Volume 57 — Washington Reports

, entered August 17, 1909, in favor of the defendants, upon sustaining a demurrer to the complaint, in an action to enjoin the prosecution of an action for the cancellation of assessments for street improvements.

, entered June 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a section hand on a logging railroad.

<p>Carriers — Of Live Stock — Negligence—Burden of Proof. Where the shipper of live stock accompanies the same, the burden is upon him to prove negligence in transit resulting in injury to the stock.</p> <p>Same — Contract—Conditions—Exemption from Liability. The agreement of a shipper of live stock to unload, load, feed, water and care for the stock in transit, is binding upon him, but does not exempt the carrier from liability for any negligent act in transporting the stock; nor could it do so by contract.</p> <p>Same — Negligence—Evidence—Sufficiency. There is sufficient evidence of negligence in the operation of a train, and that the same resulted in injury to live stock shipped thereon, where it appears that two car loads of young mares were properly loaded, the number in each car was consistent with proper handling, that they were unloaded and fed and reloaded in good condition at U., after which the cars were chugged and jammed nearly all the way, the conductor stating that the engine was overloaded, that the cars were jammed in switching, horses being thrown to the floor, and at the end of the journey one of them was found to have a dislocated shoulder, another a dislocated hip, and two had slipped their foals; although the evidence as to the rough handling of the train was conflicting.</p> <p>Same — Negligence—Evidence. The carrier of live stock accepting mares for shipment is chargeable with notice that they are heavy in foal. ></p> <p>Pleading — Variance—Waiver—Carriers. It is not a fatal variance that the pleading alleged an implied contract to carry and deliver live stock as at common law, and the proof showed a special contract by bill of lading, where the proof was admitted without objection.</p> <p>Carriers — Of Live Stock — Action for Negligence — Form—Pleading — Immaterial Variance. A common law action against a carrier of live stock for negligent acts in the operation of the train resulting in injury to the stock is maintainable irrespective of the special contract of carriage; so that a variance as to the contract would be immaterial where the issue raised and tried was as to the negligence of the company in operating the train.</p>

<p>Divorce — Grounds — Incompatibility — Personal Indignities — Findings — Supeiciency. A decree for a divorce, where the evidence is not brought up on appeal, is supported under a liberal construction of findings to the effect that the condition of the home life of the parties has been such as to cause an utter estrangement and loss of love and affection, without fault on the plaintiff’s part, and that longer living together is a source of great mental worry and anguish to the plaintiff, and the parties can no longer live together; the same being in effect a finding of personal indignities rendering life burdensome.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Carey, J., entered April 30, 1909, upon findings in favor of the plaintiff, in an action for specific performance.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Sullivan, J., entered August 9, 1909, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, but denying a personal judgment, after a trial before the court without a jury.

<p>Appeal from an order of the superior court for King county, Frater, J., entered December 7, 1909, denying a motion for a new trial.</p>

, entered August 12, 1909, in favor of the plaintiff, in an action for an injunction, after a trial before the court without a jury.

, entered May 1, 1909, dismissing an action on contract, upon granting a nonsuit, after a trial before the court without a jury.

, entered April 8, 1909, in favor of the defendants, upon granting a nonsuit dismissing an action for damages for the original grading of a street.

, entered March 25, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for damages for breach of warranty of title.

,' entered July 15, 1909, dismissing an action to cancel corporate stock, upon sustaining objections to the admission of evidence.

<p>Logs and Logging — Eminent Domain — Parties Plaintiff— Joinder — Allied Corporations. A boom company at tbe mouth of a river, and a driving company floating down logs by splash dams and artificial freshets, may properly join as parties plaintiff in an action to condemn overflowed lands, where it appears that the overflow is caused by the concurrent acts of the driving company in creating the freshets and of the boom company in choking the mouth of the river with logs and retarding the current, and both companies are jointly interested in gathering and holding logs in the river.</p> <p>Logs and Logging — Eminent Domain — Plats—Effect—Statute —Construction. Rem. & Bal. Code, § 7121, providing that a driving company shall file a plat of any of the rivers and lands contiguous thereto as are proposed to be appropriated, does not prevent a company from condemning the right to damage by artificial freshets lower lands outside of the plat, where the company was not seeking to improve the river or exercise its granted powers at the point where the injury occurs; as the object of the act was that of notice to riparian owners where the improvements were to he made.</p> <p>Same. “Contiguous lands” in such act is not to he restricted to lands “next to” or “touching” the river.</p>

, entered January 5, 1908, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered June 23, 1907, upon sustaining a demurrer to the complaint, dismissing an action for an accounting.</p>

, entered March 2, 1909, denying a motion to quash a writ of mandamus, issued upon sustaining a demurrer to the application for the writ.

, entered February 18, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for a divorce.

<p>Deeds — Acknowledgment—Necessity—Notice. A written grant of an interest in land — an easement for water pipes — is valid without acknowledgment, as between the parties and subsequent purchasers with notice.</p>

, entered June 21, 1909, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

, entered April 27, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage.

<p>Appeal from a judgment of the superior court for King county, McCredie, J., entered April 17, 1909, 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>

, entered January 25, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 19, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions for the foreclosure of chattel mortgages.

, entered July 12, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, for $18,000, in an action for wrongful death.

, entered April 15, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered March 18, 1909, affirming an order of the state railroad commission fixing a rate for switching cars containing mill products, after a hearing before the court.

, entered January 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages for wrongful seizure of personal property under an execution.

, entered May IT, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to establish the right to a fish trap location.

, entered April 12, 1909, upon findings in favor of the defendants, 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, Gay, J., entered June 19, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered July 26, 1909, dismissing at the close of plaintiff’s case, an action to foreclose a mechanics’ lien, after a hearing before the court.

, entered May 25, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered May £9, 1909, upon findings in favor of the defendant, 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, Albertson, J., entered February 20, 1909, dismissing an action for divorce, after a hearing before the court.</p>

, entered February 9, 1909, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action for a broker’s commission.

<p>' Appeal — Orders Appealable — Finality—Stipulations—Right to Appeal. An appeal from an order denying a temporary injunction will not be dismissed where the parties stipulated that it should be considered as a final order for the purposes of the appeal.</p> <p>Logs and Logging — Timber—Sale—Removal. Where a deed of all standing and lying timber contained an agreement that the grantee shall have three years from and after its date within which to “remove the timber,” the grantee’s interest ceases as to all timber not removed after that date, which then reverts to the grantor; since the intent of the parties controls the construction irrespective of distinctions between covenants and forfeitures or other technical questions.</p>

, entered June M, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a contract of indemnity.

<p>Appeal from an order of the superior court for King county, Morris, J., entered February 16, 1909, dismissing an application to vmcate a receiver’s sale, upon sustaining demurrers to the petition.</p>

<p>Appeal from an order of the superior court for King county, Tallman, J., entered January 4, 1909, confirming an assessment roll, after a hearing before the court on the merits.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 18, 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 contractor’s bonds.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered March 13, 1909, upon a trial and conviction of the violation of a statute relating to trademarks.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered November 22, 1909, upon a trial and conviction for trespass on unenclosed lands.</p>

, entered January 31, 1910, after a hearing before the court, dismissing proceedings in mandamus to compel a city comptroller to place the name of a candidate upon the official ballot for nomination for the office of city councilman.

, entered December 19, 1908, upon granting a nonsuit at the close of plaintiff’s case, dismissing-an action for personal injuries sustained by an employee-engaged in putting up a trolley wire.

<p>Logs and Logging — Sale op Timbee — Execution—Evidence—Sufficiency. Whether there was a contract for the sale of timber is for the jury, where the evidence was conflicting and one of the parties testified to the making of the contract, after all other negotiations had failed, and it appeared that he gave a check for the amount to be paid, indorsed on the face “payment in full for all timber” on the tract in question, which check was cashed.</p> <p>Appeal and Error — Record—Affidavits—New Trial. Error in refusing a new trial for newly discovered evidence will not be reviewed where the affidavits used on the application are not brought up by a bill of exceptions or statement of facts.</p>

, entered May 12, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 22, 1909, 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 April 15, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for $4,500 for personal injuries.

, entered April 20, 1909, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title.

, entered March 22, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to vacate a judgment and enjoin the sale of property under execution.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered April 1, 1909, upon a trial and conviction of the crime of assault.</p>

Appeals by plaintiff and a defendant from a judgment of the superior court for Spokane county, Warren, J., entered January 28, 1909, upon findings in favor of a codefendant, in an action to foreclose a chattel mortgage.

, entered March 1, 1909, upon findings in favor of the plaintiff, in an action on contract, after a trial before the court without a jury.

Application filed in the supreme court January 20, 1910, for a writ of mandamus to the state auditor to secure a warrant for an Indian war veteran’s claim.

, entered September 9, 1909, upon findings in favor of the defendant, in an action on contract tried before the court without a jury.

, entered September 10, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in art action of ejectment and to quiet title.

, entered June 2, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a brick mason in the fall of a wall.

<p>Frauds, Statute of — -Employment of Broker — Memorandum— Sufficiency. A memorandum of an agreement for tbe employment of a broker to sell real estate is insufficient, under tbe statute of frauds (Rem. & Bal. Code, § 5289), where it fails to name any broker or agent and employs none, describes no real estate, and contains no agreement for compensation.</p>

, entered June 25, 1909, upon the verdict of a jury of no damages in a regrade condemnation, after a trial on the merits.

<p>Eminent Domain — For Streets — Petition—Description of Property. In proceedings by a city to condemn land for a street, under Rem. & Bal. Code, § 7771, tbe petition need not describe land damaged or the whole tract out of which the land is taken, but only the land taken.</p> <p>Same — Necessity of Answer. In condemnation proceedings by a city under Rem. & Bal. Code, § 7771, etc., no answer offering an issue is necessary.</p> <p>Same — Damages—Evidence—Consequential Injury. In eminent domain proceedings by a city, the landowner may give evidence of consequential damages, although only the part of the land to be taken is described.</p> <p>Same — Evidence—Values—Prices Paid — Harmless Error. It is not so prejudicial as to require a reversal that, upon an issue as to the value of land condemned, the owner was asked on cross-examination what he paid for it; where defendant had asked a witness what had been paid for similar land, and there was other evidence as to the value, supplemented by a view by the jury.</p> <p>Same — Comparison of Values. Upon an issue as to the value of land condemned, it is not error to refuse to allow witnesses to approximate the value by reference to platted property, where the property was not platted, and the owner had shown it to be especially valuable for factory purposes and special uses.</p> <p>Eminent Domain — Appeal—Record—Review. The refusal, in eminent domain proceedings, to allow evidence that the land had been leased, will be presumed correct when a copy of the lease offered in evidence is not in the record.</p> <p>Trial — Instructions—Requests. Objection that an instruction failed to name the date for fixing the market value of land, cannot be made in the absence of any request therefor.</p> <p>' Trial — Instructions—Argument of Counsel. An instruction that the jury are to “disregard the statements of the attorneys as to the value of the lands,” while not commendable is not prejudicial, where it goes no further than to suggest that the statements are not to be regarded as evidence.</p> <p>Eminent Domain — Fob Streets — Damages—Offset of Benefits. In eminent domain proceedings by a city, it is proper to instruct that benefits to adjacent property are to be deducted from the damages to such property, if the damage is in excess of the benefits, but if the benefits are equal, the jury must find the lands not damaged; regardless of questions that may arise on the assessment of benefits.</p> <p>Eminent Domain — Trial—Separate Trials — Discretion. In eminent domain proceedings by a city, it is discretionary, under Rem. & Bal. Code, § 7774, to refuse separate trials to owners of the property, to be reviewed only for abuse of discretion.</p>

, entered April 14, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by an engineer of a logging engine.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 1, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, for personal injuries.</p>

, entered June 17, 1909, upon findings in favor of the defendants, dismissing an action to foreclose a materialman’s lien, upon the close of plaintiff’s evidence.

, entered March 22, 1909, confirming an assessment for street improvements, upon an appeal from confirmation by a city council.

, entered March 23, 1909, confirming an assessment for street improvements, upon an appeal from confirmation by a city council.

, entered June 7, 1909, upon findings in favor of the defendant, in an action to recover real property and quiet title, after a trial on the merits.

, entered January 6, 1909, upon findings in favor of the plaintiffs, in an action to quiet title and for partition, after a trial on the merits.

, entered January 9, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by an employee through the negligent fall of a pole.

, entered March 29, 1909, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained in driving across a street car track.

<p>Husband and Wife — Contracts—Vendor and Purchaser — Ratification by Wife. The execution of a deed by the wife, within the time required by a contract of sale made by the husband alone, ratifies the contract and renders it binding on the vendee.</p> <p>Vendor and Purchaser — Alteration of Contract — Rescission by Vendee — Estoppel. A contract for the sale of land cannot be rescinded by the vendee because of unauthorized alterations in the contract, where the alterations made were for his benefit and he was informed thereof and made no objection at the time.</p> <p>Alteration of Instruments — -Instructions—Materiality. Upon an issue as to whether material alterations were made in a contract for the sale of land, an instruction assuming that the alteration would be material if made without consent of the vendee does not submit the materiality of the alteration to the jury.</p> <p>Same. Upon an issue as to whether material alterations were made in a contract for the sale of .land, an instruction authorizing the jury to find for the defendant if the plaintiffs signed the contract with alterations “making a deviation in a material matter,’’ is not objectionable as submitting the question of alterations, which were admitted, where there was evidence to support the contention that the alterations were made upon the authority of the defendant, the contest being upon the question of such assent.</p> <p>Same. Upon a contest as to whether the vendee consented to alterations in a contract for the sale of land, an instruction to the effect that the vendee would not be liable if material alterations were made, unless the matters inserted were part of the original agreement, is not so broad as to inform the jury that the vendors had a right to alter a written contract to conform to a previous oral agreement without the consent of the vendee.</p>

, entered July 2, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action upon a promissory note.

, entered June 7, 1909, upon findings in favor of the plaintiff, after a trial on the merits, in an action for an accounting.

, entered May 10, 1909, upon findings in favor of the defendant, in probate, determining the validity of an executor’s sale.

, entered April 10, 1909, upon findings in favor of the plaintiffs, in an action on contract, after a trial before the court without a jury.

, entered June 21, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action of unlawful detainer.

, entered May 12, 1909, upon findings in favor of the plaintiff, in an action on contract, after a trial before the court without a jury.

<p>Appeal from a judgment of the superior court for Snohomish county, Still, J., entered October 23, 1909, upon findings of a referee, in proceedings in a receivership to determine priority of a chattel mortgage.</p>

, entered May 7, 1909, upon the verdict of a jury rendered in favor of the plaintiffs by direction of the court, in an action of ejectment.

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered April 13, 1909, upon findings in favor of the plaintiff, in an action to quiet title.</p>

, entered January 20, 1909, upon findings in favor of the defendants, after a trial on the merits, in an action to declare a trust and obtain a conveyance of real estate.

, entered November 4, 1908, upon findings in favor of the defendants, in an action tried before the court without a jury.

, entered June 7, 1909, upon findings in favor of the defendants, in an action to quiet title, etc., after a trial on the merits.

■ Appeal from a judgment of the superior court for Kittitas county, Preble, J., entered April 22, 1909, dismissing an action to foreclose a mortgage for failure to prosecute.

<p>Dedication — Implied at Common Law — Cemeteries. There is an implied irrevocable common law dedication of a tract of land to a public use, where it appears that the tract was, with the owner’s consent, used by the entire neighborhood for a burying ground from 1854 to 1884, no grant or particular ceremony being necessary.</p> <p>Cemeteries — Abandonment—Dedication. A burial ground is not abandoned from the fact that no new interments were made for several years, where the dead interred are not exhumed and removed by those having authority to do so.</p> <p>Cemeteries — Desecration—Actions—Parties—Injunction. The relatives of the dead interred in a burial ground, who sue on behalf of themselves and all others of the precinct, may maintain an action to enjoin the desecration of a burial ground impliedly dedicated to the public for use as such.</p>

, entered September 14, 1909, upon findings in favor of the plaintiff and the verdict of the jury awarding damages, after a trial on the merits, in condemnation proceedings.

<p>Appeal — Proceedings por Transper — Notice—Necessary Parties. Upon appeal by heirs from an order of final distribution allowing an administrator’s account, other heirs not joining in the appeal; who appeared at the hearing and filed exceptions to the account, are necessary parties upon whom notice of appeal must be served or the appeal will be dismissed, under Rem. & Bal. Code, § 1720.</p>

, entered January 6, 1909, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to quiet title.

<p>Marriage — Annulment—Fraud—Statutes. Rem. & Bal. Code, § 7162, authorizing the annulment of a marriage for fraud is merely jurisdictional and refers to the force or fraud of the unwritten law of marriage contracts.</p> <p>Same — Duress—Evidence—Sufficiency. Duress as ground for annulment of a marriage must be shown by clear, satisfactory, and convincing evidence; and the evidence is insufficient where it appears that the plaintiff, a young man 26 years of age, upon demand of an attorney and a police officer, accompanied them to defendant’s home, where he was charged with the paternity of defendant’s unborn child, and threatened by defendant’s mother with a criminal prosecution if he refused to marry; that he then agreed to meet them the next morning to go to another city and marry the defendant, which arrangement was carried out; that he did not see the officer or attorney after the agreement and had ample time before the marriage to consult relatives or an attorney; and that at the trial he exercised his privilege of refusing to answer as to whether he had carnally known the defendant, and was apparently persuaded to marry by the promptings of conscience rather than by threats of prosecution.</p> <p>Sam:e — Duress—Charge of Seduction — Probable Cause. A marriage entered into by a man in order to secure his release from arrest on a charge of seduction will not be annulled on the ground of duress, where the charge was not made maliciously or without probable cause, and he did not aver and prove the falsity of the charge.</p>

, entered October 19, 1908, upon findings in favor of the defendant, in an action to recover real estate, after a trial on the merits before the court without a jury.

, entered March 22, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for wrongful death.

<p>Husband and Wife — Community Property — Conveyances—Division — Evidence—Sufficiency. The evidence sustains findings that a husband and wife, on making a division of their property, pending a divorce, intended that the wife should be given title to certain community property, where it appears that "the title thereto had been in a trustee, who, at the husband’s request, had made a deed to the wife some months before the settlement, the husband retaining possession of the deed; that deeds of other property passed between the parties on making the division, at which time the husband handed the trustee’s deed to the wife, and subsequently it was recorded at the husband’s request; that subsequent to the division he pointed out the property as belonging to the wife and thereafter paid no taxes thereon, and stood by while she erected a house on one of the lots.</p> <p>Same — Deed of Trustee to Wife — Effect. Where a trustee held the title to community property, who, at the husband’s request, executed a deed to the Wife, the husband’s community interest is not divested by his subsequent delivery of the deed to the wife with intent to invest her with a separate estate; since that could only be done by his deed.</p> <p>Divorce — Disposition of Property. The court is without jurisdiction to make any disposition of real property of the parties not mentioned in divorce proceedings.</p> <p>Husband and Wife-Separation — Division of Property — After Divorce — Equity—Jurisdiction. Where the husband and wife made a division of their property pending a divorce, and the husband agreed and attempted to vest the wife with title to certain lots by delivering a previously executed trustee’s deed, and surrendered possession to her and acquiesced in and acknowledged her ownership, in a suit in equity in which the question of title is submitted, the court has jurisdiction, after divorce granted, to decree specific performance of the contract, by compelling the husband to deed the property to the wife.</p>

<p>Appeal froin a judgment of the superior court for Douglas county, Steiner, J., entered March 16, 1909, upon findings in favor , of the plaintiff, in an action for divorce, after a trial on the merits before the court without a jury.</p>

, entered September 14, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of forcible entry and detainer.

, entered March 9, 1909, upon findings in favor of the defendants, dismissing an action for the partition of real and personal property and for an accounting, after a trial on the merits before the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered February 26, 1909, in favor of the plaintiff, after a trial before the court without a jury, in an action for partition and to quiet title.</p>

<p>Specific Performance — Defendant’s Ownership of Land- — Pleadings. A complaint in an action to enforce the specific performance of a contract to convey land must allege that the defendant was the owner of the property either at the time the contract was made or at the time of the commencement of the action.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered August 4, 1909, upon a trial and conviction of the crime of unlawful cohabitation.</p>

, entered February 10, 1909, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action to recover a penalty.

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered June 18, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered January 20, 1909, upon the verdict of a jury rendered' in favor of the plaintiff, in an action for personal injuries sustained by a longshoreman while loading a ship.

<p>Appeal — Decision'—Law of Case — Conclusiveness. The facts and legal conclusions as found upon a former appeal are conclusive on the second appeal of a case.</p> <p>Subrogation — Invalid Mortgage — What Liens Included. There can be no subrogation in favor of a mortgagee, as against the interests of an insane wife, by reason of equities existing at the time the husband executed the mortgage, where at the time the wife was adjudged insane there was no demand against her and no equitable lien on the property subsequently mortgaged.</p> <p>Quieting Title — Relief ' Granted — Personal Judgment — Pleading. It is not error to refuse to enter a personal judgment against a defendant where the prayer of all the pleadings was for a decree quieting title to real property.</p> <p>Husband and Wife — Community Property — Public Lands — Federal Homestead — States—Sovereignty. Under Rem. & Bal. Code, §§ 5915-5917, a homestead acquired from the Federal government by a married man during the lifetime of his wife is community property; and the state has the sovereign power to fix its character irrespective of Federal statutes.</p> <p>Dismissal and Nonsuit — Voluntary—Discretion. It is not an abuse of discretion to refuse a voluntary dismissal of an action to quiet title after it had been consolidated with another suit in which defendants asked affirmative relief.</p>

<p>Criminal Law — Trial—Election oe Dates — Sueeiciency. Upon a charge of rape committed between the first and the 26th days of a specified month, an election, upon demand of the defendant, to prove an offense committed between the 19th and 26th days is sufficiently specific.</p> <p>Rape — Evidence—Sueeiciency. The evidence is sufficient to sustain a conviction of rape committed between the 19th and 26th days of a certain month, where it appears that the prosecuting witness was under the age of consent; that between said dates she and the defendant registered at different hotels as man and wife under assumed names and occupied a single room over night; that the defendant was arrested while occupying a bed with her, and that a physical examination by a physician a few days after showed evidence of recent penetration.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 1, 1909, upon findings in favor of the plaintiffs, in an action for equitable relief.</p>

, entered August 12, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a brakeman iu a fall from a train.

<p>Appeal from a judgment of the superior court for Stevens county, Carey, J., entered April 8, 1909, upon findings in favor of the plaintiffs, in an action for equitable relief.</p>

<p>Chattel Mortgages — -Foreclosure—Costs—Keeping Horses — Use —Accounting—Evidence—Sufficiency. A mortgagee in possession of the mortgaged property as custodian of the sheriff, who uses and works the same pending a contested foreclosure, is not entitled to be paid for care and keep anything more than the actual costs less what the property had earned, as shown by an accounting; and he impliedly admits the use of the property as alleged and fails to make the accounting contemplated by law, where, in answer to an affidavit that the property, twenty-five head of horses and farm machinery, had been worked and used by him upon his farm for his own use and benefit, and that the work and labor of the horses and the use of the machinery exceeded the cost of keeping and caring for the property, he merely filed a brief answering affidavit to the effect that it became necessary to employ a man to care for the horses and that the amount paid to - him by the sheriff was actually expended incident to said care and keep over and above all offsets by reason of the value of the use of any of the stock and property; the sheriff making no showing except by an item in his expense bill of $2,902 paid for care and keep for 11% months.</p>

, entered August 9, 1909, reversing, on appeal, a decision of the board of state land commissioners in which the board granted an application to purchase oyster lands.

<p>Appeal from a judgment of the superior court for Garfield county, Miller, J., entered October S4, 1908, upon a trial and conviction of criminal libel.</p>

, entered October 4, 1909, upon findings in favor of the defendant, dismissing on the merits an action to declare a trust and for an accounting.

, entered February 18, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a lien upon a vessel.

, entered April 26, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action of forcible entry and detainer.

<p>Equity — Maxims—Contracts—Breach. The maxim that equity will not suffer a wrong without affording a remedy has no application in an action for damages for breach of a contract made by defendant’s attorney without defendant’s knowledge.</p> <p>Stipulations — Oral—Validity. An oral “street” agreement of an attorney to file a supersedeas bond on appeal in a cause, whereby the adverse party was led to delay the issuance of execution until the time therefor had expired, is void, under Rem. & Bal. Code, § 130, providing that the court shall disregard all agreements or stipulations in relation to the conduct of any of the proceedings of a cause unless the same be made in open court in the presence of the clerk, entered, etc., or signed by the party or his attorney.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered March 16, 1908, upon the verdict of a jury rendered in favor of the plaintiff, for damages for seduction.</p>

, 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>Judoment — Bar—Matters Concluded — -Boundaries—Election oé Remedies. A judgment establishing a disputed boundary line is a bar to a subsequent action of ejectment brought by the same plaintiff against the defendants to recover a strip along the boundary line by right of adverse possession, since the plaintiff elected his remedy in the former action and alleged ownership of the respective parties up to the line, a government subdivision.</p>

, entered June 23, 1909, upon findings in favor of the plaintiff, after a trial before the court without a jury, in an action on money demands involving an accounting.

, entered July 2, 1909, in favor of the plaintiffs, in an action to foreclose mechanics’ liens, after a trial before the court without a jury.

, entered November 21, 1908, upon the verdict of a jury rendered in favor of the plaintiffs, by direction of the court, in an action of unlawful detainer.

, entered May 17, 1909, upon the verdict of a jury rendered in favor of the defendants, in an action on a promissory note.

<p>Motions to strike a statement of facts, filed in the supreme court February 19 and 21, 1910.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered July 14, 1909, upon findings in favor of the plaintiff, after a trial on the merits.</p>

, entered August 18, 1909, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the execution of a contract for the improvement of a public highway.

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered July 31, 1909, upon a trial and conviction of leasing a gambling house.</p>

, entered September 13, 1909, appointing receivers pending a suit for the dissolution of a corporation, after a hearing before the court.

<p>Appeal — Notice of Appeal — Oral — Time for Taking. Under Rem. & Bal. Code, §1719, authorizing an oral notice of appeal in open court at the time judgment is rendered, an oral notice given April 22d, at the time of overruling a motion for new trial, is ineffectual as an appeal from the judgment entered March 1st.</p> <p>Appeal — Decisions Reviewable — Vacation of Judgment — New Trial. An order refusing to vacate a judgment and grant a new trial is not appealable.</p>

H. King, Esq., judge pro tempore, entered November 12, 1909, upon findings in favor of the plaintiff, in an action for a divorce, after a trial on the merits.

, entered October 1, 1909, upon findings in favor of the defendants, dismissing an action for an injunction, after a trial on the merits.

, entered April 18, 1909, upon sustaining a demurrer to the complaint, dismissing an action to vacate a tax judgment and deed.

, entered March 24, 1909, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action in tort, after a trial before the court and a jury.

, entered May 7, 1909, upon findings in favor of the defendant, in an action to vacate a tax sale and recover possession of real property, after a trial on the merits before the court without a jury.

, entered April 19, 1909, upon the verdict of a jury rendered in favor of the defendants by direction of the court, dismissing an action for personal injuries sustained by a common laborer through the negligence of a foreman and. powderman in firing a blast.

, entered September 14, 1909, upon findings in favor of the defendants, dismissing an action to quiet title, after a trial on the merits before the court without a jury.

, entered February 8, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to vacate a tax foreclosure judgment.

, entered December 2, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action for damages for obstructing an alley.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered July 6, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered May 1, 1909, upon a trial and conviction of the crime of practicing medicine without a license.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered February 13, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for damages.</p>

, entered April 22, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to recover the value of personal property.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 11, 1909.</p>

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>Application for a writ of certiorari to review an order of the superior court for King county, Gay, J., entered September 20, 1909.</p>