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.

(5 Wash. 405)

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. 'For dissenting opinion, see 34 Pac. Rep. 772.

Judson & Sharpstein, for appellant. R. P. Daniels, Hudson & Holt, and J. S. Whitehouse, for respondents.

HOYT, J. The motion for nonsuit made by the defendant at the close of the plain-. tiffs' 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

It does not follow that at the time of the accident he was engaged in the duty re quired 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 acci dent, 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, Jefferson county; Morris B. Sachs, Judge.

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." 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.

It

STILES, HOYT, SCOTT, and ANDERS, JJ., concur.

(6 Wash. 87)

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

did not appear therefrom that the prosecution was in the name or on behalf of the state. This objection was not made in the brief of appellants, and for that reason they were not entitled to be heard in regard thereto; but in view of the fact that the argument went to the extent of claiming that, by reason of such omission, the court never had any jurisdiction of the subject-matter, it is best that we should pass upon the objection. In the caption of the information the case was entitled as the "State of Washington v." the defendants, (naming them,) and we think that thereby it was sufficiently shown that the prosecution was in the name of the state of Washington, and that the information was sufficient, so far as that point is concerned.

The only other question presented for our determination is as to the sufficiency of the jurat of the officer before whom the information purported to have been verified. Such jurat is signed by the deputy county clerk of Whatcom county in his own name, without any reference therein to his principal; and it is claimed on the part of the appellants that, such being the fact, it is as though no jurat whatever had been attached to the verification, and that the information stands as an unverified one. There is some question whether or not we would set aside a conviction, regularly obtained in all other respects, for the simple reason that the information upon which the trial was had had not been verified by the prosecuting attorney, but it is not necessary that we should decide that question now. It is conceded by the appellants that the person before whom the verification of the information was had was, as deputy county clerk, duly qualified to administer oaths, and that if he had done so in the name of his principal, by himself as deputy, the verification would be as good as though taken before the principal himself. Upon principle, we are unable to see any reason for the distinction claimed by the appellants. If the deputy is authorized to administer the oath, and the person appears before him and is sworn, it is in fact a good verification; and to hold that the validity thereof is destroyed because the officer thus authorized to administer the oath signs in his own official capacity, rather than that of the official capacity of his principal, would, to our minds, be a yielding of all substance to the merest shadow of a technicality. It is not by virtue of the official character of his principal that he is authorized to administer the oath, but by virtue of his own official character as a deputy; and in our opinion it is not only proper that he should sign in his own official capacity, but much more appropriate than to do so in the name of his principal. Not only is the action of the deputy, in this case, sanctioned by reason, but it is also fully sanctioned by the great weight of authority. In some of the cases it has been held that a jurat signed either in the

name of the principal or that of the deputy was good; in others, that it must be signed in the name of the deputy who by law was authorized to administer the oath. And the industry of the appellants has not enabled them to bring to our attention a single case which holds that where the deputy is, by virtue of the statute, authorized to administer an oath, his attestation thereof should be made in the name of his principal, rather than his own. The only cases which they have cited are those which hold that a deputy sheriff, in serving and making return of process, must do so in the name of his principal, and not in his own name. But these cases are easily distinguished from the one at bar. The most of them are from the state of California, but that they are not authority in the case at bar is fully shown by other and later cases from that state, in which it has been expressly held that a deputy clerk possessed all the powers of the clerk, and could act in his own name, or that of his principal. See Touchard v. Crow, 20 Cal. 150; Muller v. Boggs, 25 Cal. 186. See, also, Mechem, Pub. Off. § 570; Calender v. Olcott, 1 Mich. 344; Wheeler v. Wilkins, 19 Mich. 78; Westbrook v. Miller, 56 Mich. 148, 22 N. W. Rep. 256; State v. Barrett, (Minn.) 41 N. W. Rep. 459; Herndon v. Reed, (Tex. Sup.) 18 S. W. Rep. 666. Some of these cases not only hold a verification like the one under consideration good, but go further, and hold that it would be ridiculous to say that such oath was sworn to before the principal by the deputy when in fact the deputy was the only person having any connection whatever with the transaction, and his authority was derived directly from the statute, and not in any sense from such principal. The judgment and sentence must be affirmed.

DUNBAR, C. J., and STILES, ANDERS, and SCOTT, JJ., concur.

(6 Wash. 597)

PORT TOWNSEND NAT. BANK v. PORT
TOWNSEND GAS & FUEL CO. et al.
(Supreme Court of Washington. June 30, 1893.)
TRANSFER OF CORPORATE STOCK-RECORDATION.

Code 1881, § 2429, provides that a transfer of corporate stock shall not be valid, except between parties, until the same is recorded in the books of the corporation. Section 2432 provides that "any stockholder may pledge his stock by a delivery of the certificate, * * * but may, nevertheless, represent the same at all meetings, and vote as a stockholder." The chapter further provides that the books containing the record of shareholders shall be open for the inspection of any of the "stockholders or creditors of such corporation." Held, that the title of the pledgee of stock is superior to that of the purchaser on execution against the pledging stockholder, though the transfer to the pledgee is not recorded.

Appeal from superior court, Jefferson county; Morris B. Sachs, Judge.

Action by the Port Townsend National Bank against the Port Townsend Gas & Fuel

Company and others to recover certain shares of stock of defendant corporation. Plaintiff had judgment, and defendants appeal. Reversed.

Ballinger & Loughary, (Samuel T. Douglass, of counsel,) for appellants. Carroll & Rohde and R. W. Jennings, for respondent.

HOYT, J. This is a controversy as to 50 shares of the capital stock of the defendant corporation, as between the respondent corporation and the appellant Samuel T. Douglass. The respondent claims as the purchaser of the shares at an execution sale, as the property of the person in whose name such shares were standing on the books of the corporation at the date of such sale. The appellant Douglass claims as pledgee of the same person. The certificates for said

shares were by such owner indorsed and delivered to such pledgee as security for a certain sum of money. The lien of the execution sale at which the respondent purchased went back to the date of the levy by attachment, at which time the respondent had no notice of said appellant's interest in the shares, or of the same having been in any manner transferred by the record owner thereof, but it did have such notice before the date of the execution sale. We are called upon to decide under these circumstances to whom in equity these shares belonged, it being conceded for the purposes of this decision that the pledgee's interest, if he has any at all, is sufficient to absorb the entire value of the stock. Section 2429 of the Code of 1881 provides as follows: "The stock of the company shall be deemed personal estate, and shall be transferable in such manner as shall be prescribed by the by-laws of the company; but no transfer shall be valid, except between the parties thereto, until the same shall have been entered upon the books of the company, so as to show the names of the parties, by and to whom transferred, the numbers and designation of the shares, and the date of the transfer." And section 2432, as follows: "Any stockholder may pledge his stock by a delivery of the certificate or other evidence of his interest, but may, nevertheless, represent the same at all meetings and vote as a stockholder." There is a further provision in the sections contained in the same chapter as the ones above set out that the books of the corporation containing the record of shareholders shall be open at all proper hours for the inspection of any of the stockholders or creditors of such corporation; but there is nowhere in the statute law of the state any provision which gives any other person than a stockholder or creditor of the corporation any right of access to such books.

Three questions are thus fairly presented to us for decision: (1) Does a transferee of shares of stock of a corporation in this state

take title to such shares, as against a creditor of the transferrer, before the registration of such transfer in the books of the corporation? (2) If, in the absence of notice of such transfer before the execution sale, he does not, will the fact that notice of his interest is given before such sale avail him in aid of his title? (3) If both the above questions are decided adversely to the rights of such transferee, does a pledgee of such stock occupy any better position? Nearly all of the states in the Union have statutory provisions resembling those of our own upon this subject, and the course of decisions thereunder has not been entirely uniform; yet we think a careful investigation of all of the cases will show that where the statute contains substantially the same provisions as ours, and does not contain any additional provisions whereby all persons interested have a right of access to the records of stock of the corporation, it has been almost universally held that an unrecorded transfer is good as against a purchaser at execution sale against the owner of record, even although such purchaser has no notice whatever of such transfer. The courts of a very great majority of the states in the Union have announced this doctrine, and many of them have done so when interpreting statutes having much more positive provisions about the recording of such transfers, and their invalidity if not so recorded, than those of our own. We shall not attempt to discuss these cases at any length. They are too numerous. The principle upon which a majority of the decisions seems to rest is that, by the express provisions of the statute, the transfer between the parties is good, and that, since the general rule in equity is that a purchaser at a judicial sale will take the real, instead of the apparent, interest of the judgment debtor, it follows that by the application of such rule the purchaser at a sale of such stock would in equity take only such interest therein as the judgment debtor had at the time the lien enforced by the execution sale attached. It is true that our statute provides that these transfers shall not be valid, excepting as between the parties, until the record thereof is made; but a fair construction of this provision, in the light of those as to who are entitled to examine such record, is that such invalidity only exists in favor of the corporation or its creditors. They are the only ones who are enabled to ascertain anything about the ownership of the stock from the books, and for that reason it must be held that it is in their interest alone that such books are required to be kept, and the transfers made of record thereon; and it would be illogical to hold that a record in a book which was in no manner kept for the benefit of the creditors of a stockholder should in any manner avail him to defeat a transfer which by the statute is made good as between his debtor and the person to whom he transfers the stock.