Volume 61 — Washington Reports

<p>Municipal Corporations — Charters—Ordinances—Enactment— Ordinances Obligating City for Payments. Under a city charter providing that no ordinance “obligating the city for the payment” of more than a specified sum shall be passed before the second regular meeting of the council after its introduction, an ordinance passed on the day of its introduction is void where it provides for contracts for a water extension, and obligates the city to create a special fund for the benefit of the contract by setting aside fifty per cent of its gross revenues from its water system and obligates the city to pay such special fund to the contractor; “obligating the city,” not being limited to the creation of a general indebtedness against the city.</p> <p>Same — Mandatory Provisions. Charter provisions prescribing a definite method for the enactment of ordinances are mandatory.</p> <p>Judgment — Res Judicata — Matters and Parties Concluded. A judgment in an action, apparently a moot case to determine the validity of a contract for a city water extension, in which the validity of the preliminary ordinances was assumed, and the contractor and the city were working in harmony to sustain the contract, attacked as illegal on other grounds, is not res judicata in a second action by the contractor against the city for breach of the contract, defended by the city on the ground that the preliminary ordinance authorizing the contract was void; since the matters involved and the parties in the second suit were different.</p>

, entered April 11, 1910, upon the verdict of a jury rendered in favor of the plaintiif, in an action for personal injuries sustained by an employee engaged in the construction of a trestle.

, entered December 20, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the driver of a horse which was frightened by defendant’s automobile.

<p>Appeal — Decision—Law op Case. Upon a retrial, tbe decision on a former appeal becomes the law of tbe case, and is conclusive.</p> <p>Appeal — Review—Harmless Error — Verdict. Where tbe jury returns tbe only verdict tbat could have been rendered under tbe evidence, intermediate errors as to tbe form of tbe action or error in instructions are harmless.</p> <p>Same — Instructions. Errors in submitting instructions as to the measure of damages on a certain item is harmless where it appears from tbe verdict of tbe jury tbat such item did not figure in tbe verdict.</p>

, entered February 10, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee while unloading a car of grain.

, entered March ££, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a printing shop.

, entered June 4, 1910, in favor of the plaintiff, granting an injunction against a proposed change in the operation of street cars.

, entered April 25, 1910, upon findings in favor of the defendant, dismissing on the merits an action to enjoin the maintenance of a nuisance.

, judge pro tempore, entered February 14, 1910, upon the verdict of a jury rendered in favor of the defendant, in an action for personal injuries sustained by an employee in a shingle mill.

, entered June 8, 1910, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, for money had and received.

<p>Appeal — Review—Verdict. A verdict supported by ample and competent testimony will not be reversed on appeal.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered November 20, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Landlord and Tenant — Rents—Lease—Condition op Premises— Implied Warranty. Where, by the terms of a lease, the premises were to be arranged by the lessors for a cafe and kitchen, and the lessees were prohibited from making any other use of the same, the lessor cannot recover rent without complying with the lease, nor invoke the general rule that there is no implied warranty of the fitness of demised premises.</p> <p>Same — Lease—Condition op Premises — Terms—Construction. A lease providing that the lessor shall arrange the premises for a kitchen and cafe “as in its judgment shall be best,” and prohibiting the lessee from making other use of the same, does not make the lessor the solé judge of the fitness of the place to the extent of relieving it of all obligation to produce the results contemplated.</p> <p>’ New Trial — Grounds—Surprise—Evidence. Introduction by defendant of evidence material to the issues disclosed by the pleadings cannot be made the ground of a new trial on the ground of surprise, where the plaintiffs were not misled to believe that no evidence of that nature would be used against them.</p> <p>New Trial — Newly Discovered Evidence. A new trial should not be. granted for newly discovered evidence that is merely cumulative and not likely to change the result.</p>

<p>Associations — Membership—Expulsion—Notice—Necessity. A league of baseball clubs or associations acts without jurisdiction in the expulsion of a member without notice and an opportunity to be heard; and the presence of the member without previous notice of the action does not confer jurisdiction, when such member does not consent.</p> <p>Associations— Membership— Expulsion- — By-Laws—Repeal. A section in a constitution of a league of baseball clubs or associations providing that the membership of a club may be terminated by a unanimous vote of the remaining clubs, while only a by-law, is not repealed by a resolution amending a one-year franchise granted by resolution so as to grant a franchise or membership for the term of five years; there being no reference to the constitution, and nothing to show that the resolution was unanimous.</p> <p>Associations — Membership—Termination. A baseball club may be deprived of its membership in a league under a clause in the constitution providing for the expulsion of a club on the unanimous vote of the other members if for business reasons the same appears desirable.</p> <p>Associations — Membership—Reinstatement—Mandamus—When Lies. Where the membership of a baseball club in a league was illegally terminated without giving required notice, the courts will not by mandate enforce its reinstatement where it appears that it will be expelled on due notice, under a clause in the constitution authorizing such expulsion for business reasons, by a unanimous vote of the remaining members.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Gay, J., entered March 19, 1910, upon the verdict of a jury rendered in favor of the plaintiff for $100 ■damages for personal injuries sustained through an explosion.

<p>Principal and Agent — Compensation—Evidence—Sufficiency. In an action for the services of an agent, the defense that the agent was to build bunkers costing $7,000, for the unloading of scows, is not made out where the testimony was vague, the agent could have been discharged at any time, and appears to have been discharged for other reasons.</p>

<p>■ Corporations — Dissolution—Actions—Abatement and Revival. An action, whether at law or in equity, against a corporation abates upon the loss, pendente lite, of its franchise by having its name stricken from the records of the secretary of state for failure to pay its annual license fee, pursuant to Rem. & Bal. Code, § 3715, and failure to apply for a reinstatement pursuant to Id., § 3715a, where its receiver or trustees are not substituted as parties.</p> <p>Corporations — Dissolution—License Fees — Constitutional Law —Legislative Power — Encroachment on Judiciary. Rem. & Bal. Code, § 3715, providing that the names of corporations shall be stricken from the records of the secretary of state, and the corporation dissolved for failure to pay the annual license fees unless reinstated, under § 3715a, is not unconstitutional on the theory that a forfeiture of corporate franchises cannot be decreed except by a court of competent jurisdiction.</p> <p>Same — Contract Rights — Parties—Creditors. Rem. & Bal. Code, §§ 3715 and 3715a, providing for the forfeiture of corporate franchises for the nonpayment of annual license fees violates no contract rights of creditors of the corporation; since they are not parties to the contract between the state and the corporation or its stockholders, and still have a remedy against its assets.</p>

, entered February 25, 1910, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by an employee in a factory.

, entered March 18, 1910, in favor of the defendant, dismissing an action for personal injuries, upon withdrawing the case from the consideration of the jury.

, entered June 22, 1910, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to cancel a deed for fraud.

, entered May 31, 1910, dismissing an action for damages for blacklisting, upon withdrawing the case from the consideration of the jury.

, entered February 24, 1910, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by an employee in a mill.

, entered November 27, 1909, upon a conviction of burglary in the second degree, after a trial upon an information charging burglary in the first degree.

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered March 8, 1910, dismissing, at the close of plaintiff’s case, an action on contract.</p>

, entered February 11, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor employed in a box factory.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered February 11, 1910, upon a trial and conviction of selling intoxicating liquor to an Indian.</p>

Appeal by defendant from a judgment of the superior court for Whatcom county, Hardin, J., entered December 28, 1909, decreeing the payment of alimony, upon granting a divorce to defendant.

<p>Appeal from a judgment of the superior court for King county, Holcomb, J., entered April 19, 1910, upon findings in favor of the applicant on appeal from a decision of the board of medical examiners, directing the issuance of a license to practice medicine and surgery.</p>

, entered June 24, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an accident insurance policy.

, entered February 1, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger through a collision of street cars.

, entered February 14, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries received by a planerman in a sawmill.

, entered January 24, 1910, upon a trial and conviction of living with and accepting the earnings of a common prostitute.

<p>Appeal — Review—Law op Case — Instructions. Instructions, not excepted to, become the law of the case.</p> <p>Appeal — Review—Verdicts. Findings of a jury, supported by competent evidence, are conclusive on appeal.</p> <p>New Trial — Affidavits' op Jurors — Impeaching Verdict. Affidavits of jurors in support of a motion for a new trial cannot be received to affect matters that manifestly inhere in the verdict.</p>

, entered December IS, 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 mechanics’ lien.

, entered March 7, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the driver of a wagon through collision with a street car.

, entered August 81, 1910, upon the verdict. of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger alighting from a street car.

<p>Appeal — Review—Harmless Error. Error in instructions are harmless where the jury was not misled, and the only question in the .case was one of law for the determination of the court.</p> <p>Contracts — Building Contract — Performance. Failure to put saddle boards on the ridge pole of a house, when the total cost of doing so would not exceed one dollar, and which were not in the specifications and are not put on all houses, does not amount to nonperformance of a building contract preventing a recovery of the contract price.</p>

, entered November 22,1909, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action of replevin.

, entered March 12, 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 materialman’s lien.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered October 19, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered April 18, 1910, in favor of the defendants, dismissing an action to enjoin the execution and awarding of a contract for a public improvement.

, entered June 18, 1910, upon findings in favor of. the plaintiff, after a trial on the merits before the court without a jury, in an action on promissory notes.

, entered September 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 an injunction.

, 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 for breach of covenant.

<p>Appeal from a judgment of the superior court for Skagit county, Joiner, J., entered May 3, 1910, upon a trial and conviction of maintaining a public nuisance.</p>

<p>Master and Servant — Safe Place — Coal Mine — Assumption of Risks — Contributory Negligence. An experienced coal miner, part of whose duty it was to put props under the overhanging coal, has a right to rely on the assurance of the foreman, made after examination in the miner’s presence, that the place was safe, and does not assume the risk and is not guilty of contributory negligence in so doing.</p> <p>Same. Merely working in a dangerous place, the risk of which is not assumed by the servant, is not contributory negligence.</p> <p>Same- — Negligence—Evidence—Admissibility. Upon an issue as to whether sufficient props were furnished a miner in a coal mine, it is proper to exclude evidence as to trouble in compelling other miners to put up props.</p> <p>Master and Servant — Actions—Precedent Claim — Materiality —Trial'—Objection. In an action for injuries sustained in a coal mine, it is not material that no claim was made by plaintiff before suit commenced, during some four months after the accident, there being no attempt to show the purpose of such evidence, claimed on appeal to be relevant as showing false testimony by the plaintiff at the coroner’s inquest.</p> <p>Master and Servant- — -Negligence — Coal Mine — Instructions. The use of the words “any negligence,” in an instruction relating to negligence in furnishing props in a coal mine, is not to be construed as relating to any other negligence not mentioned in the pleadings, where from the context the jury could not have been misled.</p> <p>Damages- — -Personal Injuries — Excessive Verdict. A verdict for $20,000 for personal injuries sustained by a coal miner, thirty-seven years of age, is not excessive, where he had a wife and five children to support, and according to the expert witnesses he was left -a broken and disjointed wreck, with no hope o'f recovery and only suffering and embarrassments to look forward to.</p>

, entered March 19, 1908, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by stepping into an unguarded post hole.

, entered March 23, 1910, in favor of the plaintiffs, enjoining the conducting of an undertaking business in the residence portion of a city.

, entered January 24,1910, in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to vacate a deed for fraud.

, entered December 27, 1909, in favor of the defendants, dismissing an action for specific performance, upon overruling a demurrer to the answer.

<p>Judgment — Res Judicata — Matters Concluded. The dismissal of an action to rescind a contract to support the plaintiff, on the ground that plaintiff had violated the contract in refusing to live with the defendant since August 20th, 1908, is res judicata and a bar to another action to rescind the same contract for failure to support the plaintiff from August 20th, 1908, to August 20th, 1909, commenced within fifty days after the entry of the former judgment; no breach since such judgment being alleged.</p> <p>Contracts — Support—Construction. Under a contract for life support at defendant’s home, providing that plaintiff shall not refuse to reside with defendant except for defendant’s neglect or failure to-suitably provide for plaintiff, in which event defendant was to pay $15 per month, defendant is not liable for the monthly payments-where plaintiff unjustifiably refused to reside with defendant.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered August 16, 1909, confirming an assessment roll for a local improvement, after a hearing on the merits.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 10, 1909, in favor of the defendant, upon granting a nonsuit in an action for damages for the wrongful death of an employee in a coal mine.</p>

<p>Criminal Law — Trial—Reopening Case — Discretion. It is not an abuse of discretion to refuse the accused’s request to reopen the case, where counsel for accused advisedly refused to offer any evidence and rested, and the witnesses for the state „were excused and an adjournment taken until the next morning.</p> <p>Rape — Force—Intent-—Evidence — Sueetciency. There is sufficient evidence of an assault with intent to commit rape, without consent, with force sufficient to overcome resistance, where the assault was conceded and the attempt, force and resistance clearly shown by the evidence of the prosecutrix, and by her condition and bruises on her person immediately thereafter, the intent of the accused being for the jury as shown by his acts.</p> <p>Rape — Assault and Intent — Resistance — Instructions. In a prosecution for assault with intent to commit rape, by force, it is sufficient to instruct the jury that the act must have been by forcibly overcoming the resistance of the prosecutrix, without charging that she must have made all the resistance within her power.</p>

<p>Bhls and Notes — Maturity—Installments Due — Option—Time for Exercising. An option to declare the principal of a note due for default in the payment of interest, time not being made of the essence of the contract, cannot be exercised after the default is purged by payment of the interest to the depositary appointed to collect and receive the payments.</p>

Appeal by defendants from a judgment of the superior court for Yakima county, Preble, J., entered June 17, 1910, upon the verdict of a jury awarding damages in proceedings to condemn property for a railroad right of way.

, entered May 7, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a j ury, in an action on contract.

<p>Master and Servant — Injuries to Servant — Warning—Question for Jüry. There is a question for the jury, where a shoveier, struck while working on a street car track, testified that no gong was sounded giving him notice of the approach of a car, while the motorman and another witness testified that the gong was sounded.</p> <p>Same — Contributory Negligence — Evidence — Sufficiency. A common laborer at work shoveling gravel on a street car track is not guilty of contributory negligence in not noticing the approach of a street car, where no warning was given according to custom, and he was on the track in the line of his duty and did not see or hear the car.</p> <p>Same — Cause of Accident — Evidence—Question for Jury. Where a man has been forcibly knocked down by a street car, it cannot be said, as a matter of law, that the position in which he was found made it physically impossible that he was struck in any particular way; the question being for the jury.</p>

, entered December 8,1909, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the obstruction of a highway and for damages.

<p>Appeal from a judgment of the superior court for Clarke county, McMaster, J., entered April 7, 1910, upon findings in favor of the defendant, in an action to establish a trust in real property.</p>

Motion to dismiss an appeal from a judgment of the superior court for King county, Webster, J., entered June 28, 1910, in favor of the plaintiff, in an action to quiet title.

, entered December 21, 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 hens for local assessments levied to pay the cost of a public improvement.

, entered March 25, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries.

<p>Executors and Administrators — Trusts—Purchase by Trustee ■ — Sale—Setting Aside — Acquiescence. The act of an executor and trustee, in permitting his wife to acquire, at a discount, claims of creditors of the estate, to pay for property sold to creditors pursuant to a plan to satisfy claims and save the estate from insolvency, cannot be objected to by residuary legatees of the cestui que trust, the widow of the deceased, who for four years prior to her death acquiesced in the proceeding with full knowledge of all the facts, while she and all such purchasers profited greatly by the increased value of the property taken by them; since the sale to the trustee’s wife was not absolutely void, but only voidable.</p>

<p>Vendor and Purchaser — Contract — Sale in G-ross — Acreage— Deficiency. A contract to convey certain legal subdivisions of land “containing 399 1-3 acres” the purchaser agreeing to pay “at the rate of $27.50 per acre, a sum in total of eleven thousand dollars,” is a sale in gross, and the vendee is not entitled to a deduction in the price on a survey showing a deficiency of 31 acres, where it appears that the parties contracted in good faith, neither knew the exact acreage, and the land was not the only subject of the contract, some personal property and a lease of other lands being included.</p>

, entered December 16,1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on promissory notes.

, entered March 25, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor employee in a box factory.

<p>Appeal from a judgment of the superior court for King county, Robert H. Lindsay, Esq., judge pro tempore, entered January 10, 1910, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

, entered December 11, 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 May 20,1910, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for wrongful death.

, entered February 19, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages for the wrongful death of an employee in a coal mine.

, entered October 14, 1909, in favor of the plaintiff, upon withdrawing the case from the consideration of the jury at the close of the evidence, in an action on contract.

, entered April 18, .1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for per.sonal injuries sustained by an employee in a logging camp.

, entered February 4, 1910, in favor of the plaintiff, after a trial before the court without a jury, in an action on contract.

, entered April 11, 1910, upon findings in favor of the defendants, modifying an assessment roll made by commissioners upon property benefited by a public improvement, after a hearing before the court.

, entered February 11, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered January 18, 1910, granting plaintiff a new trial, after the granting of a nonsuit, in an action for fraud tried before the court and a jury.

, entered July 15, 1910, upon granting a nonsuit, dismissing an action for personal injuries sustained by a employee engaged in laying brick.

, entered December 8, 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 a broker’s commissions.

, entered November 13, 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 a lost boundary.

<p>• Appeal — Preservation of Grounds — Exceptions. Written exceptions to instructions filed with, the clerk and not in any way considered by tbe court are insufficient.</p> <p>Appeal — Review—Verdict. A verdict sustained by conflicting evidence will not be set aside on appeal.</p> <p>Husband and Wife — Actions—Judgment Against Community— Liability of Wife. A judgment against L. R. and the community composed of L. R. and E. R., husband and wife, merely establishes the community character- of the debt, and is not a personal judgment against the wife.</p> <p>Appeal — Review—Pabties Entitled to Allege Ebbob. One alleged to be the wife of a defendant is not prejudiced by a judgment establishing the community character of his debt without any proof of the marriage relation, where no personal judgment was taken against her.</p>

, entered February 16, 1910, upon the-pleadings, after overruling a demurrer to the complaint, enjoining the canvassing of election returns.

<p>Appeal from a judgment of the superior court for Snohomish county, Canfield, J., entered February 19, 1910, upon a trial and conviction of practicing dentistry without a license.</p>

, entered February 21, 1910, 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 January 18, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action to recover money paid under a contract to purchase land.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered October 5, 1909, upon a trial and conviction of assault with intent to commit sodomy.</p>

<p>Jury — Drawing—Time for Service — Challenge to Panel. The requirement that a jury be drawn for “the ensuing month,” is not so material as to invalidate a panel part of whom were drawn for the month of December, but not summoned until January, because there was no jury business for the month of December, in view of Rem. & Bal. Code, § 2140, providing that challenges to the panel shall only be allowed for a material departure from the prescribed forms (Parker, J., dissenting).</p> <p>Criminal Law — Appeal—Record. Comment on the facts pending a motion to quash the jury panel cannot be assigned as error, when the jury had not been called to the box and the record does not show that any juror was present.</p> <p>Continuance — Diligence. A continuance is properly denied in a criminal case where the accused took no-steps to secure a subpoena for witnesses until more than a month after the case was set for trial, and the only diligence shown to secure witnesses living at a distance was the writing of letters a few days before the trial, with no excuse for the delay.</p> <p>Appeal — Review—Haemless Eeeoe. It is not prejudicial error to refuse to strike out an immaterial opinion of a witness.</p> <p>Criminal Law — Evidence—Identity. In a prosecution for burglary, in which a witness testified that the accused was wearing the witness’ shoes, evidence that the witness had tried on and could wear the shoes identified as shoes left by the accused is admissible.</p> <p>Same. In a prosecution for burglary, evidence that an unidentified man was met at a certain place, and concealed himself, is admissible, where it appears from other evidence that the accused went in that direction, and where the incident, with other evidence, was a circumstance tending to connect him with the crime charged.</p> <p>Appeal — Review—Harmless Error. Error cannot be predicated upon an immaterial statement of a witness as to trivial incidents which did not reach the dignity of evidence.</p> <p>Criminal Law — Evidence—Other Crimes. Upon a prosecution of burglary, evidence of another burglary in the vicinity about the same time, and that articles then stolen, with burglar’s tools, were found on the person of the accused, who was arrested shortly after taking a stage ride from that locality, is admissible to show that accused was in the vicinity and had opportunity to commit the crime.</p> <p>Criminal Law — Evidence—Escape. Evidence of the accused’s escape and recapture by the sheriff is admissible as a circumstance tending to show guilt.</p> <p>Burglary — Second Degeee — Elements oe Offense. Under Rem. & Bal. Code, § 2579, defining burglary in the second degree as an entry of a dwelling with intent to commit some crime, under circumstances not amounting to burglary in the first degree, it is not essential to burglary in the second degree that it was committed in the nighttime.</p>

Appeal by plaintiff from a judgment of the superior court for King county, Ronald, J., entered February 5, 1910, upon findings in favor of the plaintiff, for part of his claim, after a trial on the merits before the court without a jury, in an •action for conversion.

<p>Pleading — Demubbeb—Waiver by Pleading Oveb. In an action to recover on a sight draft, a demurrer to the complaint, on the ground that an acceptance in writing was not alleged, is waived by pleading over, admitting the execution of the draft and setting up a partial failure of consideration through a mutual mistake.</p> <p>Bills and Notes — Drafts by Agent on Pbincipal — Rights op Holdeb. Where a sight draft is drawn by an agent upon his principal in payment of logs purchased for the drawee, the effect is that of a bill drawn upon the drawer himself, which the holder may treat as a promissory note, under Rem. & Bal. Code, § 3520.</p>

, entered October 30, 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>Criminal Law — Evidence of Other Crimes — False Pretenses. In a prosecution for obtaining money under false pretenses, through, a conspiracy with a swindling clairvoyant who predicted and advised the investments, evidence of other similar offenses, committed by the same conspirators in the same way upon other dupes, is admissible to show that the acts were done as part of a general scheme of conspiracy to defraud, the unusual and extraordinary means employed making an exception to the general rule that evidence of other crimes is not admissible.</p> <p>False Pretenses — Evidence—Conspiracy—Admission of Codefendant. In a prosecution for obtaining money under false pretenses through a conspiracy with a swindling clairvoyant, photographs of the latter, in oriental costume, with writings thereon, of which he was author, scoffing at the gullibility of his victims, are admissible in evidence.</p> <p>False Pretenses — Defenses—Restitution. -In a prosecution for obtaining money under false pretenses for worthless stock, evidence of the value of land traded to the prosecuting witness in restitution is inadmissible, that being no defense.</p>

, entered February 8, 1910, upon findings in favor of the plaintiff, after a trial on the merits, before the court without a jury, convicting the defendant of violating an ordinance regulating the operation of street cars.

, entered January 7, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action to recover for damages to horses transported.

, entered February 28, 1910, 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 deed.

, 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 foreclose a material-man’s lien.

, entered December 23,1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for an accounting.

, entered April 29, 1910, 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>Homicide — Defense—Insanity—Evidence—Admissibility. Upon the defense of insanity to a charge of murder of accused’s wife, after a foundation is laid by some evidence of mental aberration, it is error to exclude evidence that the wife, an Indian, had joined the Shakers, a religious organization practicing promiscuous illicit intercourse, whereby the accused was so greatly distressed in mind that his .reason was dethroned; since he was entitled to the benefit of any competent evidence tending to account for or naturally lead up to insanity; and the delusion of marital infidelity is a recognized symptom of homicidal insanity.</p>

<p>Appeal from an order of the superior court for Snohomish county, Steiner, J., entered December 20, 1909, granting plaintiffs a new trial, in an action on contract.</p>

, entered April 2, 1910, upon findings in favor of the defendant, confirming assessment rolls upon property benefited by a public improvement, after a hearing upon consolidated actions before the court without a jury.

, entered January 8, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in an electric lighting plant.

, entered February 17, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, awarding a writ of mandamus to compel a universal transfer system on all the street railway lines in a city.

, entered December 3, 1909, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for conversion.

, entered December 9, 1909, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to reform a deed.

, entered January 28, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by the operator of an edger machine in a sawmill.

, entered March 14, 1910, in favor of the defendant, after a trial on the merits before the court without a jury, dismissing an action for specific performance.

<p>Indictment and Infobmation — Duplicity—Laeceny. An information for larceny is not bad for duplicity in that it charges the stealing of specified articles from the persons of, and belonging to, two parties, where prima facie, both occurred at the same time and place and constituted but a single transaction (overruling State v. Bliss, 27 Wash. 463).</p>

<p>Municipal Coepoeations — Tobts—-Flooding Pbemises — Liability oe City. A city is liable for damages resulting from flooding premises by pumping water into a sewer, in an effort to remove an obstruction, knowing at the time that such damage would- probably result, and cannot plead that the act was done in a governmental capacity..</p>

, entered April 30,1910, after a trial on the merits before the court without a jury, dismissing an action to cancel an assessment upon property benefited by a local improvement.

, entered January 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an accounting.

, entered November 3, 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 accounting.

<p>Appeal from a judgment of the superior court for Lincoln county, Neal, J., entered December 28, 1909, upon a trial and conviction of horse stealing.</p>

<p>Appeal from a judgment of the superior court for Lincoln county, Neal, J., entered November 23, 1909, upon the verdict of a jury rendered in favor of the defendant, in an action on contract.</p>

, entered February 7, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages sustained through the loss of an eye.

, entered November 3, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to property by fire.

, entered January 3, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for trespass.

<p>Quieting Title — Cloud—Mortgage by Stranger. Under Rem. & Bal. Code, § S09, enlarging equity jurisdiction, an action lies to quiet title against a mortgage given by a stranger to the title.</p>

Cross-appeals from a judgment of the superior court for King county, Gilliam, J., entered February 9, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action by stockholders to vacate a sale of property to a corporation and for other equitable relief.

, entered January 4, 1910, upon the verdict of' a jury rendered in favor of the plaintiff, in an action on a. policy of fire insurance.

, entered June 15, 1910, affirming an order made by a board of county commissioners establishing a commercial waterway district, after a hearing before the court.

, entered March 16, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to quiet title.

<p>Appeal from an order of the superior court for King county, Gay, J., entered February 23, 1910, upon sustaining a demurrer to the affidavit, dismissing an application for a writ of mandamus.</p>

, entered June 25, 1910, upon findings in favor of the defendants, after a trial on the merits before-the court without a jury, in an action on a judgment.

, entered October 7,1910, upon a conviction of assault in the second degree, after a trial upon an information charging assault in the first degree.

<p>Mortgages — Absolute Deed as Mortgage — Evidence. A deed may be shown by parol to have been intended as a mortgage, but the evidence must be clear, cogent, and convincing.</p> <p>Witnesses — Competency— Transactions With Decease!). A widow, the defendant in an action to quiet title, cannot testify to statements made by her deceased husband as to his interest in the property in dispute; since she is a party in interest and to the record, within Rem. & Bal. Code, § 1211, prohibiting such a party from testifying to transactions with the deceased.</p> <p>Evidence — Self-Serving Declarations. In an action against a widow to quiet title, evidence of declarations to third persons by her deceased husband as to his interest in the property are inadmissible as self-serving.</p> <p>Same — Declarations—Admissions Against Interest. A declara? tion by a father, at the time of the purchase of property in his son’s name, that the deed was so taken to secure advances made to him by the son, must be measured in the light of the whole transaction, and is not necessarily a declaration against interest merely because it shows an indebtedness.</p> <p>Mortgages — Absolute Deed as Mortgage — Evidence—Sufficiency. Where property was purchased in the name of a son, and the father built a house and lived on the property, the fact that the deed to the son was not recorded and was kept in the possession of. the father until his death is not sufficient to overcome the presumption that the deed speaks its true intent and was not intended as a mortgage to secure advances made by the son .</p> <p>Evidence — Res Gestae — Witnesses—Competency—Transactions With Deceased. Where the' statute renders incompetent the evidence of declarations by a deceased person respecting his title to the property in dispute, it cannot be received as a part of the res gestae.</p>

<p>Homicide — Mubdeb in Fiest Desbee — Indictment and Infobmation — Sufficiency. An information charging that the accused did, with, premeditated design to effect her death, kill and murder A. J. by beating and mortally wounding, etc., follows the language of Rem. & Bal. Code, § 2392, defining murder in the first degree, and is sufficient without further alleging that the person died.</p> <p>Juby — Competency—Challenges — Waives of Objection. Error, if any, in denying a challenge to a juror for actual bias, is waived, where the state withdrew its opposition, and the court offered to permit the defense to again exercise its challenge, the defense refusing to avail itself thereof or take any action thereon.</p> <p>Juby — Qualification of Jubob — Taxpayeb. Under Rem. & Bal. Code, § 94, an elector and taxpayer of the state of Washington is a qualified juror, and a juror need not be a taxpayer within the county in which he is called.</p>

, entered January 27, 1910, upon withdrawing the case from the consideration of the jury, dismissing an action for personal injuries sustained by an employee in railroad construction work.

, entered April 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian in falling over an obstruction on a sidewalk.

, entered December 2, 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 possession of real property and to quiet title.

, entered January 19, 1910, 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 July 7, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through an explosion in a coal mine.

, entered July 7, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through an explosion of gas in a coal mine.

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered August 29, 1910, upon a trial and conviction of a gross misdemeanor.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered January 14, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Certiorari to review an order of the superior court for King county, Albertson, J., entered December SO, 1910, granting a change of venue in an action upon a promissory note.</p>

<p>Appeal — Decision— Jurisdiction — Remand — Recall. After an appeal has been heard, the opinion filed, a petition for rehearing denied, and the remittitur transmitted to the superior court, appellate jurisdiction ceases, and the court cannot, by consent of the parties, recall the remittitur after the term to consider the effect of a subsequent statute.</p>

<p>Appeal from an order of the superior court for Whatcom county, Kellogg, J., entered June 11, 1910, dismissing a claim against an-insolvent, upon sustaining the objections of the receiver.</p>

, entered June 13, 1910, upon findings in favor of the plaintiff, after a. trial on the merits before the court without a jury, in an action of ejectment.

, entered January 12, 1910, upon findings in favor of tbe defendant, after a trial on the merits before the court without a jury.

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered May 2, 1910.</p>