Volume 59 — Washington Reports

, entered March 8, 1909, upon findings in favor of the plaintiff, in an action upon an official bond, after a trial on the merits before the court without a jury.

Cross-appeals from a judgment of the superior court for Skagit county, Joiner, J., entered January 11, 1909, upon findings in favor of the plaintiff, in an action on an official bond, after a trial on the merits before the court without a jury.

, entered October 1, 1909, upon the verdict of a jury rendered in favor of the plaintiff for $1,000 damages for an assault upon a passenger.

, entered December 7, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for the dissolution of a partnership, and for damages.

King county, Frater, J., entered October 31, 1908, upon a trial and conviction of the crime of obtaining money under false pretenses.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered June 23, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal inj uries sustained by an employee upon railroad construction work.</p>

, entered November 15, 1909, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for wrongful death.

Appeals from a judgment of the superior court for King county, Tallman, J., entered January 4, 1910, confirming a condemnation assessment roll for a local improvement, after a hearing on the merits before the court.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered November 2é, 1909, upon the verdict of a-jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered September 23, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action of forcible entry and detainer.

<p>Pleading — Amendment—Waiver of Objections. The allowance of the filing of a so-called supplemental complaint as an amended complaint cannot be urged as error after issue joined and trial and judgment on the merits.</p> <p>Master and Servant — Employment—Contract—Construction— ' Termination — Salary. A contract of employment for one year, wbicb provided for sixty days’ notice in the event of a discharge without fault of the employee, entitled the employee to salary for that period in the event of his summary discharge before the expiration of ten months, or to one year’s salary if discharged after ten months.</p> <p>Same. A contract of employment wherein the employee is guaranteed one year’s employment, or the expense of moving to the Pacific coast if discharged before the expiration of one year, does not entitle him to more than one year’s salary, if discharged during the year.</p>

, entered November 17, 1909, upon granting a nonsuit, dismissing an action to cancel a deed and recover possession of real property, after a trial on the merits before the court.

<p>Municipal Corporations — Ordinances—Referendum—Petition-Right to Withdraw Name. A person signing a referendum petition, required to be signed by a certain percentage of the voters of a city, has the right to withdraw his name therefrom before the jurisdiction of the officer to whom it is addressed attaches; but not after final action has been taken thereon.</p> <p>Same — Number of Signers — Determination. Under Seattle City Charter, art. 4, providing that a certain percentage of the voters may invoke the referendum, and that the city comptroller shall verify the sufficiency of the signatures and transmit it with his report to the city council, whose only duty is to then submit the question to the voters, the sufficiency of the signatures to the petition is to be determined by the city comptroller, and after his report is made a person signing the petition cannot withdraw his name therefrom.</p> <p>Same — Submission of Referendum' — Duty of Council. Under art. 4, Seattle City Charter, after a sufficiency of signatures to a referendum petition has been determined by the city comptroller, the city council has no discretion in the matter except to submit the question.</p> <p>Same — Action to Enforce Referendum — Parties—Right to Sue. A voter and petitioner entitled to sign a referendum petition may maintain an action to compel the city council to act thereon.</p>

, entered April 20, 1910, upon sustaining a demurrer to the complaint, dismissing an action to foreclose materialmen’s liens, after a hearing before the court.

, entered December 30, 1909, dismissing an action to reform a lease and for damages, upon sustaining an objection to the introduction of any evidence.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered October 28, 1909, in favor of the plaintiff, after a trial on the merits before the court, in an action to vacate a deed and to subject property described, therein to the satisfaction of a judgment.</p>

, entered June-24, 1909, upon findings in favor of the plaintiff, in an action to quiet title, after a trial on the merits.

, entered October 29, 1909, upon findings in favor of the plaintiff, in an action for specific performance, after a trial on the merits.

Appeal by defendant from a judgment of the superior court for King county, Ronald, J., entered July 8, 1909, upon an award of damages in a condemnation proceeding, after a trial before the court and a .jury.

, entered September 27, 1909, granting-a new trial, after a trial and judgment in favor of the plain-tiffs, in an action of ejectment.

, entered December 18, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, for damages sustained by a passenger in alighting from a street car.

, entered December 9, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a fire insurance policy.

, entered March 5, 1909, admitting a will to probate and revoking letters of administration, upon-sustaining a demurrer to the answer and the entry of a default.

, entered October 28, 1908, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to cancel a tax title.

<p>Master and Servant — Runaway Team — Injuries to Third Persons — Employment of Servant — Evidence—Sufficiency. In an action for injuries caused by a runaway team, evidence that the team belonged to the defendants establishes, prima facie, that they were in defendants’ possession, and that the driver was in control of them.</p> <p>Appeal — Review — Harmless Error — Admission of Evidence. Error cannot be urged in the admission of statements by an agent that he was employed by the defendants, when it was not objected to at the time and a prima facie case of employment had been made out.</p> <p>Same — Evidence—Sufficiency. Error cannot be predicated on insufficiency of the evidence to sustain a liability upon one ground where there was no request to withdraw that ground from the consideration of the jury, and there was sufficient to sustain a recovery on another branch of the case.</p>

, entered July 24, 1909, upon findings in favor of the defendant, in an action to enforce liability for an unpaid subscription to the capital stock of a corporation, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered July 21, 1909, upon the-verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained by reason of a defective street.</p>

, entered December 16, 1909, granting defendants a new trial, after a verdict by a jury in favor of the plaintiff, in an action of replevin.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered September 18, 1909, upon findings in favor of the plaintiff, in an action on contract.</p>

<p>Appeal from’ a judgment of the superior court for King county, Robert H. Lindsay, Esq., Judge pro tempore, entered January 12, 1910, in favor of the plaintiff, granting a writ of mandamus, upon sustaining a demurrer to the answer.</p>

. Appeal from a judgment of the superior court for King county, Tallman, J., entered October 4, 1909, dismissing, at the close of plaintiff’s case, an action upon an insurance policy, and denying a new trial, after a trial before the court and a jury.

<p>Appeal from a judgment of the superior court for King-county, Main, J., entered February 19, 1910.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, McCredie, J., entered September 7, 1909, upon findings in favor of the plaintiff, in an action of ejectment, after a trial before the court without a jury.</p>

, entered September S3, 1909, upon findings in favor of the plaintiffs, after a trial on the merits, in an action for an injunction.

<p>Appeal from a judgment of the superior court for Kitsap county, Yakey, J., entered January 8, 1910, upon findings in favor of the defendants,- after a trial on the merits, in an action to quiet title.</p>

<p>Sales — Contracts—Construction—Delivery—“Require.” A contract for the sale of stone of varying thickness and dimensions according to plans and specifications, to he delivered in such quantities as may be “required” not exceeding a specified limit, is not breached by the vendor for want of delivery, where no demand was made specifying the dimensions of the stone; “require” in this instance meaning demanded as of right rather than needed.</p>

<p>Negotiable Instruments— Action — By Indorsee— Defenses— Fraud — Holder in Due Course — Burden of Proof. In an action by an indorsee of a note given for tbe purchase price of fixtures, evidence that the maker procured the note by fraud and removed and refused to deliver the fixtures, and that when the note was presented by a bank for payment after maturity, it did not have-any indorsements thereon, is sufficient to put the plaintiff upon proof that he was a holder in good faith before maturity.</p> <p>Appeal — Record—Preservation of Grounds — Exceptions. An exception to the direction of a verdict is sufficiently shown where the-statement of facts shows the making and granting of the motion, and the clerk’s journal entry recites that the motion was granted' and exception allowed.</p> <p>Same — Exception—Whitten Orders. Under Rem. & Bal. Code, § 382, it is not necessary to take an exception to the direction of a-, verdict where the order was embodied in a written 'journal entry..</p>

, entered October 19, 1909, upon findings in favor of the plaintiff, after a trial before the court, in an ■action in equity.

, entered June 12, 1909, in favor of the defendants, in an action to quiet title, after a hearing before the court without a jury.

<p>Appeal from a judgment of the superior court for Ska-mania county, McCredie, J., entered October 17, 1907, upon the verdict of a jury awarding damages in a condemnation proceeding.</p>

, entered September 27, 1909, upon sustaining a demurrer to the complaint, dismissing an action to vacate and enjoin the enforcement of a judgment of conviction of practicing dentistry without a license.

, entered January 20, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions of ejectment.

<p>Evidence — Parol Evidence — Contracts. In an action for services performed, oral testimony as to negotiations prior to a written contract for services is proper,' where part of the services were performed before the written contract was made.</p> <p>Appeal — Review—Harmless Error — Evidence. Error cannot be predicated upon the admission of cumulative evidence upon a point proven at length without objection.</p> <p>Principal and Agent — Authority of Agent — Evidence—Sufficiency. There is sufficient evidence that defendant’s agent and attorney in fact, who had general authority to build a house, had authority to change or abrogate the written contract entered into by him and to substitute an oral agreement respecting the compensation of the builder, where whatever was done was in the legitimate carrying out of the enterprise for which the agency was created, and the agent, testifying as a witness for the defendant, said that he was the agent and attorney in fact for the defendant in the transactions with the plaintiff. .</p> <p>Same — Pleading—Denial—Sufficiency. Where a general denial in a paragraph in a complaint alleged that the defendant through an agent and attorney in fact orally employed plaintiff upon a certain consideration to build a house, a general denial thereof and particularly that any other contract was made than a certain written contract, does not put in issue the authority of the agent to represent the defendant in the transaction, where another paragraph of the complaint alleging that the person was the agent and attorney in fact of the defendant was not denied in the answer.</p> <p>Appeal — Review—Theory of Trial Below. As the supreme court will determine a cause upon the theory on which it was tried below, a defendant in an action on contract made by an agent and attorney in fact cannot urge in the supreme court that there was no evidence of authority of the agent to make the contract, where the pleadings did not raise that question, no evidence thereon was offered or instructions requested and no exceptions taken to instructions defining the issue, and the whole issue tried helow was as to whether the contract had been made.</p>

, entered September 30, 1909, upon findings in favor of the plaintiff, in an action on a policy of accident insurance, after a trial on the merits before the court without a jury.

, entered October 2, 1909, upon findings in favor of defendant, after a trial on the merits before the court without a jury, in an action in equity.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered November 6, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for trespass.</p>

, entered November 6, 1909, upon findings in favor of the defendants, in an action to abate an assessment and cancel a tax on real property, after a trial on the merits before the court without a jury.

, entered March 13, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries.

<p>Dedication — Plats—Boundaries—Excess. Where fifty-foot lots and the streets as marked on the plat occupy the entire space between the north and south boundaries of the tract, any excess would be apportioned among the lots; and an excess or strip of four and one-half feet along a boundary line could not be claimed by the plattors or those claiming under them.</p>

, entered November 27, 1909, granting a new trial, after granting a nonsuit at the close of plaintiff’s case, in an action for personal injuries.

<p>Indictment and Information — Lesser Offenses — Robbery—Assault and Battery. Under an information charging an assault with intent to rob, the defendant may not b.e found guilty of an assault and battery; no battery being charged and the same not being necessarily included in the offense of robbery; since Rem. & Bal. Code, § 2167, only authorizes a conviction for a lesser degree of an offense charged, and § 2168 only authorizes a conviction of a lesser offense necessarily included within the offense charged.</p> <p>Criminal Law — Appeal—Decision—Instructions—Harmless Error. Under an instruction authorizing a conviction of assault and battery, under an information charging an assault with intent to rob, a verdict of guilty of assault and battery will be sustained as a conviction of assault; since the instruction was not prejudicial except as authorizing a conviction for a battery.</p>

<p>Rape — Statutes—“Pbevious Chaste Chabacteb” — Defenses. Under Rem. & Bal. Code, § 2436, making it rape to carnally know a female child between the ages of fifteen and eighteen years and of “previous chaste character,” there can be no conviction for an offense committed on a certain date where for months prior thereto the parties had continued sexual relations, without any intervening reformation; and it is immaterial that the prosecutrix was chaste except as to the defendant, “previous chaste character” meaning sexual purity.</p>

, entered November 27, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a stevedore engaged in loading a steamer with lumber.

, entered May 26, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for services rendered.

superior court for King county, Gay, J., entered December 11, 1909, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action on contract.

<p>Homicide — Information—Alleging Death. An information charging that the defendant killed the deceased on a certain day, sufficiently alleges that the deceased died on that day.</p> <p>Appeal — Record—Instructions. Under Rem. & Bal. Code, §395, written instructions and requests for instructions are part of the record without being embodied in the statement of facts or bill of exceptions.</p> <p>Criminal Law — Appeal—Harmless Error. Upon a conviction of murder in the second degree, error in instructions in defining deliberation and premeditation are immaterial.</p> <p>Homicide — Instructions—Self-Defense. Instructions upon the subject of self-defense to the effect that the defendant had the right to act upon appearances and that the necessity must'be real or apparent, are not objectionable because closed with the statement that “the jury and not defendant must be judges of these matters.”</p> <p>Homicide — Self-Defense—Duty to Retreat. The duty to retreat before taking life in self-defense has no application to one against whom a felonious assault is made with a deadly weapon.</p> <p>Same — Instructions. In a prosecution for murder where the deceased had threatened the defendant and each had, armed himself with a rifle and they met and both instantly fired almost simultaneously, it is prejudicial error to give an instruction upon the common law rule relating to the duty to retreat or warn an adversary, if he had time to do so, as it had no application to the facts of the case.</p> <p>Criminal Law — Trial—Misconduct or Court. In a prosecution for homicide, it is misconduct on the part of the trial judge, requiring a new trial, to make an imputation against the good faith of counsel in taking objections or exceptions to the ruling of the court upon the admission of evidence.</p>

, entered October 18, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to foreclose a logger’s lien.

<p>Appeal from a judgment of the superior court for Benton county, Neal, J., entered December 18, 1909.</p>

<p>Appeal — Bond—Amount. Where the bond on appeal, conditioned also as a supersedeas, is for less than double the judgment and $200 additional, the appeal will be dismissed.</p> <p>Appeal — Review—Exceptions. The evidence will not be reviewed in the absence of exceptions to the findings of fact.</p>

<p>Municipal Corporations ■— Ordinances — Equity —¡ Powers oe Court. A court of equity cannot interfere with the enactment of ordinances because it questions their expediency, or the motives of the council, or the regularity of the proceedings.</p> <p>Municipal Corporations —■ Improvements — Abandonment — ■ Injunctions — Remedy at Law. A court of equity will not restrain a city council from abandoning a local improvement after entering Into a contract therefor, as the contractor has his remedy at law.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered February 11, 1910, dismissing, at the close of plaintiff’s case, an action for personal injuries.</p>

<p>Death — Evidence—Sufficiency. The death of a person is sufficiently established by evidence that it was publicly announced in the daily papers of the city, and an undertaker testified that he had embalmed and shipped a body coming into his custody as that of the deceased.</p> <p>Mortgages — Absolute Deed — Evidence—Sufficiency. The fact that a deed, absolute in form, was intended as a mortgage must be established by clear, satisfactory and convincing evidence, and is not shown where the grantor was indebted to the grantee, and conveyed to a trustee who had full power to sell for the amount of the debt, which was done, and no note or written evidence of the indebtedness was given.</p>

<p>Appeal from a judgment of the superior court for King-county, Main, J., entered June 80, 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 tax deed and to. quiet title.</p>

, entered August 9, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to foreclose a mechanics’ lien.

, entered October 26, 1909, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for damages.

, entered July 15, 1909, in favor of the defendants, dismissing an action on contract and for the foreclosure of a mechanics’ lien, after a trial before the court without a jury.

, entered July 20, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action to restrain a trespass upon real property and for damages.

, entered December 1, 1909, granting a nonsuit in an action for personal injuries sustained by a child through the explosion of dynamite caps.

, entered May 14, 1909, upon findings in-favor of the plaintiff, in an action for divorce* after a trial on. the merits before the court.

, entered November 16, 1909, upon a trial and conviction of the crime of conniving at the prostitution of defendant’s wife.

Appeals from judgments of the superior court for King county, Holcomb, J., entered in October and December, 1909, reversing decisions of the board of medical examiners and directing licenses to applicants to practice medicine, upon trials de novo before the court without a jury.

, entered December 21, 1909, upon findings in favor of the defendants, sustaining a decision of the,board of medical examiners denying an applicant a license to practice medicine and surgery, after a hearing before the-court.

, entered March 18, 1910, upon motion of the defendant, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged as a machinist.

, entered July 19, 1909, upon findings in favor of the defendants, dismissing an action for the strict foreclosure of a mortgage, after a trial on the merits before the court without a jury.

, entered November 15, 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 use of the waters of a creek for irrigation purposes.

, entered September 22, 1909, in favor of the plaintiff upon an agreed statement of facts, in an action to foreclose a materialman’s lien.

, entered April 3, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through the breaking of a cable.

Cross-appeals from a judgment of the superior court for Pacific county, Rice, J., entered August 4, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage.

, entered March 10, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions to foreclose a chattel mortgage and to enforce a lien for the keep' and care of a horse.

, entered January 6, 1910, granting letters of administration upon the estate of a deceased person upon hearing contested applications therefor.

T. Dovell, Esq., judge pro tempore, entered March 14, 1910, upon findings in favor of the defendant, after a-trial on the merits before the court without a jury, dismissing an action to restrain the enforcement of an ordinance.

, entered December 17, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for specific performance.

, entered March 10, 1910, 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 mechanics’ lien.

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered June 29, 1909, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered May 29, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for the dissolution of a partnership and for an accounting.

, entered January 17,' 1910, upon findings in favor of the defendants, in an action to enjoin the use of a fish trap location, after a trial on the merits before the court.

Appeal by plaintiff from a judgment of the superior court for Spokane county, Sullivan, J., entered November 12, 1909, upon the verdict of a jury rendered in favor of the plaintiff for nominal-damages by direction of the court, in an action for breach of covenant.

, entered April 30, 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.

Cross-appeals from a judgment of the superior court for Adams county, Holcomb, J., entered November 19, 1909, upon findings in favor of the plaintiff and intervener, in an action to foreclose a mechanics’ lien, after a trial on the merits before the court without a jury.

, entered March 10, 1910, 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.

<p>Rape — Defenses—Evidence of Marriage Relation — Sufficiency. In a prosecution for the carnal abuse of a child, the fact that she was not married to the principal offender appears indirectly and is sufficiently shown to submit the issue to the jury, where she was under fourteen years of age, a mere school girl, living with her parents and bearing her maiden name, and the fact was not questioned at the trial.</p> <p>Rape — Corroboration of Prosecutrix. Upon a charge of accessory to carnal abuse of a child, letters and oral evidence of the defendant may constitute sufficient corroboration of the testimony of the prosecutrix.</p>

<p>Municipal Corporations — Special Assessments — Appeal — Statutes. The act of 1905 (Rem. & Bal. Code, § 7905), entitled an act to validate municipal assessments and to prohibit setting the same aside except for fraud, was not intended to repeal the act of 1901 (Rem. & Bal. Code, § 7552), authorizing an appeal from the confirmation of an assessment by the city council to the superior court, and does not affect such appeals or the procedure therein.</p> <p>Same — Protests—Form—Objections. A notice of appeal from the confirmation of an assessment by a city council may be informal, and is sufficient if it is made to appear that the owner protests against the costs as excessive and disproportionate to the value of the property, and because the benefit is not in proportion to the cost, it only being necessary to clearly state the grounds of the objection.</p> <p>Same — Confirmation of Assessment — Resolution or Ordinance —Appeal. Under Rem. & Bal. Code, § 7532, providing that the city council shall confirm an assessment as corrected by resolution or ordinance, in conformity with the charter, a city council may confirm an assessment by resolution, although another ordinance provides that all orders of confirmation shall be by ordinance, since the power of the council depends .upon the general law and the charter; hence an appeal from a resolution confirming an assessment is not' premature.</p> <p>Appeal — Decision—Remand. Where an assessment by a city council is erroneously confirmed on appeal to the superior court, for the reason that no fraud had been shown, without considering the merits, the case will be remanded for a full hearing in the court below.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December 8, 1908, upon granting a nonsuit at the close of plaintiff’s case, dismissing an action for personal injuries sustained by falling down a stairway, after a trial before the court and a jury.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered July 14, 1909, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for an injunction, and for damages.</p>

, entered November 27, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an injunction.

, entered December 15, 1908, upon findings in favor of the plaintiff, in an action to vacate a decree foreclosing a mortgage, after a trial on the merits before the court.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered December 13, 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 Spokane county, Huneke, J., entered December 13, 1909, upon the vei'dict of a jury rendered in favor of the plaintiff, in an action for the wrongful death of an employee.</p>

, entered June 22, 1909, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action of replevin.

<p>Appeal from an order of the superior court for King coünty, Gilliam, J., entered November 1, 1909, modifying an order confirming a receiver’s sale, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Garfield county, Miller, J., entered October 26, 1909, upon findings in favor of the plaintiffs, after a trial before the court and a jury, in an action to rescind a contract.</p>

Cross-appeals from a judgment of the superior court for Thurston county, Rice, J., entered November 29, 1909, decreeing the specific performance of a contract to convey real property and determining the value thereof, after a hearing on the merits before the court.

<p>Waters and Water Courses — Diversion—Injunction—Parties. In an action to enjoin tiie diversion of waters of a creek by a riparian owner and for damages, there is no defect of parties defendant because the plaintiff failed to join upper appropriators of the waters.</p>

, entered December 22, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action for the dissolution of a partnership, and for an accounting.

<p>Municipal Corporations — Improvements — Eminent Domain Commissioners. The board of eminent domain commissioners created by Rem. & Bal. Code, § 7788, are city officials, and not within Const., art. 11, § 5, requiring all county, township, precinct, or district officers to be elected.</p> <p>Same — Eminent Domain — Assessment oe Lands Not Taken— Verdict. Where a jury in condemnation proceedings for land taken for an improvement found generally that lands not taken were not damaged, the same may be assessed for benefits; and it cannot be shown that the jury merely found that the lands were not damaged in excess of benefits, by oral evidence to the effect that at the trial before the jury it was stipulated that the only issue was whether the lands were damaged in excess of the benefits and that witnesses for the city admitted damage and the jury were instructed that the damage must exceed the benefits; since such evidence and the general verdict, in the absence of special finding, does not necessarily imply that the jury found any actual damage.</p>

Application filed in the supreme court July 19, 1910, for a writ of mandate to compel the secretary of state to file the relator’s declaration of candidacy for the office of secretary of state.

• Appeal from a judgment of the superior court for Kit-sap county, Yaltey, J., entered May 5, 1909, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action on a fire insurance policy.

<p>Application filed in the supreme court August 5, 1910, for a writ of habeas corpus.</p>

<p>Appeal from a judgment of the superior court for King county, Canfield, J., entered June 28, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance..</p>

, entered August 19, 1909, appointing a guardian for the estate of a nonresident incompetent person, after a hearing before the court.

, entered August 3, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to recover money wrongfully diverted by trustees and stockholders of a corporation.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 24, 1909, upon the findings of a referee in favor of the plaintiffs, in an action for an accounting.</p>

, entered January 7, 1910, granting defendants a new trial in an action on contract, after a trial and the verdict of a jury rendered in favor of the plaintiff.

, entered June 4, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

, entered September 15, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by a passenger in alighting from a street car.

Appeal .from a judgment of the superior court for Lewis county, Rice, J., entered. August 3, 1909, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, ip an action on contract.

, entered October 5, 1909, denying the vacation of a judgment and the setting aside of a tax deed, after a hearing before the court.

, entered November 6, 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>Appeal — Record—Statement or Pacts — Necessity—-Time ror Piling. A statement of facts not filed within the time limited by-statute will be struck out on motion, and the judgment affirmed where the errors assigned cannot be reviewed without the aid of the statement.</p>

Appeal by defendant from a judgment of the superior-court for Pierce county, Easterday, J., entered October 25,. 1909, upon the verdict of a jury awarding damages in condemnation proceedings.

<p>Certiorari to review an order of the superior court for King county, Kauffman, J., entered April 20, 1910, adjudging a public use and necessity for the condemnation of a railroad right of way.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered November 6, 1909, upon findings in favor of the defendant, in an action for rescission on the ground of fraud.</p>

<p>Application for a writ of mandamus, filed in the supreme-court, July 14, 1910, to compel the superior court for Kittitas county, Kauffman, J., to fix the amount of a supersedeas, bond on appeal from an order directing a receiver’s sale..</p>

<p>Boundabies — Location—Monuments—Coubses and Distances— Evidence — -Sueeiciency. Where surveyors testified that some years previous hy actual surveys they found the initial corner stake of a platted addition and other original stakes at corners of lots on plaintiffs land, showing full sized lots forty feet wide in accordance with the plat, and corresponding with the present street lines, the monuments found govern and control a call in the plat giving courses and distances from a certain government corner as the location of the initial corner of the plat, which would locate the initial corner in the street and add 13.9 feet to plaintiffs lots.</p>

, entered December, 17, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a pedestrian on a defective street.

<p>Eminent Domain — Irrigation—Private or Public Use — Constitutional Law. Const., art. 1, § 16, prohibiting the taking of private property for private use, except for drains, flumes, or ditches for agricultural etc., purposes, and art. 21, § 1, providing that irrigation etc. purposes shall be deemed a public use, confer legislative authority for Rem. & Bal. Code, §§ 6326 et seq., authorizing the condemnation of land' for irrigation ditches by a private owner of agricultural lands.</p> <p>Eminent Domain — Public Use — Determination. The declaration in const., art. 1, § 16, that the question of public use shall be a judicial question to be determined irrespective of legislative assertion, does not mean that it is to be determined without reference to constitutional assertions upon the subject.</p> <p>Eminent Domain — Irrigation— Arid Lands — -Necessity—Benefits. The right to condemn rights of way for irrigation is not limited to the owners of arid land; and sufficient benefit will result to warrant condemnation for irrigation where it appears that the land is semi-arid, raising only a light crop of wheat or wheat hay or crops maturing early in July, while with irrigation it will produce abundantly almost any crop and will be increased $125 to-$150 per acre in value.</p> <p>Eminent Domain — Irrigation—Necessity. The right to condemn rights of way for irrigation contemplates irrigation by gravity, and' cannot be defeated by the fact that the land could be irrigated by pumping.</p> <p>Eminent Domain — Irrigation—Use of Land. Condemnation for an irrigation canal by a water company owning the lands which-it seeks to irrigate cannot be defeated by the fact that the company intends to sell the irrigated lands and that its purpose is speculative.</p>

Application filed in the supreme court August 20, 1910, for a writ of mandamus to compel the secretary of state to prepare and certify a certain official ballot for a primary election.

, entered January 8, 1910, upon findings in favor of the defendants, after a trial on the merits, in an action to set aside fraudulent conveyances.

<p>Mechanics’ Liens — “Materials”—What Constitutes — Tools and Appliances. Under Rem. & Bal. Code, § 1129, giving a lien to any person performing labor or furnishing material to be used in the construction of any building, ditch, etc., a lien upon the irrigation ditches and power plant of a water company cannot be claimed for tools and appliances used to carry on the work of construction and not intended to enter into, and become a part of the structures when completed.</p> <p>Same — Segregation oe Lienable Items. Where an undeterminable portion of the items forming a large part of a claim for a lien are not lienable the lien must fail as to all the items.’</p>

<p>Conversion ■ — • Community Property — Condemnation — Judgment eor Damages. A judgment for damages upon the condemnation of community property is not deemed real property upon the doctrine of equitable conversion, in a controversy between the husband and wife living separate and apart, but is personal property, subject to the control and management of the husband.</p> <p>Divorce — Dismissal on Merits — Res Judicata. Where a wife was living separate and apart from her husband, after her action for a divorce had been denied on the merits, and their community property was condemned, she cannot, in the condemnation suit, seek the adjudication of her community rights or her right to separate maintenance, as she is bound by the former adjudication that she is not justifiably living separate and apart from her husband.</p>

, entered April 23, 1910, dismissing a proceeding to require a witness to produce documents on the taking of a deposition by a commissioner, after a hearing on the application.

, entered March 28, 1910, upon findings in favor of the defendants, in an action to recover corporate stock under an escrow agreement, after a trial on the merits before the court without a jury.

, entered July 23, 1910, granting a peremptory writ of mandamus commanding a city council to call a special election, after a hearing on the merits.

, entered April 30, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to foreclose a landlord’s lien for rent.

, entered November 2, 1909, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property by reason of the regrade of a street.

, entered March 15, 1910, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries.

<p>Prostitution — Common Prostitute — Definition. To constitute one a common prostitute under Rem. & Bal. Code, § 2440, making it a crime to live with or accept the earnings of a common prostitute, it is not essential that she submit herself to sexual intercour-e for gain (Rudkin, C. J., Chadwick, Gose and Morris, JJ., dissenting) .</p> <p>Criminal Law — Evidence—Proof of Other Crimes — Admissibility. In a prosecution for living with a common prostitute, letters showing that the accused had been living with the woman and that she was a prostitute for hire, are not inadmissible because they show that the accused had committed other crimes.</p> <p>Prostitution — Living With Prostitute — Information—Time of Offense — Sufficiency. An information for living with a common prostitute is not insufficient because it charges the offense to have been committed on a single day instead of charging a continuing offense; since so living for one day with intent to continue the relation constitutes the offense.</p>

<p>Pleading — Complaint —Supplemental Pleadings — Amendment After Decision- — -Discretion. In an action for breach of covenant against incumbrances, it is not an abuse of discretion to deny leave to file a supplemental complaint, after a trial before the court without a jury and after the court had orally announced its decision for nominal damages, in order to show payment and discharge of the incumbrances by the plaintiff after the decision was made.</p>

Totten, Esq., judge pro tempore, entered September 17, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for divorce.

, entered November 30, 1909,'upon the verdict of a jury rendered in favor of the plaintiff, in an action for an assault with intent to commit rape.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered February 11, 1910.</p>

, entered October 15, 1909, upon findings in favor of the plaintiff, in an action to vacate a deed, after a trial on the merits before the court without a jury.

, entered November 16, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered May 23, 1907.</p>