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Opinion of the Court-MOUNT, J.

[26 Wash. which they were kept, in Lewis county, and shipped them to Tacoma, Washington. On the next day the cattle were found in possession of defendants Kneeland & Spofford, who refused to surrender possession thereof to plaintiff. This action was thereupon brought against all the defendants named, for the value of said cattle. At the trial, after plaintiff had rested her case, the court, upon defendant's motion, granted a non-suit as to the defendant Colvin. A verdict was returned by a jury for $800 against the other defendants, and judgment entered thereon. Defendants appeal.

At the trial plaintiff offered in evidence, and the court over objection of the defendants admitted, a letter written by Reynolds & Stewart, the plaintiff's attorneys, on July 9, 1900, to defendants Kneeland & Spofford, who at that time had possession of the said cattle. This letter advised said defendants that the cattle had been stolen and that legal steps would be taken to obtain the same or their value. It is insisted that, because the letter referred to a conversation over the telephone between the writer and one of said defendants, it was error to admit it, because the telephone conversation had already been excluded by the court. The letter was clearly admissible. The fact that it may have contained irrelevant or incompetent matters would not exclude it as evidence of the facts which plaintiff was entitled to show. The letter was evidence of notice to those defendants that the cattle had been stolen, and that steps would be taken to recover the value thereof unless surrendered to the owner. This knowledge and refusal to return the property to the true owner fix the liability of those defendants. Cooley, Torts (2d ed.), p. 524 et seq.; 2 Am. & Eng. Ene. Law, 62; 4 Am. & Eng. Enc. Law, 112.

Nov. 1901.]

Opinion of the Court-Mount, J.

At the close of plaintiff's case in chief, defendants Kneeland & Spofford moved for a non-suit, which was denied by the court. This ruling is assigned as error. It appears from the evidence that these two defendants had nothing to do with the original taking, but that the cattle were shipped by defendant Stock to himself, at Tacoma, delivered by the railway company in the stock yard of Kneeland & Spofford, and left in charge of Kneeland & Spofford. It is insisted that, even if there was a conversion on their part, it was a different conversion from the one charged in the complaint, inasmuch as Kneeland & Spofford were not connected with the original wrongful taking. This contention cannot be sustained. The letter above referred to notified Kneeland & Spofford of the fact that the property was stolen, and when they refused to return the property to its lawful owner they thereby became liable for its conversion. Cooley, Torts (2d ed.), p. 156. That this conversion was at a different time and place from the original conversion of which the other defendants were guilty was immaterial.

Counsel have assigned as error the refusal of the court to give certain instructions asked by the defendants, and the giving of certain others. This assignment is not argued in the brief except in regard to the questions herein already considered. The instructions given by the court were clear and correct statements of the law relative to the liability of defendants, and the proof required to establish the same, and we shall not discuss this assignment further.

It is insisted that the court erred in refusing to change the place of trial upon defendants' motion. The defendants Kneeland & Spofford and Stock, at the time the action was commenced and at the time of the trial, were residents of Pierce county. Defendant Thompson was a resi

Opinion of the Court-MOUNT, J.

[26 Wash. dent of Thurston county. Defendant Colvin was the only resident of Lewis county. The action was brought in Lewis county. Before answer, and by special appearance, defendants moved the court for a change of venue, which motion, on account of irregularities therein, was not considered upon its merits, and was denied for that reason. At the close of plaintiff's case the defendant Colvin, on his motion therefor, was dismissed from the case. The other defendants thereupon moved orally for a change of venue to Pierce county, upon the ground that they were all non-residents of Lewis county. This motion came too late. Section 4856, Bal. Code, provides that when the county in which the action is brought is not the proper county the action may, notwithstanding, be tried therein, unless the defendant, at the time he appears and demurs or answers, demands that the trial be had in the proper county. It is too late, after all the issues are made up and the cause has proceeded to trial, and the plaintiff has proven his case to the jury, to make this demand. It is claimed, however, that the defendant Colvin was not made a party in good faith, but was made a party defendant solely for the purpose of having the case tried in Lewis. county, and of defeating the change of venue therefrom. We have no doubt that, where a party is made a defendant without any cause therefor, and in bad faith, for the purpose only of prosecuting the case in a particular county where none of the real parties in interest reside, a change of venue may be granted, upon a timely and sufficient showing of such fact. There is, however, nothing in the record to show this state of facts. At the close of plaintiff's case, upon Colvin's motion, the action was dismissed as to him, because plaintiff had failed to connect him with the taking or with possession of the property in dispute.

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There is no other evidence in the record of bad faith in making Colvin a party. On the other hand, there is some evidence of the fact that Colvin was assisting in driving the cattle away, and that Colvin's employee assisted in the original taking.

Finding no error in the record, the cause must be affirmed.


[No. 3982. Decided November 29, 1901.]

THE STATE OF WASHINGTON on the Relation of Christie & Miller, Appellant, v. J. A. MEEK, as Liquor Inspector, Respondent.




Bal. Code, §2927, which was passed in the year 1860, when the cities of the then territory were in an embryonic stage, provides that "It shall be the duty of the county commissioners of each county to appoint at least one suitable person for each village or neighborhood where spirituous liquors are sold in less quantity than a gallon, whose duty it shall be to inspect all liquors," to be so sold. Held that the word "village" in such statute should be construed to cover a city, where the village subsequently assumed the proportions of a city, and there is no later statute making it clearly appear that a city is exempted from the provisions of the earlier statute.



The omission of the statute now known as § 2927, Bal. Code, from the Code of 1881 did not effect its repeal, since § 3320 of the Code of 1881 specially provided that "all acts or parts of acts of a general nature, in force at the commencement of the 8th biennial session of the legislative assembly, and not repealed shall be, and the same are hereby continued, in full force and effect, unless the same be repugnant to the act upon the same subject matter, passed or revised at the 8th biennial or present extra session of

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the legislature," and the statute in controversy was in effect at the time specified, was not repealed, and was not repugnant to any act passed during the sessions mentioned.


Bal. Code, § 2927, was not repealed by implication by the act (Laws 1899, p. 183) entitled "an act to provide against the adulteration of food," § 2 of which provides that "the term 'food' as used herein shall include all articles used for food or drink by man, whether simple, mixed or compound," since the legislative interpretation of the term "drink" as used therein is defined by a later statute (Laws 1901, p. 194) as not including liquors containing two per cent. or more of alcohol.


Bal. Code, § 2927, being an act authorizing county commissioners to provide for the inspection of liquors, with a view to the prohibition of the sale of such as are impure, is not repealed as to incorporated cities by subsequent legislation which gives them the power to regulate the traffic in intoxicating liquors within their limits, since the power conferred upon cities in this respect relates more especially to what are usually termed "police powers," which must be exercised consistently with the general laws of the state, one of which is that only pure liquors shall be sold. (FULLERTON, J., dissents.)


Non-user of a statute will not effect its abrogation, unless its obsoleteness is in some way recognized by subsequent legislation.

Appeal from Superior Court, King County.-Hon. W. R. BELL, Judge. Affirmed.

Solon T. Williams and Roberts & Leehey, for appellants.

John F. Dore and James J. McCafferty, for respondent.

PER CURIAM.-On May 31, 1901, the board of county commissioners of King county, acting under the provisions of § 2927 et seq., Bal. Code, appointed the respondent liquor inspector of the city of Seattle. Thereafter respondent qualified by filing his bond and oath of office, and entered upon the performance of his duties. There

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