as ought not, in the opinion of the court, to be taken from the person having them in possession." This is a part of the civil practice act. Obviously, it needs construction. Drive the word "papers" down into its own narrow literal sense, and you absurdly force out of it all the living and precious spirit of this law. Of what may be upon papers, rather than of the papers themselves, the legislature is speaking.

The writing, diagram, mark or spot which would under this section be admissible to the jury-room, if on paper, must, according to the liberal construction commanded by section 758 of the code, be also admissible, if upon bark, bone, wood, cloth, stone, metal or any other substance. Having got thus far, we are unable to see but that the spirit of the section requires the admission of any exhibit standing within the same reason, whether it be blank paper or blank anything else, moist or dried, solid or liquid. Ever since in 1854 this section was first enacted in this territory, such has been the liberal construction always given it in all the courts. We hold that it is the correct construction, and that, assuming section 231 to be applicable in criminal cases, the course of the judge below in allowing the hat and shirt to go to the jury-room was proper under that section.

However, it is to be remembered that section 231 is in the chapters prescribing civil practice, and is not anywhere, by reference or otherwise, expressly adopted as furnishing the rule in criminal procedure. Of such express adoption there was, perhaps, no need, for probably in all things, except where the statutes plamly indicate the contrary, the practice in criminal cases should be assimilated to that prescribed for other actions at law, the legislature having in many cases intimated a desire for such assimilation. Let that be as it may, the legislature has spoken in section 1105 of the code with sufficient clearness to show, as to this very matter of sending exhibits out with the jury in criminal cases, what it intends shall be the law. Expressly that section states the grounds upon which an application for a new trial shall be granted. Legitimately it implies that an application not so grounded shall be denied. Among the grounds it specifies the pertinent ones are as follows:

"1. When the jury has received any evidence, paper, document or book, not allowed by the court, to the prejudice of the substantial rights of the defendant.

"2. Misconduct of the jury.

We think that in the statement of the first ground in this section, the word "evidence," means tangible evidence, as a book, paper or document is tangible things, which have already assumed in the cause, the character of evidence-and that the words "paper, document, or boɔk" mean a paper, document, or book not in evidence. By counsel it is argued that the word "evidence associated as it is, can signify nothing but evidence on paper i. e., depositions, but such an effort to make everything in the list papyriform, in order to give effect to the maxim, noscitur a

sociis, unnecessarily strains a point. Is not the principle of the maxim sufficiently honored when the word "evidence" has such an interpretation, that all the various things embraced are capable of being "received" by the jury in the same way and sense, that is to say, by manual act? Both the first and second grounds of the section should be construed together. Laying them side by side, we gather the legislative intention to be, that the reception by the jury at any time of any tangible matter in evidence, or of any book, paper or document not in evidence, when without violating statutory or constitutional right it is allowed by the court, or when though not so allowed, it cannot be supposed to be to the prejudice of the defendant's substantial rights, shall not be deemed misconduct in the jury or good cause for a new trial.

Each of the supposed objectionable passages of the trial having been shown, for the foregoing reasons, to be in harmony with the law, the judgment of the district court is affirmed.

HOYT, J., concurred.

CRAWFORD ET AL v. COCHRANE ET AL.

Filed July, 1882.

ACT OF THE TERRITORIAL LEGISLATURE OF 1879 PROVIDING FOR THE SCALING OF Logs by the lumber inspector, is not within the inhibition of section 1889 of the revised statutes.

SALE OF LOGS BY AGENT WITHOUT SCALING. A gratuitous agent for the sale of certain booms of logs, who sells the same without having them scaled by the lumber inspector, is guilty of gross negligence, and is liable to his principal for the damage caused thereby.

APPEAL from a judgment of the district court, entered in favor of the plaintiff. The plaintiff appointed the defendant his agent to sell certain booms of logs. By custom the defendant was not entitled to any compensation for his services. The defendant made the sale without having the logs scaled by the lumber inspector, by reason of which the plaintiffs suffered the loss complained of in this action. Struve & Haines, for the appellant.

Burke & Rasin, Hall & Osborne and E. P. Ferry, for the appellees. WINGARD, J. This cause was submitted to a referee, whose finding was approved by the district court, and judgment was entered according thereto. From that judgment this appeal is taken.

We are unanimously of opinion that the act of the territorial legislature of 1879, providing for the scaling of logs by the lumber inspector, is not within the inhibition of section 1889 of the revised statutes. Doubtless degrees of negligence may exist in fact as well as in theory, although it may be difficult or impossible to draw the exact line between them, but when a party by neglecting or refusing to conform to a known law, in the discharge of an agency or charge, causes loss or damage to another, he should be held to be guilty of gross negligence, and so we regard the plaintiffs in error in this

case.

We find no reason to disturb the judgment of the court below, and it is therefore affirmed.

GREENE, C. J., and HoYT, J., concurred.

ROSENTHAL v. SCHNIEDER.

Filed July, 1882.

A FRAUDULENT DISCHARGE IN INSOLVENCY CANNOT BE TAKEN advantage of by a creditor of the insolvent, when the latter pleads such discharge in an action by the former, who fails to allege that the fraud was unknown to him, or that he had no notice of the same at the time of the adjudication of insolvency.

ERROR to the district court. The opinion states the facts.

P. P. Carroll and McNaught, Ferry, McNaught & Mitchell, for the plaintiff in error.

Hanford & Judson, for the defendant in error.

WINGARD, J. The plaintiff in error brought his action for the recovery of money against the defendant in error, in the district court. The defendant set up his discharge under the "insolvent debtor's" act, in bar of the plaintiff's claim.

The plaintiff replied that the discharge was obtained by fraud, and therefore void, but failed to allege that the fraud was unknown to him, or that he had no notice of the same at the time of the adjudication of insolvency. A demurrer was interposed to this reply, which the court below sustained, and this is the error complained of. While we are not unanimous as to the proper construction to be given to section 2044 of the code, we are agreed that the judgment of the court below was not error, and it is therefore affirmed. GREENE, C. J., and HOYT, J., concurred.

EAKIN v. MCCRAITH.

Filed July, 1882.

PLAINTIFF IN AN ACTION OF EJECTMENT IS BOUND BY A FORMER JUDGMENT in an action between his grantor and the present defendant, wherein their respective titles to the land in controversy were put in issue.

FAILURE TO FIND ON ALL THE MATERIAL ISSUES cannot be taken advantage of in the appellate court unless there has been a motion in the court below to make additional findings to meet the omitted issues.

ERROR to the district court. The opinion states the facts.

J. B. Allen and Dolph, Bronaugh, Dolph & Simon, for the plaintiff in error.

Anders, Budd, Caton & Crowley, for the defendant in error.

GREENE, C. J. Plaintiff sued in the district court to recover possession of lot seven in block thirteen in the city of Walla Walla. He alleged in usual form his ownership in fee and right to possession and the wrongful withholding of such possession by defendant.

Defendant answered, denying plaintiff's ownership, and affirming that he himself is administrator of one Dennis McCraith, deceased, and that in September, 1866, in a certain suit between defendant's decedent and plaintiff's grantor, the title and right to possession of the premises was duly litigated, and was upon such litigation duly adjudged in favor of defendant's decedent. In his reply the plaintiff denied the litigation and adjudication alleged in the answer.

On the trial it appeared that, in the suit mentioned in the answer, there had been no judgment regularly recorded. But evidence was adduced competent, and, in our opinion, sufficient, to prove that such a judgment had actually been rendered. It was in evidence also and about this fact there seems to be no dispute that a tract of land, including the premises in controversy, was, on July 17, 1865, entered pursuant to statute by the city of Walla Walla, and the purchase price then paid into the local land office. It further appears in evidence that on August 4, 1866, the city deeded the premises to one J. C. Hawthorne, who afterwards transmitted the paper title by a chain of conveyances to the plaintiff, and that the patent from the United States was issued to the city July 20, 1869.

The judge who tried the cause a jury having been waived-found as follows: "That on the fourth day of September, 1866, Dennis McCraith brought suit in this court against J. C. Hawthorne, through whom Robert Eakin, the plaintiff, claims title in this suit, and recovered a judgment in 1867 against said Hawthorne for the identical real estate claimed by the plaintiff Eakin in his complaint in this suit.

As a conclusion of law I find that the defendant is entitled to a judgment in this case.

To the introduction of the evidence offered to show the former adjudication, and to each of the judge's findings, exception was duly taken and allowed. Judgment was given for defendant conformably to the legal finding of the judge, and this judgment is now brought here for reversal by this writ of error.

In making entry of the land the city acted under the town site act of twenty-third of May, 1844 (5 Stat. 657), which was subsequently amended and supplanted by the very similar act of second of March, 1867 (14 Stat. 541). By the entry and payment, and the instant they were consummated, the city of Walla Walla became vested with the legal title to the land: Hussey v. Smith, 99 U. S. 20, 22. This title it forthwith and thenceforth held "in trust for the several use and benefit of the occupants thereof, according to their respective interests," and not otherwise. Between plaintiff's grantor, Hawthorne, and defendant's decedent, after the passage of title out of the United States, and after the city had deeded to Hawthorne, the question of occupancy and interest was litigated and determined. That determination was in favor of defendant's decedent, and against Hawthorne, the plaintiffs' grantor.

Plaintiff is not here claiming any other title than what the city was able to give under the town site act, nor any other right to own

ership or possession than what his grantor had, or is supposed to have had, at the date of the litigation. The result of the litigation, therefore, bound as privies in estate and representation, the parties now in this court.

The judge's findings of fact are so meagre that they do not cover all the material issues made by the pleadings.

His conclusions of law, therefore, does not flow as a logical sequence from the facts found.

But if advantage was to be taken of this, there should have been a motion addressed to the court below to make additional findings to meet the omitted issues. It is obvious upon the undisputed facts and the findings actually made that the substantial rights of the plaintiff are not affected by the judge's inadvertence. We must, therefore, following the rule laid down in section 113 of the code, direct that the judgment of the district court be affirmed.

HOYT, J., concurred.

PUGET SOUND COMMERCIAL Co. v. THE BARKENTINE C. L. TAYLOR. THE BARKENTINE C. L. TAYLOR v. PUGET SOUND COMMERCIAL CO.

Filed July, 1882.

DAMAGES RESULTING FROM A COLLISION BETWEEN TWO VESSELS, when each is guilty of contributory fault, must be equally divided between them.

APPEALS in admiralty. The opinion states the facts.

McNaught, Terry, McNaught & Mitchell, for the company.

Lewis, Struve & Haines, for the barkentine.

WINGARD, J. A collision occurred between the barkentine C. L. Taylor and the bark Raineer off Cape Flattery, near the mouth of the Straits of Juan De Fuca.

The bark was owned by the Puget Sound Commercial Company. Actions for damages, civil and maritime, were brought by both parties; the causes were consolidated, and both parties appeal to this court from the judgment of the court below. The testimony of the officers and crews of the two vessels is conflicting, and the expert testimony being largely hypothetical, is unsatisfactory. On a careful review of the whole case, we are convinced that the findings of the district court are correct.

They are as follows:

"The damages suffered by the two vessels respectively, including demurrage, were as follows: by the Raineer, $4,000; by the Taylor, $5,000. Both vessels were guilty of contributory faults.

1. The Raineer was in fault for passing as close as she did astern of the Taylor, while the wind was baffling and variable, and the Taylor was in stays.

2. The Raineer was in fault for not keeping a man at her helm, and for not using greater diligence to keep herself under control while in the immediate neighborhood of the Taylor.