again instruct the jury not to be moved in their conclusion in this case by what counsel may say on either side where it is not supported by the testimony, and determine this case solely upon the testimony that was offered, and which the court admitted, and upon the instructions of the court. The jury is not to consider anything that counsel may say, or the court may say, in passing upon a question of law, but must decide this case solely upon the evidence that is presented to you and admitted by the court." It would seem that the instructions of the court in this respect ought to have been satisfactory. The third instruction complained of was given in effect by the court-that the damages should be compensatory, and could only be based upon the actual damages shown and suffering proved. The objection is also made that the court refused the following instructions: "The court instructs you that these actions for personal injuries are necessarily painful to the feelings, and there is often an inclination, where the feelings are excited by the addresses of eloquent counsel, to give more, perhaps, than in your calmer moments you would undertake to give. You are to bear in mind that your oath calls for your decision according to the evidence, and that extravagant verdicts have to be set aside and the case tried over again." Even if it should be conceded that this was a proper instruction to give, the spirit of the instruction asked was given by the court, as shown by the excerpts which we have produced. The fifth complaint is that the court erred in refusing to give the following instruction: "You are instructed that it will be the duty of the jury, in arriving at a verdict in this case, to be governed by the evidence in the case and the law as herein given to you, regardless of the condition of the parties hereto financially, or of the effect of your verdict upon the parties, or either of them." What we have said in reference to the instruction of the court as actually given applies also to this instruction offered. Upon all these questions an examination of the instructions impresses us with the fact that the instructions as a whole were particularly clear and fair, guarding the rights of the appellants with as much zeal as the court could be expected to exercise under any circumstances. It is also contended that the court erred in instructing the jury that it should take into consideration aggravation of a pre-existing disease, or pre-existing injury to the womb. This objection is based upon the idea that there was no testimony tending to show any pre-existing disease; but from the record we are satisfied there was sufficient testimony to go to the jury on this subject. It is also claimed that the court erred in submitting to the jury the question of permanent injuries. and in giving instructions in regard thereto. for the reason that there was no testimony tending to show permam nt injurk s. The weakness of this contention lies in the fact that there was some testimony tending to prove permanent injury. It is true that the testimony of the physicians called as expert witnesses probably did not sustain this contention; but the testimony of the plaintiff Millie Payne and her co-respondent, her husband, Thomas Payne, and the testimony of other of the plaintiffs' witnesses, does sustain it. The testimony of expert witnesses is not exclusive, and does not necessarily destroy the force or credibility of other testimony. The jury has a right to weigh the testimony of all the witnesses, experts and otherwise; and the same rule applies as to the weight and credibility of such testimony. So far as the amount of the verdict is concerned, we are not convinced, from all the testimony, that the injury inflicted was so trifling as contended for by the learned counsel for the appellants, and perhaps not so serious as counsel for respondents paints it. But if the testimony of the respondents' witnesses, who were certainly in a position by reason of their relations with respondent Millie Payne to judge intelligently of her condition, is to be believed, the judgment awarded of $3,000 is not excessive; and, considered in relation with the fact that this question was passed upon by the trial judge, who saw the witnesses and heard their testimony, we do not feel justified in disturbing the judgment. There being no error committed in the giving or refusal of instructions, or in the admission or rejection of testimony, the judg ment is affirmed. HADLEY, C. J., and FULLERTON, RUDKIN, ROOT, MOUNT, and CROW, JJ., concur. (46 Wash. 699) WITHERILL et al. v. FRAUNFELTER et al. (Supreme Court of Washington. Oct. 19, 1907.) HUSBAND AND WIFE-SEPARATE PROPERTYCOMMUNITY PROPERTY. Property in this state, purchased by a married man, domiciled in Pennsylvania, with money accumulated from the profits of a business conducted by himself in that state while residing therein with his wife, was the separate property of the husband, and not community property. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Husband and Wife, $$ 900-902.] Appeal from Superior Court, King County: Arthur E. Griffin, Judge. Action by John R. Witherill and others against James Fraunfelter and others. Judg ment for plaintiffs, and defendants appeal. Reversed. Harold Preston and Charles E. Patterson, for appellants. E. P. Whiting. for respond PER CURIAM. This is an action brought to quiet the title to certain real property situated in King county. The property in quesents. ! tion was purchased as an investment by one and to personally devote his time and best L. B. Lockard, then a married man, domiciled in the state of Pennsylvania, with money. accumulated from the profits of a business conducted by himself in that state, while re siding therein with his wife. After the purchase the wife died, and Lockard sold the land to the predecessors in interest of the appellants. The respondents claim title as the successors in interest of the heirs of the wife. The laws of Pennsylvania governing the ownership of money acquired as the money invested in this property was acquired is substantially the common law; the money being under the absolute control and dominion of the husband. The single question presented by the record is: Was the real property in question the separate property of Lockard, or the community property of Lockard and wife. If it was the former, the appellants have title; if the latter, title is in the respondents. This precise question was presented to this court in the case of Brookman v. Durkee, 90 Pac. 914, and the property then in question decided to be the separate property of the husband. That case is controlling here, and requires a reversal of the judgment entered by the court below. The order will be, therefore, that the judgment appealed from be reversed, and the cause remanded with instructions to enter judgment in favor of the appellants for the interest in dispute. (47 Wash. 369) CLAUSEN v. LAWRENCE et ux. An order setting aside a default judgment will not be disturbed on appeal unless it appears that substantial injustice has been done by an abuse of discretion. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3823.] Appeal from Superior Court, Spokane County. Action by B. C. Clausen against P. A. Lawrence and wife. From a judgment for defendants, plaintiff appeais. Affirmed. R. L. Edmiston, for appellant. B. M. Branford, for respondents. DUNBAR, J. This is an appeal from a final judgment of dismissal and costs against appellant, and from certain orders made during the trial. This is an action or damages for an alleged breach of contract. The appellant and respondent P. A. Lawrence, in the ponth of October, 1904, entered nto an oral agreement, by the terms of which said P. A. Lawrence was to furnish certain sums for the purchase of a certain tract of land, situated in Idaho, and appellant was to open and maintain a suitable office in the city of Spokane, Wash., for the sale of said land, efforts to that end; that Lawrence was to Judgment in this case had been taken. against the respondents by default. This judgment was afterwards vacated on motion of the respondents, and it is strenuously urged by the appellant that the court erred in vacating the default judgment, and granting the defendants permission to answer. A motion of this kind is so particularly addressed to the discretion of the trial court, who is familiar with all the circumstances of the case, that the appellate court will be slow to interfere with the orders of the trial court, unless it should appear that substantial injustice had been done by an abuse of discretion. Especially is this true where the order of the court does not permanently deprive the plaintiff of any substantial right, but simply has the effect of submitting his case to a trial on the merits. The record convinces us that there was no abuse of discretion in vacating the judgment. On the merits there seems to be no particular principle of law involved. If the findings of the court are correct, the judgment should undoubtedly be sustained; but, if the findings proposed by the appellant are justified by the evidence, the judgment is wrong. The action is not one for an accounting, as is asserted by appellant, but is an action for damages for breach of contract. Viewed in either aspect, we are satisfied that the findings of the court are justified by the testimony, and the judgment is therefore affirmed. HADLEY, C. J., and FULLERTON, RUDKIN, ROOT, MOUNT, and CROW, JJ., con cur. (47 Wash. 315) ZENT v. SULLIVAN et al. (Supreme Court of Washington. Oct. 11, 1907.) 1. HUSBAND AND WIFE NECESSARIES-EXPENSES OF DIVORCE PROCEEDING. A wife has no implied power to pledge her husband's credit for the expenses of prosecuting or defending a divorce action as necessaries, since Ballinger's Ann. Codes & St. § 5722, gives the court power to provide for the wife's expenses, and to compel the husband to pay them. [Ed. Note.-For cases in point, see Cent. Dig. vol. 26, IIusband and Wife, § 137.] 2. SAME-AGENCY OF WIFE FOR HUSBANDNATURE OF RIGHT. The implied power of a wife to bind her husband for necessaries, where it exists, is for her own benefit, and not for the benefit of those with whom she may deal. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, §§ 121, 122.] 3. SAME-EXPENSES OF DIVORCE SUIT-WIFE'S CONTRACT WITH ATTORNEY-LIABILITY OF HUSBAND. A contract with a wife for the payment of an attorney fee in a divorce proceeding to be paid in addition to any allowance made by the court shows upon its face that it is the individual obligation of the wife, and no recovery could be had on it against the husband. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 137.] 4. SAME-ACTION FOR ATTORNEY FEES-BURDEN OF PROOF. In an action against a wife for attorney fees in a divorce proceeding, the burden is upon the attorney of proving that the action was instituted on reasonable and justifiable grounds. [Ed. Note. For cases in point, see Cent. Dig. vol. 26, Husband and Wife, § 844.] Appeal from Superior Court, Adams County; W. T. Warren, Judge. Action by D. W. Zent against Maggie Sullivan and another. From a judgment for defendants, plaintiff appeals. Aflirmed. Zent, Lovell & Hamilton, for appellant. O. R. Holcomb, for respondents. RUDKIN, J. On the 14th day of January, 1906, the plaintiff entered into a written contract with the defendant, Maggie Sullivan, whereby he agreed to commence and diligently prosecute an action for divorce in favor of said Maggie Sullivan against her husband, John C. Sullivan, her co-defendant herein, and on her part said Maggie Sullivan agreed that the plaintiff should receive for his services in that behalf the sum of $500, or $250 in the event that such action should be dismissed before final judgment, such sums to be in addition to any sums allowed or awarded by the court in the divorce proceedings. On the following day the divorce action was commenced by the filing of the complaint and the service of a summons, but the action was thereafter dismissed by consent of the parties before final judgment. This action was thereupon commenced against both the husband and wife to recover the stipulated fee. The plaintiff proved the execution of the contract for the fee by the defendant Maggie Sullivan, the commencement and dismissal of the action for divorce, offered in evidence the contract and the files in the divorce action, and rested. A motion for nonsuit interposed by the husband at this stage was sustained, and, from the judgment of nonsuit, the present appeal is prosecuted. There is a conflict of authority on the question of the husband's liability for counsel fees incurred by the wife in connection with divorce proceedings, whether she be plaintiff or defendant. In Alabama, Arkansas, Connecticut, Illinois, Indiana, Kentucky, Massachusetts, Missouri, Nebraska, New Hampshire, Vermont, and Wisconsin the rule of nonliability is asserted without qualification. Pearson v. Darrington, 32 Ala. 227: Kincheloe v. Merriman, 54 Ark. 557, 16 S. W. 578, 26 Am. St. Rep. 60; Shelton v. Pendleton, 18 Conn. 417; Dow v. Eyster, 79 111. 254; McCullough v. Robinson, 2 Ind. 630; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Coffin v. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769; Isbell v. Weiss, 60 Mo. App. 54; Yeiser V. Lowe, 50 Neb. 310, 69 N. W. 847; Morrison v. folt, 42 N. H. 478, 80 Am. Dec. 120; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Clarke v. Burke, 65 Wis. 359, 27 N. W. 22, 56 Am. Rep. 631. Thus, n Shelton v. Pendleton, supra, decided in 1847. the court said: "This demand of the plaintiffs has no support from any precedent to be found by us in this country or elsewhere." And in Coffin v. Dunham, supra, decided in 1851, Shaw, C. J., said: "This action is without precedent in this commonwealth, and contrary to the practice and course of decisions." On the other hand, in the following more recent cases the right of recovery is sustained, with certain qualifications and limitations: Ottaway v. Hamilton, 3 C. P. D. 398; Stock en v. Patrick, 29 L. T. S. 507; Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; Preston v. Johnson, 65 Iowa, 285, 21 N. W. 606; Clyde v. Peavy, 74 Iowa, 47, 36 N. W. 883; McCurley v. Stockbridge, 62 Md. 422, 50 Am. Rep. 229; Langbein v. Schneider, 16 N. Y. Supp. 943, 27 Abb. N. C. 228; Hahn v. Rogers, 69 N. Y. Supp. 926, 34 Misc. Rep. 549; · Ceccato v. Deutschman, 19 Tex. Civ. App. 434, 47 S. W. 739; Dodd v. Hein, 26 Tex. Civ. App. 164, 62 S. W. 811; Peck v. Marling, 22 W. V. 708. In Johnson v. Williams, 3 G. Greene, 98, 54 Am. Dec. 491, decided in 1851, the Supreme Court of Iowa said: "We find no case where the husband has been sued and a recovery had upon the ground of necessa..ries." In Porter v. Briggs, supra, the court later permitted a recovery by the wife's attorney against the husband, where the wife had been sued for a divorce on the ground of her adultery. And in the still later case of Preston v. Johnson, supra, the court seems to recognize the right of the attorney to recov er against the husband in all cases, subject to the single requirement that he acted in good faith. It will thus be seen that the clear weight of authority is against the attorney's right of recovery in such cases, and this much the appellant concedes. the parties, their property, their merits and delinquencies, and can fix the amount of the husband's liability to the wife and her attorney on an equitable basis, without any inquiry into collateral facts; and we are satisfied that the rights of all parties will be best subserved by relegating the question of the husband's liability for the attorney's fees of the wife to that tribunal. It was so held in Clarke v. Burke, supra, under similar statutory provisions, and the rule there announced meets our approval. It may be said that such a rule will permit the wife to defraud her attorney, but such a result may happen in any case where the attorney is dependent on the fruits of the litigation for his compensation. Furthermore, the implied power of the wife to bind the husband, if it exists at all, exists for her own benefit and protection, not for the benefit or protection of those with whom she may deal. There are additional reasons why the judgment in this case should be affirmed. In the first place, the contract in suit shows upon its face that it was and was intended to be the individual obligation of the wife. It provided for the payment of the sums specified, regardless of any allowances made by the court in the divorce proceedings, and the complaint filed on the following day prayed for an attorney's fee of $500 against the husband. Surely the husband cannot be held liable on such a contract as this. In Sprayberry v. Merk, supra, cited by the appellant, the court held that the husband was chargeable with the real value of the services rendered, not with the price which the wife might fix by contract. Again, the courts, which permit a recovery almost without exception, impose upon the attorney the burden of proving that the divorce action was instituted on reasonable and justifiable grounds-not reasonable and justifiable grounds on paper, but reasonable and justifiable grounds in fact. Such proof in actions of this kind would seem indispensable, for in no other way can the necessity for the services or the implied power of the wife be made to appear. No such showing was made in this case. It certainly cannot be said as a universal rule that expenses incurred by the wife in obtaining or attempning to obtain a divorce from her husband are for necessaries, as that term has been uniformly defined by the courts. On the other hand, if the law made no other provision for the prosecution or defense of such actions by the wife, there would be strong, and perhaps controlling, reasons for holding in some individual cases that the expenses incurred were necessary for the protection of the wife, and that she had implied authority to pledge the husband's credit for their payment. But our statute makes very liberal provision for the wife in such cases. Section 5722, Ballinger's Ann. Codes & St., provides that "pending the action for divorce the court, or judge thereof, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper, and such orders relative to the expenses of such action as will insure to the wife an efficient preparation of her case, and a fair and impartial trial thereof; and on decreeing or refusing to decree a divorce, the court may, in its discretion, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action, when such divorce has been granted or refused, and give judgment therefor." In view of the liberal provisions of this statute we see no possible reason why the wife is STATE ex rel. DAVIS v. CLAUSEN, State under a necessity to pledge her husband's credit for the expenses of prosecuting or defending an action for divorce in this state, or why she should have any implied power in that regard. The divorce court has before it 91 P.-69 Inasmuch as the abstract question of the husband's liability in such cases was the only question discussed in the briefs, we preferred not to rest our decision upon these latter grounds alone; but, for the several reasons herein stated, the judgment must be affirmed, and it is so ordered. HADLEY, C. J., and FULLERTON, CROW, DUNBAR, and MOUNT, JJ., concur. Auditor. (47 Wash. 372) (Supreme Court of Washington. Oct. 19, 1907.) STATUTES NATURE OF AMENDATORY ACTS. Under Laws 1901, p. 249, c. 119, creating a board of control, each member was allowed $2,000 a year. Petition by the state, on the relation of J. Vance & Mitchell, for relator. John D. Atkinson and A. J. Falknor, for respondent. law. The facts are undisputed. Section 1, c. 119, p. 249, of the Laws of 1901, is as follows: "The Governor of the state shall, by and with the advice and consent of the Senate, appoint a bi-partisan board consisting of three citizens of the state, not more than two of whom shall belong to the dominant political party, as members of a board to be known as the 'State Board of Control.' The members of said board shall hold oflice, as designated by the Governor, for two, four and six years respectively and be removable by the Governor in his discretion. Subsequent appointments shall be made as provided and, except to fill a vacancy, shall be for a period of six years. The chairman of the board for each year shall be the member whose term of office first expires. All va cancies that may occur on said board while the Legislature is not in session shall be filled by appointment by the Governor and shall be submitted to the Senate for consideration at the next session following the appointment. Each member of the said board shall receive a salary of two thousand dollars ($2.000) per annum, and in addition shall be paid for all actual expenses incurred in discharge of his duties, said expenses not to exceed the sum of one thousand dollars ($1,000) per annum for each member of the said board." Section 1 of the amendatory act is an exact duplicate of section 1 of the original act of 1901, excepting that it provides that each member of the board shall receive a salary of $3,000, instead of $2,000. Section 3 of the act of 1901 provides that the board of control shall assume its duties on April 1, 1901. Section 3 of the 1901 act commences as follows: "The board of control shall assume its duties on April 1, 1901, and shall have full power to manage and govern the Western Washington Hospital for the Insane, Eastern Washington Hospital for the Insane, the State Penitentiary. State Reform School, the State Soldiers' Home, and the State School for Defective Youth, subject only to the limitations contained in this act," etc. The amendment is as follows (Laws 1907, p. 378. c. 166, § 2): "That section 3 of said act be amended to read as follows: Sec. 3. The state board of control shall have full power to manage and govern the following public institutions' "—and then proceeds to mention the same institutions that are mentioned in the original act; and the provisions of the sections are the same, excepting that the amendatory act gives the board of control the custody and control of the State CapIt is the contention of the relator that itol buildings and grounds, with certain powthat provision of the law of 1901 which pre-ers over them that had theretofore been exerscribed the time at which the term of office cised by another state officer, and gives them begins, having been repealed and not having certain supervision over the University of been brought forward into the amendatory Washington and the Normal Schools of the act, is no longer the law, and that conse.state. The other sections amended are in quently the provisions of the new act requir all practical respects the same as the original ed a reconstitution of the board by the exec-sections, except in relation to the amount of utive, whose terms take effect from the time of the constitutional operation of the new DUNBAR, J. The plaintiff is a member of the state board of control, having been originally appointed to said office under the Laws of 1901. He was appointed on April 1, 1905, for a full term of six years, and filed his bond and oath of office at that time, and at all times since has been a duly acting and qualified member of the state board of control. The Legislature of 1907 passed an act (Laws 1907, p. 377, c. 166) amending the act of 1901 in relation to the board of control. In said act the salary of the members of the board of control was raised from $2,000, as it was established under the act of 1901, to $3,000, per annum. The Governor, acting upon the theory that under the provisions of the act of 1907 there should be a reconstitution of the board, appointed the relator to the office of member of the board of control on the 12th day of June, 1907. The relator deeming that he was entitled to the salary provided for under the act of March, 1907, presented his bill for the amount which would be due him under said act; but the defendant,. the State Auditor, has refused to honor the requisition, insisting that he should pay only $2.000 salary under the old act, by reason of the fact that the relator was a member of the board of control at the time of the passage of the new act. salaries which are to be paid subordinate officers, and the expenses incurred by the mem |