Volume 54 — Washington Reports

, entered March 20, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in proceedings supplemental to execution.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entéred December ££, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered February 5, 1909, in favor of the plaintiff, granting a writ of mandate to compel the issuance of a permit to lay gas mains in certain streets of a city, after overruling a demurrer to the affidavit.

, entered October 1, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered September 1, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.</p>

, entered January 11, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin the collection of taxes assessed against railway property.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered February 25, 1908, upon a trial and conviction of the offense of practicing medicine without a license.</p>

, entered March 7, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action to recover upon an appeal bond.

<p>Master and Servant — Contract oe Employment — Breach—Damages. Upon breach of a contract to employ plaintiff for the term of one year, and to furnish material to build a house and house rent free during the employment, the measure of plaintiff’s damages includes expenditures in building the house, although he was still living in it with rent free; as the house was not built independently of the contract, and he was not living in it under the contract after repudiation of the contract by the employer.</p>

, entered January 11, 1908, upon findings in favor of the plaintiffs, after a trial on the merits before the court and a jury, in an action for cancellation.

, entered April 11, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a conductor of a railway train through a collision.

Cross-appeals from a judgment of the superior court for Okanogan county, Steiner, J., entered December 3, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

<p>Appeal from a judgment of the superior court for Chelan, county, Steiner, J., entered April 3, 1908, upon findings in favor of the plaintiffs, in consolidated actions on contract, after 'a trial on the merits before the court without a jury.</p>

<p>Appeal from "a judgment of the superior' court for Ring county, Tallman, J., entered November 30, 1908, dismissing a petition to vacate a decree of divorce, upon sustaining a demurrer thereto.</p>

<p>Appeal from an order of the superior court for King county, Morris, J., entered December 2, 1908, vacating a default judgment, on motion of the defendants.</p>

<p>Appeal from an injunctional order of the superior court for King county, Morris, J., entered November 23, 1908, enjoining an execution sale, at the instance of the plaintiff.</p>

, entered October 26, 1908, upon the verdict of a jury rendered in favor of the defendant, awarding damages in condemnation proceedings.

, entered October 7, 1907, upon findings in favor of the plaintiffs, in an action of ejectment tried on the merits before the court without a jury.

<p>Public Lands — Lands Under Water — Shore Line — Establishment — Littoral Rights. Where the board of harbor line commissioners filed a plat fixing the shore line of a lake from 39% to 139 feet distant from an adjacent city block, no part of the block abuts on the shore lands of the lake, and the line is conclusively fixed as to the owner of the block claiming a preference right to purchase shore lands, until vacated for error at the instance of the state or of a party in interest claiming that the shore line was located too far inland.</p> <p>Same — Conclusiveness—Judgment—Existence oe Street. In such a case, the existence of a street between the block and the shore land is conclusively settled by a final judgment against the city in which the court finds that there is no street, and no appeal was taken therefrom by the city.</p> <p>Same — Right to Purchase Shore Lands — Abutters. The right of an abutting owner to access to the street in front of his property gives him no right as an abutting owner to the shores of a lake across or bordering on the other side of the street.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered September 18, 1908, dismissing a prosecution for gambling, upon overruling a demurrer to a plea of former acquittal.</p>

, entered February 24, 1909, dismissing an action for the appointment of a receiver for a corporation, upon sustaining an objection to the introduction of any evidence upon the part of the plaintiff.

, entered June 6, 1908, upon granting a non-suit, after a trial before the court and a jury, in an action by a vendee to recover damages for fraud.

<p>Appeal — Preservation of Grounds — Exceptions—Necessity. A judgment must be affirmed where the findings are not excepted to, if they are sufficient to sustain the judgment.</p> <p>Same — Exceptions to Findings — Sufficiency. An exception to an order denying a motion for a new trial cannot be deemed an exception to findings of fact, within the meaning of Bal. Code, § 5052.</p> <p>Same. One general exception to findings of fact is not available for any purpose.</p>

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered December 1, 1908, upon findings in favor of the defendant, in an action for fraud, after a trial before the court without a jury.</p>

<p>Explosives — Dangerous Work- — -Assignment of Contract for Street Grading — Liability for Acts of Independent Contractor. Tbe original contractor for tbe grading of a public street, wbo bad assigned tbe contract to an independent contractor using bis own methods free from control except as” to tbe results obtained, is not liable for damages caused by a dynamite explosion in tbe prosecution of tbe work, where it is not shown that tbe use of dynamite was contemplated in tbe contract or customary in improvements of like character; since tbe grading of a street in such a case is not so inherently dangerous as to come within tbe exception to the rule of nonliability for tbe acts of independent contractors.</p> <p>Municipal Corporations — Improvements — Liability of Contractor — Assignment to Independent Contractor. After assignment of a contract for street improvements to an independent contractor, the original contractor is not liable for the negligence of the former causing damages to the private property of a gas company in the streets; since the duty owed the gas company is entirely different from that owed to the traveling public.</p> <p>Same — Prohibition of Assignment — Effect. That an assignment of a contract for street improvements is prohibited by the terms of the contract and by the city charter, does not affect the legal relations of the parties, or render the assignor liable for the acts of the assignee; since the prohibitions were intended for the benefit of the city.</p> <p>Same — Terms of Contract. The fact that contractors for a street improvement agreed with the city to do the work at their own risk, does not render them liable for negligence of their assignees, if the city was not liable therefor.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered February 20, 1909, upon a trial and conviction of robbery.</p>

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

<p>Application for a writ of prohibition filed in the supreme court July 6, 1909, to prevent the appointment of a water commissioner by the superior court of Okanogan county, Taylor, J.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 21, 1908, upon findings in favor of the plaintiff, in an action on contract, after a trial before the court without a jury.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Warren, J., entered September 28, 1908, dismissing an action to enjoin the issuance of municipal bonds, after a trial before the court without a jury.'</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered December 15, 1908, upon a trial and conviction of a felony and of being an habitual criminal.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Warren, J., entered July 8, 1908, upon findings in favor of the defendants, in an action to set aside conveyances on the ground of fraud and want of capacity, after a trial before the court without a jury.</p>

D. Campbell, Esq., judge pro tempore, entered April 17, 1908, awarding property to plaintiffs and denying them damages, after a trial before the court without a jury, in an action of replevin.

, entered February 28, 1908, upon findings in favor of the plaintiff, awarding damages in a' condemnation proceeding, after a trial before the court without a jury.

, entered May 15, 1908, upon findings in favor of the defendant, in an action on contract, after a trial before the court without a jury.

, entered September 21, 1908, dismissing an action to foreclose a local assessment lien, upon sustaining objections to the jurisdiction of the court and the sufficiency of the complaint.

, entered September 24, 1908, upon the verdict of a jury rendered.in favor of the plaintiff, after a trial on the merits, in an action-on contract.-

, entered March 8, 1909, in favor» of the defendants, by direction of the court, after a trial before the court and a jury, in an action to recover for the death of a railway brakeman.

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered December 28, 1908, upon findings in favor of the defendant.</p>

, entered April 21, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the death of an employee caught by a set screw upon a revolving shaft.

Application filed in the supreme court July 6, 1909, for a writ of certiorari to review an order of the superior court for King county, Main, J., entered June 22, 1909, denying a temporary injunction; also, to review an order of said court, Ronald, J., entered June 29, 1909, striking an amended complaint, after hearings before the court.

, entered January 14, 1909, upon findings in favor of the plaintiff, in an action to recover a deficiency upon a foreclosure sale, after a trial on the merits before the court without a jury.

Cross-appeals from a judgment of the superior court for San Juan county, Joiner, J., entered January 8, 1908, upon findings of the court, after a trial without a jury, awarding damages to the plaintiffs for false representations upon the sale of land.

<p>Factors — Sales on Commission — Contract—Construction. Under a contract for the sale of defendant’s goods on commission, which fixed the plaintiff’s compensation at a certain sum for every case “actually sold, delivered and paid for,” nothing to be paid until the money shall be received by the defendant from the purchasers, the plaintiff was not entitled to commissions on orders taken and not filled at the time of the termination of the agreement.</p> <p>Damages — Liquidated Damages — Contracts—Construction—Termination. Where a manufacturer’s agency contract for the exclusive sale of defendant’s goods fixed plaintiff’s compensation at a certain sum for every case “actually sold, delivered and paid for,” nothing to be paid until the money shall be received by the defendant, a provision in the contract that, in case of a sale of its manufacturing plant the defendant shall be absolved from any damage or liability by reason of the termination of, or failure to carry out, the contract, except $500 as stipulated damages, includes loss of commission on unfilled .orders for goods sold by the agent before the sale of the plant, which the defendant thereafter refused to deliver, the measure of plaintiff’s damage by reason of defendant’s refusal to deliver goods ordered before termination of the contract being included in the $500 stipulated for.</p>

, entered June 24, 1908, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by an employee in a logging camp, after a trial on the merits.

<p>Motions — Notices—Service. Under Bal. Code, § 4889, providing for the service of notices upon attorneys by leaving a copy at his office during his absence with his clerk or person having charge, or in a conspicuous place in the office, if no one is in charge, a service is good when made by dropping a copy through the transom on the floor of the office in front of the front door, which was locked, no one being in the office; especially where, upon calling at the office next morning, the copy is found in the possession of the clerk.</p> <p>Trial — Instructions—Requests. It is not error to refuse requested instructions when the same are given in substance in the general charge.</p>

<p>Application filed in the supreme court October 7, 1908, for a writ of prohibition to the superior court for King county, Morris, J., to prevent the issuance of letters of administration, after a hearing before the court on the merits on an application for letters.</p>

, entered March 21, 1907, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon a policy of life insurance, after a trial on the merits.

, entered November 28, 1908, dismissing an action against a city for damages by reason of the negligent removal of lateral support, upon sustaining a demurrer to the complaint.

<p>Master and Servant — Fellow Servants — Superior — Detail oe Work. Where a millwright, acting as foreman, and assisting in the erection of a post, which he was holding in place with his hands, negligently let go, whereupon it fell and injured his helper, he is, as to such act, a fellow servant, where it appears that a mere hoy could have held the post; since that was a mere detail of the work for which the master was not responsible.</p> <p>Same — Negligence—-Proximate Cause. Where a millwright who was holding a post in position negligently let go and it fell, causing injury to a fellow servant, his negligence was the proximate cause of the injury, and it is immaterial that the post would not have fallen if a sling had been attached nearer the top of the post.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 14, 1908, dismissing an action on contract, upon sustaining objections to the introduction of any evidence.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered June 30, 1908, upon findings in favor of the plaintiffs, upon the pleadings and stipulated facts, in an action of ejectment.</p>

, entered March 19, 1908, in favor of the defendants by direction of the court, after trial before the court and a jury, in an action of tort.

<p>Appeal from an order of the superior court for Pierce county, Easterday, J., entered July 6, 1909, after a hearing before the court, adjudging a public use and necessity, in condemnation proceedings.</p>

<p>Municipal Corporations — Assessments—Benefits-—Appeal—Review. Tlie assessments of benefits from a local improvement, made by the commission appointed for that purpose, will not be disturbed on appeal where there were differences of opinion and conflicting evidence; and it is immaterial that the ownership of several lots was taken into consideration if the commission arrived at the correct result.</p>

, entered September 25, 1908, upon the verdict of a jury rendered in favor of the defendants, in an action of claim and delivery.

<p>Master and Servant — Guarding Machinery — Factory Act — Statutes — Construction—Ejusdem Generis. The factory act, Laws 1903, page 40, requiring the safeguarding of certain specified machines of various kinds, “and machinery of other or similar description” in factories, will not be confined to the subjects mentioned on the theory of ejusdem generis, but includes friction wheels not named, since the rule has no application where the specified subjects greatly differ from one another and where such construction would violate the evident intent of the legislature.</p> <p>Master and Servant — Contributory Negbigence — Question por Jury. An oiler is not guilty of contributory negligence, as a matter of law, in attempting to take bold of a grease cup with, his left hand instead of his right, where it would have been inconvenient to do so, and it does not appear to have been any safer to use his right hand.</p> <p>Same — Assumption or Risks — Obvious Dangers. Knowledge that a grease cup was apparently too dangerous to be used, as conceived and constructed by the master, is not to be imputed to an oiler, where he had used it for three weeks without injury.</p> <p>Master and Servant — Assumption op Risks — Notice op Danger to Master. It is not incumbent upon an oiler to report to the master as to the dangerous condition of machinery due to the original construction and arrangement, and not to want of repairs.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 21, 1907, upon a trial and conviction of statutory rape.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered October 17, 1908, upon a trial and conviction of selling liquor without a license.</p>

, entered November 11, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained in the collision of an express wagon and a street car.

, entered February 25, 1908, upon findings in favor of the plaintiffs, restraining the diversion, and apportioning waters used for irrigation, after a trial on the merits before the court without a jury.

, entered October 16, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action on contract.

, entered October 23, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for the specific performance of a contract to convey land.

<p>Criminal Law — Trial—Verdicts—Impeachment. A verdict in a criminal case cannot be impeached by the affidavit of a juror showing the effect upon his mind of comment by the judge, but the impropriety of comment must be determined from the context alone.</p> <p>Same — Misconduct of Judge. A remark by the trial judge indicating that cross-examination had proceeded far enough, is not objectionable as indicating the judge’s opinion as to the guilt of the accused, nor as comment on the evidence.</p> <p>Same — Misconduct of Juror — New Trial. It is not misconduct warranting a new trial that a juror expressed his opinion in the jury room as to the guilt of accused before the case was submitted, where it is not claimed that the opinion was based on facts outside the evidence.</p> <p>Same — Trial—Verdict—Impeachment. A verdict cannot be impeached by the affidavits of a juror that he was coerced to agree to the verdict by threats that he would be denounced to the court and, as he believed, subjected to penalties.</p> <p>Same — Trial—Misconduct of Bailiff. It is not misconduct on the part of a bailiff having the jury in charge, warranting a new trial, that he opened the door during the deliberation of the jury and stood temporarily in tlie doorway and spoke to the jurors, when nothing is shown as to what he Said, this having occurred in the presence of one of the attorneys for the accused.</p> <p>Incest — Evidence—Corroboration—Necessity. A conviction of incest may he had without corroboration of the testimony of the prosecuting witness, in the absence of any statutory requirement therefor.</p> <p>Criminal Law — Trial — Instructions — Lesser Offenses — Attempts — Incest and Assault. In a prosecution for incest it is proper to refuse to instruct that the jury may find the accused guilty of an attempt to commit the crime, or of assault and battery, where any attempt made culminated in the completed offense, and there was no charge of assault and battery, although there was evidence that the offense was committed with some force; since consent is not an element of the offense.</p>

<p>Appeal from a judgment of the superior court for Jefferson county. Still, J., entered October 29, 1908, by direction of the court, after a trial before a jury, dismissing an action for personal injuries sustained by a traveler on a county road.</p>

, entered October 26, 1908, by direction of the court, after a trial before a jury, dismissing an action to recover for fraud of an agent.

<p>Appeal from a judgment of the superior court for King county, Morris, J., entered October 12, 1908, dismissing an action to quiet title and recover lands sold for taxes, after a trial before the court without a jury.</p>

H. Bogle, Esq., judge pro tempore, entered April 22, 1909, dismissing .condemnation proceedings, upon finding a prior public use of the property sought to be condemned, after a hearing on the merits.

<p>■ Courts — Establishment—Counties—-Division Into Judicial Districts — Constitutional Law. Const, art. 4, § 5, providing that there shall be in each county of the state a superior court, with one or more judges thereof, provides for but one court in a county, and is violated by Laws 1909, p. 82, providing that the county commissioners may divide a county into independent judicial districts, each of which is a judicial unit, with its own seal, officers, records, and with jurisdictions restricted to the limits of the district, from which jurors are drawn and changes of venue granted or received, and a distinctive style of actions and proceedings is employed, and providing that in criminal actions, each district shall be considered as a separate constitutional county.</p> <p>Same. Laws 1909, p. 82, providing that the county commissioners, “whenever they determine it to be for the best interests of the people,” may divide a county into judicial districts each of which is constituted a “separate and distinct constitutional county” for the purposes of the act, contravenes Const., art. 11, § 3, which provides that a new county shall not be formed containing less than 2,000 inhabitants.</p> <p>Same. Said act contravenes Const., art. 4, § 6, which confers upon superior courts jurisdiction of all certain enumerated actions and proceedings arising in their respective counties.</p>

<p>Taxation — Foreclosure — Summons for Publication — Sufficiency. Under Laws 1897, p. 182, § 96, subd. 3, a summons by publication requiring tbe defendant to appear within sixty days after the “service” of the summons is not in accordance with the statute, and is insufficient to confer jurisdiction to enter a judgment of default.</p> <p>Judgment — Recitals of Service — Presumptions — Evidence to Overcome — Sufficiency—Burden of Proof. In an action to set aside a default tax foreclosure judgment, the presumption of due service of summons, from a recital thereof in the judgment, is overcome, where the defendants prove that they did not appear and were not personally served, and produce the record in the tax case showing nothing beyond the publication of a void summons; and the burden is shifted to the tax title holder to show a valid service of process.</p> <p>Same. Where the record shows a judgment entered upon publication of a void summons, testimony of a very general nature tending to show the publication of summons other than the one on file, without showing the time, place, or manner of publication, is not sufficient to sustain the judgment.</p> <p>Taxation — Redemption—Laches—Actions. The neglect of a party to pay taxes for many years does not amount to laches that would bar an action to redeem the property within the statutory period.</p> <p>Same — Waiver of Tendee. A tender of the tax as a condition precedent to an action to set aside a void tax judgment is not necessary if it was waived.</p> <p>Same — Action to Redeem — Defenses. That there was no defense to a tax foreclosure is not bar to an action to set aside a void tax judgment, the statute requiring only a tender of the tax.</p> <p>Ejectment — Betterments—Taxation—Redemption—Statutes. In an action to recover land sold under a void tax judgment, the defendants can recover for improvements made upon the land since the enactment of the betterment law of 1903, but not for those made prior thereto.</p>

<p>Bills and Notes — Bona Fide Purchasers — Transfer After Maturity — Equities Between Intermediate Holders. While the innocent purchaser of a note after maturity takes the same subject to equities between the original parties, the rule has no application to, and he is not charged with, equities affecting intermediate holders or indorsers, where there was no illegality in the inception of the note.</p> <p>Same — Payments — Negligence of Payor. Where the payors caused a note to be placed in the hands of a third party to be negotiated, and made payments, which through their negligence were not indorsed thereon, to the injury of an innocent third party purchasing the note, the negligent payors must stand the loss.</p>

<p>Specific Performance — Frauds, Statute of — Part Performance —Evidence—Sufficiency. The taking of possession, making part payment, and the making of permanent improvements, entitles a son to specific performance of an agreement by his parents to deed him a tract of land in consideration of his paying off a mortgage thereon, where the contract is clearly established by clear and cogent proof.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered March 5, 1909, in favor of the plaintiff, in an action of unlawful detainer of leased premises, upon sustaining a demurrer to affirmative defenses.</p>

, entered March 13, 1909, upon setting aside an advisory verdict of a jury and granting a new trial for error of law, in an action for an injunction and damages.

, entered January 25, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained by an employee in a factory by reason of an unguarded shaft and the starting of machinery without warning.

<p>Judgments — Conclusiveness — Recitals — Parties Bound — Strangers. The rule that recitals in a judgment are not subject to collateral attack where the court had jurisdiction, and there is nothing in the record to contradict the recitals, has no application as to strangers to the record not parties or privies; hence, where a tax title holder conveyed and warranted the title, his grantee, in an action on the covenant, may show failure of title by reason of defects in the summons.</p> <p>Taxation — Foreclosure — Process — Summons — Defects. The failure of a summons in a tax foreclosure to properly describe the property, as required by Bal. Code, § 1751, vitiates the tax judgment and sale, as the statute must be strictly pursued to obtain jurisdiction.</p> <p>Covenants — Seizin—Breach. A covenant of ownership in fee simple is one of seizin in praesenti, and is broken, if at all, when made.</p>

, entered January 7, 1908, dismissing an action for an injunction respecting waters used for irrigation, after a trial on the merits before the court without a jury.

, entered July 6, 1908, upon findings in favor of the defendant, in an action on a fire insuTance policy, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for Pierce county, Reid, J., entered February 3, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for trespass.</p>

, entered May 6, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for a writ of mandamus.

, entered October 11, 1907, confirming an assessment made by commissioners appointed to assess property specially benefited by a local improvement, after a hearing before the court without a jury.

<p>Appeal from a judgment of the superior court of Lewis county, Rice, J., entered September 30, 1908, upon the verdiet of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee riding on a logging train.</p>

<p>Appeal from a judgment of the superior court for King county, Erater, J., entered October 26, 1908, upon a trial and conviction of the crime of conspiracy.</p>

, entered July 7, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through the caving in of the walls of a pit.

<p>Application filed in the supreme court May 10, 1909, for a writ of mandamus to the commissioner of public lands to compel the issuance of a contract for the sale of tide lands.</p>

, entered November 4, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger run down by a street car.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered July 6, 1908, upon a trial and conviction of the crime of murder in the first degree.</p>

, entered March 17, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages for death resulting indirectly from the sale of intoxicating liquors.

<p>Actions — Accrual—Taking Note for Debt — Fraud of Debtors. The acceptance of promissory notes for the amount of open accounts, suspends the right of action on the accounts until the maturity of the notes, even though they were not taken in payment; and action on the accounts as past due is premature, notwithstanding a reply setting up fraudulent acts of the defendants that would have authorized attachments, under Bal. Code, § 5352, in case the complaint had alleged that the debt was not due and that nothing but time was wanting to fix an absolute indebtedness.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered July 2, 1908, upon findings in favor of the plaintiffs, enjoining the maintenance of obstructions placed in a navigable river, ordering the removal thereof, and awarding damages, after a trial on the merits before the court without a jury.</p>

<p>Eminent Domain — Necessity for Streets — Determination by City Council. The city council is the proper authority for deciding the necessity of condemning land for a public street.</p> <p>Same — Condemnation for Streets — Public Use. When the city council has determined by ordinance that the taking of certain property is necessary for the purposes of a public street, and directed its condemnation, the court must find that the taking is for a public use, although Const., art 1, § 16, makes the question a judicial question only.</p> <p>Same — Damages—Evidence—Remoteness. In condemnation proceedings of a strip of land between a street and a cul de sac, evidence of the value which the land would have if the cul de sac should be vacated in the future, is inadmissible on the subject of damages; being too remote and speculative.</p>

<p>Frauds, Statute of — Sale of Real Estate — Memorandum—Sufficiency — Contract for Commissions — Brokers. The words “Commission to be paid when 2d payment is made to M. & M., $625,” after the signature of a vendor at the foot of a contract to purchase real estate, is not a sufficient memorandum of the agreement, within Laws 1905, p. 110, providing that an agreement for a broker’s commission on the sale of real estate shall he void unless the contract or some note or memorandum thereof shall be in writing, and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized (overruling, on rehearing, Id., 50 Wash. 495).</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J.,' entered June 17, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of a traveler upon a defective highway.</p>

<p>Navigable Waters — Commerce—Lands Under Waters — Harbor Areas — Leases—Railroad Purposes. The provision, in Const., art. 15, § 1, that the harbor area shall never be sold or granted but shall be reserved for “landings, wharves, streets and other conveniences of navigation and commerce,” has reference to commerce both by land and water, as “navigation” is not used in a restrictive sense; hence, under art. 15, § 2, authorizing the leasing for terms not exceeding thirty years, of the right to build on the harbor area “wharves, docks, and other structures,” the state may lease the right to build a railroad on the harbor area; “other structures” in section 2 being equivalent to “other conveniences” of commerce in section 1 (Rudkin, C. J., Mount, Dunbar, and Crow, JJ., dissenting).</p> <p>Eminent Domain — Necessity—Objections—Crossing Abutting Harbor Area. It is not a valid objection to the necessity of a.railroad company’s condemnation of tide lands, that it must first cross the abutting harbor area and that the constitution and laws prohibit the acquisition of harbor area by condemnation, since the state may lease for thirty years the right to construct a railroad on the harbor area (Rudkin, C. J., Mount, Dunbar, and Crow, JJ., dissenting).</p> <p>Eminent Domain — Damages—Tide Lands — Title—Right to Lease Harbor Area. The owner of tide lands, appropriated by a railroad company, having the preference right to lease the abutting harbor area, is entitled to recover as damages the value of the land taken at the time of the trial and damages to the part not taken, plus the value of the statutory right to lease abutting harbor area; and it is immaterial that the title to the tide land was not acquired from the state until after the condemnation suit was commenced, it having been previously applied for.</p> <p>Eminent Domain — Conditions Precedent — Right to Bridge Stream — Navigation. The consent of the secretary of war to construct a bridge over a navigable stream is not a condition precedent to condemnation of tide lands to be reached by way of the bridge, inasmuch as the state has given its consent by Bal. Code, §§ 4336, 4307, providing that bridges across navigable streams shall be so constructed as not to interfere with or obstruct navigation.</p> <p>Eminent Domain — Condition Precedent — Subscription of Capital Stock — Pleading. An allegation of the incorporation of a railroad company seeking to condemn land is not a compliance with Bal. Code, § 4250, providing that no railroad company shall institute such proceedings until the whole amount of the capital stock is subscribed, as that condition is not essential to incorporation.</p> <p>Same — Waiver of Condition — Plea in Abatement. The provision of Bal. Code, § 4250, that no railroad company shall institute proceedings to condemn land until the who' e of its capital stock is subscribed, is a rule of public policy, anf is not waived by the landowner’s failure to raise it by plea in aoatement.</p> <p>Same — -Waiver of Proof. Waiver of proof of incorporation and payment of a corporate license fee does not waive proof of the subscription to the capital stock of the petitioner.</p>

<p>Navigable Waters — Navigability—Pleadings—Issues and Proof. Where the complaint alleges, and the answer admits, that a slough is navigable, it is not error to exclude evidence to show that it was navigable only for floating logs and not in a “commercial sense,” as there was no issue as to the navigability.</p> <p>Evidence — Judicial Notice — Record in Another Cause. The court cannot take judicial notice of the record in another cause, even between the same parties in the same court, when not pleaded or proved.</p> <p>Appeal — Review—Evidence—Judicial Notice. The appellate court will judicially notice only the matters that the trial court is obliged to notice.</p> <p>Ejectment — Damages—Incidental Torts — Pleading. In an action by an upland owner against a boom company to recover possession of the land and the rents, issues, and profits during the detention, the plaintiffs are not entitled to damages for cutting off their ingress and egress from the water, or incidental tortious acts, especially where the acts causing such damage are not pleaded.</p> <p>Navigable Waters — Land Under Water — Title—Logs—Boom Companies — Rights Conveyed. As the state reserved the title in fee to the beds and shores of navigable waters, up to the line of mean high tide, a conveyance of the same by the state to a boom company for booming purposes, grants the exclusive use thereof, except a free passageway between the boom and one of its shores for water craft “for the ordinary purposes of navigation.”</p> <p>Same — Rights of Upland Owner. In ejectment for upland bordering on a navigable stream, the plaintiff cannot recover damages for the use of land below mean high tide.</p> <p>Same — Banks as Retaining Wall for Boom. Where the hanks of a navigable stream are perpendicular and mark the line of ordinary high tide, the upland owner cannot recover from a boom company owning the tide lands for the use of the bank as one of the retaining walls of its boom.</p> <p>Navigable Waters — Tide Lands — Riparian Rights. An upland owner on navigable waters has no riparian rights where, in order to reach his lands from navigable waters, he must cross over the tide or shore lands of another which the state has sold.</p> <p>Ejectment — Damages—Injury to Land. Where injury was done by converting plaintiffs’ land into a channel of a river, it is immaterial, as far as concerns the damages recoverable in ejectment, whether the channel was navigable or not.</p> <p>Ejectment — Damages—Use of Lands. In ejectment against a boom company for uplands and shore lands along navigable waters, the value of the lands as a boom site cannot be considered in determining the damages for detention.</p>

, entered November 30, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered December 1, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on a promissory note.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke and Kennan, JJ., entered December 3, 1908, disbarring the defendant from practicing law, after a trial before the court on the merits.</p>

, entered July 9, 1908, in favor of the plaintiff, upon motion for judgment on the pleadings, in an action to quiet title.

, entered May 6, 1908, in favor of the plaintiff, upon sustaining demurrers to answers, in an actiou to enjoin an execution sale.

<p>Deeds — Cancellation—Fraud—Incapacity oe Grantor. There is sufficient evidence to warrant the cancellation of a deed for incapacity of the grantor, where it appears that he was a weak old man, 88 years of age, incoherent in his talk, with delusions that his son and others were trying to poison him, and a physician testified that he was totally incompetent to transact business, and he had sold the land worth $3,000 for $1,250.</p>

, entered June 15, 1908, denying a motion to vacate a judgment entered on stipulation, after a hearing before the court.

<p>Trial — Findings—Necessity—Dismissal and Nonsuit. Upon trial of an action at law before the court, findings of fact are not necessary to support a judgment of nonsuit, granted for failure of plaintiff to prove sufficient facts, under Bal. Code, § 5029, requiring findings by the court on an issue of fact; since the court merely decided the insufficiency of the evidence as a matter of law.</p> <p>Frauds, Statute or — Brokers—Employment—Memorandum. An agreement with brokers whereby the owner of premises offered to take a fixed sum for his property, the brokers to have all that they could get over that sum, is within the statute of frauds, Laws 1905, p. 110, requiring agreements employing an agent to sell real estate for compensation to be in writing.</p>

<p>Appeal from a judgment of the superior court for King county, Griffin, J., entered July 30, 1908, upon stipulated facts, upon an appeal from an award of the state board of land commissioners, in a contest over the preference right to purchase shore lands.</p>

<p>Limitation op Actions — Removal op Bab — Contracts-—-Definiteness. A written promise to pay the principal of a promissory note for one thousand dollars, held and owned by O. L. T. of Chapman, Kansas, as soon as the promisor is able to spare the money or a reasonable time, sufficiently identifies a note for $1,006.50 passed between the parties, and is sufficiently explicit to remove the bar of the statute of limitations, under Bal. Code, § 4816, relating to a new promise in writing signed by the party to be charged.</p> <p>Bills and Notes — Conditions—New Promise to Pat Within Reasonable Time. Upon a promise to pay a note as soon as the promisor “is able to spare the money, or a reasonable time,” is not a promise to pay upon condition, but is an absolute promise to pay within a reasonable time, which has expired after the lapse of nearly three years.</p>

, entered February 8, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a street car collision.

<p>Fraud — In Sale of Stock — Pleadings—Complaint—Sufficiency. A complaint states a cause of action for fraud in the sale of shares of corporate stock in that the vendor falsely represented that the corporation was not indebted on certain promissory notes, without alleging that the plaintiffs had paid the notes, or without alleging the value of the stock, or stating in so many words, that it was of less value by reason of liability on the notes.</p> <p>Same — Measure of Damages. The measure of damages for falsely representing, on the sale of one-half of the stock of a corporation, that it was not indebted, would be one-half of the amount of the indebtedness.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered November 19, 1907, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover the possession of mining claims.</p>

, entered October 17, 1908, upon sustaining a demurrer to the complaint, dismissing an action to recover possession of real property.

Walla county, Brents, J., entered December 11, 1908, in favor of the defendant by direction of the court, after sustaining a challenge to the evidence, in an action on contract..

<p>Appeal — Parties—Service of Notice. Upon appeal by plaintiff from a judgment in favor of a garnishee, the defendant is not the “prevailing” party upon whom it is necessary to serve notice of the appeal.</p> <p>Corporations- — Stockholders—Liability — Subsequent Creditors —Transfer of Stock — Record — Evidence—Sufficiency. A stockholder in an insolvent corporation is not liable to a creditor for unpaid stock subscriptions, where it appears that he sold his shares while the corporation was a going concern and solvent, before the creditor acquired his claim, and that the stock books and the certificate stubs show the transfer according to the usual custom of the corporation, although it did not keep a stock ledger or strictly comply with Bal. Code, §§ 4261, 4269, concerning the record of transfers of stock; since subsequent creditors stand in the same situation as the corporation.</p>

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered May 28, 1908, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for wrongful death.</p>

, entered December 12, 1907, upon the verdict of a jury rendered in favor of the defendant, dismissing an action for personal injuries.

, entered September 22, 1908, dismissing at the close of plaintiff’s evidence, an action to rescind contracts for the sale of land, to quiet title and for damages, after a trial before the court without a jury.

, entered November 25, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an injunction.

, entered November 25, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions to enjoin the obstruction of drainage ditches.

<p>• Appeal from a judgment of the superior court for Stevens county, Carey, J., entered May 25, 1908, in favor of the defendants, notwithstanding a verdict for the plaintiff, after a trial on the merits, in an action of replevin.</p>

■ Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December £, 1908, in favor of the defendant, by direction of the court, upon withdrawing the case from the jury, in an action for personal injuries sustained by an employee in a stone quarry.

, entered September 18, 1908, in favor of the defendant, by direction of the court, upon withdrawing the case from the jury, after a trial on the merits, in an action for personal injuries sustained by a pedestrian at a railroad crossing.

, entered October 10, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to quiet title.

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

<p>Appeals from judgments of the superior court for Spokane county, entered March 21, 1907, upon verdicts of juries rendered in favor of the plaintiffs, in actions upon policies of life insurance, after trials on the merits.</p>

, entered May 6, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for a writ of mandamus.

, entered May 6, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for á writ of mandamus.

, entered May 6, 1908, upon findings in favor of tbe defendants, after a trial before tbe court without a jury, in an action for a writ of mandamus.

, entered May 6, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for a writ of mandamus.

<p>Appeal from a judgment of the superior court for Douglas county, Steiner, J., entered May 6, 1908, upon findings in favor of the defendants, after a trial before the court without a jury, in an action for a writ of mandamus.</p>