Volume 62 — Washington Reports

, entered February 21, 1910, upon the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by a railway brakeman in a fall from a car.

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered January 6, 1910, granting a non-suit, in an action to recover rents.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Shackleford, J., entered March 26, 1910, upon findings in favor of the plaintiffs, in an action on contract, after a trial before the court without a jury.</p>

, entered May 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a miner through the fall of overhead rock.

, entered May 20, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a mucker in a tunnel through the fall of overhead rock.

, entered September 9, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian, run down by a runaway team.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered March 14, 1910, dismissing an action for damages, upon withdrawing the case from the jury.</p>

<p>Mechanics’ Liens — Fixtures—Heating Plant. A boiler, radiators, and other appliances, attached to a hot water heating system, furnished with pipes etc. under a building contract, are fixtures and subject to a mechanics’ lien as part of the building, although they could be detached without damage, it being conceded that the pipes were fixtures and that some of the articles were designed for use in the particular building.</p>

<p>Appeal — Notice—Time for Taking — Physicians and Surgeons. Rem. & Bal. Code, § 8399, requires that an appeal to tbe supreme court from an order of tbe superior court on appeal from tbe medical board must be taken witbin sixty days, and an appeal not so taken will be dismissed.</p>

<p>Pleading — Objections—Waives. Where no demurrer is interposed to a complaint, it will 'be liberally construed and the cause determined by the proof, rather than by a strict construction of the pleadings.</p> <p>Vendor and Puechaseb — Rescission by Vendee — Fraud—Failure of Considebation — Evidence—Sufficiency. There is sufficient evidence to warrant the rescission of an exchange of land for defendants’ hotel, for fraud and partial failure of consideration, where it appears that the defendants greatly overstated the amount of the monthly receipts and removed a large amount of furniture included in the trade; an examination of the hotel not affecting plaintiffs’ right to rescind for fraud as to the earnings.</p>

<p>Damages — Personal Injuries — Inadequate Verdict — New^ Trial. A verdict for $1,500 damages for tbe loss of a hand by a carpenter thirty-three years of age, in good health, earning forty to sixty cents an hour, and who was able to earn only fifty dollars in the eighteen months following, is so manifestly inadequate as to authorize the trial court to set it aside as given under the influence of passion or prejudice, under Rem. & Bal. Code, § 399, which places inadequate and excessive verdicts on the same footing.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered September 14, 1910, upon a . trial and conviction of maiming.</p>

<p>Appeal from a judgment of the superior court for King county, Talhnan, J., entered June 13, 1910, granting a non-suit in an action upon a policy of fire insurance.</p>

, entered April 11, 1910, upon the verdict of a jury rendered in favor of the plaintiffs for $8,500 for personal injuries sustained by a passenger alighting from a street car.

Application filed in the supreme court December 20, 1910, for a writ of prohibition directed to the commissioner of public lands, to prevent the hearing of an application to cancel a sale of tide lands.

Appeal by plaintiffs from a judgment of the superior court for Spokane county, Sullivan, J., entered January 7, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.

<p>Certiorari to review a judgment of the superior court for Spokane county, Kennan, J., entered October 20, 1910, adjudging a pubbc use and necessity in condemnation proceedings.</p>

, entered June 28, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action to reform a chattel mortgage and for a foreclosure.

Motions to dismiss an appeal from a judgment of the superior court for King county, Gay, J., entered March 2, 1910, or to remand the case with instructions to dismiss the action.

, entered June IS, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a stevedore in loading a vessel.

<p>Sales- — Actions for Price — Pleading-—Complaint—Sufficiency. A complaint states a cause of action for goods sold etc., where it alleges that the plaintiff, at the special instance and request of the defendant, furnished certain goods and performed services in conducting the funeral of the defendant’s husband and that defendant O. K.’d the bill; and it is immaterial that a bill of particulars showed that defendant guaranteed payment within thirty days; since there was no inference that credit was extended to the estate, and the guarantee goes to the time and was not collateral to the promise of another.</p>

, entered September 20, 1910, dismissing an action for libel, upon withdrawing the case from the consideration of the jury at the close of the plaintiff’s evidence.

Lindsay, Esq., judge pro tempore, entered April 25, 1910, in favor of the defendant, after a trial on the merits before the court without a jury, in an action for conversion.

, entered March 8, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before-the court without a jury, in an action for unlawful detainer..

, entered February 21, 1910, upon findings in favor of certain of the defendants, after a trial on the merits before the court without a jury, in an action on contract.

, entered June 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a swamper in a logging camp.

, entered March 28, 1910, upon the verdict of a jury rendered in favor of the plaintiff for $750 for breach of contract of carriage.

, entered June 28, 1910, in favor of the plaintiff, upon sustaining a demurrer to the answer and crossr complaint and a motion to strike the answer, in an action to quiet title.

Application filed in the supreme court January 12, 1911, for á writ of prohibition to restrain the superior court for Franklin county, Kennan, J., from further proceeding with the trial of a cause.

, entered May 28, 1910, in favor of the defendant, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage.

<p>Appeal — Review—Harmless Error. A verdict in favor of defendants cures error in refusing to sustain a challenge to the sufficiency of the evidence.</p> <p>Malicious Prosecution — Malice—Evidence ■ — ■ Sufficiency. In actions against a corporation and its president for malicious prosecution, a finding of malice on the part of the corporation, although none was found against the president, is warranted, where it appears that he did not become president until long after the occurrence, other officers did not report all the facts to him, and he fully reported to the prosecuting attorney all the facts within his knowledge.</p> <p>Same — Trial—Judgment—Joint Tort Feasors. In actions for malicious prosecution against a corporation and its president, a verdict and judgment for the president does not exonerate the corporation where the prosecution was directed by the trustees</p> <p>Same — Damages—Costs of Defenses. In an action for malicious prosecution, the cost of a transcript, paid after discharge, cannot be recovered as a necessary expense incurred in making plaintiff’s defense.</p> <p>Same — Probable Cause — Evidence—Admissibility. In an action for malicious prosecution, the admission in evidence of the magistrate’s reasons for discharging the plaintiffs is prejudicial error, where want of probable cause is not conceded.</p>

, entered March 10, 1910, upon findings in favor of the plaintiffs, 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 Spokane county, Hinkle, J., entered March 2, 1910, upon sustaining a demurrer to the complaint, dismissing an action to quiet title.</p>

, entered January 2, 1908, upon findings in favor of the plaintiffs, after a trial before the court without a jury, in an action on account.

, entered January 26, 1910, upon findings in favor of the plaintiff, vacating on certiorari an order of the railroad commission requiring the furnishing of extra train service, after a hearing before- the court.

the superior court for King county, Albertson, J., entered April 8, 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 tile plant.

, entered June 15, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to redeem real property from a mortgage foreclosure sale.

, entered May 2é, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action of ejectment.

, entered January 12, 1910, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to quiet title.

, entered September 21, 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.

, entered May 19, 1910, upon the verdict of a jury of no damages, in an action to condemn property for the purpose of changing and establishing the grades of streets.

, entered October 31, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for Wrongful death of an employee engaged as a structural iron Worker in the erection of a building.

<p>Appeal from a judgment of the superior court for King county, John S. Jurey, Esq., judge pro tempore, entered June 7, 1910, 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>

<p>Application for a writ of prohibition filed in the supreme court February 17, 1911, to restrain the superior cburt for King county, Main, J., from summoning and empaneling a grand jury.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Canfield, J., entered April 14, 1910, upon a trial and conviction of selling intoxicating liquors without a license.</p>

<p>Master and Servant — Injury to Servant — Pleading—Complaint —Sufficiency—Contributory Negligence. A complaint states a cause of action where it alleges that one employed as a common laborer was ordered to go under and lift on the end of a heavy derrick, and upon his doing so, his employers negligently caused the same to fall upon and injure him; contributory negligence being a matter of defense, and the allegations in no way implicating the plaintiff.</p>

, entered June 25, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on an indemnity bond.

, entered July 1, 191Ó, upon the verdict óf a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee engaged in tearing down a building.

, entered July 19, 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.

Application filed in the supreme court July 13, 1910, for a writ of mandate to compel the state treasurer to pay a warrant issued upon the military fund.

, entered May 19, 1910, dismissing an action to reduce a local improvement assessment, after a hearing before the court without a jury.

, entered January 11, 1911, in favor of the defendants, after a trial before the court upon an agreed statement of facts, in an action to enjoin the levy and collection of a supplemental tax on real property.

, entered February 11, 1910, dismissing an action to cancel a tax foreclosure deed and to quiet title, after a trial before the court without a jury.

<p>Work and Labor — Action fob Services — Defenses—Payments— Burden of Proof. In an action for services, where the plaintiffs received moneys and were in a trust relation to the defendants, and plaintiffs accounted for the moneys so received to the satisfaction-of the jury, the burden of proving payments is not put upon defendants, where the verdict can he sustained under an instruction to the jury that in determining the amount paid they may take into consideration the amounts coming into the plaintiff’s hands and not accounted for hy her.</p> <p>Appeal — Decision—Remand. Where the plaintiff’s testimony shows that the verdict included the amount of an item improperly charged to the defendants, the judgment will be reversed and remanded with directions to reduce the same in such amount.</p>

<p>Criminal Law — -Evidence—Statements of Codefendant — Admissibility. In. a prosecution against two persons for obtaining money under false pretenses, evidence of a conversation between the prosecuting witness and one of the defendants when the other defendant was not present is admissible, if the facts show a concert of action and that both defendants were parties to the crime, although separate trials were had and no conspiracy was charged.</p> <p>Criminal Law — Identification of Accused — Sufficiency. A conviction will not be set aside for insufficient identification of the-accused at the preliminary hearing by the prosecuting witness,, where he sufficiently identified the accused at the trial.</p> <p>Criminal Law — Presumption as to Possession of Stolen Property — Instructions—Harmless Error. Where money was found concealed on the accused when arrested shortly after a theft, it is-not error to refuse an instruction that the presumption of guilt from the possession of stolen property attaches only when the money is shown to have been stolen, and is destroyed by reasonable explanation, where the jury were instructed that such presumption applies only, to property identified as stolen and that they must find beyond a reasonable doubt that the accused had obtained the money charged to have been stolen.</p>

<p>Criminal Law — Information—Variance. In a prosecution for obtaining money under false pretenses on a certain passenger train, alleged in the information as train No. 258, it is not necessary to identify the train by that number if it is otherwise sufficiently identified.</p> <p>False Pretenses — Evidence—Falsity of Statements. In a prosecution for obtaining money under false pretenses, it is not necessary for the state to show that all of the representations were false.</p> <p>Criminal Law — Evidence—Identification of Money — Sufficiency. In a prosecution for obtaining money by false pretenses, money taken from the accused is sufficiently identified to sustain a conviction, where the prosecuting witness described it as “currency” “four twenty-dollar bills,” “United States Currency” etc., and that one was a yellow bill; the weight of the evidence being for the jury.</p> <p>Same — Admissibility. Upon a prosecution for obtaining four twenty-dollar bills by false pretenses, evidence that, on the day after, the sheriff found two such bills concealed in the overcoat of the accused after he had been once searched, is admissible without showing that the coat had been at all times in the possession of the accused.</p> <p>Criminal Law — Trial—Reopening Case. It is entirely within the discretion of the trial court to reopen a prosecution for obtaining money by false pretenses to permit further identification of the money.</p>

<p>Vendor and Purchaser — Forfeiture—Assignee of Vendor — Cancellation of Instruments — Parties Entitled. Where vendors contracted to sell property in consideration of an agreement by the vendee to pay a mortgage against other property of the vendors, and after default by the vendee the vendors were compelled to make a payment on the mortgage, and subsequently conveyed their interest in the .property subject to the contract of sale, “with all their rights thereunder and payments due,” the assignees of the vendors are entitled to collect from the vendee the amount paid by the vendors on the mortgage, and may declare a forfeiture of the contract of sale after demand, notice, and default.</p>

, entered August 20, 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.

, entered July 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 mechanics’ lien.

, entered February 3, 1911, upon the pleadings by stipulation of counsel, after sustaining a demurrer to the complaint, dismissing an action to enjoin the holding of an election to elect municipal commissioners.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered June 30, 1908, upon a trial and conviction of assault with a deadly weapon with intent to-commit bodily injury.</p>

, entered May 12, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for fraud.

, entered February 5, 1910, in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Attorney and Client — Compensation—Amount—Contract—Evidence — Sufficiency. The evidence supports findings to the effect that attorneys contracted to foreclose a mortgage for $500 only in case no defense was made, where they so testified and it appears that the client represented that no defense would be made and none was contemplated; and a vigorous defense having been made without •any agreement covering that contingency, they were entitled to recover a reasonable fee.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered May 12, 1910, granting a nonsuit in an action upon a surety bond.</p>

Appeal by cross-complainant from a judgment of the superior court for King county, Gilliam, J., entered April 18, 1910, 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 materialman’s lien.

, entered April 6, 1910, upon findings in favor of the defendants, dismissing an action to cancel a deed, after a trial on the merits before the court without a jury.

, entered October 5, 1910, upon findings in favor of the defendant, decreeing the final settlement and distribution of an estate, after a hearing on the merits before the court.

, entered April 30, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian by falling into the basement of a building through an unguarded opening.

<p>Pleading — Amendment^—Discretion. It is not an abuse of discretion to refuse leave to amend an answer at the trial by substituting a general denial for certain admissions respecting a contract alleged in the complaint, where the action had been pending several months, the case had been regularly set for trial, and a jury empaneled to try the case.</p> <p>Pleading — Variance—Contract—Construction. In an action upon a contract to recover “10 per cent on any business” done for the defendant, it is not a failure of proof or a material variance to prove a contract by defendant’s letters for “a commission of ten per cent on all goods of our manufacture” where in another letter “ten per cent oh any business you secure for us” was stated to mean “ten per cent to you on all goods of our manufacture.”</p> <p>Contracts — Action for Breach — Evidence—Question for Court. In an action on contract for services, a verdict for the plaintiff is properly directed, where the contract was admitted and the defendant’s evidence showed the amount due thereon to be substantially the sum found by the court.</p>

, entered March 11, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian run down by an automobile.

<p>Sales — Breach of Contract — Damages. Where the seller breached a contract to furnish twenty-five car loads of egg case shooks for resale to eastern customers of the buyer, a jobber, who subsequently dona fide resold all of the same at a profit and was unable to fill the orders, the measure of damages is the net profit the buyer would have made, and not the difference between the contract and the market price; since the prospective profits were reasonably within the contemplation of the parties, although he had made no resales when the contract was made.</p> <p>Same — Mitigation of Damages — Burden of Proof. In an action for damages for breach of a contract to furnish egg case shooks to a jobber for resale, the burden is upon the defendant to show that the buyer could have purchased the shooks elsewhere.</p> <p>Same — Damages—Prospective Profits — Evidence—Sufficiency. The evidence .shows with sufficient certainty loss of prospective profits on contemplated resales of twenty-five car loads of egg case shooks, where it appears that he made dona fide resales thereof to his customers at a net profit of $100 per car.</p> <p>Frauds, Statute of — Sale of Goods — Delivery of Part — Part Payment. An oral modification of a written contract of sale of goods is not void under the statute of frauds, where, within the exception of Rem. & Bal. Code, § 5290, the purchaser “received and' accepted part of the goods” and paid for the same.</p> <p>Sales — Breach—Defenses—Nonpayment. The seller of goods cannot avoid liability for breach of a contract by reason of the purchaser’s failure to pay a balance due on goods delivered, where that was not assigned as a reason for failure to perform until after the damage to the buyer had already accrued.</p> <p>Same — Estoppel. Breach of a seller’s contract to fill orders of the buyer for a certain quantity of goods is not excused by the buyer’s failure to file the orders within the time contemplated by the contract, where the seller was then behind in filling thé orders already filed, and thereafter the parties proceeded with the contract.</p>

, entered July 5, 1910, upon sustaining a demurrer to the complaint, dismissing an action to enjoin a trespass upon a public highway.

<p>Ai¥eal — Parties—Dismissal. The appeal of an intervener cannot be dismissed on tbe ground that it is not a necessary or proper party, Where it was brought in below as a necessary party defendant, and no exception or appeal was taken from the order bringing it in.</p> <p>Work and Labor — Gíratuitous Services — Presumption—Evidence. ^Vhere the deceased went to live with the plaintiff, taking the piabe of his sister as housekeeper, the presumption that,mutual services rendered are a gratuity must be overcome by clear and convincing evidence of the initiatory contractual relation; and there is not Sufficient evidence to submit the issue to the Jury where it appears that the parties had lived together, rendering mutual services for thirty years, without any claim or recognition of indebtedness during the entire period; and statements to third persons, ten and fifteen years after the relation commenced, that deceased “would pay him well” and had left all property to him, do not amount to a recognition of indebtedness.</p> <p>Appeal — Review—Verdicts. Where there is no evidence to sustain the verdict, it will be set aside on appeal.</p>

, entered May 2, 1910, in favor of the plaintiif, in an action to set aside tax judgments, after a trial before the court without a jury.

Lindsay, Esq., judge pro tempore, entered June 10, 1910, in favor of the plaintiff, reducing an assessed valuation on real property, after a hearing on the merits before the court.

, entered March 9, 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 mortgage.

<p>Appeal from a judgment of the superior court for Clarke county, McMaster, J., entered April 20, 1910, upon the verdict of a jury rendered in favor of a passenger for damages by reason of insults by the conductor.</p>

, entered April 30, 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 October 11, 1910, upon the pleadings in favor of the plaintiff, in an action on contract, after-a hearing before the court without a jury.

, entered June 8, 1910, confirming an assessment roll for a local improvement, after a hearing before the court on the merits.

, entered April 26, 1910, in favor of the plaintiff, in contempt proceedings, after a trial on the merits before the court without a jury.

, entered May 27, 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 mortgage.

, entered February 15, 1911, in favor of the plaintiffs, upon overruling a demurrer to the complaint, enjoining the issuance and sale of municipal bonds.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered June 13, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

, entered August 28, 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 lost instruments and to recover thereon.

, entered March 3, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to enjoin a trespass upon real property.

, entered July 14, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action for equitable relief.

<p>Injunction — Bond—Action—Parties Entitled to Sue. An action upon an injunction bond may be maintained by the obligees in their individual capacity, where the injunction was issued in a suit against them as mayor and councilmen of a town to prevent them from entering into a contract on behalf of the town, the town was not made a party to the suit, the injunction ran against them in their individual capacity, and the bond named the obligees as individuals and provided for the payment of damages and costs by them, not by the town.</p>

, entered December 18, 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.

county, Sheeks, J., entered April 9, 1910, in favor of the defendants, after a trial on the merits before the court without, a jury, in an action on contract.

<p>Pleading — Answer—Negative Pregnant. A denial in manner and form that plaintiffs expended.the specified sum of money alleged by them, in a certain action or at all, is a negative pregnant and insufficient.</p> <p>Pleading — Answer—General Denial — Sufficiency. A general denial of each and every allegation of a paragraph of a complaint alleging that a certain sum is the reasonable value of plaintiffs services is sufficient to put the same in issue, under Rem. & Bal. Code, § 264 (authorizing either a general or a specific denial), without any specific denial that some lesser sum was due; since a general denial under the code is the equivalent of the general issue.</p> <p>Pleading — Answer—Plea oe Tender — Judgment on Pleadings. A plea of tender does not entitle the defendant to judgment on the pleadings, since the plaintiffs can admit the same without waiving their cause of action.</p>

, entered April 5, 1910, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action of ejectment.

Cross-appeals from a judgment of the superior court for Franklin county, Holcomb, J., entered May 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 specific performance.

, entered February 25, 1910, upon granting a nonsuit, after a trial before the court and a jury, dismissing an action in tort.

, entered March 7, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in a.n action to foreclose a mortgage.

, entered November 9, 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 6, 1910, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to enjoin the construction of a railroad.

, entered February 21, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on a promissory note.

, entered March 2, 1910, upon findings in favor of the plaintiff, in an action for a writ of mandate to compel the issuance and receipt of transfers by street railway systems.

<p>Election of Remedies — Inconsistent Actions — Bab. An action by the makers of a note arid mortgage against the payee and others for an accounting for the proceeds thereof, constitutes an election of remedies, and precludes the plaintiffs from prosecuting an action for a cancellation, as the same are inconsistent.</p> <p>Parties — Intervention—Leave of Court. Application for leave to intervene being made ex parte, the refusal of the court to strike a complaint in intervention, filed without leave, is equivalent to an order permitting the filing thereof.</p> <p>Payment — Pleading. Payment is an affirmative defense to be pleaded, and cannot be raised under a claim of want of consideration.</p> <p>Dismissal and Nonsuit — Interveners—Statutes. The dismissal of an action for the cancellation of a note and mortgage does not affect an intervener’s right as holder to foreclose, under Rem. & Bal. Code, § 202, authorizing an intervener to demand relief adversely to the parties, and Id., § 203, requiring the court to determine the rights of the intervener at the same time the action is decided.</p>

, entered March 3, 1910, adjudging a public use and directing a jury to assess damages in a proceeding to condemn water rights for power purposes;

<p>Appeal from a judgment of the superior court for King county, Frater, J.,. entered May 5, 1910, upon granting a nonsuit, dismissing an action on promissory notes and to foreclose a lien on corporate stock.</p>

Douglas, Esq., judge pro tempore, entered June 27, 1910, dismissing an action for equitable relief, upon a challenge to the sufficiency of the evidence.

, entered July 13, 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.

<p>Ejectment — -Title of Plaintiff. In ejectment, the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s.</p> <p>Public Lands — Classification—Homesteads—Rights of Entry-man. The rights of one who goes upon vacant, unsurveyed public land subject to settlement under the homestead laws, with intent to enter the same, depends upon the character of the land; and land erroneously classified by the government as a lake is not subject to homestead entry.</p> <p>Public Lands — Survey and Classification — Jurisdiction of Courts — Land Department — Authority.' Under the Federal statutes the exclusive control of the public lands and surveys and the correction of the same being vested in the land department, the state courts have no jurisdiction of an action to recover possession of alleged lands, erroneously and fraudulently surveyed and classified by the government as a lake, the United States not being a party to the action and no remedy having been sought in the land department.</p>

<p>Indictment and Information — Sufficiency—Demurrer. The sufficiency of an information must be determined on demurrer by what appears on its face, and error in the admission of evidence thereafter does not affect its sufficiency.</p> <p>Criminal Law — Different Acts — Trial—Election—Receiving Stolen Goods. Under an information charging the larceny of fifty bushels of wheat during a certain month, and Rem. & Bal. Code, § 2601, making it larceny to knowingly buy or receive stolen property, it is competent to show that the accused offered one B. and his associates one dollar and a half a sack for all wheat they would take from ears and put in his barn, and thereafter on three different occasions during said month, he paid B. and his associates for wheat stolen by them and put in his barn; and the prosecution need not elect between the different deliveries, since it was all part of one continuous transaction.</p> <p>Larceny — Grand Laeceny- — Continuous Transaction. Where the purchase of stolen property on three different occasions was pursuant to one offer and all part of one transaction, it amounts to grand larceny, under Rem. & Bal. Code, § 2605, if the total value was over twenty-five dollars, notwithstanding there might have been a conviction of petit larceny for any one of the three acts (Gose and Fullerton, JJ„ dissenting).</p> <p>Criminal Law — Evidence of Accomplices — Sufficiency. A conviction of larceny by the receipt of stolen goods may be had upon the testimony of the accomplices who stole the same.</p> <p>Receiving Stolen Goods — Evidence—Ownership—Special Property. A conviction of larceny by the receipt of wheat stolen from railway cars may be had without evidence that the railway company owned the wheat, in view of Rem. & Bal. Code, §' 2303, subd. 16, providing that any one having a general or special interest shall be deemed the owner; also where it was shown that the defendant knew the wheat was stolen.</p>

<p>Appeal from a judgment of the superior court for Klickitat county, McMaster, J., entered June 14, 1910, upon findings in favor of the defendants, after a trial on an agreed statement of facts, in an action to quiet title.</p>

, entered October 5, 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 February 26, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian run down by an automobile.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered February 1, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

Cross-appeals from a judgment of the superior court for Whatcom county, Kellogg and Hardin, JJ., entered June 28, 1910, upon findings favorable to the plaintiff, after a trial on the merits before the court without a jury, in an action on contract.

, entered December 16, 1910, adjudging a public use and necessity in proceedings to condemn a right of way for a logging road.

, entered February 25, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger assaulted by the conductor of a street car.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December 18, 1909, upon granting a nonsuit, dismissing an action for personal injuries sustained by an employee engaged in railroad con-struction work.</p>

, entered April 1, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for personal injuries.

, entered September 18, 1909, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by an automobile.

<p>Indictment and Information — Oath of Prosecuting Attorney— Affidavit. Where an information is duly sworn to in an affidavit by the prosecuting attorney, who takes oath that he is the prosecuting attorney and that the information is true, it is sufficient without reciting that the averments were made on the oath of the prosecuting attorney.</p> <p>Criminal Law — Trial—Misconduct of Counsel — Argument— Appeal — Harmless Error. Bern. & Bal. Code, § 339, providing that no argument shall be allowed in the opening statement, is not violated by a lengthy and detailed statement of the facts, even if some slight inferences are drawn; and no prejudice results where counsel desisted on objection made, and nothing was said not fully justified by the testimony produced.</p> <p>Homicide — Degrees of Offense — Instructions. In a prosecution for murder, the right of the jury to determine the degree of the offense given by statute must be based on the evidence, and the court need not instruct thereon, where there was no evidence tending to show the commission of the lesser offenses.</p> <p>Same — Evidence of Lesser Offense.s — Sufficiency. In a prosecution for murder in the first degree by poisoning, there is no evidence to warrant instructions upon second degree murder or manslaughter, where it appears that the deceased was of unsound mind and in a highly nervous condition, and either in an attempt to allay such condition or to murder her, the defendants consulted as to the medicines to be given her, and administered the poison; since they were guilty of first degree murder or not at all.</p> <p>Homicide — Verdict—Degrees of Offense. A verdict of guilty as charged is sufficient in a prosecution for murder in the first degree, although the jury is required to find the degree.</p> <p>Homicide — Trial—Variance. Upon an information for murder by administering poison on the 27th day of August, which caused the deceased to languish and die, it is not a variance to prove the deceased came to her death on the 29th.</p> <p>Criminal Law — New Trial — Misconduct of Jury — Verdict—Impeachment. On motion for a new trial, a conviction of murder cannot be impeached for misconduct of the jury by affidavits on information and belief.</p> <p>Same — Magazines in Jury RoqM. It is not reversible error, in a prosecution for murder, that the court permitted two jurors to be furnished with a magazine, it not appearing that there was anything in the magazines concerning the case, especially where the question is raised on motion for a new trial; since the presumption is that the court first censored the magazines.</p> <p>Criminal Law — Trial—Indorsement of New Witnesses — Discretion. It is not error to allow the name of a new witness to be indorsed on the information after the jury was sworn and the opening statement was made, where no surprise was claimed or continuance asked, and no abuse of discretion appears.</p>

, entered February 8, 1910, upon the verdict of a jury assessing damages in proceedings to condemn land for railway purposes.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered June 29, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

, entered December 13, 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 promissory note.

<p>Appeal from a judgment of the superior court for Adams county, Kauffman, J., entered February 21, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.</p>

<p>Judgment — Matters Determined — Construction op Will. An order in probate for crediting a $1,000 legacy upon a note due from the legatee, entered before the payment of claims or final distribu-' tion of the estate, is not an adjudication as to the legal effect of the’ credit, or a construction of the will, and does not determine the date of the credit for the purpose of computing interest.</p> <p>Judgment — Matters Determined — Order por Sale in Probate. An order in probate for the sale of a note belonging to the estate is not an adjudication of the obligation of the maker thereon.</p> <p>Judgment — Matters Determined — Pinal Distribution — Construction op Will. A final order of distribution of the estate in pursuance of a last will and testament and in accordance with the terms thereof is not a construction of the will.</p> <p>Wills — Specutic Legacy — Credit on Note — Interest. A legacy of one thousand dollars, to be credited on a note due from the’ legatee, is a specific legacy to 'be credited as of the date of the death of the deceased. :</p>

, entered March 22, 1910, in favor of the plaintiffs, after a trial before the court without a jury, in an action to cancel and set aside a note and mortgage.

<p>Municipal Corporations — Nuisances— Abatement — Damages— Threatened Action. Damages cannot be recovered from a city by one who was coerced to cease the operation of charcoal kilns by notices from the health department to abate the alleged nuisance or the kilns would be destroyed; since he was under no obligation to cease operations unless his acts were a nuisance.</p> <p>Nuisance — Charcoal Kilns — Evidence. A prima facie case of a nuisance is made out by evidence that charcoal kilns within the city gave out quantities of smoke and at times poisonous gases.</p> <p>ISTuisance — -Abatement—Deeenses. The abatement of a nuisance cannot be prevented by reason of the fact that there were similar nuisances in the vicinity.</p>

<p>Marriage — Restrictions—Statutes—Repeal. Rem. & Bal. Code, § 7151, prohibiting marriage between persons nearer of kin than second cousins, was not impliedly repealed by Rem. & Bal. Code, §2455, defining incest, or by Rem. & Bal. Code, §§ 7152, 7153, 7Í64, 7165, relating to and prohibiting marriages in certain other specified cases.</p> <p>Incest — Information—Negativing Defenses — Marriage. Upon a prosecution for incest between first cousins, the fact of a lawful marriage between the parties, if a defense, is to be affirmatively pleaded, and need not be negatived in an information stating every essential element of the crime as defined by Rem. & Bal. Code, § 2455.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered June 29, 1909, upon a trial and ’ conviction of rape.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered June 24, 1910, upon findings in favor of the plaintiff, in an action for the dissolution of a partnership.</p>

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered April 27, 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.</p>