Volume 51 — Washington Reports

, entered December 9A, 1907, upon findings in favor of the defendants, after a trial before the court with-put a jury, in an action to enforce a trust in lands.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered September 22, 1908, in favor of the plaintiffs upon an agreed statement of facts.</p>

<p>Drains — Drainage Districts — Proceedings — Preliminary Costs —Liability of Land — Benefits. Under Laws 1895, cb. 115, authorizing the organization of a drainage district where an improvement would be of special benefit to a majority of the lands included in the proposed boundaries, property included in the district which was found to be not benefited may-be • proportionally.-taxed -with all the other land in the district to pay the preliminary expenses to ascertain whether the proposed improvement should be carried’ out, upon abandonment and dismissal of the proceedings for lack of sufficient benefit to cover the cost; the power to levy such tax being incident to the main power conferred, and is not affected by failure of the contemplated improvement.</p> <p>Same — Objections—Waiver. A land owner who makes no objections to proceedings to establish a drainage district until after decree is made, is estopped to object to anything except the constitutionality of the law.</p> <p>Same — -Taxation—Power to Levy Costs of Proceedings. The power of the legislature to authorize the levy of a tax upon a drainage district to pay the preliminary expense of ascertaining whether the improvement shall be made, does not depend upon whether the district is a municipal corporation, and the tax cannot he objected to where the burden was voluntarily assumed by a vote of the people-of the district.</p> <p>Statutes — Title and Subjects — Amendments. Laws 1903, p. 90,. relating to drainage districts, does not violate Const, art. 2, § 37, providing that no act shall he revised or amended without setting out the same in full, since the same is a complete law of procedure-within itself.</p>

<p>Homicide — Evidence—Dying Declarations. A dying declaration is admissible, although it did not contain the express declaration that deceased believed she was about to die and she did not actually so state, where it appears from other evidence that she believed she was in extremis, and did die from the illness from which she was suffering as the direct result of the injury.</p> <p>Same — Extremis. It sufficiently appears that a dying declaration was made in extremis, where the deceased was informed by a physician that the wound was mortal, that she was rational and realized the fact and said that she did not think that she could get well, and gave directions as to her burial and the care of her children.</p> <p>Same — Contents—Prior Threats — Instructions. It is not error to admit in evidence a dying declaration which contained a statement of prior threats, where the jury were instructed not to consider any reference therein to threats made by the defendant.</p> <p>Evidence — Objections—Sufficiency. An objection to a coroner’s record of an inquest because it was not complete does not raise the question of its relevancy or materiality.</p> <p>Same — Trial—Objections. A stipulation at a trial that exceptions shall be considered taken to all adverse rulings, does not obviate the necessity of necessary objections at proper times.</p> <p>Appeal — Preservation of Grounds — Objections. Objections to the evidence cannot be first raised on appeal.</p> <p>. Homicide — Premeditated Malice — Deliberation — Instructions. An instruction as to premeditated malice that there need be “no particular” length of time between the formation of the intent to kill and the killing is not objectionable as failing to recognize that there must be deliberation and time therefor.</p> <p>Criminal Law — Evidence—Sanity—Opinions of Expert. In a prosecution for homicide, committed by defendant after he had been drinking intoxicating liquor, opinions of a'physician testifying as an expert, as to the probable effect thereof upon his mind, are admissible upon an issue as to defendant’s sanity.</p> <p>Homicide — Deliberation — Evidence — Sufficiency. There is sufficient evidence of deliberation in the murder of defendant’s wife, where it appeared that they had quarreled the day before and on the morning of the shooting, and that they separated and defendant procured a revolver and returned, making a trip of two miles, drew his revolver while holding her, and shot her while she was running away.</p> <p>New Trial — Newly Discovered Evidence. A new trial for newly discovered evidence is properly denied where the same is merely cumulative.</p> <p>Indictment and Information — Homicide—Charge of Killing— Sufficiency. An information for murder in the first degree sufficiently charges that the accused killed the deceased and the means by which it was done, where it alleges that he shot her by the use of a revolver pistol, producing a mortal wound from which she died the next day.</p>

, entered March 9, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a mill.

, entered June 29, 1908, in favor of the plaintiff, upon an agreed statement of facts, in an action to foreclose a chattel mortgage.

<p>Gaming — Keeping Gambling Resobt — Elements of Offense— Pool Selling. The keeping and having in charge of a public house or resort and engaging in betting, winning, and losing money in selling pools on horse races to persons congregating and resorting in such place for that purpose, may be informed against under Bal. Code, § 3096, providing that all public houses or places of resort where gambling is carried on or permitted are nuisances, and that the owners or keepers are punishable therefor as thereinafter provided; and this, whether or not selling pools on horse races is “gambling” within Bal. Code, § 7260, defining gambling and prescribing a punishment therefor; since the acts defined are not the only ones that constitute gambling.</p>

, entered April 6, 1908, upon findings in favor of the defendants, dismissing on the merits an action for the contract price of land sold, after a trial before the court without a jury.

, entered January 20, 1908, úpon findings in favor of the plaintiff, after a trial on the merits, in an action to foreclose a mechanics’ lien.

, entered May 14, 1908, confirming an assessment for benefits by a local improvement in condemnation proceedings instituted by a city, upon an appeal from an order of the city council confirming the assessment.

<p>Appeal from an order of the superior court for King county, Morris, J., entered May 5, 1908, confirming an assessment for benefits by a local improvement in condemnation proceedings instituted by a city, upon an appeal from an order of the city council confirming the assessment.</p>

, entered June 29, 1908, in favor of the defendants, dismissing an action to annul a local improvement assessment, upon sustaining a demurrer to the complaint.

, entered January 28, 1908, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, upon stipulated facts and the opening statement of counsel, in an action of ejectment.

, entered May 7, 1908, in favor of the plaintiffs, upon stipulated facts, in an action of ejectment arid to quiet title.

, entered March 21, 1908, upon findings in favor of the defendant, in an action to determine the right to proceeds of a sale of real property.

, entered January 30, 1908, in favor of the defendants, dismissing an action to reform a deed as a mortgage, and to redeem therefrom, after a trial on the merits before the court without a jury.

, entered February 14, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a passenger permitted to alight from a street car at a dangerous place while in an intoxicated condition.

Original application filed in the supreme court October 26, 1908, for a writ of mandate to compel the secretary of state to certify certain nominations.

, entered January 12, 1907, setting aside a nonsuit and granting a new trial, in an action for personal injuries sustained by an employee through the' breaking of a cable.

, entered March 26, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to enforce a lien against a vessel for damages.

, entered April 16, 1908, upon findings in favor of the defendants, dismissing an action to quiet title, after a trial on the merits.

<p>Discovery — Interrogatories —■ Materiality — Striking Out —- Waiver of Error. Defendant’s right to demand interrogatories tending to a discovery of tbe fact that plaintiff was under age and incapacitated from suing, which were struck out because her complaint alleged that she was only nineteen, is waived if not renewed after amendment of the complaint to show that she was twenty-three.</p> <p>Seduction — Action for Damages — Statutes—Extraterritorial. Effect — Evidence—Presumption as to Laws of Sister State. Bal. Code, § 4831, providing that an action for seduction may be maintained by an unmarried female authorizes a suit in this state for a seduction committed in another state or territory, in the absence of allegation as to the laws of the sister state, the presumption being that they are the same as the laws of this state.</p> <p>Same — Inducements—Evidence—Sufficiency. The evidence is sufficient to show a prima facie case of seduction, where, although the plaintiff’s evidence showed a case of rape in the first instance. she consented to the continuation of relations for several months, on the promise of the defendant to protect her and by reason of her frame of mind produced by the first ravishment.</p> <p>Same — Previous Chaste Character of Plaintiff — Weight of Evidence — Question for Jury. In an action for the seduction of an actress, employed in a dance hall and saloon to sell liquor and entertain customers, the previous chaste character of the plaintiff and the weight of her evidence, as against that of the defendant, who admitted that he was one of the proprietors of the place and that the same was a house of ill-fame, is for the jury.</p>

, entered May 19, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained in a fall upon a sidewalk.

<p>Appeal — Review—Error Favorable to Appellant — New Trial— Verdict — Remission of Excess. Where, in an action on quantum meruit for services performed, no exception was taken to an instruction that the plaintiff was entitled to recover the whole sum demanded, if anything at all, the defendant cannot allege error in that the court inconsistently required the plaintiff to remit a part of the verdict, as that was favorable to the defendant.</p> <p>New Trial — Newly Discovered Evidence — Lack of Diligence. A new trial asked on the ground of newly discovered evidence is properly denied for want of diligence, where the action was for drawing architect’s plans, and the new evidence was that of expert witnesses at the trial who had since made an examination of the plans and claimed that they were defective.</p> <p>Same — Controverted Affidavits — Discretion. Where affidavits in support of a motion for a new trial for newly discovered evidence are controverted by affidavits by the adverse party, it is discretionary to grant or refuse a new trial.</p>

, entered December 11, 1907, dismissing an action to enjoin the letting of a contract for municipal printing, upon sustaining a demurrer to the complaint.

<p>Physicians and Surgeons — License—Offenses—What Constitutes Practicing — Advertising as “Dr.” — Statutes—Construction. It is competent for the legislature to prohibit advertisement or the use of the words “Physician” and “Doctor” without first securing a license as a physician, and to provide that such use shall constitute “practicing medicine”; and it is immaterial that the words were used in connection with “Osteopathic and Magnetic” or “Drug-less”, or that the abbreviation “Dr.” was employed in place of “Doctor.”</p> <p>Statutes — Title and Subjects — Sufficiency. The title to an act to regulate the practice of medicine and surgery is sufficiently broad to include provisions making it unlawful for an unlicensed person to call or advertise himself as “Physician” or “Doctor.”</p>

<p>Appeal from an order of the superior court for King county, Gilliam, J., entered May 7, 1908, granting a new trial, after a nonsuit in an action for wrongful death.</p>

, entered May 25, 1908, granting a new trial in an action for personal injuries, after a verdict of a jury rendered in favor of the defendant.

, entered December 14, 1907, upon the verdict of a.jury rendered in favor of the defendants by direction of the court, after a trial on the merits, in an action for personal injuries sustained by an employee loading a ship.

■ Appeal from a judgment of the superior court for Snohomish county, Black, J., entered October 19, 1907, upon the verdict of a jury rendered in favor of the plaintiff for the sum of $8,500, for injuries sustained in a fall upon a defective sidewalk.

• Appeal from a judgment of the superior court for King county, -Griffin, J., entered January 20, 1908, in-favor of the defendant, notwithstanding the verdict of £t jury reiidered in favor of the plaintiff, in -an action for personal injuries sustained by an employee.

, entered February 15, 1908, in fayor of the plaintiff, in an action for conversion, after a trial before the court without a jury.

, entered July 9, 1908, upon a verdict rendered in favor of the plaintiff, in an action for injuries sustained by the operator of a shingle machine.

, entered April 14, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

, entered February 7, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered January 27, 1908, upon findings in favor of the plaintiffs for damages, after a trial before the court without a jury, in an action for the obstruction and diversion of a river.

, entered January 27, 1908, upon findings in favor of the plaintiffs for damages, after a trial before the court without a jury, in an action for the obstruction and diversion of a river.

, entered January 8, 1908, dismissing an action to set aside a tax deed and quiet title, upon sustaining demurrers to the complaint.

, entered January 20, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the recovery of money deposited for safe keeping.

<p>Appeal from a judgment of the superior court for King county, Honorable Daniel Kelleher, Judge pro tem, entered March 5, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.</p>

<p>Appeal from a judgment of the superior court fo;r King county, Albertson, J., entered January 18, 1908, in favor of the plaintiff, upon stipulated facts, in an action to set aside a tax title.</p>

<p>Navigable Obstructions — Damages from Boom — Act of God. Tbe maintenance of a boom in a navigable river whereby tbe overflow from extraordinary floods is turned against and washes away the opposite banks, renders the owner of the boom liable for the damages; and the same cannot be excused on the plea that an extraordinary flood is an act of God, where floods of equal or greater force had been known six or seven times, since the flood might have been reasonably anticipated.</p> <p>Same' — Instructions. In an action for damages from the maintenance of a boom in a navigable river, causing a flood to wash away the opposite banks, error in instructing that an extraordinary flood is an act of God, imposing no liability upon the owner of the boom for damage done, is not cured by a subsequent instruction to the effect that there would be no liability if the damage was caused by sudden unusual floods that could not be anticipated or guarded against; prejudice being presumed from error until the contrary conclusively appears from the record.</p> <p>Same — Damages — Mitigation. In an action for damages for diverting flood waters of a stream and washing away plaintiff’s barn and contents, it is error to instruct that the plaintiff cannot recover any damage for their loss, if he refused to permit the defendant to remove the property to another location of safety; since plaintiff was not hound to incur extraordinary expense disproportionate to the results, and there would he at least an element of damage in the choice of location and value of the property after it was moved.</p>

<p>Evidence — Parol Evidence to Vary Writing — Admissibility— Account Stated. In an action upon an account stated, which was to recover sums alleged to have been advanced and paid to defendant to be used by him in operating a certain mill, oral evidence on the part of defendant that the mill belonged to the plaintiff and was operated by him for the plaintiff and that the sums were paid for plaintiff’s benefit and at its request under a verbal contract for defendant’s remuneration, is not inadmissible as varying the terms of a written lease of the mill, claimed by the plaintiff to have been made to the defendant, where the existence of the lease was not an issue or mentioned in the pleadings, but merely a collateral matter disputed by the defendant, and incidentally raised at the trial to contradict the evidence of the verbal agreement.</p> <p>Evidence — Offer to Compromise — Admissibility. In an action on an account stated, .evidence of defendant’s offer to compromise is properly struck out.</p> <p>Appeal — Review—Verdicts. The verdict of a jury will not be set aside because against the preponderance of conflicting evidence.</p>

<p>Foreign Corporations — Actions—Process—Service on Agent— Doing Business Within State. A foreign corporation engaged in the business of assembling car load lots of household and other goods and forwarding them to, and distributing or storing 'them in, this state, through an agent located at S. in this state, which receives, distributes, or stores the goods here, is “doing business within this state,” within the meaning of Bal. Code, § 4875, authorizing the service of summons upon “any agent.”</p> <p>Contracts — Existence—Breach—Evidence—Question for Jury. The existence of a contract to forward goods from St. Paul to Tacoma, and its breach, is for the jury, where the plaintiff’s evidence was to the effect that there was a clean-cut contract for delivery at Tacoma without prepayment, and the defendant’s agent refused to forward the goods from Seattle to Tacoma without full prepayment of the charges.</p> <p>Carriers of Goods — Delivery—Charges — Collection — Prepayment — Instructions. In an action for conversion of goods it is proper to instruct that a “forwarder and distributer” of goods,, which contracts to make delivery at a certain place without prepayment of charges, cannot collect its charges until the goods are delivered at their destination, it being immaterial by what name the defendant designates the nature of its business.</p> <p>Same — Action for Non-Delivery — Conditions Precedent. A demand for goods to be delivered by the defendant at T. under a contract to pay charges on delivery, is not a condition precedent to an action for a conversion, where, before suit, the defendant’s agent refused to forward the goods until prepayment of the charges, as the demand is thereby waived.</p> <p>Same — Value of Goods — Evidence—Sufficiency—Presumptions. In an action for the conversion of goods delivered to the defendant at St. Paul to be forwarded to Tacoma, plaintiffs evidence of the value at St. Paul is sufficient evidence of the value at the time of their conversion, where the goods had not been used and were in possession of the defendant, and the defendant refused to show their real value at that time; as the presumption would arise that their value had not been reduced.</p>

, entered February 18, 1908, upon findings in favor of the plaintiff, in an action on contract, tried before the court without a jury.

, entered April 14, 1908, upon the verdict of a jury entered in favor of the plaintiff, in an action for the wrongful death of a passenger on a street car.

Appeal.from a judgment of the superior court for King-county, Gilliam, J., entered April 13, 1908, upon findings in favor of the plaintiff, after a trial before the court without a. jury, in an action on contract.

<p>Homicide — Murder in the First Degree — Indictment—Duplicity —Statutes—Construction. Under Bal. Code, § 7035, making it murder in the first degree to kill another purposely and of deliberate and premeditated malice, or in the perpetration or attempt to perpetrate any rape, arson, robbery or burglary, an information is not bad for duplicity in alleging, in the language of the statute, a killing, purposely and of deliberate and premeditated malice and while engaged in the perpetration and attempt to perpetrate the crimes of robbery and burglary; in view of Bal. Code, § 6800, abolishing all forms of pleading, and § 6850, providing that no information shall be deemed insufficient if the crime is set forth in ordinary language in such a manner that a person of ordinary understanding may know what was intended.</p> <p>Same — Information—'Definiteness. Under Bal. Code, § 7035, making it murder in the first degree to kill another while in the perpetration or attempt to perpetrate a rape, arson, robbery, burglary, etc., it is not necessary to state the details of the acts included in the crimes of robbery and burglary alleged, but it is sufficient to allege the perpetration or attempt to commit any of the included crimes in the language of the statute.</p> <p>Same — Evidence—Of Venue — Sufficiency. Where there was circumstantial evidence sufficient to justify the jury in finding that the deceased, who was last seen alive in Spokane county, had been killed in that county and his body thrown into a river forming the boundary line and had floated down and lodged on the other side of the river, in Stevens county, the fact that the body was found in Stevens county would not show want of jurisdiction in the superior court of Spokane county, or that the crime had been committed in Stevens county.</p> <p>Criminal Law — Evidence—Exhibits—Samples, of Handwriting —Genuineness—Competency. Where the accused denied the writing of a note tacked upon the cabin of the deceased the morning after he was last seen alive, samples of the accused’s handwriting, identified by competent evidence of their genuineness, are admissible in evidence as exhibits for comparison by experts, although the accused did not himself admit their genuineness on the stand.</p> <p>Criminal Law — Appeal—Exceptions. Error cannot be assigned on failing to grant a motion to view premises in a prosecution for a homicide, when the court delayed ruling “until later in the case,” no exception was then taken, and the motion was not renewed, nor anything further done except the noting of' an exception after the jury was instructed and had retired.</p> <p>Same. Error cannot be assigned upon instructions that were not properly excepted to.</p>

, entered June 29, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for services rendered.

<p>Judgments — Conclusiveness—Questions That Might Have Been Litigated — Partition—Accounting. A judgment in an action between co-tenants awarding to the defendants, after an accounting, an undivided one-half interest in the whole tract of thirty-two acres, upon the payment of a certain sum, which plaintiffs thereupon voluntarily received, is conclusive as to the defendants’ right to sixteen acres in a subsequent action for a partition; and precludes the plaintiffs from claiming that a sale of ten acres of the tract, made by plaintiffs pending the first suit, was for the joint benefit of both parties, where the defendants had no notice of such sale, and the plaintiffs received the purchase price without accounting therefor in the original suit, or offer to do so until after action for partition; since that 'question might have been determined in the original suit.</p>

Application filed in the supreme court, November 11, 1908, for a writ of mandamus to compel a trial judge to settle a proposed statement of facts.

, entered May 25, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained by a vendee through false representations in a sale of real estate.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 18, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries.</p>

, entered January 15, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover for services rendered.

, entered February 3, 1908, in favor of the defendants, upon granting motions to strike the complaint, for failure to comply with an order requiring a separate statement of causes of action.

, entered January 29, 1908, in favor of the defendant by direction of the court, at the close of a jury trial, in an action for personal injuries.

, entered November 22, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by an operator of a band saw.

, entered February 8, 1908, in favor of the plaintiff, after' a trial on the merits before the court without a jury, in an action upon a promissory note.

, entered December 10, .1907, upon findings in favor of the plaintiffs, in an action by vendors for the rescission of a contract to purchase land.

, entered February 27, 1908, in favor of the defendant by direction of the court, after a trial before the court and a jury, in an action on contract.

, entered December 18, 1907, upon findings in favor of the plaintiffs, in an action of ejectment, after a trial before the court without a jury.

, entered January 14, 1908, in favor of the defendant, dismissing an action on contract, upon sustaining a demurrer to the complaint.

<p>Appeal — Preservation oe Grounds — Objections Not Raised Below — Divorce—Title to Property. Where the pleadings in an action for divorce alleged the title to certain property to be in the husband, and the same was not an issue, he cannot, for the first time on appeal, claim that he held the title in trust for children under the will of a deceased wife.</p> <p>Divorce — Decree—Disposition oe Property. Upon granting a divorce, the court properly disposes of their property rights with regard to their respective merits, their subsequent condition, the party through whom the property was acquired and the burdens imposed thereon for the benefit of the children; and it is immaterial that the husband some years previously had conveyed the same to the wife upon consideration of love and affection and an agreement to live with him, which consideration had failed.</p> <p>Quieting Title — Persons Entitled. Where neither husband nor wife had any beneficial interest in property purchased in the name of the wife and by her conveyed to the owner, such owners title should be quieted, as against plaintiffs claiming as heirs of the wife.</p>

, entered May 7, 1908, upon findings in favor of certain defendants, in an action to foreclose a lien against their property.

, entered June 13, 1908, in favor of the defendant, dismissing an action for an injunction, after a trial on the merits before the court without a jury.

, entered November 29, 1907, upon findings in favor of the plaintiff, in an action of replevin, tried before the court without a jury.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered March 20, 1908, in favor of the plaintiff, in an action of ejectment.</p>

, entered January 6, 1908, in favor of the defendants, dismissing on the merits an action upon an indemnity, after a trial before the court without a jury.

<p>Sales — Delivery—Cash Payment — Breach—Vendee’s Inability to Pay Cash — Action by Vendee — Questions for Jury. Upon a sale of ties to be delivered “to ship’s tackle along the Columbia river,” the terms of payment being “cash on presentation of bill of lading, inspection certificate and invoice” at a certain bank in Portland, which suspended business, the purchaser cannot maintain an action for damages for nondelivery, where it was not prepared to pay cash; and such fact is a question for the jury, where it appears that the vendor engaged a tug to take the ties to the vessel, ascertained that no funds were at the bank for payment, and by telegraph refused delivery until arrangements for cash payment had been made, and vendors answered by telegraph that arrangements for cash payment through Portland banks had not been made and proposed to pay by a ten day’s sight draft.</p> <p>Appeal — Review—Harmless Error — Evidence—Sales—Measure of Damases. In an action for damages for failure to deliver ties sold to the plaintiffs, the admission of evidence of the expense of a journey taken to secure a settlement is not prejudicial error, where, by the instructions to the jury, the damages were restricted to the difference between the market and contract price, and towage expenses.</p> <p>Mount, X, dissents.</p>

, entered March 21, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by air employee in a mill.

, entered March 7, 1908, dismissing a prosecution for the violation of an ordinance, upon sustaining a demurrer to the complaint.

, entered December 23, 1907, directing the payment of money in the registry of the court to a judgment creditor, upon disallowing a claim for exemptions.

judgment of the superior court for King county, Albertson, J., entered January 7, 1908, upon findings in favor of the defendant, after a trial before the court without a jury, in an action to quiet title.

<p>Appeals from an order of the superior court for King-county, Frater, J., entered February 4¡, 1908, modifying a judgment respecting the custody of the minor child of the-parties.</p>

<p>Master and Servant — Assumption of Risks — Promise to Repair —Conditional Promise. The promise by the owner of a logging road, on the complaint of one employed as a locomotive engineer, to repair the railroad track at a dangerous curve as soon as its section boss returned, which would be in a “few days,” relieves the servant of the assumption of risks, where, in less than a week, the want of repairs caused an accident before such return; there being no distinction between an unconditional promise to repair and one to repair after a definite date or event, where the accident happens before such date or event.</p> <p>Same — Right to Rely on Promise — Question for Jury. Whether a defect in a railroad track is so bad and apparent that no prudent servant would use the same in reliance upon a promise to repair, is for the jury, unless the evidence leaves room for no two opinions on the subject.</p> <p>Trial — Province of Jury. The determination of the preponderance of conflicting evidence is for the jury, and not the appellate court.</p>

, entered January 4, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action on contract.

, entered October 4, 1906, adjudging a public use, in condemnation proceedings for a railroad right of way, after a trial before the court.

, entered April 15, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action to quiet title.

Griffin, J., entered February 8, 1908, upon the verdict of a jury rendered in favor of the plaintiff for loss of goods shipped, after a trial on the merits.

<p>Limitation op Actions — Frauds, Statute op — New Promise. Under Bal. Code, § 4816, which provides that no acknowledgment or promise shall he sufficient to take a case out of the operation of the statute unless the same is in writing and signed by the party to be charged, correspondence relating to several promissory notes given at different times is not sufficient to remove the bar of the statute of limitations, where it consists of detached fragmentary statements of different dates susceptible of different interpretations, and there is no clear and unequivocal reference to any particular debt from which a promise can be implied to pay all or any one of the notes, but a’ controversy as to the amount due appears.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered January 14, 1908, upon a trial and conviction of rape.</p>

, entered January 14, 1908, upon findings in favor of the defendant, after a trial before the court without a jury, dismissing an action for an injunction.

, entered April 27, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the operator of a gasoline engine.

<p>Certiorari to review a judgment of the superior court for Pacific county, Rice, J., entered April 23, 1908, adjudging a public use in condemnation proceedings, after a trial before the court.</p>

, entered July 2, 1908, in favor of the defendant by direction of the court, after a trial before a jury, in an action for personal injuries sustained through the wrongful act of defendant’s servant.

, entered March 28, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

, entered January %, 1908, dismissing on the merits an action to quiet title, etc., after a trial before the court without a jury.

, entered March 3, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action upon a judgment.

, entered February 1, 1908, upon findings in favor of the plaintiffs, in garnishment for debt, after a trial before the court without a jury.

, entered April 21, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action upon a bond.

, entered November 27, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action for unlawful detainer by a tenant,

, entered December 20, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action by a divorced wife to recover the cost of support of a child.

, entered April 24, 1908, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, upon the defendant’s refusing to offer any testimony at the close of plaintiff’s case.

, entered. February 15, 1908, granting plaintiff’s motion for a new trial, after a trial before the court without a jury.

<p>Taxation —Foreclosure — Summons by. Publication — Name oe Owner. Under Laws, 1901, p. 383, § 1, providing that the holder of a tax delinquency may give notice to the “owner of the property described in the certificate,” and Id., §3, providing that the names of the persons appearing on the assessment rolls as the owners of said property shall be considered the owners thereof, notice of foreclosure must be given to the actual owner or the owner described on the rolls, and not to the person erroneously named in the certificate of delinquency as the owner; hence where the property of John E. Carney was assessed on the rolls to J. E. Carney, and the certificate named J. G. Carney, the summons by publication was issued in the latter name, and the owner was misled and had no actual notice-of the suit, the tax foreclosure and deed is void.</p> <p>Same — Names—Middle Initial. A tax foreclosure of the property of John E. Carney, on publication of a summons against John G. Carney, cannot be sustained on the theory that the middle initial is no part of a person’s name.</p>

, entered November 12, 1907, in favor of defendants upon an agreed statement of facts, dismissing an action for the foreclosure of a mortgage.

<p>Appeal from an order of the superior court for Whatcom county, Neterer, J., entered April 6, 1908, -refusing to vacate a judgment of dismissal, after a hearing upon affidavits.</p>

<p>Sales — Rescission by Vendee — Breach of Warranty. The rule that an executed contract of sale cannot be rescinded for breach of warranty does not obtain where the warranty was fraudulently and deceitfully made.</p> <p>Appeal — Preservation of Grounds — Objections Below. The objection that there can be no rescission of a contract for breach of warranty cannot be raised for the first time in the supreme court, nor where an instruction to that effect was not excepted to in the court below.</p> <p>Tender — Evidence — Question for Jury. The sufficiency of a tender is for the jury, where there was evidence of an informal tender from which the jury might well conclude that a more formal tender would be vain and useless.</p> <p>Sales — Rescission by Vendee — Fraud—Waiver. The purchaser of a horse does not waive his right to rescind the sale for fraud by use of the horse after attempted rescission, where such use was merely to give necessary exercise and keep the horse in condition.</p>

, entered April 27, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action for specific performance of a contract to convey land.

<p>Appeal from a judgment of the superior court for Yakima county, Rigg, J-, entered February 25, 1908, granting a nonsuit, after a trial before the court and a jury, in an action to recover money stolen.</p>

, entered February 21, 1908, in favor of the defendant by direction of the court, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained from a blast.

Spokane county, Warren, J., entered January 24, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a benefit certificate of life insurance.

, entered December 20, 1907, upon findings in favor of the defendants, after a trial before the court without a jury, in an action to declare a trust and for an accounting.

, entered February 13, 1908, in favor of the plaintiff, after a trial before the court without a jury, in an action to enjoin the apportionment of a portion of the common school fund to a state normal school.

, entered November 23, 1907, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

<p>Brokers — Action for Commissions — Pleadings — Issues and Proof — General Denial. In an action to recover a broker’s commissions on an alleged contract of sale, the defendant may, under a general denial, offer evidence to show that the contract actually made was one other than that pleaded in the complaint.</p> <p>Evidence — Parol Evidence to Vary Writing — Brokers — Contract or Option. In an action to recover a broker’s commissions, oral evidence is admissible to show that a written contract of sale for $92,000 on which but $100 was paid was intended by the parties as an option only, since the rule excluding oral evidence to vary the terms of a writing does not apply except as between the parties to the contract.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered June 8, 1908, dismissing an action on contract, upon sustaining a demurrer to the complaint.</p>

, entered May 6, 1908, refusing to vacate the appointment of a receiver, after a hearing before the court upon affidavits, etc.

, entered November 26, 1907, upon findings in favor of the defendants, after a trial before the court without a jury, dismissing an action for an injunction.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 28, 1908, in favor of the defendants, upon their motion for judgment on the pleadings.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered March 7, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

, entered February 3, 1908, in favor of the plaintiffs by direction of the court, upon discharging the jury, in an action on contract.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 5, 1907, in favor of the defendant, upon granting a nonsuit, in an action for specific performance.</p>

, entered May 28, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title and recover possession of land.

Application filed in the supreme court, December 11, 1908, for a writ of mandamus directing the state auditor to issue warrants.

Appeal'from a judgment of the superior court for Walla Walla county, Brents, J., entered March 7, 1908, upon a trial and conviction of the crime' of burglary.

, entered March 14, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a stevedore for personal injuries.

, entered June 1, 1908, upon the verdict of . a jury rendered in favor of the plaintiffs, in an action for personal injuries to a traveler by team, caused by a defect in a street.

Application filed in the supreme court December 4, 1908, for a writ of prohibition to the superior court for Walla Walla county, Brents, J., to restrain proceedings under an information for seduction.

<p>Application for a writ of quo warranto to the Lieutenant Governor, filed in the supreme court January 13, 1909, heard upon demurrer to the petition.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered January 28, 1908, upoh findings in favor of the plaintiff, in an action to foreclose a mortgage.</p>

, entered May 4, 1908, upon findings in favor of the plaintiff,- after a trial before the court without a jury, in an action to foreclose a logger’s lien.

, entered April 11, 1908, in favor of the defendants by direction of the court, after a trial before the jury, in an action of ejectment.

, entered April 22, 1908, in favor of the defendants, upon sustaining a demurrer to the complaint, dismissing an action on a promissory note.

, entered April 17, 1908, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for the specific performance of a contract to convey real estate.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered. May 18, 1908, upon a trial and conviction of obtaining money under false pretenses.</p>

Application filed in the supreme court January 18, 1909, for a writ of mandamus to the secretary of state to compel the filing of articles of incorporation.

<p>Witnesses — Impeachment—Laying Foundation. It is not prejudicial error to permit impeachment of a witness without laying formal or regular foundation, where the conversation in question had been sufficiently called to the attention of the witness while on the stand, and he recalled the circumstances but denied the conversation.</p> <p>Appeal — Exceptions—Sufficiency. In an action for trespass an exception to instructions “to the effect that defendants must ascertain the line or they would be guilty of a wilful trespass,” does not raise any objection to an instruction that the burden of proof was upon the defendants to show a casual or involuntary trespass.</p> <p>Trespass — Damages—Excessive Verdict. A verdict for $974.19 for trespass in cutting trees is excessive where the testimony most favorable to the plaintiff showed the cutting of forty-seven trees of the stumpage value of $785.74, and the testimony that standing timber left was rendered less valuable was outside the issues, and there was no testimony as to the extent of depreciation of the value of standing timber or of the land.</p> <p>Trespass — Voluntary-—Evidence—Sufficiency. A finding that a trespass was not casual or involuntary is supported where defendants cut trees without having made an effort to locate section lines, which were easily located after the trespass.</p> <p>Same — Damages. Evidence that 250,000 to 390,000 feet of timber cut was of the value of from $1 to $2 per thousand should not warrant a finding that the fair value of the timber was over $500.</p>

Jurey, judge pro tempore, entered July 23, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for trespass.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered August 24, 1908, upon a trial and conviction of permitting live stock to run at large.</p>

<p>Appeal from a judgment of the superior court for Okanogan county, Steiner, J., entered March 7, 1908, in favor of "the defendánt, upon dismissing an action on contract, for failure of proof.</p>

Motion to dismiss an appeal from a judgment of the superior court for Chelan county, Steiner, J.. entered April 3, 1908, in favor of plaintiffs, in consolidated actions on contract.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner J., entered March 26, 1908, upon findings in favor of the plaintiff, in an action to quiet title.</p>

, entered June 6, 1908, granting a temporary injunction restraining the opening of a county road, after a hearing before the court.

, entered June 29, 1908, upon sustaining a demurrer to the complaint, in an action for personal injuries sustained by a pedestrian in a street.

, entered March 18, 1908, 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 Adams county, Zent, J., entered May 18, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for services.</p>

, entered October IS, 1908, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action to enjoin the letting of a contract for city printing.

<p>Judgments — Vacation—Grounds—New Trial — Surprise—Courts —Review by Same Court. Bal. Code, § 4953, authorizes a trial court to review and vacate its own order denying a new trial, taken against a party through mistake, inadvertence, surprise or excusable neglect.</p> <p>Same — Discretion. It is not an abuse of discretion to vacate an order denying a new trial, entered without notice to the moving party, after an agreement to submit the same at some future time to a visiting judge who died before the matter was submitted.</p> <p>Same — Courts—Power to Review Orders — Correction in Same Court. After vacating, for inadvertence and surprise, an order vacating the denial of a' new trial, the trial court has no discretion to vacate its last order, as it may not review its own orders for mere error of law.</p>

, entered May 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a passenger on a boat to recover for personal injuries.

Appeal b}r defendant from a judgment of the superior court for Spokane county, Poindexter, J., entered April 9, 1908, after a trial on the merits before the court without a jury, granting the plaintiff a money judgment and quieting title in the defendant, in an action by a wife for separate maintenance or a partition of property.

, entered April 15, 1908, dismissing-an action upon a claim against an estate, upon sustaining a demurrer to the complaint.

, entered May 5, 1908, confirming an assessment for benefits by a local improvement in condemnation proceedings instituted by a city, upon an appeal from an order of the city council confirming the assessment.

Application filed in the supreme court, December 11, 1908, for a writ of mandamus directing the state auditor to issue warrants.