Opinion Per CHADWICK, J.

[101 Wash.

the italicized words mean no more than that a promise to pay coupled with a concealment of the fact that the claim should be presented as a claim against the estate was a circumstance which might be considered with other testimony as evidence of deceit. In the light of the issue and an actual payment upon the note, the instruction does not mean that the executor is under any duty, independent of the facts of the case, to advise the filing of a claim, but rather that he may be held as for deceit if it is shown that his negotiations for payment had gone to the extent of holding out his own promise, altho it may not be binding in law.

It is said that the verdict is excessive. The court instructed the measure of recovery as the amount of the note with interest. Counsel contends that a recovery could not in any event exceed the amount that the estate would have been able to pay, and inasmuch as it is not shown that the assets will exceed the liabilities on final settlement, no recovery can be had. Here again counsel fails to hold fast to the real issue. The contention is based on the assumption that the suit is against the executrix and is to be paid out of the estate. Solvency has a well defined meaning in law: it means an excess of assets over liabilities, the power to pay debts in due course. It is true that the defendant undertook to show that the estate was incumbered, but this did not overcome the prima facie case. The burden was on defendant to show, not incumbrances merely, but an actual state of insolvency to defeat plaintiff's case. This she not only did not do, but as we read the record, adroitly avoided doing.

Affirmed.

ELLIS, C. J., HOLCOMB, and MOUNT, JJ., concur.

[No. 14446.

Department One. April 5, 1918.]

LOUIS SINGER, by his Guardian etc., Respondent, v. METZ COMPANY, Appellant.1

APPEAL BOND-TIME FOR FILING. Under Rem. Code, § 1721, providing that an appeal shall be ineffectual unless at or before the time of giving notice or five days thereafter, an appeal bond shall be filed, an appeal bond filed 83 days before the giving of notice is sufficient.

SAME-ABSTRACT

AMENDMENT

DISMISSAL. Under Rem. Code,

§ 1730-6, giving appellant an opportunity to amend or supplement the abstract if deficient, failure of the abstract to conform to court rules is not ground for dismissing the appeal in the first instance.

SAME-ABSTRACT-SUFFICIENCY.

An abstract will not be struck

out for defects that are amendable such as omissions in the title page; and it is not necessary to set out the pleadings or evidence in full.

APPEAL-REVIEW-VERDICT. Where the evidence was conflicting and the case was submitted on proper instructions, error cannot be predicated on the insufficiency of the evidence.

EVIDENCE-ADMISSIBILITY-RES GESTAE - DECLARATIONS AGAINST INTEREST. In an action for injuries sustained in an automobile collision, the statement by defendant's driver, taken down by a clerk in the police department that he had "cut the corner," is inadmissible either as part of the res gestae or as a declaration against interest by a party to the suit.

WITNESSES-IMPEACHMENT. Where a passenger in an automobile testified that the driver did not admit that he "cut the corner," the driver's statement that he had done so, taken down by a clerk in the police department, is inadmissible to impeach the witness; since a witness cannot be impeached by statements of others for which he was not responsible, and because it related to a collateral matter.

Appeal from a judgment of the superior court for King county, Gilliam, J., entered March 24, 1917, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained in an automobile collision. Reversed.

'Reported in 171 Pac. 1032.

Opinion Per FULLERTON, J.

[101 Wash.

J. Speed Smith and Henry Elliott, Jr., for appellant. Leopold M. Stern and J. W. Russell, for respondent.

FULLERTON, J.-The respondent Louis Singer was riding a motorcycle, proceeding north on one of the streets of the city of Seattle, and an employee of the appellant was driving an automobile south on the same street, each on the proper side of the street under the law of the road. The driver of the automobile turned to the left, crossing the course of the motorcycle at an intersecting street which the two vehicles approached from opposite directions at about the same time. A collision occurred in which the respondent was seriously injured. The respondent brought the present action for damages, based on the alleged negligence of the driver of the automobile in failing to conform to the city ordinance requiring that vehicles turning from one street into another should make the turn around the center of the intersecting streets; the charge being that the driver "cut the corner of the street," or, in other words, made a turn short of the center of the intersection instead of rounding that point. This was denied by the appellant, and the defense of contributory negligence set up. On submission to a jury, a verdict was returned awarding the respondent $2,500 damages, and from the judgment thereon this appeal is prosecuted.

A motion to dismiss the appeal is made by the respondent on the ground that it is ineffectual because the appeal bond was filed some eighty-three days before the notice of appeal was served. Our statute provides that "an appeal in a civil action or proceeding shall become ineffectual for any purpose unless at or before the time when the notice of appeal is given or served, or within five days thereafter, an appeal bond to the adverse party be filed with the clerk Rem. Code, 1721. It ap

of the superior court."

Apr. 1918]

Opinion Per FULLERTON, J.

pears that the notice of appeal was regularly given within the statutory time. The statute requiring an appeal bond, it will be noticed, permits it to be filed before the time when the notice of appeal is given or served and contains no limitation upon the extent of such antecedent period of time. Laurendeau v. Fugelli, 16 Wash. 367, 47 Pac. 759, is cited by respondent in support of his contention that the filing of the bond was premature, but it will be noted that our holding in that case is based on the fact that the appeal bond was filed prior to entry of judgment as well as prior to the notice of appeal. Under the statute then in force (Laws 1891, p. 342, § 6), the bond was required to be filed within five days after notice of appeal.

The respondent also urges as a ground for the dismissal of the appeal that the appellant's abstract of the record fails to comply with the statutes and rules of court. But this is not a ground for the dismissal of an appeal in the first instance. Under § 1730-6 of the Code (Rem.) the appellant must be given an opportunity to amend or supplement the abstract if it is found deficient, and the abstract stricken only after the opportunity is given and a refusal is made to supplement or amend. No order of the court for amendment of the abstract having been made, the motion for dismissal on the ground of its insufficiency is not well founded.

A motion is likewise made to strike the abstract of record on the grounds, that the title page does not disclose the court and judge before whom the cause was tried nor the names and addresses of the attorneys; that the pleadings are set out in full instead of being abstracted; and that portions of the evidence and the whole of the instructions are omitted. We find in this no sufficient ground for striking the abstract. The title page is capable of amendment. The rule does not exact the statement of the pleadings in substance, but

Opinion Per FULLERTON, J.

[101 Wash.

permits literal copies if the litigant deem them essential to show error. As to omissions of evidence and instructions, the statute and rules of court require the incorporation of such matters only as are deemed necessary to show the errors involved. Provision is made for the filing of a supplemental abstract by opposing counsel covering matters omitted and deemed essential to correct or supplement the original abstract, and ordinarily this is the sole remedy. But aside from this, ample remedies are provided for amending insufficient abstracts other than the striking them from the record on appeal, and they will not be stricken until these remedies are resorted to without success.

The motions are denied.

The appellant first asserts that it was entitled to a directed verdict, both at the close of respondent's evidence and at the conclusion of all the evidence, and to judgment notwithstanding verdict, on the grounds that the evidence failed to show negligence on its part, that it showed contributory negligence on the part of the respondent, and that it showed that the accident occurred while the automobile was being used by an employee of appellant, not in the course of his employment, but surreptitiously for the purpose of a Sunday pleasure trip by the employee. The evidence on all of these questions was conflicting, the case was submitted to the jury under proper instructions directed to these issues, and accordingly no error can be predicated upon the sufficiency of the evidence.

The second contention is that the court erred in the admission of evidence. The evidence introduced to show negligence on the part of the appellant was that its driver had cut the corner in turning from the one street into the other, instead of rounding the center of the intersection of the two streets as required by the city ordinance. This was one of the vital issues in the