. Rep. 397, are directly in point, and seem to us to be decisive of this case. See, also, cases of Lake v. King, 16 Nev. 215; State v. Judge, 6 La. Ann. 484; and Middleton v. McCullough, (Ark.) 9 S. W. Rep. 844. The petition for the writ of mandamus must be denied. DUNBAR, C. J., and SCOTT, ANDERS, and STILES, JJ., concur. REIDT v. SPOKANE FALLS & N. RY. CO. FLUTSCH v. SAME. (Supreme Court of Washington. May 24, 1893.) PUBLIC LANDS-RIGHTS OF WAY - PRE-EMPTIONS. 1. Act Cong. March 3, 1875, granting rights of way to railroads over the public lands, provides in section 4 that a company desiring the benefits of the act shall file a profile of its road, which, after approval by the secretary, shall be noted on the plats, "and thereafter" all lands crossed by said right of way shall be disposed of subject thereto. Held, that the grant passes title to the company on the filing of the profile, not on the filing of the articles and proof of organization. Enoch v. Railway Co., (Wash.) 33 Pac. Rep. 966, followed. 2. A pre-emptor who has filed his declaratory statement, but has not paid for the land, has a possessory claim, within the meaning of Act Cong. March 3, 1875, § 3, which provided for the condemnation of such holdings in the public lands by railroads taking advantage of the act, and is entitled to compensation for a right of way taken through his land. Enoch V. Railway Co., (Wash.) 33 Pac. Rep. 966, followed. Appeals from superior court, Spokane county; James Z. Moore, Judge. Actions by Stephen Reidt and Jacob Flutsch against the Spokane Falls & Northern Railway Company for damages for a right of way taken by defendant through PER CURIAM. The facts in these two cases being nearly the same as those lu tae case of Enoch v. Railway Co., 33 Pac. Rep. 966, and the legal questions involved being identical, it was stipulated by counsel for the respective parties that the three causes should be heard together, and that the disposition of the cases should be governed by the decision in that case, in which alone briefs were filed. For the reasons given in the opinion filed in that case, the judgment of the lower court in each of these cases is affirmed. STATE v. GILE. (Supreme Court of Washington. May 25, 1893.) CHIMINAL LAW-APPEAL BOND-REDUCTION BY APPELLATE Court. The supreme court has no authority to reduce as excessive the amount of the appeal bond fixed by the trial court in a prosecution for manslaughter. Appeal from superior court, Lewis county; M. J. Gordon, Judge. M. A. Gile was convicted of manslaughter, and appeals. On motion to reduce appeal bord. Motion denied. O. V. Linn and Swasey & Lemly, for appellant. A. E. Rice, Pros. Atty., B. W. Coiner, and S. C. Herren, for the State. DUNBAR, C. J. Defendant, M. A. Gile, was found guilty of manslaughter, and his appeal bond was fixed by the trial court in the sum of $6,000. This amount he claims is excessive and unjust, and moves this court to reduce the same. Counsel for defendant have not cited the court to any law empowering this court in a proceeding of this kind to exercise the power of reducing the amount fixed by the trial court; hence, without further investigation, we assume that no such authority exists under the law, and the motion is therefore denied. STILES, SCOTT, HOYT, and ANDERS, JJ., concur. of facts,) this is not the kind of a case where the remedy is by suggesting a diminution of the record. The motion here is to make another and different record from the one certified by the judge. Under the circumstances of the case, however, we think it but fair that appellant should have the time extended for filing his brief, and he is hereby given 30 days from the date of the filing of this opinion within which to file the same. STILES, HOYT, ANDERS, and SCOTT, JJ., concur. TURPIN et al. v. WHITNEY et al. (Supreme Court of Washington. March 8, 1893.) ATTACHMENT-DISSOLUTION-FINAL JUDGMENT. A judgment continuing the lien of an attachment should be reversed when the court has wrongly refused to dissolve the attachment. Per Stiles, J., dissenting. For majority opinion, see 32 Pac. 1022. STILES, J., (dissenting.) I cannot concur in the judgment of the court. The constitution guaranties to every litigant the right to have all material questions involved in his case reviewed by this court, and both the statute and the decisions affirm that an appeal will lie only from a final judgment. Now, in Windt v. Banniza, 2 Wash. St. 147, 26 Pac. 189, we held that an order refusing to dissolve an attachment was not a final order, so as to allow of its being appealed from separate from the main case; and this decision clinches the bonds of a wrongful attachment by refusing to entertain the error of the court in refusing to dissolve where there is no dispute that the debt was due. In nine cases out of ten where attachments are levied there is no dispute as to the debt, and therefore, in an equal proportion of cases, outrageous wrong may be perpetrated, as there was in this case, without any remedy except upon a suit for damages. In my opinion, so much of the judgment as continued the lien upon the attached property ought to have been vacated, and appellants should have had all costs upon the attachment and of this appeal. EICHOLTZ v. HOLMES. (Supreme Court of Washington. April 7, 1893.) Appeal from superior court, Cowlitz county. Andrew F. Burleigh and J. E. Lilly, for appellant. M. E. Billings and E. W. Ross, for respondent. DUNBAR, C. J. The motion in this case must be denied, for, outside of the merits of the case, (and the facts are so conflicting that the court could not feel justified in presum'ng against the correctness of the statement STATE ex rel. PETERSON. SUPERIOR Code 1881, c. 33, directs that, when property attached on a writ issued in another county is claimed by a third person, he shall file his affidavit and bond with the sheriff, who shall return them to the clerk of the county where the property was seized, and said clerk shall docket the claim as a cause for trial. Held, that the sheriff's failure to return the affidavit could not deprive the proper court of jurisdiction, nor the attaching creditors of their right to an adjudication. Petition by the state, on relation of J. S. Peterson, for a writ to prohibit the superior court of Mason county from trying relator's right to certain attached property. Denied. For report in former case, see 32 Pac. Rep. 553. Fred. H. Peterson, for relator. W. W. Likens, for respondents. STILES, J. This is the same matter in connection with which this court heretofore prohibited the superior court of Pierce county from trying the question of title to the property seized under writ of attachment. State v. Superior Court of Pierce Co., (Wash.) 32 Pac. Rep. 553. The petitioner now seeks to have the superior court of Mason county prohibited from trying the question of title upon the affidavit delivered by him to the sheriff of Mason county, on the ground that the affidavit was not filed by the sheriff with the clerk of the superior court of Mason county, and that court has lost jurisdiction of the case. While the statute directs the sheriff to file the affidavit, and that the cause be placed upon the trial docket of the court, we see no reason why the failure of the sheriff to perform his official duty should now deprive the attaching creditors of their right to have the title adjudicated. The petition is therefore denied. DUNBAR, C. J., and HOYT, SCOTT, and ANDERS, JJ., concur. NUHN et al. v. MILLER et al. (Supreme Court of Washington. May 27, 1893.) On rehearing. Former judgment modified. For former report, see 31 Pac. Rep. 1031. SCOTT, J. This case was formerly before this court, and a decision was rendered affirming the decree of the lower court. 5 Wash. 405, 31 Pac. Rep. 1031. A petition for a rehearing was filed, as to one of the minor questions raised by the appellants. It was contended that there had been no cause of action established against the defendant Edward W. Taylor, and that said cause should have been dismissed as to him, which the lower court refused to do. A rehearing was granted, and upon further argument of the cause it is conceded by the respondents that such action should have been dismissed as to such defendant. Consequently, the decision heretofore rendered by this court will be modified to the extent of directing a dismissal of said action as against the defendant Edward W. Taylor, but in all other respects such judgment is affirmed, and allowed to stand as previously directed. DUNBAR, C. J., and HOYT and ANDERS, JJ., concur. 1. One appointed by a mining company, as required by law, to examine its mine daily for fire damp, with authority to forbid men from working in any part of the mine which may seem unsafe, is not a vice principal of the company, so as to make the latter liable for his negligence in opening a lamp to light his pipe while engaged in conversation in the mine. 2. There can be no recovery for the death of an employe caused by a fire-damp explosion resulting from an officer of the company opening his lamp, when he was induced to do so by the statement of deceased, who had been in that spot for some hours, that there was no fire damp there. Appeal from superior court, Pierce county; Frank Allyn, Judge. Action by Hannah Morgan and others against the Carbon Hill Coal Company for the death of one Thomas B. Morgan. From a judgment for plaintiffs, defendant appeals. Reversed. Deceased was a coal miner, employed by the defendant, and he was working in chute No. 11 in mine No. 7. In this particular mine fire damp was known to exist, and no one was allowed to enter the same without a safety lamp. One Henry Jones was the inspector appointed by the company to inspect this mine, under the provisions of section 4, Act approved February 2, 1888, entitled "An act in relation to coal mines." This section provides that "in all mines where fire damp is generated, every working place where the same is known or thought to exist shall be examined every morning with a safety lamp by a competent person before any other persons are allowed to enter; and, whenever the inspector shall find men working without sufficient air, or under any unsafe condition, he may remove the same to other parts of the mine, or from the mine altogether." On the day of the accident Jones had inspected the mine, and reported fire damp or gas in chute No. 11, the working place of the deceased. After the inspection was made, the inspector, called the "fire boss," met the miners at the entrance to the mine, and reported to them whether or not there was gas in their working places, and on this particular morning Morgan was informed by the inspector that there was gas in his working place. At 7 o'clock in the morning Morgan was found in the mines, near his working place, by William D. Williams. Morgan then wore his Sunday clothes, and said to Williams, "There is gas in my chute;" and he seemed to be waiting for Jones, the inspector. He was with and near Williams until about 9 o'clock, when Jones came along. Morgan and Jones entered into conversation, finally sat down, and called Williams to them. 1 For dissenting opinion, see 34 Pac. Rep. 772. After talking there, for a quarter of an hour or more, about speculations in real estate, Jones got up, holding his lamp above his head, to ascertain whether there was any gas there. As he was in the act of raising, Morgan, the deceased, said: "Don't need to try the gas; there is none there." Then Jones said: "I am going to have a smoke;" and the next instant the explosion occurred, killing both Morgan and Jones. Judson & Sharpstein, for appellant. R. P. Daniels, Hudson & Holt, and J. S. Whitehouse, for respondents. HOYT, J. The motion for nonsult made by the defendant at the close of the plaintiffs' case should have been granted. At that time there was absolutely no proof tending to show any negligence on the part of the company. On the contray, it affirmatively appeared from such proof that the company had taken every precaution required by law and custom to protect its employes while working in the mine; and, as it is not claimed that the company is a guarantor of the safety of its employes while so working, there could be no liability, in the absence of some negligence on its part. The only acts, excepting those of an employe by the name of Jones, claimed by the respondents to have shown negligence on the part of the company was that of the stoppage of the ventilating machinery from Saturday night until Sunday night preceding the accident, which occurred on Monday morning, at about 9 o'clock; but there is no proof whatever in the record tending to show that such stoppage of the machinery during such interval, when coupled with the fact of its being started, and continuously run, for a period of 12 or 14 hours before the time of the accident, was in any manner an act of negligence on the part of the company. As to the acts of the employe Jones, we think the proof does not show that at the time of the accident he stood in the relation to the deceased of a vice principal of the company. We are satisfied with what was said by us in the opinion in the case of Sayward v. Carlson, 1 Wash. St. 29, 23 Pac. Rep. 830; but we do not think that, under the definition of a vice principal therein given, Jones occupied such a relation to the company. He had by virtue of his employment no right to control the action of the miners in the prosecution of their work. Such control was vested in another employe of the company, known as the "inside boss." The only control, if any, that Jones, as "fire boss," had of the men was to direct them to leave the place where they were working, and go to another place, if their continuance at work in the first place was in his opinion dangerous; but, even if we assume that in determining that question, and directing the employes, by virtue of the authority so given him, he would be acting as a vice principal, it does not follow that at the time of the accident he was engaged in the duty required of him as such vice principal. In the situation in which he found the deceased party and the witness Williams, and while they were together up to the time of the accident, he had, by virtue of his duties as "fire boss," no right whatever to control their action. Consequently, at that time he did not stand in any such relation to them as would make the company responsible for his acts. Besides, it clearly appeared that if said Jones was guilty of such negligence as occasioned the accident, the deceased party was guilty of contributory negligence. If any one had any reason to suspect the presence of dangerous gases at the point where they were, he had, under the proof, the same reason to suspect its presence. If he did suspect such to be the fact, his remaining in that spot for the time he did, engaged in conversation having no reference to the prosecution of the work of the mine, was in itself an act of negligence on his part. If he did not entertain such suspicion, there is no reason to suppose that Jones did, and, in its absence, what he did would not necessarily show negligence on his part. Further, we think it appears affirmatively from the proofs offered on the part of the plaintiffs that deceased actively contributed to the act of Jones, which it is claimed led to the accident, by the remark which he made to him just before the explosion occurred. The only reasonable explanation of the action of Jones when he commenced to get up with his lamp above his head is that it was his intention to test the air close to the roof of the passage, for the purpose of ascertaining whether or not there was any gas in that locality; and his reply to the remark at that time made to him by the deceased shows that he rested upon the assurance of the deceased that there was no gas there, and that for that reason he could safely open his lamp for the purpose of lighting his pipe, without making any further investigation. On each of the grounds, then,-(1) that there was no sufficient proof tending to establish negligence on the part of the company; (2) that, if such negligence was shown, it affirmatively appeared from the proofs that the deceased contributed thereto,-the plaintiffs had failed to make a case against the defendant, and the motion for a nonsuit should have been granted; and, whatever may be held as to the effect upon such motion of the defendant going into its defense, it is clear that it is entitled to the benefit of such motion, if at the time the proofs are finally closed they are not sufficient to establish a prima facie case of liability to the plaintiffs. After a careful examination of all the proofs in the record, we are unable to find anything which could in any manner aid the plaintiffs' case. The judgment must be Under 1 Hill's Code, §§ 1569, 1570, providing that, if a railway company locate the bed of its road on any portion of the track occupied by an established territorial or county road, it shall be responsible to the county "for all expenses incurred" in relocating and opening the portion of said road so appropriated, a complaint, in an action by a county against a railroad company, alleging that the expense of relocating and opening a road so destroyed and appropriated by defendant "is and will be" a certain sum, without averring that any such expense has been incurred, does not state a cause of action. Appeal from superior court, county; Morris B. Sachs, Judge. Jefferson Action by Andrew Weymouth, George Cooper, and H. L. Blanchard, county commissioners, against the Port Townsend & Southern Railroad Company. From a judgment for defendant, plaintiffs appeal. Affirmed. R. E. Moody, Pros. Atty., for appellants. DUNBAR, C. J. This was an action brought by the county commissioners of Jefferson county against the Port Townsend & Southern Railroad Company to recover the sum of $30,000, being the alleged expense of relocating and opening a portion of the county road alleged to have been destroyed and appropriated by respondent. It is conceded by both appellants and respondent that this action was brought under the provisions of the statute, and that the statute is exclusive, and therefore from that standpoint we will discuss it. The complaint alleges the location and construction of the railroad upon the track occupied by the county road, and alleges the destruction of the county road thereby for about four miles. The allegation with reference to the damage is as follows: "That the expense of relocating and opening that portion of the road so destroyed and appropriated by defendant as aforesaid is and will be the sum of thirty thousand dollars;" and judgment is prayed for in that sum. There is no allegation that the road has been relocated or opened, or that any expense has been incurred. At the time of the trial the defendant objected to the introduction of any evidence in support of the complaint because the complaint did not state a cause of action against the defendant, and be cause the suit was not brought in the corporate name of the county. The objection was sustained by the court, and the cause was dismissed. It is only necessary, for the final determination of this cause, to notice the objection that the complaint does not state facts sufficient to state a cause of action. The statute (sections 1569, 1570, 1 Hill's Code) provides for the appropriation of lands by a railway company, and the latter part of section 1570 reads as follows: "And provided further, that if such corporation locate the bed of such railroad or canal upon any portion of the track now occupied by any established territorial or county road, said corporation shall be responsible to the county commissioners of said county or counties in which said territorial or county road so appropriated is located, for all expenses incurred by said county or counties, in relocating and opening the portion of said road so appropriated." It is evident that under the provisions of this law the relocating and opening are conditions precedent to the right of recovery of damages. The language is, "for all expenses incurred." The allegation of the complaint is that the expense of relocating and opening "will be" the sum of $30.000. There is no allegation that there has been a relocating or opening, or even that there will be a relocating or opening. The statute may not be a good one, but it is certainly a plain one, and is not susceptible of construction. The complaint does not state a cause of action, and the judgment of the court is therefore affirmed. STILES, HOYT, SCOTT, and ANDERS, JJ., concur. STATE v. DOE et al. (Supreme Court of Washington. June 30, 1893.) CRIMINAL LAW-INFORMATION-JURAT BY DEPUTY -APPEAL. 1. Where, in the caption of an information, the case is entitled the "State of Washington" against the defendants, naming them, it sufficiently appears that the prosecution is in the name of the state. 2. The deputy county clerk, being duly qualified to administer oaths, may and should sign the jurat to the verification of an information without mentioning his principal. 3. Objections, on appeal in a criminal case, which are not made in the brief, are not entitled to consideration. Appeal from superior court, Whatcom county; John R. Winn, Judge. Information against John Doe and Thomas Devine for larceny. Defendants were convicted, and appeal. Affirmed. Oval Pirkey, for appellants. Newman, Pros. Atty., for the State. Thos. G. HOYT, J. There was a suggestion by the appellants, at the oral argument, that the information was void for the reason that it |