Volume 116 — Washington Reports

Application filed in the supréme court February 14, 1921, for a writ of mandamus to compel the secretary of state to receive and file a proposal for the referendum of the administrative code.

, entered April 28, 1920, granting a nonsuit and dismissing an action for damages caused by erosions due to certain river improvements.

<p>Pleading (112)—Amendment of Complaint—New or Different Cause of Action. A trial amendment of a complaint, even if it changes the cause of action from one sounding in tort to one sounding in contract, is permissible under the code.</p> <p>Same (109)—Condition of Cause — Asking Continuance. The amendment of a complaint in the course of a trial cannot be claimed as prejudicial on appeal, where defendant did not demand time to prepare to meet the new allegations.</p> <p>Evidence (48)—Competency—Value of Corporate Stock. In an action to recover the value of stock in an old corporation all the property of which had been transferred to a new corporation, under an agreement for an issue of new stock “dollar for dollar,” evidence of the value of the stock in the new corporation was admissible as tending to show the value of- the stock of the old corporation.</p> <p>Stipulations (3)—Conclusiveness and Effect—Persons Concluded. Under a stipulation between parties to an appeal in an action to recover the value of corporate stock that, in case the supreme court should hold plaintiff entitled to a money judgment, then no question shall be raised as to the amount of the money judgment rendered by the trial court, the appellant is concluded from urging on appeal that the stock had no value.</p> <p>Corporations (172)—Property and Conveyances—Disposal of Corporate Assets. A transfer of all the property of a corporation by its officers and some of its stockholders to a trustee to be by him transferred to a new corporation on its organization would not defeat the right of dissenting or omitted stockholders to sue the purchasing company for the value of the stock.</p>

<p>Appeal (23)—Decisions Reviewable—Suits in Equity. The provision of the constitution, Art. 4, § 4, denying appellate jurisdiction to the supreme court where the original amount in controversy is less than $200, does not preclude appeal from an injunctive order made in a proceeding to have property declared a homestead and exempt from execution upon a judgment for $55.82.</p>

<p>Appeal (24)—Decisions Review able—Amount in Controversy. Under Art. 4, § 4, of. the state constitution prohibiting the appellate jurisdiction of the supreme court in “actions at law for the recovery of money or personal property when the original amount in controversy or the value of the property does not exceed the sum of two hundred dollars,” a judgment for $142 for damages to real property, the title to which was in no way involved, is not appeal-able.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Hewen, J., entered July 24,1920, upon findings in favor of the defendants, in an action to enjoin the creation of artificial freshets in a river.</p>

<p>Newspapers (2)—Legal Publications—Daily Papers. A newspaper published every day except Monday is a daily newspaper, within the requirement of Laws 1921, p. 293, § § 1, 6, providing that no newspaper shall be considered a legal newspaper for the publication of legal notices unless it shall have been published continually, legal holidays and Sundays excepted, as a daily newspaper.</p> <p>Same (2)—Change of Name—Effect. The change of name of a newspaper from “The American Reveille” to “The Bellingham Reveille”, not being a change in the identity of the paper, would not affect the legality of the publication of legal notices under a contract made prior to the change of name.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered May 17, 1920, upon findings in favor of the plaintiff, in an action to set aside a divorce decree.</p>

<p>Appeal from an order of the superior court for Thurston county, "Wilson, J., entered October 18, 1920, overruling plaintiff’s motion to set aside an order of dismissal.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered July 16,1920, upon findings in favor of the plaintiff, in an action upon an accounting taken hy a referee appointed hy the court.</p>

<p>Appeal from an order of the superior court for Pierce county, Fletcher, J., entered March 1, 1920, dismissing an action on contract, after plaintiff’s refusal to proceed when denied a continuance.</p>

<p>Witnesses (78)—Cross-Examination—Limitation to Subjects of Direct Examination. Where the testimony of a witness as to certain facts had been stricken by the court, the refusal of the court to allow the cross-examination of the witness for the purpose of laying a foundation for his impeachment with reference to the stricken testimony was proper.</p> <p>Evidence (186)—Bodily ' Condition—Non-Expert Evidence—Admissibility—In General. In a prosecution for rape, it is admissible for a woman, present at the time of the examination of the prosecutrix by a physician) to state what she observed, as the same was not expert testimony.</p> <p>Criminal Law (25)—Evidence^Weight and Effect. The state is not bound in a criminal prosecution to produce witnesses who agree entirely in their statements concerning a transaction, the question of their credibility being for the jury to determine.</p> <p>Appeal (121, 405)—Preservation of Grounds—Review—Burden of Showing Abuse of Discretion. Where the record on appeal does not set forth the showing made by the defendant to secure a continuance, it must be presumed that the trial court properly exercised its discretion in refusing to grant a continuance.</p> <p>Criminal Law (299)—Trial—Reception of Evidence—Rebuttal. Error cannot be predicated on the fact that a witness for the state, called in rebuttal of defendant’s testimony upon matters not covered by her testimony in chief, had been permitted to restate the whole case, where her examination was confined to four questions addressed to proper rebuttal testimony.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 31, 1920, dismissing an action to vacate certain execution sales of real property.</p>

<p>Appeal (386)—Review—Parties Estopped—Acquiescence. Error cannot he assigned on modification of a decree for divorce so as to permit the mother to visit children awarded to the father, where the attorney for the father conceded in open court the right of the mother to visit her children.</p> <p>Costs (24)—Security—Character op Parties—Ancillary Proceedings. A petition for the modification of a divorce decree being an ancillary proceeding and not an original action, would not subject petitioner to the operation of Rem. Code, § 495, requiring nonresident litigants to furnish security for costs.</p> <p>Same (88)—Remedies por Collection—Stay op Subsequent Proceedings. A motion for a stay of proceedings upon a petition for the modification of a divorce decree until petitioner should satisfy the costs in the divorce action was properly denied where it was shown that she was wholly unable to satisfy them.</p>

<p>Wills (11)—Distinguished From Other Dispositions of Property. A written instrument reciting that it is “Last writing or testament. Leaving all my estate, Rudolph Sablich, these two lots located .... to J. Zatkovich, and he out of that must pay,” (certain named beneficiaries), shows an intent to make a will, and not an authorization to sell as agent of the owner.</p> <p>Principal and Agent (29, 34)—Express Authority—Power to Sell—Knowledge. An agreement to sell certain real estate by an alleged agent, reciting that the owner of the lots had gone abroad and left a signed statement to sell, “but said signed statement is not a full power of attorney”, was sufficient to indicate to the purchaser the limit of such agent’s authority.</p> <p>Same (8)—Evidence of Agency—Declaration of Agent. Under the rule that neither agency nor the scope of agency can be established by the declarations of the alleged agent, a recital of one’s self “as agent” of the owner in a notice relating to certain real estate would not constitute proof of agency.</p> <p>Improvements (2)—Statutory Provisions. In an action for specific performance of a contract for sale of land, which was unenforceable by reason of the lack of authority of an alleged agent to sell, the plaintiff would not be entitled to recover the value of improvements placed on the land, since Rem. Code, §§ 797-799, allow such recovery only in possessory actions for the recovery of real property upon which permanent improvements have been made.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered September 23, 1920, in favor of the plaintiff, in an action to foreclose a mechanics’ lien.</p>

, entered April 20, 1920, upon the verdict of a jury in favor of the .plaintiff, in an action to recover certain money advanced to an agent.

Application filed in the supreme court March. 31, 1921, for a writ of prohibition to the superior court for Okanogan county, Neal, J., to restrain the trial of a case and compel the granting of a change of venue.

<p>Appeal from a judgment of the superior court for King county, Marion Edwards, judge .pro tempore, entered December 18, 1920, upon findings in favor of the plaintiff, in an action to determine the ownership of an automobile and its liability to seizure on execution.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered December 12, 1919, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Criminal Law (55)—Former Jeopardy—Intoxicating Liquors— Different Offenses in Same Act. An acquittal of the offense of opening up, conducting and maintaining a place for the sale of intoxicating liquors would not be a bar to a subsequent prosecution for unlawfully having in possession intoxicating liquors, though the two prosecutions were based upon substantially the same evidence, since the one offense is not included within the other under the provisions of the statute relating to intoxicating liquors.</p> <p>Intoxicating Liquors (30)—Offenses—Illegal Possession. Under a statute making the possession of intoxicating liquor unlawful, it is no defense to a prosecution therefor that defendants came into possession thereof during the time when, under the laws of the state, such possession was lawful.</p> <p>Same (6)—Prohibition—Possession of Intoxicating Liquor— Eighteenth Amendment. The Volstead Act, passed pursuant to the 18th amendment to the constitution of the United States, does not supersede the state statute relating to the unlawful possession of intoxicating liquors.</p>

<p>Attorney and Client (8)—Disbarment Proceedings—Additional Charges—Powers oe Board. In disbarment proceedings before the state board of law examiners, it is within the powers of the board to allow the filing of additional charges after a hearing has been entered upon, a continuance being granted to give the accused full opportunity to meet the new charges. '</p> <p>Same (9)—Disbarment Proceedings—Punishment. The verification of a complaint in disbarment proceedings by a member of the board of law examiners charged with the duty of trying the accused raises no presumption of unfairness in the proceedings, since such power is expressly conferred on the board by statute.</p>

, entered April 27, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, in consolidated actions to recover seamen’s wages, after a trial on the merits.

<p>Attobney and Client (9-1)—Disbabment Pboceeding—Appeal. A finding of tlie state board of law examiners exonerating an attorney from the charge made against him in disbarment proceedings is not appealable, the only right of appeal granted by statute (Laws 1917, ch. 115, as amended by Laws 1919, ch. 100) being reserved to the person whose license has been annulled or revoked.</p> <p>Same (9-1). Under the inherent power of the supreme court to suspend or disbar attorneys, the court may, at its option, examine charges against an attorney, notwithstanding the procedure outlined by statute to be followed in case of inquiry by the jioard of law examiners.</p>

<p>Appeal from a judgment of the superior court for Adams county, Hill, J., entered September 25, 1919, dismissing a will contest.</p>

<p>Negligence (38)—Actions—Evidence—Sufficiency. In an action for damages for the death hy drowning of an minor son in a swimming pool, operated hy defendants, a motion for nonsuit was properly denied, where, upon an issue as to whether defendant furnished a reasonably attentive and competent attendant, the evidence showed that the boy while using the pool was missing from ten to fifteen minutes without his absence being noted, and when brought out of the water breathed a few times under manual manipulation.</p> <p>Appeal (373)—Review—Scope—Theory or Grounds—Grant of New Trial. An order granting a new trial will not be reversed on appeal, when the grounds upon which the trial court ruled do not appear in the record.</p> <p>Negligence (35)—Actions—Evidence—Previous Accidents—Admissibility. In an action for damages for the death of a young child in a swimming pool, alleged as due to the negligence óf the attendant to reasonably observe the movements of those using the pool, evidence of previous accidents therein is inadmissible.</p>

<p>. Appeal from a judgment of the superior court for Thurston county, Wright, J., entered March 31, 1921, upon findings in favor of the plaintiff as against the contractor and dismissed as to the state, in an action to recover for labor and materials furnished on a state highway.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Truax, J., entered June 15, 1920, in favor of the defendants, in an action to quiet title, tried to the court.</p>

<p>Drains (4-1)—Establishment by Cities—Area Lying Within Corporate Limits. The power to establish diking and drainage districts within the corporate limits of cities and towns being conferred by Rem. Code, §§4120- and 4162, the county commissioners have no authority, under the powers granted by Id., § 4226-1 et seq. as amended and supplemented' by Ch. 130, Laws 1917, p. 517, to create such a district where the territory to be included lies wholly within the corporate limits of a city.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Hewen, J., entered August 6, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover for services rendered.</p>

<p>Principal and Agent (42, 57, 58-1)—Evidence—Sufficiency. In an action against a principal for the conversion of an automobile by its agent, a verdict against defendant was warranted by evidence showing its sales agent in attempting to make a sale of one of defendant’s cars to plaintiff offered to take a car owned by plaintiff and credit it on the purchase price; that, though the bill of sale for plaintiff’s car was made direct to the sales agent, the car was placed among defendant’s second-hand cars, and kept there until its disappearance; that a mechanic employed by defendant to examine cars was required to procure an order from the main office for the delivery of the car from the second-hand department for that purpose, which was given him by the sales agent, at the time the only one in charge of the main office; and that there was nothing in the evidence putting plaintiff upon inquiry or notice that the sales agent was exceeding his authority.</p>

<p>Pleading (14)—Allegations Inconsistent With Wbitten Instruments. Where a cause of action is pleaded as being founded upon certain contracts which are set out, the pleadings must give way to the contrary provisions of the contract.</p> <p>Corporations (55, 60)—Stock — Sales — Pledges — Title of Pledgee. A contract fpr stock in a corporation in consideration of mining claims sold to the corporation is valid and legal where it provided that the money payment was to be derived from sales of the balance of the stock; that the entire capital stock should be held in pledge by a bank, to be released and sold in certain blocks, from the proceeds of which sales certain sums were to be paid on the purchase price due the claim owners; and that, in the event of failure of the corporation to meet the purchase price, it should forfeit all rights to have the unsold shares returned to it, but that such unsold stock should become the property of the claim owners.</p> <p>Same (28)—Capital Stock—Reduction. Under a contract providing for the sale of mining claims to a corporation, all of the stock of which except a certain number of shares given the claim owners was to be sold and the proceeds turned over to them, the stock, pending sales, being deposited in bank as a pledge for the purchase price, there was no diminution of the capital stock or assets, within the prohibition of Rem. Code, § 3697, where no stock had been issued which was not paid for, and nothing was taken out of the assets to pay for the stock.</p> <p>Same (83)—Capital Stock—Right to Vote—Pledges. A pledge of the entire capital stock of a corporation to secure performance of a contract to pay for the property acquired by the corporation would not constitute the pledgee a stockholder.</p>

, entered January 14, 1920, upon findings in favor of tlie plaintiffs, in an action to abate a nuisance, tried to the court.

Appeal by legatees from, a judgment of the superior court for King county, Jurey, J., entered December 18, 1920, decreeing a settlement and distribution of an estate, after a hearing upon exceptions to the final account of the administrator.

<p>Application filed in tbe supreme court April 21,1921, for a writ of mandamus to compel tbe superior court for Benton county, Truax, J., to supersede, pending an appeal, an order requiring a' receiver to file a report.</p>

, entered January 6,1921, upon findings in favor of the defendants, in an action for unlawful detainer, tried to the court.

,- entered July 26, 1920, upon findings in favor of the defendant, in an action for breach of contract, tried to the court.

, entered November 13, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, upon sustaining a demurrer to defendants’ affirmative defense, in an action for personal injuries sustained in an automobile collision.

Desmond, judge pro tempore, entered September 18, 1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Clallam county, Ralston, J., entered February 28,1920, upon a trial and conviction of criminal syndicalism.</p>

, entered December 2,1920, dismissing the action and dissolving a temporary restraining order prohibiting the enforcement of certain changes in a building to conform to the building code.

<p>Appeal from a judgment of the superior court for Yakima county, Taylor, J., entered April 28,1920, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Holden, J., entered October 25, 1920, upon findings in favor of the plaintiff, dismissing a writ of attachment.</p>

<p>Appeal (370)—Review—Theory of Case in Lower Court. Where, in a personal injury action by a stevedore injured in the hold of a vessel as the result of improper signals given by a hatch tender, the defendant tried the case throughout on the theory that the hatch tender was a vice-principal, it cannot on appeal assume the position that, under the rules of the admiralty courts, a stevedore working in a vessel’s hold and the hatch tender are fellow servants in loading the vessel.</p> <p>Damages (88)—Excessive—-Injury to Leg. A, verdict for $10,000, for injuries to plaintiff’s leg, about five inches above the ankle, for which he was in the hospital sixty-eight days and the leg was rendered about one-half inch short, with a slight backward bow, was excessive, and should be reduced to $5,000.</p>

<p>Municipal Corporations (383, 391)—Use of Streets—Contributory Negligence of Pedestrian. Where a pedestrian is placed in imminent danger through the wrongful and negligent act of an automobile driver, the question whether he acted with due prudence in avoiding the danger is one for the jury, in an action for personal injuries inflicted by being run down by the automobile.</p> <p>Trial (120)—Deliberations of Jury—Coercing Agreement. Coercion of a jury is not shown by the fact that the jury, after a day and night of deliberation, were brought into court and admonished by the judge not to be stubborn; not to be afraid to change their minds; that they should reason with one another; that the case had been well tried; that a disagreement would necessitate a new trial; and that the present jury should agree, if possible, though the judge took it upon himself to advance the admonition without any request from the jury for further instructions.</p>

, entered June 19, 1920, upon findings in favor of the plaintiff, in an action to recover on stock liability, tried to the court.

<p>Appeal from an order of the superior court for King county, Hall, J., entered August 16, 1920, upon granting defendant’s motion for a new trial, in an action on promissory notes.</p>

<p>Public Lands (20)—Possessoby Rights—Townsites—Advebse Claims—Affidavit—Sufficiency. The object of the .Townsite Act of Congress, March 2, 1867, and of Rem. Code, § 9469, for the purpose of carrying the Federal act into effect, being for the benefit of the occupant of the land at the time of entry, the failure of a claimant to state in his affidavit of possessory rights who was the occupant of the lots at the time of entry of such townsite, would not be sufficient to defeat his title upon a contest by another, where the evidence showed the former claimed directly under a conveyance from one who was the occupant at the time of the townsite entry.</p> <p>Same (21)—Townsites—Rights Acquiked by Entby. In a contest over lots under the Federal Townsite Act, where the court found plaintiff and his predecessor in interest had been in exclusive possession of all the lots, his failure to enclose some of the lots would not affect his title thereto, where the court further found they had been left unfenced for road and pasturage purposes.</p>

<p>Appeal from a judgment of the superior- court for Kitsap county, Dykeman, J., entered June 22, 1920, modifying an order in divorce for the Custody of a minor child.</p>

, entered September 30, 1920, upon sustaining a challenge to the evidence, dismissing a mandamus proceeding to copxpel the issuance of á city warrant.

Appeal by defendants from a judgment of the superior court for King county, Jurey, J., entered May 17, 1920, awarding damages in eminent domain proceedings, after a trial on the merits.

<p>Municipal Corporations (354)—Use of Streets—Regulation of Jitneys—Ordinances—Powers of Council. An ordinance imposing on the city council the duty of passing on applications for jitney bus permits is not objectionable as authorizing legislative action independent of the mayor.</p> <p>Constitutional Law (113)—Equal Protection of Laws—Regulation of Business. The issuance of permits for auto stage lines running to outlying towns and the refusal of jitney bus permits within the city limits does not constitute a violation of the equal protection clause of the state constitution, art. 1, § 12.</p> <p>Municipal Corporations (354)—Use of Streets—Regulation of Jitneys—Powers of Council. Where a committee of the city council, after investigating applications for jitney bus permits, reported a resolution to the effect “that all applications now pending be denied” for the reason their object was to serve districts already supplied with adequate street car service, but that it be understood that applications for permits to serve districts now without street car facilities would be considered when received, the adoption of the resolution by the council was in effect no more than the rejection of existing applications and not an attempt by resolution to modify the ordinance under which the council was acting.</p> <p>Constitutional Law (113)—Equal Protection of Laws—Class Legislation—Jitney Busses—Regulations. The guaranty of equality of rights under the Federal Constitution (Amend. 14) is not contravened by a municipal ordinance regulating the use of the city streets by jitney busses.</p> <p>Municipal Corporations (354)—Use of Streets—Regulation of Jitneys—Powers of Council and Method of Proceeding. Under the recognized rule thai; a city has the power to control the use of its streets in the interest of public peace, safety, and welfare, it possesses authority to refuse to permit jitney bus routes to be established in the congested business section of the city.</p>

judgment of the superior, court for Pierce county, Chapman, J., entered November 12, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 6, 1921, upon findings in favor of the defendant, upon appeal from an order of the industrial insurance commission, after a trial on the merits to the court.</p>

<p>Intoxicating Liquors (6)—Prohibition — Bootlegging — 18th Amendment. Prosecution under state laws for bootlegging and conducting illegal liquor joints is lawful as in aid of the enforcement of the 18th amendment to the constitution of the United States and the Volstead act passed pursuant thereto.</p> <p>Criminal Law (407)—Appeal—Record—Affidavits as to Separation of Jury. On appeal from an order denying a motion for new trial in a criminal case, on the ground the jury had been allowed to separate without the consent of the defendant, it will be presumed that the defendant knew of the separation and waived the error, where the affidavits upon which his motion was based are not attached to the statement of facts.</p>

<p>Partnership (1)—The Relation—Community of Interest. A partnership between farmers is not established by the fact that they farmed certain tracts on shares, where it appears they kept separate trading accounts, and also maintained a debtor and creditor account between themselves.</p> <p>Fraudulent Conveyances (16)—Property Transferred—Exempt Property. Grain needed for stock and seed by a farmer and householder, being exempt from attachment or levy and sale on execution, under Rem. Code, § 563, could be transferred to a creditor to apply on indebtedness to him, free from the lien of attachment or execution levy.</p> <p>Payment (11)—Application — Rights of Parties — Secured Debt—Presumptions. Where a creditor, holding both secured and unsecured claims against a debtor, allows part of the property on which he has a mortgage to be sold and the proceeds are placed in his hands to apply on the debtor’s account, the creditor must apply the proceeds to the secured debt, in the absence of an understanding to the contrary.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Hurn, J., entered May 14, 1920, upon findings in favor of the plaintiff, in an action for damages, tried to the court.

<p>Divorce (36)—Evidence—Cruel Treatment. A husband’s false accusations and charges against the chastity of his wife, made at various times and places and in the hearing of others, entitles her to a divorce on the ground of cruel treatment.</p> <p>Witnesses (55)-—Competency—Information Acquired by Physician-Persons Entitled to Object. Testimony by the family physician of parties to a divorce action that the husband had inquired of him what his physical examination of the wife had indicated with respect to her chastity was not a privileged communication so far as the husband was concerned, and was properly admissible in evidence against him.</p>

<p>Appeal from a judgment of the superior court for Stevens county, Jackson, J., entered December 6, 1916, upon a trial and conviction of assault.</p>

<p>Appeal from an order of the superior court for King county, Grilliam, J., entered February 15, 1921, decreeing distribution of proceeds of a receiver’s sale in favor of lien creditors, in preference to the state’s claim for industrial compensation.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered June 26,1920, upon findings in favor of the plaintiff in an action in garnishment proceedings.</p>

, entered March 20, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered January 6,1921, after a trial and conviction of operating a motor vehicle without a license.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Brawley, J., entered April 27, 1920, upon findings in favor of the plaintiff, on an appeal from an award of the industrial insurance commission.</p>

, entered June 17, 1921, sustaining a demurrer to plaintiff’s application for a writ of mandate, dismissing an action to recover under the soldiers’ bonus.

<p>Criminal Law (21)—Parties to Offense—Principals and Accessories. Under Rem. Code, § 2007, abolishing the distinction between an accessory before the fact and a principal, the driver of an automobile who did not participate in the forcible act of robbing another, but who held the car in readiness for the active participants to escape, was equally guilty of the crime of robbery.</p> <p>Appeal (272)—Record—Proceedings Not in Record—Affidavits. An affidavit alleging the misconduct of a juror as ground for new trial in a criminal case, which appears in the clerk’s transcript, but not in the statement of facts, will not be considered on appeal.</p>

, entered November 27, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Appeal from a judgment of the superior court for Kang county, Jurey, J., entered August 23, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action of replevin.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Sheeks, J., entered November 5, 1920, upon findings in favor of the plaintiff, reversing an order of the industrial insurance commission denying a claim for compensation.</p>

<p>Judgment (106)—Vacation—Ebeor op Law. Error oí the court in applying the law to the facts, in making a decree of final distribution of an estate under the provisions of Rem. Code, § 1341, would constitute an “error of law”; and no distinction can be drawn between judgments in probate and other civil actions, nor from the fact that an administratrix procured the decree exactly in the form she asked it.</p> <p>Same (106). Under the settled practice of this state not to vacate judgments for error of law that could be corrected on appeal, a petition for the vacation of a judgment for error of law, discovered too late to be used on appeal, will not be entertained by the courts, though apparently sanctioned by Rem. Code, §§ 303, 464, 465.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Blake, J., entered February 2, 1920, in favor of plaintiff, in an action to rescind a contract for fraud, tried to the court.</p>

Application filed in the supreme court June 8, 1921, for a writ of mandate to compel the state auditor to issue a warrant for bonds of a school district.

, entered April 16, 1920, upon findings in favor of the plaintiff, confirming proceedings for the organization of an irrigation district, and for the issuance of bonds, tried to the court.

<p>Appeal from a judgment of the superior court for King county, French, J., entered November 9, 1920, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Wilmon Tucker, judge pro tempore, entered November 29,1920, upon findings in favor of the defendant, in an action to recover a community interest in property.</p>

<p>Eminent Domain (42-1)—Property Subject—Consent oe Owner. Where a county instituted condemnation proceedings to establish a road along the top of a dike, and the diking district appeared and consented thereto, no question arises with respect to the right of a county to condemn the property of another municipal corporation.</p>

<p>' Appeal from a judgment of the superior court for King county, Jurey, J., entered December 2, 1920, upon findings in favor of the defendant, in an action to recover alimony, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 17,1920, upon a trial and conviction of being a jointist.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered January 24, 1920, upon sustaining a dejnurrer to the complaint, dismissing an action in tort.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Brawley, J., entered July 30, 1920, in favor of the defendant, in an action for equitable relief, tried to the court.</p>

, entered April 29, 1920, distributing the estate of a decedent, after hearing objections to the petition for distribution.

, entered October 18, 1920, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action on contract.

, entered November 23, 1920, upon findings in favor of the plaintiff, in an action to recover a deposit in a bank, tried to the court.

, entered April 16,1920, in favor of the defendants, dismissing consolidated actions to establish claims against an insolvent hank, tried to the court.

, entered September 18, 1920, upon findings in favor of the defendant, in an action to set aside the assessed valuation on certain lands, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered May 4, 1920, granting a new trial, after the verdict of a jury rendered in favor of the defendant, in an action in tort.</p>

<p>Frauds, Statute Of (18)—Contract to Devise—Performance. An oral promise to make a will in favor of another is enforcible, if founded upon a valuable consideration and deliberately entered into by the deceased, where there has been a full or partial performance of the contract on the part of the promisee; but it must be supported by the strongest evidence of a valuable consideration.</p> <p>Appeal (348, 373%)—Assignment of Error—Review—Trial de Novo. Where an equity case is tried de novo on appeal, the court has power to reject incompetent evidence in the record which had been admitted in favor of the appellant, and upon which there is no assignment of error.</p> <p>Witnesses (41-1)—Competency—Transactions With Persons Since Deceased—Party in Interest. An agreement by a father to will his property to his son in return for the care and support of his parents could not be proved by the testimony of the son’s wife, inasmuch as the property to be acquired would constitute community property, being dependent on the rendition of services by the community composed of the son and his wife; and her testimony would be barred under Rem. Code, § 1211, prohibiting a party in interest from testifying in his own behalf as to any transaction with or statement made by a deceased person.</p> <p>Husband and Wife (57)—Community Property—Earnings of Husband and Wife. Property to be acquired by a husband under a contract for its devise in return for services rendered would be community property and not be in the nature of a gift, within the meaning of Rem. Code, § 5915, declaring that property and pecuniary rights acquired by a husband “by gift, bequest, devise, or descent” shall constitute his separate property.</p>

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered January 19, 1920, in favor of the plaintiffs, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 6, 1920, in favor of the defendants, in an action to restrain a mortgage foreclosure sale, tried to the court.</p>

<p>Certiorari (6, 13)—When Lies—Adequacy op Remedy by Appeal—Order Denying Injunction. The action of the superior court in denying a temporary injunction to restrain the sheriff from selling mortgaged personalty on a foreclosure of a mortgage by notice and sale, pending proceedings by the mortgagor contesting the amount due, is subject to review by writ of certiorari, since the remedy by appeal from final judgment would be inadequate if the sheriff should be allowed to proceed with the sale.</p>

<p>Appeal from judgments of the superior court for Spokane county, Webster, J., entered July 12, 14, 17, 1920, upon trials and convictions of contempt.</p>

, entered December 7, 1920, directing the board of county commissioners to proceed to a rehearing upon a petition for the establishment of a drainage district.

<p>Appeal from a judgment of the superior court for Whitman county, McCroskey, J., entered January 15, 1921, upon a trial and conviction of giving away intoxicating liquor.</p>

<p>Negligence (23)—Imputed Negligence — Rider op Bicycle. Where two hoys engaged in the joint enterprise of covering a newspaper route which belonged to one of them, but in which he was sometimes assisted by the other, were both riding the same bicycle, the owner on the cross-bar and his friend in the seat and controlling its guidance, the negligence of the latter in colliding with an automobile while coasting down a street is attributable to the other.</p> <p>Trial (99)-—Instructions—Requests por Specific Instructions. An instruction that the plaintiff must prove that “the defendant was negligent as charged in this complaint,” should not be deemed erroneous, in view of the fact that all acts of negligence were pleaded in one paragraph, and there were no requested instructions asking specific charges upon the different acts of negligence, viewed separately.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Alston, J., entered May 20, 1920, upon a trial and conviction of being a bootlegger.</p>

Application filed in the supreme court April 27,1921, for a writ of habeas corpus to release the petitioner from the county jail of Spokane county, after conviction and sentence to the women’s industrial home and clinic.

<p>Application filed in tbe supreme court April 30, 1921, for a writ of babeas corpus to release a person beld in custody in tbe state penitentiary, upon transfer from tbe women’s industrial borne and clinic.</p>

<p>Prohibition (33)—Jurisdiction and Proceedings—Objections in Lower Court. The writ of prohibition may properly issue from a' supervisory to an inferior court, without a previous application to the inferior court for relief, where something is done by the inferior court from which the inference may fairly be drawn that, unless prohibited, such court will act beyond and in excess of its jurisdiction; or where the question involved relates to public affairs and interests, and a prolonged trial may prove detrimental to such affairs and interests.</p> <p>Same (20, 22)—Grounds—Excess of Jurisdiction—Contempt Proceedings. A citation of an administrative officer for contempt, for failing to deliver a prisoner to an institution that was closed, is subject to a writ of prohibition as in excess of the jurisdiction of the court and interfering with the duties of the officer, where, in habeas corpus proceedings for the discharge of a woman detained in custody under sentence to confinement in the Women’s Industrial Home, to which she had been refused admission on the ground that it was closed, it appears that the administrative officer, charged with the control of the institution, was not a party to the record, nor responsible for its closing, and without power to cause it to be reopened.</p>

<p>Criminal Law (107)—Evidence—Other Offenses. In a prosecution for unlawfully having sexual intercourse with a female child under the age of eighteen years, evidence that defendant had given the prosecuting witness capsules to prevent pregnancy, and that he had arranged with a physician to operate upon her to bring about a miscarriage, was properly admissible as directly tending to establish his guilt of the crime charged, though such proof tended to-show guilt of other offenses.</p> <p>Rape (1, 5)—Statutes—“Previous Chaste Character”—Defenses. Under Rem. Code, § 2436, making it a crime to carnally know a female child “fifteen and under eighteen years of age, and of previously chaste character,” a requested instruction “that the phrase ‘previously chaste character’ is not limited alone to sexual intercourse, but includes purity in conduct and principle up to the time of the commission of the alleged offense,” was properly refused, since the term “previously chaste character” means an actual physical condition as distinct from a chaste state of mind.</p> <p>Rape (19)—Evidence—“Previous Chaste Character”—Presumptions. In a prosecution for having carnal knowledge of a female child between fifteen andi eighteen years of age, a requested instruction that “previously chaste character .... is not presumed but must be proven by the state as a fact,” was properly refused, the rule in this state being that the chastity of the woman will he presumed in cases of this character.</p> <p>Trial (101)—Instructions—Requests Already Given. The refusal of a proper requested instruction is not error where the court, in its own language, substantially charges the jury to the same effect.</p> <p>Criminal Law (358, 362)—New Trial—Cumulative Evidence. The refusal of the court to grant a new trial because of newly discovered evidence did not show an abuse of discretion, where it appeared that the new evidence was largely cumulative, and would not be likely to change the result at another trial.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Fletcher, J., entered March 3, 1920, upon a trial and conviction of criminal syndicalism.</p>

<p>Appeal from a judgment of tlie superior court for Walla Walla county, Mills, J., entered May 8, 1920, upon a trial and conviction of sabotage.</p>

<p>Ceihinal Law (17, 19)—Rape (27)—Pbincipals and Accessoeies—Evidence—Sufficiency. Under Rem. Code, § 2260, declaring one who abets, encourages, or induces a crime to be a principal therein, a woman was properly convicted as principal in the crime of rape upon a girl under the statutory age of consent, where the evidence showed she introduced the man to the girl and invited him to call on her, absenting herself from home at the time of the visit until late in the evening, retiring shortly after her return, leaving the couple alone, and in the morning asking the girl if she got any money out of him; that on the night of the offense charged, at the invitation of the defendant, the man came to the house bringing another man with him about 10 p. m., the four of them remaining in a darkened room until 2 a. m. during which time the man and girl had sexual intercourse in the presence of defendant.</p> <p>Same (19)—Rape (35)—Aiding and Abetting Offense—Instbuctions. In a prosecution of a woman as principal in the rape of a girl under the age of consent, a requested instruction that the defendant was under no legal obligation to prevent, either by word or action, the having carnal knowledge of the girl by the man was properly refused, it being for the jury, under the evidence, to decide whether the defendant aided, assisted and abetted the perpetration of the offense.</p> <p>Same (451)—Appeal—Haemless Eeeoe—Conduct of Counsel. In a prosecution charging defendant with abetting and encouraging carnal intercourse with a girl under the age of consent, the misconduct of the prosecuting attorney on cross-examination in asking defendant whether she had not stayed certain nights in certain hotels with certain men was not prejudicial error, where the court sustained objections to that line of examination.</p> <p>Same (217)—Tkial—Conduct of Judge—Comments on Evidence. The remark of the court in sustaining objections to improper questions by the prosecuting attorney that they called for repetition was not a comment on the facts to be determined by the jury.</p> <p>Witnesses (101)—Impeachment of Accused. Where a female defendant in a criminal prosecution charging a sexual offense becomes a witness in her own behalf she is subject to impeachment by evidence showing that her reputation for morality and chastity in the community in which she lives is bad.</p> <p>On Rehearing.</p> <p>Criminal Law (116)—Evidence—Character op Accused—Particular Acts. In a criminal case in which the accused had not put her character in issue, it is reversible error to allow witnesses to testify that her reputation for morality and chastity in the community in which she lived was bad.</p>

<p>Appeal from a judgment of the superior court for San Juan county, Pemberton, J., entered October 30, 1920, upon a trial and conviction of bootlegging.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered April 24,1920, upon a trial and conviction of criminal syndicalism.</p>

, entered January 15, 1920, upon verdicts of a jury rendered in favor of the defendants by direction of the court, in consolidated actions for .malicious prosecution.

Application filed in the supreme court May 26, 1921, for a writ of mandamus to compel the state auditor to issue warrants to a city in a certain amount against the primary highway maintenance fund.

<p>Appeal from a judgment of the superior court for Spokane county, Oswald, J., entered March 3, 1921, upon findings in favor of the defendants, denying additional compensation for attorney’s services in resisting exceptions to the final account of executors, after a hearing before the court.</p>

<p>Appeal from an order of the superior court for King county, Frater, J., entered February 19, 1920, denying a motion to vacate a judgment entered upon an award of arbitrators, after a hearing before the court.</p>

<p>Appeal from an order of tlie superior court for Spokane county, Blake, J., entered October 9, 1920, granting a new trial, after a judgment entered in favor of the defendant, in an action for specific performance.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Smith, J., entered January 15, 1921, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.

<p>Evidence (79)—Secondary Evidence — Photographic Copies. Photographic copies of hooks and documents are admissible in evidence, where it is shown that the originals are in possession of some third person out of the state and beyond the jurisdiction of the court, who refused to surrender them.</p> <p>o Criminad Law (138)—Evidence—Decdarations by Third Persons—Letters Written to Accused. A letter addressed to defendant and found in his possession at the time of his arrest is admissible in evidence in a prosecution for criminal syndicalism, where the evidence shows that it was upon the usual letter-head of the I. W. W. organization and was written by the secretary-treasurer of a branch thereof in answer to a letter by defendant.</p> <p>Insurrection—Evidence—Sufficiency to Support Conviction— I. W. W. Membership. In a prosecution for criminal syndicalism under Laws 1919, p. 518, membership of defendant in the I. W. W. organization was sufficiently established by evidence showing that from August 7, to December 31, 1918, he was a delegate and organizer of Industrial Union 573 of the order; that, from November 1918 to November 22, 1919, he was editor of an official weekly publication of the I. W. W. while at the same time a member of Industrial Union 573; that, on severing his connection as editor of such official organ, he came to this state; and that, when arrested, there was found in his possession much I. W. W. literature, including copies of the preamble and constitution of the order, a supply of membership cards, blanks for application for membership, and other matter tending to show he was still a member on the date mentioned in the information.</p>

<p>Negligence (6)—In juey to Property—Duty to Licensee. Where plaintiff, on a hunting trip, parked his automobile for a period of ten days on government land, in the vicinity of logging operations conducted by defendant under contract with the government, plaintiff was a mere licensee, and not entitled to recover for injuries to his car from being struck by a falling tree which had swerved from the course intended by the faller, there being no evidence of wanton or wilful acts on the latter’s part causing the injury.</p>

, entered September 30, 1920, and December 14, 1920, in favor of the plaintiffs, in an action to enjoin the construction of a reservoir in a city park, after a hearing before the court.

<p>Appeal from a judgment of tlie superior court for Spokane county, Hill, J., entered April 26, 1920, upon a trial and conviction of forgery.</p>

<p>Appeal from a judgment of the superior court for Adams county, Truax, J., entered November 17, 1920, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained in an automobile collision.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered September 27, 1920, upon findings in favor of the plaintiff, in an action on promissory notes, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered June 9, 1920, upon the verdict of a jury rendered in favor of the defendant upon his counterclaim, in an action on contract.</p>

<p>Waters (92)—Irrigation Districts—Assessments—Benefits to Property—Statutes. The inclusion of land within the boundaries of an irrigation district does not necessarily mean that it is capable of receiving benefit from the district’s irrigating system, and thus liable to contribute to the maintenance of the system.</p> <p>Same (92). Land included in an irrigation district which is incapable of irrigation and cultivation would not be subject to maintenance charges, in view of Rem. Code, § 6433, providing that assessments therefor “shall be made in proportion with the benefits accruing to the lands assessed,” and Id., § 6452, providing that such charges may be collected “from all persons using said canal for irrigation and other purposes.”</p> <p>Same (92)—Recovery of Assessment—Fraud—Complaint—Sufficiency. In an action to recover money paid on an assessment for maintenance of an irrigation system which was illegally exacted from plaintiff, the complaint would not be demurrable for failure to allege fraud or wilful misconduct on the part of the directors of the district, since the allegations of the complaint sufficiently show legal fraud when they set up that the plaintiff’s land had been charged with an assessment when it was not in fact benefited by the maintenance of the irrigation system.</p>

<p>Appeal from a judgment of tbe superior court for Yakima county, Taylor, J., entered May 26,1920, upon granting a nonsuit, dismissing an action for personal injuries.</p>

, entered March 4, 1921, in favor of the plaintiff, in an action on promissory notes, and to foreclose collateral security, tried to the court.

, entered November 16, 1920, upon findings in favor of the plaintiff, in an action for money received, tried to the court.

<p>Appeal from an order of the superior court for Thurston county, Wilson, J., entered October 18, 1920, overruling plaintiff’s motion to set aside an order of dismissal.</p>

, entered December 27, 1920, upon findings in favor of the defendants, in an action on a promissory note, tried to the court.

, entered November 13, 1920, upon the verdict of a jury rendered in favor of the plaintiffs, upon sustaining a demurrer to defendants’ affirmative defense, in an action for personal injuries sustained in an automobile collision.

<p>Appeal from an order of the superior court for Okanogan county, Neal, J., entered November 8, 1920, denying defendant’s motion to vacate a decree, in a divorce action.</p>