er to confer benefits on the property taxed. The case of Skagit Co. v. Stiles (Wash.; decided Dec. 26, 1894) 39 Pac. 116, goes at length into a discussion of the proposition raised here as to the constitutionality of the portion of the act claimed to be valid, and the conclusion reached by the court in that case sustains the contention of appellant that the act in question is unconstitutional and void. That being true, a discussion of the other points raised would be unavailing. The judgment will therefore be reversed, and the cause remanded, with instructions to proceed in accordance with this opinion. HOYT, C. J., and SCOTT, ANDERS, and GORDON, JJ., concur. (11 Wash. 328) SAYLOR v. CITY OF MONTESANO. (Supreme Court of Washington. 1895.) March 2, No CITIES LIABILITY FOR DEFECTIVE STREET 1. In the absence of a provision to the contrary in the statute under which it was incorporated, a city is liable for injuries resulting from the defective condition of its streets, where, by such statute, it is given control of its streets. 2. A city is liable for injuries from an obstruction placed on a street by its street commissioner, in the discharge of his duties, where it was negligently allowed to remain on the street for several days. 3. Notice to the street commissioner of a city, whose duty was to keep its streets in proper condition, of an obstruction in a street, is notice to the city. 4. Where a street for its whole width is laid out for travel, the mere fact that one driving along the same failed to see sticks on which his horse stepped does not constitute negligence, though the sticks were on a part of the street not usually traveled. 5. Whether a street was safe for travel is ordinarily a question for the jury. 6. In an action for injuries from a defective street, the policy of the city authorities as to improving its streets is immaterial. 7. Appellant cannot complain that the verdict against it is inadequate. Hoyt, C. J., dissenting. Appeal from superior court, Chehalis county; Mason Irwin, Judge. Action by Mary A. Saylor against the city of Montesano for personal injuries. Judgment was rendered for plaintiff, and defendant appeals. Affirmed. Austin E. Griffiths, for appellant. Linn, Bridges & McKinlay, for respondent. ANDERS, J. While the respondent was driving up to the sidewalk on D street, one of the principal thoroughfares in the city of Montesano, for the purpose of taking a person into her carriage, her horse stepped upon one end of a piece of plank, which, with other sticks and rubbish, was lying several feet from the walk, thereby causing the other end to suddenly rise and penetrate its body to such an extent that it soon after died from the effects of the injury. She presented her claim for damages thus sustained to the city council, but that body refused to pay the same or any part thereof. Thereafter she sued the city for the value of the horse and expenses incurred in endeavoring to cure it, basing her action on the negligence of the city in causing and permitting the piece of plank which caused the injury to be and remain in the street. A demurrer to the complaint was overruled, whereupon the city answered, denying the allegations of the complaint generally, and setting up affirmatively that D street was in safe condition for travel by all persons exercising reasonable care; that, if there were any sticks in the street at the time mentioned in the complaint, they did not constitute a defect therein, nor an obstruction to travel; that the sticks were few in number, and from 6 inches to 4 feet in length, and were not lying on the traveled portion of the street, but near the sidewalk, 10 or 20 feet from the traveled portion of it, and in plain view of any person traveling on D street; that plaintiff left the traveled portion of the street, and drove over the unused side thereof, and over the sticks mentioned, without cause; and that the city had no notice that the sticks were there, and authorized no one to put them there. The plaintiff denied the new matter of the complaint, and, upon the issues joined, a trial was had, resulting in a verdict and judgment for plaintiff, from which judgment the defendant prosecutes this appeal. The appellant is a city of the third class, organized and existing under and by virtue of a general law of this state. That law does not specifically make such cities liable in damages for injuries arising from obstructions or defects in the streets; hence it is assumed that such an action as the one at bar cannot be maintained, and it is therefore asserted that the demurrer to the complaint should have been sustained. This question was presented for our determination in the recent case of Sutton v. City of Snohomish (decided Jan. 31st; not yet officially reported) 39 Pac. 273; and we there came to a conclusion at variance with the position here attempted to be maintained by the appellant. In the decision in that case we adhered to the doctrine announced by our territorial supreme court in Hutchinson v. City of Olympia, 2 Wash. T. 314, 5 Pac. 606, and by the supreme court of the United States in Barnes v. District of Columbia, 91 U. S. 540, and in other cases, and in fact, as we think, by the majority of the courts of the states outside of New England; and it is not necessary to here reiterate what was there said. Judge Dillon, after an exhaustive review of the authorities upon this subject, expresses the conclusion reached by him as follows: "But where the duty to repair is not specifically enjoined, and an action for the dam ages caused by defective streets is not expressly given, still both the duty and the liability, if there be nothing in the charter or in legislation of the state to negative the inference, have often, and, in our judgment, properly, been deduced from the intrinsic nature of the special powers conferred upon the corporation to open, grade, improve, and exclusively control public streets within their limits, and from the means which, by taxation and local assessments, or both, the law places at its disposal to enable it to discharge this duty." 2 Dill. Mun. Corp. § 1018. The motion for a nonsuit was, in our judgment, properly denied. The grounds of the motion, exclusive of those which were inIcluded in the demurrer, were (1) that, upon the pleadings, the defendant was entitled to recover; and (2) that the plaintiff failed to make a case for the jury. In respect to the first proposition, it is claimed that the respondent based her cause of action upon the alleged negligent act of the street commissioner in putting the alleged obstruction in the street; and it is insisted that in no event is the city liable for the negligence of such officer. We think, however, that the city is liable for the negligent acts of its street commissioner done in the discharge of his official duties, but, whether it is or not, it certainly is liable for its own neglect of duty. An examination of the pleadings discloses that the respondent not only alleged that the street commissioner placed the planks or sticks in the street, but that they were negligently allowed to remain there by the city for several days prior to the accident, and that the city had or should have had notice that they were in the street at the time of the accident. We cannot therefore say that the cause of action was based upon the negligence of the street commissioner any more than it was upon that of the city itself, and consequently we are unable to concede that the city should recover, upon the pleadings. In regard to the second proposition, we are of the opinion that the position of the appellant is not tenable. Appellant claims that it was not proved that the city had notice, either actual or constructive; but, as we construe the evidence, it proves actual notice. Notice to the street commissioner, upon whom was imposed the duty of keeping the streets in proper condition, was notice to the city. And the street commissioner himself testifies that, two or three days before the accident in question occurred, he took several pieces of broken planks or sticks from the sewer under the sidewalk, and put them together near the sidewalk, at about the place where the plaintiff's horse was injured. It is true he said he did not remember the particular piece which caused the injury, but he did not say that it was not one of those he took from the sewer, and it does not appear that there were any such sticks elsewhere on the street in that vicinity at the time of the accident or before. He further testified as follows: "It was muddy. I was waiting for better weather to come, as I did not always take them away unless there was enough to pay to hire a team. When any trash stopped the sewer up, I generally piled it up beside the walk until there was enough at different places to pay." From this language it appears that the street commissioner not only had notice that this "trash" was in the street, but that he did not deem it proper for him to permit it to remain there, as he was intending to remove it at some convenient time, or when it would "pay" to do so. That the public had a right to have that street kept at all times in a reasonably safe condition for travel in the ordinary modes, regardless of the convenience or inconvenience of the street commissioner, seems to have been entirely forgotten until it was too late to prevent the injury complained of. All It is also claimed that the evidence shows want of due care on the part of the respondent, but that was one of the questions presented to and determined by the jury. that was required of the respondent was the exercise of ordinary care, and the fact that, while driving upon the street, she failed to discover these sticks until her horse stepped upon them would not of itself, as matter of law, constitute negligence. The city had improved the street, and left it open to the public, throughout its entire width. It was graveled from the center outward for the greater part of the distance to the sidewalk, and was comparatively level, and its surface was in proper condition for usual travel, from sidewalk to sidewalk. Under these circumstances, it was the duty of the city to keep the whole of it in a safe condition for passage. Elliott, Roads & S. p. 455; Jones, Neg. Mun. Corp. p. 147. It is likewise claimed by the learned counsel for the appellant that this collection of broken planks and sticks did not constitute a defect or obstruction in the street, and was not dangerous to travel, as it was lying on a portion of the street not usually traveled, and which it was not the duty of the city to keep in repair, and free from obstructions and defects. That this particular portion of the street was not in a safe condition was demonstrated by what actually happened thereon. Respondent not only had a right to drive over any portion of the street, but a right to expect that all portions of it were in a safe condition for ordinary use. Whether a particular thing constitutes a defect or obstruction, or is dangerous to travel, does not depend altogether upon its size. objects, as well as large ones, may render a street unsafe, and hence cities have frequently been held liable for injuries caused by loose cobble stones. In Hazzard v. City of Council Bluffs (Iowa) 53 N. W. 1083, the de fendant city was made to respond in dam Small ages for injuries to a horse caused by stepping upon a brickbat which was in a pile of rubbish on the street. Ordinarily, the question of whether a street is in proper repair and safe for ordinary travel is a question of fact to be determined by the jury; and, when so determined, their finding will not be disturbed, unless absolutely unsupported by the evidence. Error is alleged upon the refusal of the court to permit a certain map to be introduced in evidence at the trial; but inasmuch as another map, showing the location of the street and its surroundings, was admitted in evidence, at the instance of the defendant, we see no prejudicial error in the ruling of the court. The appellant undertook to prove by the mayor the policy of the town in respect to the width of its streets which were graded or graveled and made fit for travel. The court rejected the evidence, and, as we think, rightfully. The policy of the town as to improving its streets was immaterial, the question being what was actually done, and what was the condition of the street at the particular time and place in question. But, It is further objected that the court erred in instructing the jury, and also in refusing to instruct as requested by appellant. in our opinion, the court properly refused to give the instructions requested, as those given covered the whole case, and fairly presented the law to the jury. If the instructions are open to criticism at all, it is that they were more favorable to the city than it was entitled to have given. The jury returned a verdict in favor of the respondent for the sum of one dollar. Appellant claims this verdict is not supported by the evidence, for the reason that the testimony shows that the respondent was entitled to a much larger sum, if any; but we do not think that we would be justified in disturbing the verdict of the jury upon this ground. The judgment is affirmed. DUNBAR and SCOTT, JJ., concur. HOYT, C. J., dissents. (11 Wash. 264) FEEK v. BREWER et al. (Supreme Court of Washington. Feb. 23, 1895.) MORTGAGE FORECLOSURE-CONFIRMATION OF SALE. On motion to confirm a sale under a judg ment foreclosing a first mortgage, it appeared that the property consisted of many lots, some of which were covered by a second mortgage, and that under the order of sale those lots were sold first, and the remainder afterwards; that the lots of the two parcels were sold in mass, as authorized by 2 Hill's Code, § 504, when the sheriff judges such a sale most advantageous, the order being silent in regard thereto; and that the opponents to the motion were parties to the action, and were present when the order was made, but did not object thereto. Held, that under 2 Hill's Code, § 508, providing that such sales shall be confirmed unless there were substantial irregularities, to the probable injury of the party objecting, the sale was properly confirmed. Appeal from superior court, King county; J. W. Langley, Judge. Action by A. Feek against J. P. Brewer, Adora B. Brewer, his wife, the Washington National Bank of Seattle, and others. There was a judgment for plaintiff, and from an order confirming a sale thereunder said named defendants appeal. Affirmed. Bausman, Kelleher & Emory, for appellants. Stratton, Lewis & Gilman, for respondent GORDON, J. Respondent recovered a judgment in the court below against appellants J. P. and Adora B. Brewer for the sum of $9,490.42, in an action in which said appellants and various other parties were defendants. Said judgment also decreed the foreclosure and sale of a mortgage upon some 68 lots in what is known as the "Walla Walla Addition to the City of Seattle." This appeal is from an order confirming the sale made by the sheriff pursuant to a special execution and order of sale based on said judgment. Respondent having filed his motion in the court below to confirm said sale, the appellants J. P. Brewer and the Washington National Bank filed numerous objections, but the only one relied upon in this court for a reversal is that the mortgaged premises were not sold in separate lots and parcels; and affidavits were submitted for the consideration of the lower court, and are brought up in the record, for the purpose of showing that, had the property been sold by separate lots, it would have brought a higher price than it actually did bring, and that the value of the property was greatly in excess of the amount for which it was sold. Said affidavits also show that at the time of sale the appellants demanded of the officer conducting the same that the lots should be sold separately. There were counter affidavits filed upon behalf of the respondent. It appears from the record that the debt to plaintiff was also secured in part by a pledge of certain chattel securities, and the court by its decree ordered these chattels to be first sold, which was accordingly done. It further appears that one of the defendants, the Seattle Savings Bank, filed an answer in the foreclosure suit setting up that it had a mortgage subsequent to that of the plaintiff on the same property, with the exception of four lots, and asking that the property not included in the said defendant's mortgage be ordered sold before the remainder of the real estate was offered, and this the lower court in its judgment directed should be done. It also appears that the officer conducting the sale, at the request of third parties claiming a portion of the property, sold the portion so claimed, separately. Thereafter the sheriff exposed and offered for sale in mass all the remaining and separate parcels, consisting of 61 lots, embraced in the description of the mortgaged premises, and the amount of property thus offered in lump was bid in by respondent for $9,014. The officer conducting the sale recites in his return that this method of sale was pursued by him "for the reason that he deemed said method most advantageous, and as likely to bring the highest price for said property." It is undoubtedly | the rule, and respondent so concedes, that, in the absence of a statute regulating the sale of real estate on execution, it is the duty of the officer, when the land consists of parcels, to offer the parcels separately; and numerous authorities are cited by counsel for the appellants in support of this and kindred propositions. The respondent, however, relies upon the statute, and insists that it does not affirmatively appear in this case that any actual injury has been sustained by appellants by reason of the course adopted and pursued by this officer in making the sale in question. Section 501, 2 Hill's Code, provides, among other things: "When the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately or together, as is likely to bring the highest price; or when a portion of such real estate is claimed by a third person, and he requires it to be sold separately, such portion shall be sold separately." And section 504 provides that the sheriff shall "offer the land for sale, the lots and parcels separately or together as he shall deem most advantageous." And upon the return of such sale of real estate it is provided, by section 508, that the plaintiff shall be entitled, on motion therefor, to have an order confirming the sale, "unless the judgment debtor *** shall file with the clerk * his objec tions thereto"; and, "if such objections be filed, the court shall, notwithstanding, allow the order confirming the sale, unless on the hearing of the motion it shall satisfactorily appear that there were substantial irregularities in the proceedings concerning the sale, to the probable loss or injury of the party objecting." In this case the appellants were parties to the original action. They were present in court by counsel when the judgment and order of sale was made up. They were, as matter of law, bound to know that the statute conferred a discretionary power upon the officer making the sale to sell "separately or as is likely to bring the highest price"; and, although the court did make specific directions (presumably at the instance of interested parties) that certain portions of the mortgaged premises should be sold separately, the appellants, so far as shown by the record, neither requested any further directions to the officer concerning the mode, nor objected in any manner to the order, of sale. It is the duty of the court, under section 508, to confirm the sale, and it is the right of the plaintiff to have the same confirmed, unless it is then shown that there were "substantial irregularities in the proceedings concerning the sale." So far as the record in this case discloses, every step required by law was taken by the officer in making the sale. His return was made in accordance with the statute, and within the powers conferred by it upon him; and we are unable to find that any irregularities, "substantial" or otherwise, occurred in the proceedings concerning the sale, or that the officer abused the discretion confided to him by the statute, or that any substantial injury was done to appellants in the course of the proceedings. We are unable to commend the conduct of appellants' counsel in informing "persons about to bid on said property that, if the land was not sold in separate lots, he would protest against the sale, and would contest the confirmation of any such sale," as stated by him in his affidavit. Such conduct was not calculated to inspire confidence in bidders, nor enhance the amount of their bids; and, if we were able to conclude from the affidavits that the sum realized on the sale was less than the fair value of the property sold, we would be disposed rather to attribute such result to the conduct of counsel than to the manner in which the officer conducting the sale exercised his discretion. The order appealed from is affirmed. A debtor is entitled to his exemptions out of the property of a firm of which he was a member, levied upon under an execution against him individually, where his relation to the property has become substantially that of a tenant in common, because of an action for a dissolution of the firm having been brought against him by his copartner. Appeal from superior court, King county; R. Osborn, Judge. Action by J. H. Dennis against Kass & Co. and Terry King, a constable, for damages for wrongfully levying upon certain personal property claimed by plaintiff to be exempt from levy, under an execution on a judgment in favor of the said Kass & Co. From a judgment in favor of defendants, and that plaintiff was not entitled to such exemption, plaintiff appeals. Reversed. W. E. Humphrey, for appellant. Steele & Gephart, for respondents. An officer can set off no specific chattel or chattels to a debtor partner, and hence no valid claim can be made by a partner for exemption in partnership property. 2 Eates, Partn. § 1131, and cases cited; Thomp. Homest. & Ex. §§ 194-196; State v. Spencer, 27 Am. Rep. 244; Pond v. Kimball, 101 Mass. 105; Gaylord v. Imhoff, 26 Ohio St. 321 (a full discussion of the question); Charleson v. McGraw, 3 Wash. T. 344, 17 Pac. 883. HOYT, C. J. Respondent Terry King was a constable in the city of Seattle. The other respondents were judgment creditors of the appellant. They caused an execution to issue upon their judgment, and placed it in the hands of King for service. He levied the same upon the interest of the appellant in certain personal property. This property, or a portion thereof, was claimed by appellant under the exemption laws, and proper and timely steps were taken to protect his rights under such laws. No part of the property was set off to him, and his interest in all the property was sold, and bid in by the judgment creditors. This action was brought to recover damages for the alleged wrongful action of the constable under the execution. The facts relating to the property levied upon were as follows: The appellant and one Wales had been partners in the restaurant business, and the partnership of which they were members was the owner of the property in question. The partner, Wales, long prior to the levy upon the property, had been enjoined from conducting the restaurant business, either with his partner, the appellant, or on his own account. He had also brought an action to have the partnership dissolved, and in such action had sought the appointment of a receiver to take possession of the property of the partnership. The appellant, by giving bond on appeal, had retained the possession of the property, and had conducted the restaurant business in his own name, and, in so doing, made use of the property which had belonged to the partnership. While he was so conducting the business, he had paid off all the partnership debts. Under these circumstances, it is claimed that he was entitled to have his exemptions set off to him out of said property when levied upon to satisfy a judgment against him. Whether or not the interest of the appellant in this property was such that he could claim it as exempt is the important question to be decided. In fact, it is the only one suggested upon the oral argument, and the only one suggested in the briefs of sufficient importance to require attention. Whether or not individual partners can claim exemptions out of partnership property is a question which has often received the attention of the courts. The adjudications in reference thereto cannot be harmonized, though, in our opinion, there is not so much difference in the decisions upon the subject as a superficial examination would lead one to suppose. An examination of the cases cited in the carefully prepared brief of the respondents will show that a critical examination must be made to determine the weight of authority upon the exact question here presented. A reference to the facts shows that the case at bar called for no investigation as to whether or not exv.39P.no.6-42 emptions should be allowed the individual partners out of partnership property when levied upon under a judgment against the partnership. Yet many of the cases cited are those in which the question was as to the right of the partnership, or its individual members, to exemptions, when the execution was upon a judgment for a partnership debt. These citations were, however, largely justified by the manner in which this subject has been treated by many of the text writers and most of the courts. Not one out of five of the large number of cases which we have examined makes, or seeks to make, any distinction whatever between a judgment against the partnership and one against the individual partner claiming the exemption. Even when the question before the court was as to an exemption from execution against the individual partner, the reasoning and citation of authorities have in most of the cases shown that there was no discrimination between cases like the one at bar and those in which the execution was against the partnership. That such discrimination is necessary to a correct determination of the question presented is clear. Partnership debts have a superior claim to partnership assets. Hence it may be reasonable to hold that the members of the partnership could claim no exemptions out of such assets against such debts; but it does not at all follow that the holding should be the same when the debt is that of the partner who seeks the exemption. The holding as to nonexemption, even against partnership debts, is not universal. Many courts of the highest standing have held that the individual partners could claim exemptions out of the partnership property when levied upon under a judgment against the partnership, and some have even held that the partnership itself could claim such exemptions. See Skinner v. Shannon, 44 Mich. 86, 6 N. W. 108; Waite v. Mathews, 50 Mich. 393, 15 N. W. 524; McCoy v. Brennan, 61 Mich. 362, 28 N. W. 129; Stewart v. Brown, 37 N. Y. 350. It must be conceded, however, that the decided weight of authority is to the effect that exemptions cannot be allowed in such cases. But it does not follow that any such weight of authority, or any weight at all, is against the proposition that exemptions ought to be allowed when the execution is against an individual member of the partnership. Our examination of the cases has led us to believe that a decided majority of the courts which have made any distinction between a judgment against the partnership and one against the individual partner have held that exemptions should be allowed when the judgment is against such individual partner. See Evans v. Bryan, 95 N. C. 174; Moyer v. Drummond, 32 S. C. 165, 10 S. E. 952; Ex parte Karish, 32 S. C. 437, 11 S. E. 298; Blanchard v. Paschal, 68 Ga. 32; Wap. Homest. & Ex. p. 909. In these cases the property was that of a partnership doing business at the |