Volume 27 — Washington Reports

<p>Appeal from Superior Court, Whitman County. — -Hon. William McDonald, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Leander H: Prather, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Chables H. Head, Judge.</p>

<p>Appeal' from Superior Court, King County. — Hon. Boyd J. T allman, Judge.</p>

<p>ACCORD AND SATISFACTION-COMPROMISE OF JUDGMENT-CONSIDERATION.</p> <p>The. payment and-acceptance of a less sum than the face of a judgment, as a satisfaction in full, in consideration of the waiver by the judgment debtor of his right of appeal, constitutes a valid accord and satisfaction.</p> <p>SAME — PAROL EVIDENCE.</p> <p>Parol' evidence is admissible for the purpose of showing the real consideration for an agreement of accord and satisfaction, although adding in that respect to the terms of the written agreement.</p> <p>ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS.</p> <p>Where a client authorizes or employs an attorney to enter into an agreement for the compromise of a judgment held by the client, the authority thus given is not a confidential communication, and there is nothing to prevent the attorney testifying as to his authorization so to do.</p>

<p>Appeal from Superior Court, King County. — Hon. James A. Williamson, Judge.</p>

<p>CONTRACTS — AGAINST PUBLIC POLIQY-SPECIFIC PERFORMANCE.</p> <p>One who enters into a contract in behalf of himself and as agent or trustee for certain officers of a railway corporation, agreeing with the owner of land to locate a line of railway and a depot upon his land in consideration of the conveyance of one half of the land to such person, who was to sell same and divide the proceeds with such railway officers, cannot enforce specific performance of the contract, for- the reason that it is in violation of public policy.</p> <p>SAME-WAIVER OF ILLEGALITY.</p> <p>The failure to plead the illegality of a contract by reason of its being against public policy does not constitute a waiver of such objection, but whenever such illegality appears at any stage of the action it is the duty of the court to refuse to enforce it.</p> <p>SAME — ESTOPPEL.</p> <p>The fact that one party to a contract has dealt with the other thereunder does not estop him from raising the objection of its illegality.</p> <p>SAME-LOSSES UNDER CONTRACT-RIGHT OF RECOVERY.</p> <p>Although not estopped to raise the illegality of a contract, neither party can recover for losses thereunder, but the law will leave the parties where it finds them.</p>

<p>Appeal from Superior Court, Obebalis County. — Hon. Charles W. IIodgon, Judge.</p>

<p>Appeal from Superior Court, Snohomish County. Hon. Johit C. Dehytey, Judge.</p>

<p>CARRIERS - INJURY TO PASSENGER - EVIDENCE ADMISSIBLE UNDER ALLEGATION OF DAMAGE.</p> <p>In an action to recover for personal injuries sustained by a woman while a passenger on a street car, evidence of the woman’s pregnancy and of a miscarriage produced as a result of the accident, together with the suffering and injury incident thereto is admissible, where the complaint, in addition to the general allegations of injury, alleges that she received internal injuries of a permanent nature, that she was hurt and injured in and about the breast, waist, and abdomen, and that she had unnatural internal bleeding.</p> <p>WITNESS- — -SCOPE OF CROSS-EXAMINATION.</p> <p>Where a question is not admissible as proper cross-examination, the fact that it is addressed to a plaintiff in the case while testifying as a witness would not change the rule, even if intended to elicit a circumstance against interest.</p> <p>SAME-CROSS-EXAMINATION OF EXPERTS-READING FROM AUTHORITIES.</p> <p>In the cross-examination of medical experts for the purpose of testing their knowledge, it is not error for counsel, in asking whether the authorities do not lay down certain rules, to read such rules from the books themselves as stated in the language of the authors, rather than stating the rules from memory.</p> <p>TRIAL-MISCONDUCT OF COUNSEL- HARMLESS ERROR.</p> <p>The action of counsel in arguing a damage case in asking a verdict for the full amount claimed in the complaint, referring to another case in the same county where a jury had awarded the full demand, was not prejudical error, where the court, upon objection of the adverse party, immediately charged the jury that they should regulate their deliberations upon the evidence in the case.</p> <p>ACTION FOR PERSONAL INJURIES-INSTRUCTIONS-CARRIER AS INSURER OF PASSENGERS.</p> <p>In an action for personal injuries received while a passenger upon a street car, an instruction is not prejudicial on the score of misleading the jury into the impression that defendant was an insurer of plaintiff’s safety, where it charges them that “common carriers, in the operation and running of their cars, and especially common carriers such as this, owe the duty to passengers whom they carry to use the highest degree of skill, care, and prudence in the running and in the operating of those cars, so as to prevent injuries to those passengers.”</p> <p>SAME-EXCESSIVE VERDICT.</p> <p>The fact that a complaint in an action for personal injuries seeks to recover $150 for physicians’ services and medicines, and that the testimony of plaintiff’s physicians showed that their services were worth $325, taken in connection with the instruction of the court that plaintiff might recover whatever expenses in the way of physicians’ services or medicines for which a liability -had been incurred, warrants a reduction of the judgment obtained in the sum of $175, when it does not affirmatively appear that the jury was not misled.</p>

<p>Appeal from Superior Court, Adams County. — Hon. Charles H. Neal, Judge.</p>

<p>CLAIM AND DELIVERY-GROUNDS-WRONGFUL DETENTION-NON SUIT.</p> <p>In an action of claim and delivery, in which, the right of possession of certain personal property is in issue, the ownership being admittedly in plaintiff, plaintiff should be non suited where the only evidence introduced by it showed possession in defendant, that the property had been consigned to defendant to sell on commission, and the value of same, and there was nothing showing wrongful detention.</p> <p>SAME-BrRDEJT OF PROOF.</p> <p>In an action of claim and delivery the burden of proof is-upon plaintiff to show a wrongful taking or detention of the property, where defendant denies the allegations of wrong, and such burden is not shifted to defendant by reason of special defenses-being interposed as well as the general denial, -since defendant, is not called upon to offer proofs of special defénses until plaintiff has made a prima facie case.</p>

<p>LARCENY-NON-CONSENT OE OWNER-EVIDENCE.</p> <p>Non-consent of the owner of property alleged to have been stolen is merely one of. the elements of larceny, to be proven as other elements of the crime, and is not necessarily proven by the testimony of the owner alone, hut may he shown by circumstantial evidence.</p>

<p>TAXATION-MERCHANDISE-REMOVAL FROM ONE COUNTY TO ANOTHER.</p> <p>One whose personal property has been listed and made liable to assessment for taxation in one county with reference to its valuation on the first day of March, as provided by Laws 1897, p 136, §§ 1, 6, cannot be made liable to a second tax on a portion of said property by its removal to another county temporarily for purposes of sale, under the provisions of Laws 1899, p. 295, which declares that whenever any person shall, subsequent to the first day of March of any year, bring into any county any stock of goods to be sold in a place of business temporarily occupied for their sale, the owner or person in charge of said goods shall immediately notify the county assessor, who shall at once proceed to value the said stock of goods at its true value, for which tnere shall be paid a tax at the rate assessed, ¿or state, county and local purposes in the taxing district in the year then current, since the evident intent of the legislature was to make the latter provision applicable only to non-residenc merchants, who should temporarily do business within the state.</p>

<p>LOGS AND LOGGING-CONVEBSION-ENEOBCEMENT OE LIEN-PLEADING.</p> <p>Under nal. Code, § 4931, which provides that the allegations of a complaint must be liberally construed, with a view to substantial justice between the parties, an allegation that defendants “eloigned ana converted to their own use about 133,000 feet of said logs which were of the value of $675” must be construed as sufficient, where no motion to make more definite and certain was interposed.</p> <p>SAME.</p> <p>The objection that an allegation of the complaint is merely 'a conclusion of law cannot be urged on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>SAME-INCONSISTENT ALLEGATIONS.</p> <p>Tne fact that a complaint for the enforcement of a lien on saw logs alleged that the “defendants, the Western Shingle Company, eloigned and converted to their own use about 133,000 feet of said logs,” while the lien notice described the property as "a certain lot of logs, being about 640,000 in quantity, which were cut in Island county, state of Washington, and are marked B. B., and were put into and rafted in Useless Bay, from which place, while this lien was in full force, aoout 515,000 were taken away and sold to the Bell-Nelson Mill Company,” is not necessarily the allegation of contradictory facts, since the logs sold to the one party may have afterwards come into the possession of the other.</p> <p>SAME-BONA FIDE PURCHASER.</p> <p>Under Bal. Code, § 5944, which provides that no mistake or error in the description of the property against which a lien claim is filed shall invalidate the lien, except as against subsequent bona fide purchasers, unless it was made with intent to defraud, and under Id., § 5945, which provides that it shall be conclusively presumed by the court that a party purchasing the property liened upon within the thirty days given me claimant wherein to file his lien is not an innocent third party, a purchaser of saw logs within the thirty days during which a lien could be filed thereon, and before the lien notice was actually filed, cannot claim that he.was misled by an erroneous statement in the lien notice, especially where he nad knowledge of enougn facts to put him on inquiry as to claimants’ right of lien.</p> <p>SAME-LIABILITY OF PURCHASER-IMPLIED CONTRACT.</p> <p>A purchaser of logs on which there is a lien, within the thirty days in which the claimant may file his lien notice, must see that the purchase money is appropriated to the • satisfaction of the lien, or he is liable upon an' implied contract to the lien claimant, up to the full value of the logs.</p> <p>SAME-JUDGMENT.</p> <p>In an action against a partnership for the eloignment and conversion of saw logs upon which plaintiff had a lien, a decree awarding judgment to be satisfied out of the joint property of all the partners is warranted, although but one of them was served with summons, where it appears that the defendant served purchased the logs in behalf of his firm and that the partnership converted the logs into shingles and destroyed their identity, since plaintiff had a right to waive the tort and recover the value of the property as on an implied contract, and under Bal. Code, § 4881, in an action against defendants jointly indebted upon contract, plaintiff may proceed against the defendants served and have judgment entered against all the defendants jointly indebted “so far only as it may be enforced against the joint property of all and the separate property of the defendants served.”</p> <p>SAME- — -PAYMENT-INSUEEICIENCY OE EVIDENCE.</p> <p>In an action against defendants for the conversion of logs, to the destruction of plaintiff’s lien thereon, the evidence does not show partial paymtent of plaintiff’s claim, when it appears from a judgment roll in another case against his employers, introduced in evidence, that his claim had heen reduced to judgment in tne former action and his lien established on all the logs, inasmuch as proof of the sale of part of the logs liened upon and payment therefor would not he proof of payment of plaintiffs claim in an action to enforce his lien against another portion of the logs, which he was privileged to do under Bal. Code, § 5943.</p>

<p>APPEAL-NOTICE-SERVICE BY ATTORNEY NOT OF RECORD.</p> <p>Under Bal. Code, § 0503, which provides thai a party desiring to appeal may by himself or his attorney serve written notice, such notice may be served by new attorneys employed by appellant for that purpose without notice to respondent, since Id. §§ 4769, 4770, governing the substitution of attorneys is expressly confined to changes made before judgment or final determination.</p> <p>SAME — 1 ESTOPPEL TO DISPUTE ATTORNEY’S AUTHORITY.</p> <p>One who has permitted the appearance oi new attorneys in a cause without raising objection that they were not attorneys of record is estopped to urge that objection when subsequently served with notice of appeal by such attorneys.</p> <p>SALES-ACTION FOR PURCHASE PRICE-INSTRUCTIONS.</p> <p>In an action to recover the price of a threshing machine from two defendants, one of whom denied liability therefor, but there was evidence showing he had agreed to stánd by any arrangement made with the other defendant for its sale, the following instruction was given: “If you find from the evidence in this case that defendant Kemp at the time of their first conversation concerning the purchase of the machine told plaintiffs agent, Minnick, that any contract that Cook might make with plaintiff through its agents would be all right with him, and used such language as would reasonably give the plaintiff to understand that he would stand by such agreements or contracts relative to the purchase of such machine, then plaintiff would be justified in dealing with him, Kemp, by and through Cook, and the acts and contracts, if any, made by him for himself and Kemp would bind Kemp. Any orders or directions by Kemp to Cook would not affect plaintiff until such time as it, the plaintiff, had notice or knowledge. If Kemp authorized Cook to act for him, and plaintiff had knowledge of it, then he could have withdrawn such authority by notifying plaintiff- of his desire to do so, but not by giving Cook alone the notice to tnat effect. Cook could not bind Kemp without authority from Kemp.” Held, not erroneous on the ground of being a comment on the facts, since there is no intimation of the court’s view as to what may have been the</p> <p>facts; nor on the ground of'giving special prominence to the testimony of any particular witness; nor on the ground of its failure to state the effect of Kemp’s statements, considered either as a collateral or as an original promise, since the sole issue was whether both defendants were originally bound, and not one as surety for the other.</p> <p>EXCESSIVE JUDGMENT-MODIFICATION ON APPEAL-COSTS TO APPELLANT.</p> <p>A verdict and judgment for a sum which was five dollars in excess of the amount demanded in the complaint will be remitted on appeal, but the error is not sufficient to justify a reversal nor the recovery of costs on appeal by the appellant.</p> <p>TBIAL-ADMISSION OF IMPBOPER TESTIMONY WITHOUT OBJECTION-SUFFICIENCY AS EVIDENCE.</p> <p>Where oral testimony of the assignment of a claim has been admitted without objection, or motion to strike, or demand for the production of the written assignment, the evidence is sufficient to warrant the recovery by the assignee of the amount of the claim.</p>

<p>APPEALABLE OBDER-SENTENCE OE DEATH-STAY OE EXECUTION.</p> <p>The order of the lower court fixing the day of execution of one convicted of murder is not reviewable on appeal, and hence an appeal from such order affords no ground for an application for a stay of execution of the death sentence.</p>

<p>INJURIES TO LAND-ACTION BY HOMESTEAD ENTRYMAN-SUFFI-CIENCY OF TITLE.</p> <p>An entryman under the homestead laws of the United States in actual possession and cultivation of the land selected, although not having made final proof, may maintain an action for damages for injuries to such land.</p> <p>SAME-CONSTRUCTION OF HIGHWAYS-LIABILITY OF COUNTY FOB RESULTING DAMAGE-ULTRA VIRES.</p> <p>Where a county in establishing and laying out a county road under powers granted it by statute does an act beyond the scope of its powers, whereby injuries are caused to a person, such county can be made to respond in damages therefor.</p> <p>SAME.</p> <p>Where the county authorities in laying out a county road drain a lake, for the purpose of a roadbed, by cutting a canal through a natural ridge, thus throwing the water onto lower lands, the owner of lands seven miles distant from such roadbed may maintain an action for damages for flooding his lands, if such drainage is shown to be -the proximate cause thereof.</p> <p>SAME-PLEADING.</p> <p>An action for damages caused by the defendants’ draining a lake in the construction of a county road, so as to flood plaintiff’s land, is based on the theory that it is the taking of private property for public use without compensation, contrary to the prohibition of the constitution, and consequently it is unnecessary for the complaint to allege carelessness or negligence in the act.</p> <p>SAME-WRONGFUL ACT OF AGENTS-RATIFICATION BY COUNTY.</p> <p>Although a county may hot have been originally responsible for the flooding of plaintiff’s land, as the result of draining a lake for the construction of a county road, yet where the county has since used the road and maintained a ditch for the drainage of the lake, it must be held to have ratified the wrongful act and rendered icself liable for resulting injuries.</p>

<p>Appeal from Superior Court, Kittitas County. — Hon. John B. Davidson, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Charles H. Heal, Judge.</p>

<p>CORPORATE STOCK-ACTION TO RECOVER- — - NON-SUIT — SUPPICIENCY OP EVIDENCE ESTABLISHING OWNERSHIP.</p> <p>In an action to recover five shares of stock in a corporation, the granting of a non-surt/on the ground of there being no evidence that plaintiff was the owner of the stock was erroneous, where it appeared that plaintiff had subscribed and paid for the stock; that he had delivered it to the general manager of the corporation for purpose of sale, indorsing an assignment on the shares and giving such officer irrevocable power to transfer the stock on the corporate books, but with the understanding that such stock should he returned in ninety days if cash could not be obtained therefor, said general manager giving to plaintiff ten shares of the company’s stock to hold as collateral for a note to plaintiff for the value of his shares; that plaintiff surrendered such collateral and received an order from the general manager on the president of the corporation to deliver plaintiff his five shares in payment of the general manager’s note, which was refused by the president; that an assignment of the certificate was indorsed thereon by the general manager to another person, but there'was no proof of the execution of such assignment, nor of the payment of any consideration therefor, nor of the existence of such a person as the assignee, while the answer of the corporation set up a delivery of such certificate as a pledge for a loan to an entirely different party on the same date as that of the alleged assignment, a.nd set up sale and delivery of the stock to such alleged assignee at a date five months subsequent to that indorsed on the certificate, prior to which last date plaintiff's contract of sale had been rescinded.</p> <p>SAME-EVIDENCE — CONVERSATIONS AGAINST INTEREST.</p> <p>In an action to recover shares of stock that had been delivered to the corporation for sale, where there is an issue as to whether the sale had been made by the officers before rescission by the stockholder, conversations of the officers subsequent to the date of the alleged sale tending to show that others than the alleged purchasers are the owners of the corporate stock are admissible in evidence.</p> <p>SAME-FAILURE TO KEEP BOOKS OF ACCOUNT.</p> <p>In an action against a corporation for the appointment of a receiver and the recovery of shares of stock, testimony as to the fact that no books of account were kept by the corporation is admissible.</p> <p>SAME-DISSIPATION OF ASSETS.</p> <p>In an action by a stockholder for the appointment of a receiver and an accounting in which the complaint alleged that certain machinery of the value of $1,200 was sold to the father of one of the officers of the corporation for half that-sum, evidence is admissible showing the negotiations of a third party for the. purchase of such machinery, and the amount of his offer therefor.</p> <p>REVENUE STAMPS.</p> <p>• Revenue stamps, omitted tnrough inadvertence, could he attached to a stock certificate at any time, and their absence would not consequently invalidate tne certificate.</p> <p>TRIAL-'ADMISSION OE EVIDENCE IN EQUITABLE CAUSES.</p> <p>In an equity suit, where the facts are determined by the court and reviewable on appeal, considerable latitude should be allowed in the examination of witnesses, and they should be allowed to testify as to facts which at first blush might not appear to be relevant, if there is a possibility of the relevancy of such testimony.</p>

<p>Appeal from Superior Court, Whitman County. — TIon. William McDonald, Judge.</p>

<p>MOTION FOR NEW TRIAL-DISCRETION OF COURT-REVIEW ON APPEAL.</p> <p>The action of the trial court in refusing a motion for a new trial based upon the fact that the record in the case showed fraud in the preparation and conduct of the defense, corruption on the part of the jury, and undue influence brought to bear on them, will not be disturbed on appeal, without an affirmative showing that the court abused its discretion in aenying the motion, since the trial court is better able to interpret file actions of witnesses and jurors than an appellate court, altnough the latter may be in possession of the full testimony and record in the case.</p> <p>STREET RAILWAYS — INJURY TO ALLEGED PASSENGER — EVIDENCE-CONDUCTOR’S TRIP REPORT.</p> <p>In an action for damages against a street car company by a woman found lying in the street and who claimed that she was injured when alighting from a car, but who, according to the defendant’s claim, had not been a passenger, the conductor’s trip report showing the number of passengers on the trip the woman claimed to have been on, and that they all paid cash fares, is admissible in evidence, where the woman claimed to have paid her fare by a transfer slip from another line, since such trip report, being made by the conductor in the regular course of duty at the end of each trip, and entered up prior to any knowledge on his part that it would prove a material fact in the case, would not fall under the rule excluding self-serving declarations.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Geohge W. Belt, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. Le arder H. Prather, Judge.</p>

<p>Appeal from Superior Court, Kittitas County. — Hon. John B. Davidson, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon: Leander H. Prather, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. Thomas H. Brents, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tallman, Judge.</p>

<p>BUILDING CONTRACTS-ALTERATIONS-VALUE-INVALIDITY OF AWARD.</p> <p>In an action on a building contractor’s bond to recover the amount the owner was compelled to pay to avoid mechanics’ liens, in which the contractor set up the.defense that he had not been paid for alterations and additions made outside of the original contract, it was not error to permit evidence of the value of such additions, although the matter had once been submitted to arbitration, where it appeared that the .award had been made without hearing the parties thereto in the presence of one another and without passing upon the merits of the dispute between uiem.</p> <p>SAME.</p> <p>Under a building contract providing that the value of the work- added or omitted on account of alterations should be computed by the architect, and the amount added to or deducted from the contract price, and in case of dissent therefrom the valuation thereof should be referred to arbitrators, the fact that the contractor did not object when first informed of the architect’s computation would not justify arbitrators to whom the matter was subsequently referred in refusing to pass upon the merits, since he had a reasonable time in which to object in view of the silence of the contract on the question of tne time of raising objections.</p> <p>APPEAL — SUFFICIENCY OF EVIDENCE.</p> <p>The verdict of the jury in favor of a building contractor will not be disturbed because of the fact that one of the items in a written statement of account between him and the owner was not proven, thereby throwing the balance as shown in the statement in favor of the owner, when there is oral testimony before the jury explaining the charges and credits in the statement, and working out a balance in the contractor’s favor, notwithstanding the eliminated item.</p>

<p>Appeal from Superior Court, King County. — Hon, George Meade Emory, .Judge.</p>

<p>MORTGAGES SETTLEMENT — AGENT’S AUTHORITY SUFFICIENCY OF EVIDENCE.</p> <p>Where a mortgagor sets up the defense on foreclosure that he had settled his debt with the mortgagee by deeding him a portion of i~e mortgaged premises, judgment in nis favor is unwarranted when the evidence merely shows that whatever agreement for settlement was made was with an agent of the mortgagee, whose testimony was to a different agreement than that alleged by the mortgagor, and that whatever authority the agent had was in writing and in his possession, and such written authority was not produced.</p>

<p>EORCIBLE ENTRY AND DETAINER-SERVICE OE SUMMONS.</p> <p>The provision in the forcible entry and detainer act (Bal. Code, § 5532) that upon filing the complaint a summons must be issued thereon as in other cases does not incorporate as a part of the act the procedure in force governing service of summons at the date of the passage of the act, but must be construed as having reference to the law in force at the time ine summons is issued in an action of forcible entry and detainer.</p>

<p>ATTORNEY AND CLIENT-SUBSTITUTION OE ATTORNEY-NOTICE.</p> <p>Under Bal. Code, § 4769, authorizing a change of attorneys at any time before the final determination of an action, upon the order of the court on the application of the client therefor, a notice issued by citation is sufficient, provided the attorney is thereby given reasonable notice of the application for a change.</p> <p>SAME-EVIDENCE-CONTRACT EOB COMPENSATION-ADMISSIBILITY. .</p> <p>In an application for the suosticution of attorneys, which Bal. Code, § 4769, authorizes, provided the charges of the attorney have been paid by the party ashing the change to be made, the refusal of the court to admit in evidence a contract between the attorney and client for his fees, and its action in governing the admission of evidence as to the value of his services by the rule of quantum meruit, was erroneous.</p> <p>SAME-EMPLOYMENT BY GUAEDIAN-LIABILITY OE WARD’S ESTATE EOR COMPENSATION.</p> <p>Under Bal. Code, § 6402, which authorizes guardians to prosecute and defend for tneir wards in all cases and under Id., s 6405, which makes it the duty of a guardian to manage the estate for the best interests of the ward, pay an just debts due from the ward out of his estate, collect all debts due the ward, and in case of doubtful debts compound the same, a guardian is authorized to enter into a contract agreeing to pay attorneys one-half of all the estate they mlay recover for the ward in an action brought to establish his right thereto.</p>

<p>MUNICIPAL CORPORATIONS- SPECIAL FUND WARRANTS-ORDER OF PAYMENT — MISAPPROPRIATION OF FUND-LIABILITY.</p> <p>The payment by tbe city of warrants drawn on a special fund, wbicb bad been issued subsequent in time to other warrants on tbe same fund, is sucb a misappropriation of tbe moneys belonging to sucb special fund as to render tbe city liable, where prior warrants are left unpaid by reason of tbe exhaustion of sucb special fund.</p> <p>SAME-MANDAMUS.</p> <p>Where tbe moneys belonging to a special fund have been misappropriated by, tbe city, mandamus will not lie to compel the city to pay warrants on sucb special fund out of tbe city’s general fund, but tbe remedy of tbe party injured by sucb misappropriation would be by an action sounding in tort for tbe injury suffered, judgment for wbicb would be satisfied by tbe issuance of a general fund warrant to be paid in-the order of its issuance out of moneys coming into tbe general fund.</p> <p>SAME-LIMITATION OF ACTIONS.</p> <p>Under Bal. Code, § 4800, subd. 2, wbicb provides that an action for an injury to tbe person or rights of another must be commenced within three years after tbe cause of action accrues, a complaint wbicb alleges tbe misappropriation by a city of tbe moneys of a special fund at a date more than three years prior to the commencement of tbe ac„mn is demurrable on tbe ground that it bad not been instituted within tbe time limited by law.</p> <p>SAME-DEFICIENCY IN SPECIAL FUND-POWER OF CITY TO REMEDY.</p> <p>Where a city has power uo pay tbe cost of a special street improvement, in whole or in part, out of its general fund, and also power to bind itself to pay any deficiency remaining after tbe exhaustion of tbe special fund, its promise to do so after a deficiency is found to exist is valid under tbe rule governing tbe ratification of contracts, whereby tbe power to make the contract forms tbe basis of liability and tbe performance of tbe act furnishes the consideration.</p> <p>SAME-LIMITATIONS.</p> <p>Although an action by a warrant-holder against a city ror misappropriation of moneys of a special fund may have been barred by the statute of limitations, yet such bar would not operate to defeat recovery on his warrant out of the special fund on which it was drawn, nor out of a fund substituted therefor.</p>

<p>Appeal from Superior Court, King County. — Hon. E. D. Benson, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Whitman County. — Hon. William McDonald, Judge.</p>

<p>SUIT AGAINST STATE-LIABILITY FOR MISFEASANCE OF PUBLIC OFFICER.</p> <p>A state is not liable for damages suffered by an individual by reason of tbe negligence or malfeasance of one of its officers while engaged in-the discharge of his official duties, in the absence of a statute making it liable for such damages.</p> <p>SAME.</p> <p>Where an applicant for the purchase of public, lands suffers injury because of the delay of the land commissioner in the issuance to him of the contract to which, he is entitled under the law, ¿is cause of action is based on the damage caused by the misconduct or laches of the commissioner, and is not against the state as a party to a contract.</p> <p>SAME-STATUTORY WAIVER OF IMMUNITY FROM SUIT-EFFECT.</p> <p>A statute permitting suits to he brought against a state does not of itself subject the state to a liability that did not exist before, but is merely a waiver of the state’s immunity from suit.</p>

<p>CONTINUANCE- EIGHT TO-AMENDMENT OF PLEADING AT TRIAL.</p> <p>In an action for the rescission of a contract on the ground of fraud, it was error for the court to reiuse a continuance to defendant, where the plaintiff on the trial had been allowed to amend his complaint so as to set up an additional fraudulent representation, and the testimony of the only witness for defendant who could disprove the, allegation had been taken by deposition in another state before that issue had been raised.</p> <p>FRAUDULENT REPRESENTATIONS-WAIVER.</p> <p>Where a party, after the discovery of facts tending to show fraud in inducing him to enter into a contract for the purchase of property, is silent, and continues to treat the property as his own, he will be held to have waived the fraud and to be bound by the contract.</p> <p>SAME-PRESUMPTION AS TO FALSITY</p> <p>The single fact that a representation is false does not of itself raise a presumption of knowledge of its falsity.</p>

<p>Appeal from Superior Court, King County. — Hon. Boyd J. Tateman, Judge.</p>

<p>APPEAL-DISMISSAL-CESSATION OF CONTBOVEBSY.</p> <p>Where the term of office has expired which was involved in a contest over the right thereto, an appeal from the judgment in the cause will he dismissed, on the ground of there being no subject matter on which the judgment of the supreme court can operate.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William: E. Bichabdson, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. George W. Belt, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. William Tt. Bell, Judge.</p>

<p>Appeal from Superior Court, Thurston County. — Hon. Oliver V. Linn, Judge.</p>

<p>TRESPASS-RIGHT TO TREBLE DAMAGES--INSTRUCTIONS-HARM- . LESS ERROR.</p> <p>In an action to recover treble damages for tbe wilful and uillawful cutting of plaintiff’s, timber, under Bal. Code, § 5656. defendants set up the defense that they were the owners of adjoining land and had done the act by inadvertence, through a mistake as to the boundary. An instruction charged the jury that if they found defendants went upon the plaintiff’s land in good faith in the belief that it was their own, or that their going was not marked by any spirit of wantonness, wilfulness or evil design, then they must find defendants’ action was not wilful; that, before they could determine defendants’ wilfulness, they must be satisfied the trespass was attended by circumstances of bad faith and intentional wrong; that if defendants committed the trespass knowingly, or by the exercise of ordinary care could have ascertained they were trespassing, then they should find the action was wilful.</p> <p>Held, that, if the last part of the instruction was inconsistent with the preceding portions, plaintiff could not complain, because it was in his favor.</p> <p>Held, also, that, even if the instruction were erroneous, it was without prejudice, as the jury found specially that there was no wilful trespass.</p> <p>SAME-QUESTION OF INTENT.</p> <p>The statute authorizing treble damages for the wilful cutting of another’s timber being of a penal nature, intent to commit the trespass is a necessary element in order to justify the imposition of treble damages.</p> <p>SAME-ARGUMENT OF COUNSEL.</p> <p>In an action to recover treble damages for trespass, it was not error for defendant’s counsel, in his argument before the jury, to state that “the court will treble whatever actual damage you may find to have been suffered by the plaintiff.”</p> <p>SAME-SPECIAL INTERROGATORIES — FORM OF.</p> <p>In such a ease it was not error for the court to submit as a whole to the jury, instead of dividing into two questions, the following: “Was the trespass casual or involuntary, or did the de-</p> <p>fendants have probable cause to believe that the land on which the trespass was committed was their own?” since an affirmative answer to either portion of the question would have established a defense to the claim for treble damages.</p> <p>NEW TRIAL-REVIEW ON APPEAL.</p> <p>On an appeal from an order granting a new trial, where the question presented is one of law instead of one of fact, the supreme court will not be controlled by the judgment of the trial court in passing thereon.</p>

<p>Appeal from Superior Court, Snohomish. County. — Hon. Frank T. Reid, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thad Huston, Judge.</p>

<p>CRIMINAL LAW-LIEUTENANT GOVERNOR AS COUNSEL FOR PROSECUTION-HARMLESS ERROR.</p> <p>The fact that the lieutenant governor assisted the prosecuting attorney in the prosecution of one accused of murder would not constitute error by reason of the possibility of the lieutenant governor succeeding to the office of governor and being called upon to exercise the power to pardon or commute the sentence of convicts, where the lieutenant governor had been associated in the prosecution of the case prior to his election to the office, and had received whatever impressions against the accused he might have while still a private individual.</p> <p>WITNESS-CROSS-EXAMINATION.</p> <p>Where a witness had testified on direct examination as to the sobriety of accused prior to the shooting, but had not been called upon to testify as to his condition after he had been put in jail, it was proper for the court to exclude cross-examination of the witness as to what condition he found the accused in jail when the witness went in after him.</p> <p>ARGUMENT OP COUNSEL-ERROR CURED BY INSTRUCTIONS.</p> <p>Improper argument of the prosecuting attorney in commenting on the fact that the defendant failed to put witnesses on the stand to prove his good character was cured by the immediate instruction of the court that the jury should not consider any remarks made by counsel reflecting upon the character of the defendant, as his character was presumed to be good.</p>

<p>APPEAL BOND-SUFFICIENCY-SURETY-QUALIFICATIONS.</p> <p>Under Bal. Code, § 6509, which provides that an appeal bond must be accompanied by the affidavit of the surety or sureties, in which each surety shall state that he is a resident of this state and is worth a certain sum mentioned in the affidavit, over and above all debts and liabilities, in property within this state, exclusive of property exempt from execution, and which sums so sworn to by the surety or sureties shall be at least equal to the penalty named in the bond if there be but one surety, or shall amount in all to at least twice such penalty if there be more than one surety, a bond will be deemed sufficient by the supreme court when it has but one surety, who justifies in the exact amount of the bond instead of double the amount thereof, and whose affidavit of justification, although he is a married man, does not state he is worth the sum mentioned in separate property, but merely follows the language of the justification prescribed by the statute.</p> <p>SAME-ATTORNEYS AS SURETY.</p> <p>The fact that the surety upon an appeal bond is an attorney at law would not disqualify him, in the absence of a statute prohibiting attorneys from acting in that capacity.</p> <p>SAME-ACKNOWLEDGMENT-AFFIDAVIT OF JUSTIFICATION.</p> <p>The fact that the acknowledgment and affidavit of justification upon an appeal bond are combined instead of being separately stated is not ground of objection, where the affidavit follows the demands of the statute.</p>

<p>Appeal from Superior Court, King County. — Hon. William K. Bell, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Righakdsoil, Judge.</p>

<p>ACTION FOR BREACH OF CONTRACT-SUFFICIENCY OF COMPLAINT.</p> <p>Where a complaint alleges a contract whereby defendants undertook to lighter a cargo of lumber from a vessel and deliver same to plaintiffs’ yard, and that defendants’ took possession of the lumber and delivered a portion thereof to plaintiffs, hut neglected and refused to deliver the remainder, it states a cause of action for the breach of a contract entitling praintiff to recover only such damages as naturally flow from failure to deliver, but the complaint cannot he held to allege conversion or the loss of the lumjber to plaintiff. (Dunbar, J., dissents).</p> <p>SAME-EVIDENCE.</p> <p>Under such a complaint, evidence tending to show loss of any portion of the lumber is inadmissible.</p> <p>SAME--INSTRUCTIONS-MEASURE OF DAMAGES.</p> <p>In an action to recover damages for the breach of a contract to deliver a cargo of lumber from the vessel to plaintiffs’ yards, in which the evidence shows that the lumber had been lightered to the beach and only a portion delivered to plaintiffs, hut there was no evidence as to the cost of hauling the undelivered portion from the beach to plaintiffs’ yards, an instruction was erroneous which charged the jury that, if they found for plaintiffs, the measure of damages would he such sum as it would cost plaintiffs to remove the remainder of the lumber from the beach to tbe yard, as tbe true measure was tbe difference between the actual cost and tbe contract price.</p>

<p>LIMITATION OF ACTION-NEW PROMISE-SUFFICIENCY.</p> <p>Under the rule that in order to revive a debt barred by the statute of limitations the promise to pay it must oe certain, definite, unequivocal, and unconditional, a letter by the debtor to the creditor stating that “That little amount that I owe you will be paid some time. I don’t know just how much it is. You say $1,000, but I never could figure that much. . I always thought that little Harry paid that debt, but as he did not settle it I’ll see into it some time,” is not an acknowledgment or promise sufficient to avoid the bar of the statute.</p> <p>SAME-SIGNATURE OF DEBTOR TO ACKNOWLEDGMENT.</p> <p>Under Bal. Code, § 4816, which provides thát no acknowledgment or new promise shall be sufficient to suspend the statute unless it be contained in some writing signed by the party to be charged thereby, the signing of the debtor’s name by another under his direction is a sufficient compliance with the statute.</p>

<p>HUSBAND AND WIFE — ACTION FOB MAINTENANCE-ABANDONMENT -SUFFICIENCY OF COMPLAINT.</p> <p>In an action for separate maintenance, tbe allegation in tbe complaint of abandonment of tbe wife by tbe busband is sufficient, when it states that the defendant several months prior to tbe commencement of tbe action, without cause or provocation, left the plaintiff, and has ever since and still does refuse to live and cohabit with her, and maintains that he will never live with or support her.</p> <p>SAME-LENGTH OF ABANDONMENT.</p> <p>The abandonment upon which an action for separate maintenance is based, need not have continued for the period of one year nor for any other fixed time in order to warrant the action.</p> <p>SAME-REFUSAL TO SUPPORT-EVIDENCE.</p> <p>In an action by the wife for separate maintenance, the evidence is insufficient to establish- the failure of the husband to support her, when there was no evidence of neglect to furnish support, or express refusal so to do, or that the wife was left in want of any necessary and usual requirement of one in her position in life, and the only facts shown tending to establish plaintiff’s case were that the husband refused to live with his wife, wanted her to get a divorce and refused to allow her to contract for groceries on his credit, while the evidence shows that even after abandonment he gave her a sum of money amply sufficient for her present needs, and there was nothing to show that he did not intend to continue her a periodical allowance.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. William O. Chapman, Judge.</p>

<p>EQUITY-BELIEF AGAINST MISTAKE OF LAW.</p> <p>Equity will relieve against a mistake of law, where the legal principle is confessedly' doubtful and. one about which ignorance may well be supposed, to exist, or where the adverse party seeks to gain, without consideration, an unconscionable advantage through the opportunities afforded him by the mistake, and the other party is innocent of blame.</p> <p>SAME-EQUITABLE RELIEF UNDER GENERAL PRAYER.</p> <p>Where a complaint states the facts in a case and prays for general as well as particular relief, relief may be granted under the general prayer consistent with the equities of the case, although the prayer for special relief may be defective.</p>

<p>APPROPRIATION OF WATER FOR IRRIGATION-ACTION TO QUIET TITLE-SUFFICIENCY OF COMPLAINT.</p> <p>In an action to quiet tbe title of contending claimants for tbe use of tbe waters of a stream, tbe complaint is sufficient as against an objection to tbe introduction of proof thereunder, when it alleges that plaintiffs are tbe. owners in fee simple and in possession of tbe first right to divert tbe waters of said stream for irrigation, stock and domestic' purposes.</p> <p>SAME-JOINT SUIT BY OWNERS OF LAND IN SEVERALTY.</p> <p>Owners of land in severalty, who have diverted the waters of a stream into a common ditch, under a joint act of appropriation, may maintain a joint action to quiet title thereto against other claimants.</p> <p>APPEAL-FINDINGS OF FACT-REMAND TO LOWER COURT FOR FINDINGS.</p> <p>Upon reversal of an equitable action involving priorities in the right of appropriation of waters, the supreme court' will not make findings of fact as tendered by plaintiffs, when no findings had been tendered by defendants and considered by the lower court, but will remand the case for findings by the lower court determining the priorities of the various claimants.</p>

<p>CRIMINAL LAW-EVIDENCE TENDING TO PROVE OTHER CRIMES-ADMISSIBILITY.</p> <p>In the prosecution for one crime, evidence showing the complicity of the accused in the commission of a second crime is admissible, where the testimony in relation to the second crime involves facts necessary to he shown in establishing the charge for which the accused is on trial.</p> <p>BURGLARY-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY.</p> <p>The refusal of the court to direct a verdict of not guilty was not error, when the evidence showed that the accused when arrested were in the company of others who admitted committing the burglary charged; that they had all been seen together on the evening of the burglary just outside the town where the' crime was committed; that the property taken was found in their possession; that a house occupied by Japanese, situated between the place of the burglary and the point where the accused were arrested, was visited the same night by four or five men and burglarized, some of the stolen property being in the possession of the party when arrested, and that the party of burglars went from the Japanese house in the direction in which the accused were afterwards found with the others at the time of arrest. The fact that one of the accused who had entered a plea of guilty testified that the crime was committed by two alone who pleaded guilty was merely for the jury to weigh in connection with the other circumstances shown.</p> <p>HARMLESS ERROR' — OPINION EVIDENCE.</p> <p>Allowing a witness to testify that the accused did not seem to show any curiosity to find out what he was arrested for, while technically erroneous as a statement of the witness’s conclusion, was not prejudicial error.</p>

<p>LARCENY-INFORMATION-DUPLICITY.</p> <p>An information charging larceny .which alleges the taking of different property from two different persons, without alleging that the taking was at the same time and place, other than the averment that it was on a given day in a certain county, is bad for duplicity and uncertainty, in contravention of the rules stated in Bal. Code, §§ 6844, 6842, requiring that the indictment .or information charge but one crime, in one form only, and that it must be direct and certain as regards the crime charged.</p> <p>SAME-POSSESSION OF RECENTLY STOLEN PROPERTY-PRESUMPTIONS.</p> <p>An instruction in a prosecution for burglary that if the jury believe the defendant was found in the possession of the property stolen, soon after it was stolen, “such possession is a strong criminating circumstance tending to show the guilt of the defendant,” was erroneous, under the rule in this state which treats the possession of recently stolen property as simply a fact to be considered by the jury as any other fact, and its weight is for the jury alone.</p> <p>CRIMINAL LAW-EXCESSIVE PUNISHMENT.</p> <p>The sentence of one convicted of crime to imprisonment for just one half of the maximum penalty provided by statute is not so excessive as to call for the interference of the supreme court with the discretion exercised by the lower court in imposing the sentence.</p>

<p>Appeal from Superior Court, King County.' — Hon. Arthur E. Gbieein, Judge.</p>

<p>APPEAL-TWO STATEMENTS OF FACT-CERTIFICATION OF BOTI-I.</p> <p>Where a statement of facts proposed by appellant and an amended statement proposed by respondent, are certified by the trial court as together containing the matters and proceedings occurring in the cause, the supreme court will treat the combined statements as constituting properly a part of the record, especially when no objection was made in the court below against both proposed statements being made a part of the record.</p> <p>SAME-SUFFICIENCY OF EVIDENCE TO SUPPORT VERDICT.</p> <p>Where the testimony is conflicting, the verdict of the jury should not be disturbed, unless it appears that the court has submitted the case under instructions which embody an erroneous view of the law.</p> <p>CARRIERS SALE OF TICKETS BY BROKER UNSAFE APPROACHES TO TICKET OFFICE LIABILITY OF CARRIER BURDEN OF PROOF- — -INSTRUCTIONS.</p> <p>In an action by an intending passenger to recover damages for injuries received because of the defective condition of depot grounds, where the evidence showed that the ticket agent was not the employee of defendant, but of another company' who owned the premises, an instruction that a railway company which places its tickets in the hands of another for sale would not necessarily be required to keep the premises where such persons might conclude to sell such tickets, or the approaches to such places, in repair, was erroneous, on the ground that it placed the burden upon the ticket purchaser to first ascertain whether he was dealing with a broker or with an agent of defendant, before he might assume that defendant was bound to furnish a safe approach to and from its depot.</p> <p>SAME-UNION DEPOT GROUNDS- USE BY CARRIER-LIABILITY FOR UNSAFE APPROACHES.</p> <p>A railway company which uses and occupies premises for depot purposes is not relieved from liability for the unsafe condition of the approaches to such premises by the mere fact that another may own and control the depot grounds.</p>

<p>Appeal from Superior Court, King ^County. — Hon. E. T>. Benson, Judge.</p>

<p>BOUNDARIES —- GRANTS BY GENERAL GOVERNMENT-MEANDER LINES-HIGH WATER MARK-SHORE LANDS-TITLE OF STATE.</p> <p>Grants made by the federal government of portions of the public lands bordering on or bounded by navigable waters convey the title to ordinary high-water mark, where the meander line and the line of ordinary high-water m!ark do not correspond, notwithstanding the tract is described in the grant as bounded by the meander line of such waters; consequently the title relinquished to the state by the general government to all' tide and shore lands is applicable only to such lands as lie between high and low-water mark, not such as lie between the meander line and low-water mark. (Scurry v. Jones, 4 Wash. 468, and Cogs-well v. Forrest, 14 Wash. 1, distinguished.)</p> <p>SAME-TITLE TO LAND CREATED BY EROSION AND FILLS.</p> <p>The state cannot assert title to shore lands upon navigable waters within the boundaries of private ownership, when such lands have been formed by the erosion of the banks or fills caused by artificial means.</p> <p>APPEAL-EQUITY CASES-ABUSE OF COURT'S DECISION IN RE-OPENING CASE FOR EVIDENCE — • HARMLESS ERROR.</p> <p>Although a trial court may have abused its discretion in reopening a case and admitting additional testimony after it had been closed, the supreme court would not, in an equity case which it tries de novo, do more than disregard such evidence and would determine the case on what was properly in the record.</p>

<p>HIGHWAYS-DEDICATION-PLEADING.</p> <p>In an action to compel defendant to remove obstructions from a public road and to restrain him from thereafter obstructing the highway, the complaint alleged “that during all of the times . . . there has existed a lawful highway or public road thirty feet in width extending across a portion of said forty acres above described in this paragraph of the complaint, which highway was and is for the use, travel, and accommodation of the said plaintiff and all of inhabitants and of the public in general;” and alleged, further, that no other highway or public road exists across the said premises except the one hereinbefore referred to. Held, that the complaint was broad enough to allow facts to be proven showing the establishment of a road by prescription, dedication, or otherwise.</p> <p>SAME •— EVIDENCE.</p> <p>' Dedication of a highway is sufficiently established where the evidence shows that a land owner voluntarily laid out a road through his lands, which was maintained for about three years; that he then fenced it, but afterwards agreed with the county commissioners that in consideration of the abandonment by them of another route surveyed through his land, he would grant the right of way for the road which had been used for three years, placing gates where the fences across it were, and within eight months fence his land so that thereafter the road could be used without obstruction by the public.</p>

<p>RAILROADS-NEGLIGENCE-SETTING OUT FIRE ON RIGHT OF WAY — DAMAGES TO PROPERTY OWNER-SUFFICIENCY OF EVIDENCE.</p> <p>Although there was no direct evidence of a fire having been started by sparks or cinders falling -from a passing engine upon the debris on the railroad right of way and communicating thence to plaintiff’s adjoining premises, the jury is warranted in finding that the fire so originated, when the evidence showed that there was quite an accumulation of dry, inflammable debris upon the right of way; that the plaintiff’s barn on the side toward the railroad was discovered to be on fire after the passage of defendant’s train, and there had been no fire about the barn premises prior thereto; that at the same time the barn was burning the debris on the right of way was seen to be on fire; and that this debris had twice been set afire in the immediate vicinity of the barn by passing trains prior to the occasion upon which plaintiff’s barn was burned.</p> <p>SAME-CONDITION OF RIGHT OF WAY-EVIDENCE.</p> <p>For the purpose of showing the condition of a railroad right of way on the question as to whether it contained inflammable material, evidence is admissible of other fires on the right of way in the vicinity of the one in controversy.</p> <p>SAME — INSTRUCTIONS ORIGIN OF FIRE.</p> <p>In an action for damages for loss of property caused by fire being set out through defendant’s negligence, in which one of the issues was whether there was material on the right of way capable of being ignited by sparks escaping from a passing engine, it was not error for the court to charge the jury to disregard the evidence of fires other than the one directly in issue in this case, “except for the purpose of showing the condition of the right of way adjacent to the barn at the time of the fire in question, if the same tends to show said condition.”</p> <p>SAME-DEGREE OF CARE.</p> <p>In an action against a railway company for damages to plaintiff’s property resulting from fire starting on its right of way, a charge to the jury that defendant was required to exercise such care as “reasonably careful and pruaent railway companies” generally exercise under circumstances entirely similar to all those which then surrounded the right of way adjoining or adjacent to plaintiff’s barn, was not erroneous in making the degree of care such as “railway companies,” instead of such as “persons,” generally exercise under similar circumstances.</p>

<p>MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — POWERS OF COUNCIL — INTERFERENCE OF COURTS.</p> <p>In an action to restrain the construction by the city of an elevated bridge in the street in front of plaintiffs’ premises the complaint states no ground for equitable relief when it contains merely general allegations of fraud and want of consideration on the part of the council in ordering the improvement, since the courts cannot interfere with the council’s action in the matter of improving streets, unless it is shown to be arbitrary, or without consideration for the public, or an abuse of the council’s discretion in the manner of making the improvement.</p> <p>SAME-STRUCTURES IN STREET-SHUTTING OFE LIGHT, AIR, AND ACCESS — COMPENSATION.</p> <p>One’s right to light, air, and access necessary to the use and possession of a lot abutting on a public street is property, for which he is entitled to compensation by reason of the erection of a bridge or structure in the street in front of his premises before the injury thereby occasioned is done.</p> <p>SAME-ESTOPPEL.</p> <p>A city council cannot appropriate or damage property and determine the compensation therefor in proceedings for the improvement of a street and the levy and collection of taxes therefor by local assessment district; hence the failure of one whose property has been damaged by the construction of a public improvement to appear and object in the proceedings leading up to the levy of an assessment upon the abutting property by reason of such improvement would not estop him from claiming damages to his property.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. William H. Snell, Judge.</p>

<p>BRIEFS — ASPERSIONS ON TRIAL COURT.</p> <p>An appellant’s brief will be stricken from the files of the supreme court, when it characterizes the action of the trial court in discharging a jury and entering judgment for defendant as “an uncommon example of judicial ignorance and extra judicial assumption of power and usurpation of the functions of the jury.”</p> <p>SAME- — -IMPERTINENT LANGUAGE IN RESPONDENT’S BRIEF- — JUSTIFICATION FOB.</p> <p>Respondent’s brief will not be stricken on the ground of containing scurrilous, scandalous and impertinent matter in that it refers to appellant’s brief as a "coarse and brutal aspersion upon the trial court,” and adds “it is easy to conceive how one So lost to all sense of propriety as to refer to an upright judge in language so coarse,” etc., where such denunciation has been provoked by the language used by appellant in his brief.</p> <p>SAME-MISREPRESENTATION OF RECORD.</p> <p>A brief will not be' stricken on the ground that it misstates the facts and misrepresents the record, but the court determines for itself in considering the case what the real facts are from an examination of the record.</p>

<p>CONTRACTS-AGAINST PUBLIC POLICY-INTEREST OF OFFICER IN CITY CONTRACT.</p> <p>The interest of a councilman in a contract entered into by the city for the improvement of a street is established when it appears that such councilman was at the time a large stockholder and business manager of a lumber company, and that as such business manager he sold to the contractor the material to construct the improvement under an agreement to receive the improvement warrants in payment therefor.</p> <p>SAME-ENFORCEMENT OF ASSESSMENT FOR STREET IMPROVEMENT-3STOPPEL-VALIDITY OF CONTRACT.</p> <p>The fact that a property owner stood by and allowed the city to improve a street upon which his property abutted, without raising any objection to the letting of the contract or the levy of the assessment would not estop him in an action to enforce the assessment from setting up the illegality of the contract by reason of the interest of a member of the city council therein, since, under Bal. Code, § 968, which forbids city officers from being interested in city contracts, and provides that “any claim for compensation for work done, or supplies or materials furnished, in which any such officer is interested, shall be void, and, if audited and allowed, shall not be paid by the treasurer,” such contract is shorn of all equitable features, and the duty imposed on the court of declaring the contract void, whenever its illegality appears from the evidence.</p> <p>SAME-RULE APPLICABLE TO STOCKHOLDER.</p> <p>The interest of a stockholder of a corporation in corporate contracts brings such stockholder within the reason of the rule prohibiting a city officer from being interested as an individual in the city’s business.</p>

<p>SPECIFIC PERFORMANCE-SUFFICIENCY OF COMPLAINT.</p> <p>The complaint in an action for specific performance states a cause of action wh§n it alleges that defendant agreed to purchase and pay for a pottery plant with the land and personal property connected therewith, taking the deed in his own name and holding a one-half interest therein as trustee for plaintiff, under an agreement to convey a one-half interest therein to plaintiff upon the latter’s payment of one-half of the purchase price, and that plaintiff has tendered his share of the purchase price, but that defendant refuses either to receive same or to make said conveyance. Such complaint is not open to the objection that it discloses a contest over partnership property for which the proper action would be one of dissolution and accounting.</p> <p>SAME-COMMUNITY PROPERTY-ESTOPPEL OF WIFE.</p> <p>When the husband has customarily conducted all the community property business of himself and wife, and the wife knew of a contract between her husband and plaintiff regarding her husband’s purchasing certain property in his own name in trust for plaintiff, such contract is enforcible against the wife, although she was not a party thereto..</p>

<p>FALSE REPRESENTATIONS-AUTHORITY OF AGENT TO MAKE-SUFFICIENCY OF COMPLAINT.</p> <p>In an action against defendants for false representations alleged to have been made by their agents in the sale of real estate, the complaint is proof against demurrer based on the ground that no authority is shown in the agents to make the representations, where it alleges that the agents represented themselves as agents as to all things relative to the building and property and particularly as to all matters and things connected with the sale of the same; that the agents had full authority to sell the same and to represent the defendants in all things connected therewith, when these allegations are combined with the further averment that the representations were made to plaintiff by defendants through their agents.</p> <p>SAME-ACTION FOR DAMAGES-PROPOSED RESCISSION AS A DEFENSE.</p> <p>Where one claiming to have been led into a contract by means of false representations elects to affirm the'contract and sue for damages, instead of bringing an action for rescission, defendants cannot set up the defense that they offered to rescind the sale and refund to plaintiff the money paid thereunder.</p> <p>SAME-NON-SUIT.</p> <p>In an action to recover damages because of false representations by defendant’s agents as to the condition of the foundation under a building sold to plaintiff, plaintiff should be non-suited when no authority of the agents to bind their principal by representations was shown, but merely an authority to sell the property and receive the purchase money; and when it appears the agents informed plaintiff as to what builder constructed the foundation and the plaintiff could readily have ascertained the„ character of the foundation from him, instead of relying upon the statements made by the agents.</p> <p>PRINCIPAL AND AGENT- — AUTHORITY TO WARRANT NOT IMPLIED FROM AUTHORITY TO SELL.</p> <p>The authority of an agent to collect and remit rents, pay taxes, and look after ordinary repairs, combined with an authority to sell the premises, woultL not carry with it authority to bind the principal by any representations the agent might make as to the condition of the property.</p>

<p>Appeal from Superior Court, King County. — Hon. George Meade Emory, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. Arthur E. Griffin, Judge,</p>

<p>ADVERSE POSSESSION-DISSEIZIN-SQUATTERS.</p> <p>One who squats upon land which is in litigation between other parties, erects a shanty thereon, intending it for temporary use as a residence, but continues his residence there for more than ten years, does not thereby acquire such a title by adverse possession as to bar an action for its recovery by the true owner, since Bal. Code, § 4797, which provides that “no action shall be maintained for such recovery unless it appear that the plaintiff, his ancestor, predecessor, or grantor was seized or possessed of the premises within ten years before the commencement of the action,” contemplates that the adverse possession must be under some claim of right or title, or maintained after disseizin of the original owner has been effected by hostile entry.</p>

<p>Appeal from Superior Court, Skagit County. — Hon. Geoegke A. Joiner, Judge.</p>

<p>TIDE LANDS-IMPROVEMENTS BY BOOM COMPANIES-APPRAISEMENT APPROPRIATION OF STATE LANDS.</p> <p>Under Laws 1889-90, p. 470, and Laws 1895, p. 128, authorizing the formation of hoom companies and providing that they shall have power to acquire and hold, huy, lease, or purchase real property necessary for carrying on their business, and if the owners of land sought to he appropriated for such purposes will not agree as to the amount of compensation to he paid for the land, then the same may he determined under the statutes relating to eminent domain, there is no express or implied authorization to use the tide lands of the state except hy purchase or lease, inasmuch as the law in force authorized the acquisition of tide lands of the state at a fixed price or for the leasing of such lands under certain conditions; consequently the filing of a map of location hy a hoom company did not amount to an appropriation of the state’s tide lands, nor entitle it to compensation for improvements placed thereon subsequent to January 1, 1891.</p>

<p>Appeal from Superior Court, Spokane County. — lion.Leaothcr H. Prather, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon, Boyd J. Tallman, Judge.</p>

<p>Appeal from Superior Court, King County. — Hon. George Meade Emory, Judge.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. William H. Snell, Judge.</p>

<p>VACATION OF JUDGMENT-NOTICE OF APPEAL -— SUFFICIENCY FOB REVIEW OF ORIGINAL JUDGMENT.</p> <p>Notice of appeal which recites that it is “from an order, decree, and judgment . . . refusing to vacate and set aside the judgment rendered and entered herein, and for refusing to grant a new trial, and from each and every part thereof. Such judgment having been rendered and entered Sept. 13, 1900, andj Sept. 17, 1900, and the motion for new trial overruled Sept. 17, 1900,” is sufficient only for the review of the action of the court in refusing to vacate the original judgment; and does not bring up for review the orders made by the court prior to such original .judgment.</p> <p>•PARTIES-EIGHT TO NOTICE OF PROCEEDINGS-EFFECT OF DEFAULT.</p> <p>Bal. Code, § 4886, which provides that defendant, after appearance in an action, is entitled to notice of all subsequent proceedings, is not applicable where defendant has been adjudged to be in default, and hence notice of proceedings subsequent to • default is unnecessary.</p>

<p>Appeal from Superior Court, Pierce County. — Hon. Thad. Huston, Judge.</p>

<p>Appeal from Superior Court, Spokaue County. — Hon.. Leandbr H. Prather, Judge.</p>

<p>Appeal from Superior Court, Thurston County. — Hon. Oliver V. Linn, Judge.</p>

<p> Original Application for Mandamus. </p>

<p>Appeal from Superior Court, Thurston County. — Hon. Oliver V. Linn, Judge.</p>

<p>Appeal from Superior Court, Walla Walla County.— Hon. Thomas H. Brents, Judge.</p>

<p>Appeal from Superior Court, Lincoln County. — Hon. Charles H. Heal, Judge.</p>

<p>APPEAL-CESSATION OF CONTROVERSY-SATISFACTION OF JUDGMENT.</p> <p>Where defendant has deposited money in court to make good a tender, and the court, without the consent of defendant, has applied such money pro tanto upon a judgment recovered for a greater sum, the acceptance of such money by plaintiff does not operate as a satisfaction of the judgment, and as depriving defendant of a right of appeal on the ground of a cessation of the •controversy.</p> <p>LOGGERS’ LIEN-ENFORCEMENT-OWNER NECESSARY PARTY.</p> <p>Where the owner of saw logs is not a party to an action to enforce a lien thereon, the court has no jurisdiction to decree a foreclosure of the lien upon the logs. •</p>

<p>INJUEY TO MINOR SERVANT-ASSUMPTION OF RISK-QUESTION FOE JUEY.</p> <p>■ Whether a boy fourteen years of age had intelligence and experience enough to appreciate the danger of getting between two cars in a coal mine drawn by a wild mule to operate the brakes thereon, in the performance of work required of him by the mine superintendent without haying been informed of its dangerous character, is a question for the jury, as the question of his assumption of an obyious risk would depend upon the degree of his intelligence and experience, and is not a matter of law, but one of fact for the jury to determine.</p>

<p>NEGLIGENCE-PROXIMATE CAUSE-RUNAWAY HORSE-COLLISION WITH PROJECTING CAR TRACKS.</p> <p>Where plaintiff was injured as a result of ber borse running away and dashing tbe wheels of ber buggy against tbe projecting rails of a street railway, tbe action of tbe court in setting aside a verdict in ber favor and granting a new trial, on tbe ground that tbe running away of tbe borse and tbe loss of its control was tbe proximate cause of the accident, was erroneous.</p> <p>NEW TKIAL-GBOUNDS-BEVIEW ON APPEAL.</p> <p>Although a motion for a new trial may have presented several grounds therefor, yet where the court distinctly confines its ruling to but one of the grounds named, and that a question of law, the supreme court will not on appeal, on overruling the motion upon the ground sustained by the lower court, look into other grounds assigned to ascertain whether the motion should have been sustained upon any of them.</p>

<p>MUNICIPAL CORPORATIONS-PRESENTMENT OF CLAIM FOR INJURIES-CHARTER REGULATIONS AS TO TIME-REASONABLENESS.</p> <p>A provision of a city charter requiring claims for damages against the city to be presented within thirty days as a condition precedent to suit demands only a reasonable compliance with its terms; and a question of fact for the jury may properly be raised in that respect, as to whether or not plaintiff was physically or mentally incapacitated from literally complying therewith.</p> <p>SAME-STATEMENT OF CLAIM-SUBSEQUENT DEVELOPMENT OF INJURIES.</p> <p>A provision of a city charter requiring a claimant against the city to state the cause, nature and extent of his injuries, and the amount of damages sustained thereby within thirty days after receiving them is a reasonable regulation, although the full extent of the injuries may not be ascertainable within that period; since a reasonable compliance with such regulation by stating as near as possible the amount of damages is all that is required, in view of the fact that the claimant may at the time of trial show damages developing subsequent to the date of notice to the city.</p> <p>SAME- — -DEFECTIVE STREETS-ACTUAL NOTICE TO CITY AS CONDITION PRECEDENT TO SUIT-REASONABLENESS.</p> <p>A charter provision to the effect that the city shall not he liable for damages for injuries sustained in consequence of any street or sidewalk being out of repair, unsafe, or dangerous, unless actual notice of such defect shall have been given to the street superintendent or the city council twenty-four hours before such injury is sustained, is an unreasonable regulation amounting to a denial of justice and therefore void.</p> <p>SAME-NEGLIGENCE-CONSTRUCTIVE NOTICE OF DEFECTIVE STREETS.</p> <p>A city is chargeable with notice of a dangerous opening and its condition, in the sidewalk or street, although actual notice may not have been brought home to it, if it appears that the street or sidewalk has continued in such condition for such a length of time that the city, by the exercise of ordinary care, might have learned thereof.</p>

<p>Appeal from Superior Court, Jefferson County. — Hon. George C. Hatch, Judge.</p>

<p>Appeal from Superior Court, Spokane County. — Hon. William E. Richardson, Judge.</p>

<p>Appeal from Superior Court, Stevens County. — Hon. William E. Richabdson, Judge.</p>