Volume 64 — Washington Reports

<p>Municipal Corporations—Claims — Presentation — Reasonable Requirements—Failure to File—Excuses. It is a reasonable and valid requirement that claims against a city for personal injuries shall be in writing and verified and filed with the city clerk within thirty days; and the same is not excused or substantially complied with by a verbal notice to other officers, or by the statement of an officer that he would report the claim to the city council, or that a letter to a councilman was not answered or objected to.</p> <p>Same—Excuses por Failure to File. An ordinance of a city requiring officers to investigate and report all claims or demands against the city that come to their knowledge does not excuse a claimant from filing a verified claim with the city clerk, after bringing it to the notice of an officer of the city.</p> <p>Same—Waiver oe Claim. The requirement that a claim against a city must be presented to the city council before action brought cannot be waived by any officers of the city other than the city council.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered September 29, 1910, upon the verdict of a jury rendered in favor of the plaintiff, for $2,500, in an action for personal injuries sustained by a pedestrian through a defective sidewalk.</p>

, entered November 22, 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 quarry.

<p>Injunction—Breach of Contract—Personal Services—Engaging in Other Employment. Breach of a contract to give defendant’s personal services in a school of music for a term of years will not be enjoined where the services were not so special or extraordinary that they could not be supplied elsewhere, and another teacher was found to take defendant’s place without materially impairing the efficiency of the school.</p> <p>Same—Contract for Good Will. Where a teacher of music was employed to teach in a school for a specified term and agreed not to teach elsewhere and to devote his best efforts to promoting the school, he will be enjoined from soliciting clients of the school and invading its good will during the term, upon his leaving the school and setting up business for himself.</p>

<p>Appeal from a judgment of the superior court for Benton county, Yakey, J., entered October 6, 1910, upon granting a nonsuit, dismissing an action for specific performance.</p>

<p>Master and Servant—-Fellow Servants—Act of Foreman Assisting in Work. Tbe negligence of a working foreman of a gang of structural iron workers, engaged in raising a boom stick to tbe mast of a boist derrick, is not imputable to tbe master, where they were- all experienced men, tbe act was simple and there was no bidden danger, it was not customary to furnish an extra man to oversee tbe work, and tbe accident happened through tbe oversight of tbe foreman in pulling tbe stick a few inches higher than tbe proper place; since it was an omission of fellow service rather than lack of superintendence.</p>

, 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 foreclose a mortgage.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered May 24, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for trespass.</p>

, entered December 3, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

<p>Criminal Law—Former Jeopardy—Dismissal—Statutes — Construction. Rem. & Bal. Code, § 2314, providing for the dismissal of a criminal prosecution by order of court and that no prosecuting attorney shall discontinue or abandon a prosecution except as therein provided, construed in connection with § 2315, providing that a dismissal of a misdemeanor or gross misdemeanor under § 2314 shall bar another prosecution charging the same offense, refers only to dismissals where the expressed purpose of the prosecuting attorney is to abandon a prosecution; and not where a motion to dismiss is made because of a variance between the charge and the proof and leave is asked to file a new information, under § 2316, providing that no dismissal on the ground of a variance shall bar another prosecution for the same offense.</p> <p>Criminal Law — Former Jeopardy — Identity of Offenses Charged. The dismissal of a prosecution for the violation of the adulterated food act, Rem. & Bal. Code, § 5455, charging the selling of decomposed veal, does not bar another prosecution for the violation of a disjunctive clause of the same section charging the sale of the product .of a calf which died otherwise than by slaughter; since the offense charged was not the same, within Id., § 5314, providing that a dismissal shall bar a prosecution where the same offense was charged in the second prosecution.</p> <p>Criminal Law — Former Jeopardy — Dismissal •—• Variance — “Proof” and “Evidence.” Rem. & Bal. Code, § 2316, authorizing a second prosecution after a dismissal of a charge on the ground of a variance between the indictment or information and the proof, does not use the word “proof” in its technical sense as distinguished from “evidence,” and hence applies where the prosecuting attorney moved to dismiss before trial on the ground of a variance between the charge and the “evidence" disclosed to him on interviewing the witnesses and preparing the case.</p>

<p>Appeal from a judgment of the superior court for Mason county, Mitchell, J., entered January 20, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in consolidated actions upon promissory notes and for the foreclosure of mortgages.</p>

, entered June 5, 1911, in favor of the plaintiff, granting a peremptory writ of mandate to call a special election for the adoption of a commission form of government.

, entered November 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 contract.

Motions to dismiss an appeal from a judgment of the superior court for Stevens county, Carey, J., entered May 20, 1911, appointing a receiver for an insolvent corporation.

, entered October 17, 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.

, entered September 6, 1910, dismissing a prosecution for a misdemeanor upon appeal from a conviction in a justice court, after sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered January 11, 1911, upon findings in favor of the defendant, confirming an assessment against property benefited by a local improvement, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered October 15, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered May 19, 1910, upon findings in favor of the garnishee defendant, after a trial on the merits before the court without a jury, in a garnishment proceeding.

<p>Appeal from a judgment of the superior court for Whitman county, Piclcrell, J., entered November 10, 1910, upon a trial and conviction of murder.</p>

<p>Rape—Evidence—Corroboration—Statutes—Construction. Rem. & Bal. Code, § 2443, providing that no conviction sball be had for rape and other sexual crimes upon the testimony of the prosecutrix unless supported by other evidence, requires evidence from an independent source having a tendency to connect the accused with the crime; although the same act repealed Rem. & Bal. Code, § 2155, requiring, in prosecutions for rape and seduction, corroborating evidence tending to “convict the defendant” of the offense; the intention being to extend the rule to other crimes than rape and seduction, rather than to abrogate the former rule.</p> <p>Rape—Evidence—Corroboration—Sufficiency. Upon a prosecution for rape, evidence that the prosecutrix started for the place where she claims to have met the defendant at the time of the offense, is not sufficient corroborating evidence to sustain a conviction within Rem. & Bal. Code, § 2443, requiring the testimony of the prosecutrix to be supported by other evidence, where no one testified to taking or seeing her there, or that she and the defendant were at any time isolated from others.</p> <p>Same. Proof of' acquaintance and opportunity is not sufficient corroborating evidence to sustain a conviction of rape, within Rem. & Bal. Code, § 2443, requiring the testimony .of the prosecutrix to be supported by other evidence, where other young men had intimate acquaintance with her and more ample opportunity.</p> <p>Same. In a prosecution for rape, where another had been first charged with the .offense and offered to marry the girl and officers sought to secure evidence against him, the fact that such party was warned by the accused and advised to leave the state, does not show an attempt by the accused to fix the crime upon another or constitute sufficient corroborating evidence to support a conviction under Rem. & Bal. Code, § 2443, requiring the testimony of the prosecutrix to be supported by other evidence.</p>

, entered September 23, 1910, appointing a guardian for an incompetent person and allowing fees and expenses in maintaining the proceedings, after a hearing before the court.

<p>Bah,—Persons Entitled—Pendency of Appeal. Upon a trial for murder, in wbicb the defendant is acquitted of first degree murder by a verdict for manslaughter, the defendant is entitled to bail pending his appeal, under Rem. & Bal. Code, § 1747, providing that bail must be fixed in all criminal actions except capital cases.</p> <p>Bail—Order for—Effect of Appeal—Stay. Appeal by the state from an order fixing bail does not operate as a stay of proceedings, in the absence of statute so providing; and the court has jurisdiction to and must, accept bail pending the appeal, in view of Rem. & Bal. Code, § 1731, providing that on appeal the superior court retains jurisdiction for all purposes not affected by the appeal.</p>

, entered March 25, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for personal injuries sustained by a passenger of a street car in making a transfer to another car.

<p>Appeal from a judgment of the superior court for King county, Carey, J., entered March 22, 1911, upon sustaining .a demurrer to the complaint, dismissing an action on contract.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered December 7, 1910, upon granting a nonsuit, in an action in tort.</p>

, entered August 8, 1910, upon granting a nonsuit in an action for the death of plaintiff’s son by reason of a defective city bridge.

, entered April 5, 1910, upon the verdict of a jury rendered in favor of the plaintiifs for $630, in an action for damages.

, entered July 15, 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.

<p>Appeal from a judgment of the superior court for King county, Webster, J., entered November 22, 1910, upon findings in favor of the plaintiff, after a trial on the merits in ' a mandamus proceeding.</p>

5 entered January 3, 1911, 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.

, entered November 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 foreclose a mortgage and a mechanics’ lien.

, entered October 26, 1910, upon findings in favor of the defendant,, after a trial on the merits before the court without a jury, dismissing an action to enjoin a vendor from engaging in a competing business.

, entered April 14, 1911, dismissing an action to condemn a right of way for the erection and operation of a telegraph line.

, entered May 27, 1910, in favor of the defendants, after a trial on the merits before the court without a jury, in an action for an injunction.

, entered October'4, 1910, upon overruling demurrers to affirmative defenses, dismissing an action for personal injuries sustained by falling upon a stairway, after a hearing before the court.

, entered August 11, 1910, in favor of the defendants, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered December 11, 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.

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered January 27, 1911, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action of replevin.</p>

, entered October. 5, 1910, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained-by a logger in the falling of a tree.

<p>Counties—County Commissioners—Contracts—Authority—Employment’of Aeieiíist to Assist Prosecuting'Attorney. Under Rem. & Bal. Code, § 3890, conferring upon county commissioners the general management of county expenditures and business, they have authority to .employ an alienist when his .services are. necessary to aid the prosecuting attorney in connection with the defense of insanity .in a prosecution for homicide; and such employment is not unauthorized as relating only to judicial business.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered November 22, 1910, in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.</p>

Appeal by plaintiffs from a judgment of the superior court for Pierce county, Shackleford, J., entered August 8, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.

<p>Municipal Corporations—Streets—Negligent Use—Collision with Automobile—Evidence—Sufficiency. A verdict for injuries sustained by a pedestrian, run down by an automobile, is sustained by tbe evidence, where it appears that the automobile was driven after nine o’clock, on the left side of the street, without lights, that no warning was given, and that plaintiff exercised due care.</p> <p>Same—Law of Road—Instructions—Appeal—Harmless Error. Where an ■ automobile, driven on the left side of a street, struck a pedestrian, it is not prejudicial error to give an inaccurate instruction that the law requires vehicles to remain on the right side of the street and that a driver violating such law is bound to exercise a higher degree of care than if he were on the right side; in view of Rem. & Bal. Code, § 5558, requiring passing vehicles to seasonably turn to the right of the center of the road, and Id., § 5569, requiring automobiles on passing, to turn to the right, and the general “law of the road,” arising from usage, requiring persons upon a continuously used street to keep upon the right side.</p> <p>Same—Actions—Evidence—Admissibility. In an action for personal injuries by a pedestrian struck by an automobile, while not commendable practice, it is not prejudicially erroneous to allow the plaintiff, after stating that he looked for vehicles before starting to cross the street, to give as his reasons for looking that his son had shortly before been injured while crossing; as the jury could not have been misled.</p> <p>Same. In an action for personal injuries by a pedestrian struck by an automobile, the arrest of the defendant and a bystander’s request that defendant take the plaintiff home, immediately following the accident, is admissible in evidence as part of the general transaction.</p> <p>Witnesses—Cross-Examination. Where the defendant testified that he had been acquitted in police court of any offense in connection with running down a pedestrian, it is proper, on cross-examination, to require him to state for what offense he was tried.</p> <p>Damages—Personal Injuries—Excessive Verdict. _ A verdict for $300 in favor of a pedestrian, struck by an automobile, is not excessive, where the plaintiff was much bruised, suffered pain, and was ill and unable to attend to business' for a considerable time.</p>

, entered- January 24, 1911, 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 SO, 1910, granting a new trial as to one defendant, after the verdict of a jury rendered in favor of the plaintiff and against both defendants, in an action for personal injuries sustained by a passenger in an automobile through a collision with a street car.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered Juné 28, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the value of live stock lost while being transported'.</p>

, entered December 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an-action for personal injuries sustained by an employee engaged in the construction- of a-building.

<p>Master and Servant—Fellow Servants—Vice Principals. Common laborers in a steel plant instructed to cool out the neck of a furnace and remove slag, are fellow servants, and one of them does not become a vice principal by reason of his greater experience, or of his taking the initiative and directing his fellow workman to “make room,” whereby the fellow workman was put in a place of danger.</p> <p>Master and'Servant—Negligence oe Master—Details of Work. Permitting the escape of water in cooling the neck of a furnace is not an act of negligence upon the part of the master, where the men themselves were responsible for the condition.</p> <p>Master and Servant—Negligence of Master—Duty to Warn— Acts Not Anticipated—Scope of Order. Where a common laborer, instructed to cool out the neck of a furnace and remove slag, caused an explosion by breaking a block of slag and allowing its molten contents to come into contact with water, he cannot claim that he should have been warned as to the liability of such an explosion, the breaking of the block of slag being no part of his duty and an act that Would not be anticipated by the master.</p>

<p>Bills and Notes—Actions—Pleading—Defenses—Waiver — Inconsistency. The denial of an allegation that plaintiff was the owner and holder of a note for value before maturity and in due course, is not waived by or inconsistent with an affirmative defense alleging want of consideration and fraud in the inception of the note, and that plaintiff had actual notice of the infirmity, "at the time it became the owner and holder of such note as in the complaint alleged;” since the admission that the plaintiff is th,ei owner and holder of the note does not admit that it was the holder in due course for value, in good faith, before maturity.</p> <p>Bills and Notes—Actions—Title—Bona Fide Purchaser—Burden of Proof—Evidence—Sufficiency. Where it was shown by defendants that a promissory note, given in part payment of a stallion, was tainted with fraud in the hands of the original payees, who were dealers in horses,' the stallion having been returned because of false representations, in a suit on the note by a bank as endorsee, the burden of showing that it was a holder in due course for value before maturity, within Rem. & Bal. Code, § 3450, is not sustained so as to entitle plaintiff to a directed verdict, where the only evidence of the bank's alleged ownership other than possession and a blank endorsement was that of its cashier, an interested witness, who testified that he had known the payees- for years, and the character of their business, that he purchased the note before maturity, with twenty-five others of like character, and had previously purchased others in which litigation had arisen, that he expected the original payees to protect the bank on this note for expenses of litigation, Although there was no written agreement to that effect, and that none of the makers were known to the bank or their solvency investigated; in view of the fact that his credibility was for the jury, that he carefully refrained from giving any ¡of the 'attending oircumw stances, and that no other witnesses to the transaction, or books or records were produced.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered April 26, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for breach of warranty.</p>

, entered January 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.

, entered January 24, 1911, granting a new trial for insufficiency of the evidence, after the verdict of a jury rendered in favor of the defendants, in an action on a promissory note.

, entered November 15, 1910, upon granting a nonsuit, dismissing an action by a receiver to collect unpaid subscriptions to corporate stock, after a hearing before the court.

, entered December 30, 1910, vacating a decree allowing an executor’s fees and settling and approving his final account, after a hearing before the court.

, entered July 6, 1910, in favor of the defendants, dismissing an action to enjoin a city in the construction of a wharf in a street extended over tide lands and across the harbor area, after a hearing before the court. Affirmed.

, entered May 14, 1910, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action to set aside tax foreclosure proceedings and for the cancellation of a tax deed issued thereunder.

<p>Appeal from a judgment of the superior court for Whitman county, Miller, J., entered March 5, 1910, granting a nonsuit in an action t'o vacate a deed for fraud, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered September 16, 1910, upon granting a nonsuit, in an action for breach of covenant.</p>

, entered March é, 1911, in favor of the plaintiffs, after a trial on thé merits before the court without a jury, in an action to reform a contract.

, entered May 3, 1911, in favor of the defendants, after a trial on the merits before the court without a jury, in an action to enjoin a county from issuing bonds.

, entered October 29, 1910, foreclosing local assessment liens against certain defendants in amounts tendered by them into court, and against all other defendants at the same rate.

, entered August 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a passenger in a collision of street cars.

, entered December 10, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on contract.

, entered October 17, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a lumber yard.

, entered November 29, 1909, upon findings in favor of the plaintiff, after a trial on the merits without a jury, in an action granting a writ of prohibition.

.Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered July 2, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through a premature explosion of dynamite.

, entered November 9, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to cancel deeds.

, entered November 4, 1910, upon the verdict of a jury rendered in favor of the plaintiif, in an action for personal injuries sustained through the collapse of a wagon hired by the defendant.

, entered July 14, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, dismissing an action to quiet title.

<p>Appeal from a judgment of the superior court for Yakima county, Preble, J., entered September 26, 1910, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, -dismissing an action to quiet title.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 8, 1910, upon a trial and conviction of adultery.</p>

<p>Appeal from an order of the superior court for King county, Main, J., entered December 8, 1909, granting an injunction pendente lite after a hearing before the court.</p>

<p>Taxation—Tax Sales—Liens—Vendor and Purchaser—Title of Vendor. Under Laws 1891, p. 167, § 5, providing that purchasers at tax sales prior to November 1891 shall have no lien on the property as against purchasers in good faith, unless they file their tax certificates or deeds for record on or before the first day of November 1892, a sale for taxes in 1884, not recorded as required, does not constitute a defect in the title and a vendee cannot rescind a sale on account thereof.</p> <p>Vendor and Purchaser—Contracts—'Performance — Title of Vendor—Unpaid Taxes. The vendee’s default in the first payment on a land contract is not excused by objections to the title going only to small sums for taxes and assessments which were not yet delinquent, where the contract gave the vendor until that time to cure the defects, and he had been notified by the vendee that the vendee would have to default in the payment, after which nothing further was done by the vendee toward acquiring the property; and the .vendee cannot thereafter recover a deposit on the ground of defect of title without offering to perform.</p>

, entered February 17, 1911, in favor of the defendants, after a trial on the merits before the court without a jury, in an action to foreclose a logger’s lien.

<p>Intoxicating Liquors—Sales' Without License—Statutes—Construction. Under Rem. & Bal. Code, § 6269, providing that any person selling intoxicating liquor on any steamboat shall pay an annual state license fee in addition to the license fee fixed by any city, town or county whére such liquor is sold, and Id., § 6263, giving the county commissioners of each county the sole and exclusive authority .to regulate the sale of ■ spirituous liquors outside of the corporate limits of a town, a license is required from each county in which the steamboat sells intoxicating liquors; and the same is not excused by á state dr by'a Federal license. '</p> <p>Intoxicating Liquórs—License—Reasonableness ;— Prohibition. The requirement that á steamboat secure a county license for the sale of intoxicating liquors in each county through which it passes is not objectionable because it is unreasonable or prohibitory, as the legislature has the right to prohibit the sales.</p> <p>Appeal—Harmless Error—Admission oe Evidence. Upon a prosecution for maintaining a nuisance by the sale of liquors without a license, error in admitting evidence to show that the liquor was Kept in the place is harmless where there was no dispute upon that question.</p>

Cross-appeals from a judgment of the superior court for King county, Tallman, J., entered May 4, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a receiver to recover on an unpaid subscription to corporate stock.

<p>Negligence—Imputed' Negligence—Carriers — Driver of Stage. Tbe negligence of. the driver of a stage in failing to stop, look,, and listen at a railroad crossing cannot be imputed to passengers for hire in a stage; and such negligence is imputed to the passenger by an instruction that the driver’s failure to stop, look, 'and listen was the proximate cause of the injury, preventing any recovery, unless the plaintiffs themselves could have avoided the .injury if the railroad company had performed its duty to signal its approach to' the’ crossing.</p> <p>Railroads — Accident at Crossings — Concurring Negligence. Where an accident to passengers in a stage at a crossing is caused by the concurring negligence of the railroad company in failing to give a signal and of the stage driver in failing to stop., look, and listen, they are both jointly and severally liable, and an instruction to the contrary is prejudicial error.</p>

<p>Attachment—Dissolution—Failure to Give Bond—Condition Precedent. On motion to dissolve an attachment erroneously issued without a bond, leave to file a bond is properly denied, the statute making the filing of, a bond á condition precedent to an attachment.</p>

<p>Witnesses—Qualifications—Age-—Discretion. Whether a hoy nine years of age is competent .to testify to an occurrence that happened three years previously, rests largely in the discretion of the trial judge, and admission of his testimony will not be disturbed when no abuse appears, and the jury were properly instructed as to its weight and their right to disregard it if they believed that he was testifying to his belief from suggestions rather than from an actual remembrance of the facts.</p> <p>Trial—Misconduct of Counsel—Argument. A statement of an attorney in argument that he was thoroughly convinced from the facts proven of a certain fact in issue is nothing more than a conclusion and not misconduct requiring a reversal.</p> <p>Damages — Personal Injuries — Excessive Verdict. A verdict for severe personal injuries will not be set aside as excessive where there was no indication of passion or prejudice, and the discretion of the jury was not abused.</p>

<p>Waters and Water Courses—Contracts—Right of Way for Ditch—Parol License—Revocation — Who May Question. Where the owner of lands gave a right of way for a ditch in consideration of an agreement for water for irrigation purposes, the water to he taken out on his own land, the owner of the ditch cannot defeat such taking and use hy invoking the rule that permission to maintain the ditch was revocable at will as a parol license, or void as attempting to create an interest in lands by parol, within the statute of frauds; since the water in the ditch was subject to an agreement for its use as any other personal property.</p> <p>Public Lands — Homestead — Alienation — Grant of Use for Water Ditch. The grant of a right of way for a ditch across public lands in possession of a homesteader before final proof, in consideration of the right to take and use water from the ditch, is not an alienation of the Tand within the purview of U. S. Rev. St. § 2288; and the owner of the ditch cannot invoke the rule that the contract for water was void as against public policy, in order to defeat the taking and use of the water pursuant to the .contract.</p> <p>Waters and Water Courses—Irrigation—Use—Relief. Equity will not, at the suit of a riparian owner, restrain the use of water diverted from a creek and required for irrigation by an adjoining owner, where ample water is left for all uses of the riparian owner, who suffers no damage from the diversion complained of.</p>

<p>Sales — Rescission by Vendee — Waiver — Diligence — Use op Goods. Tbe right to rescind a sale of a car load of elm boops and liners for breach of warranty as to quality is waived, and the purchaser cannot use a part and tender pay for the part used, in defense of an action for the price, where, on receipt of the shipment, objection was made to the quality and a twenty-five per cent deduction from the invoice price claimed, which claim was promptly disallowed by the seller, who directed the purchaser to notify hy wire immediately if the stock could not be used, which the purchaser failed to do, but during several months used a large peroentage of the shipment under continual claims for credit on account of breakage; since diligence in returning or offering to return the goods is essential.</p> <p>Dunbab, C. J., Chadwick and.GosE, jj., dissent upon the facts.</p>

, entered October 13, 1910, in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

Yakey, J., entered March 25, 1911, in favor of the defendant, after a trial on the merits before the court without a jury, in an action for specific performance.

, entered December 8, 1910, granting a voluntary dismissal without prejudice, on motion of the plaintiff, in an action for personal injuries.

, entered May 17, 1910, upon the verdict of a jury, rendered in favor of the plaintiff, in an action for damages to property by fire.

, entered November 4, 1910, upon the verdict of a jury rendered in favor of the defendant, in an action for damages to property by fire.

, entered September 6, 1910, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action on a bill of lading.

Application filed in the supreme court July 21, 1911, for a writ of prohibition to the superior court for Kitsap county, Yakey, J., to compel the assignment of a cause to another judge for trial, and to prevent the making and enforcement of certain orders therein.

, entered June 15, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for damages to real property.

, entered September 17, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action on a policy of fire insurance.

, entered December 20, 1910, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the death of an employee in a mill, drowned in the wheel pit through the negligent construction of the penstock.

, entered June 30, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a brakeman on a logging road.-

, entered April 21, 1910, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action for specific performance.

<p>Wills—Contracts to Devise—Mutual Wills—Revocation-—Estoppel to Repudiate—Husband and Wipe—Community Property— Election to Take Under Will—Evidence—Sufficiency. The intention of tbe parties to make provision for their children, with all the aspects of a contract which is irrevocable by the survivor after the death of the other, is clearly shown, and the widow makes an election which she cannot subsequently repudiate by claiming a community interest in lands devised by mutual wills to their children, where it appears that husband and wife, following a policy to advance $1,000 to each of their children, there being three minors still unprovided for, executed mutual wills devising to two minor sons specified tracts of community property, each charged with the payment of $500 to a minor daughter, that wills instead of deeds were made on the advice of an attorney because of the minority of the sons and their supposed inability to contract for the charges thereon, and that, at the same time, a deed of property was made to another child, and a writing signéd by the heirs, releasing all claims to the estate in consideration of the advances; and where, on the death of the husband, the widow offered his will for probate and accepted the benefits of devises to her of portions of the husband’s separate and community lands, arid bequests of personal property, which she converted to her own use.</p> <p>Evidence—Judicial Notice. The courts will take judicial notice of the practice of spouses in this state to make mutual wills of community property.</p> <p>Appeal—Preservation op Grounds — Exceptions — Sufficiency. A general exception to a specific finding is sufficient without any specification of the reasons therefor.</p>

, entered November 11, 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>Master and Servant—Assumption of Risks—Open and Apparent Dansees—Duty to Warn. An employee hauling timbers over rolls with a picaroon, along an unguarded walk, four or five feet wide, who fell where, for a space of fifteen feet, there was nothing between the walk and the ground ten feet below, must have known of and assumed the risks, as they were open and apparent; and he cannot allege negligence in failing to warn him of the danger of such open space, where he had passed it several times in his work.</p>

, entered December 2, 1910, upon the verdict of a jury rendered in favor of the defendant, in consolidated actions for personal injuries sustained by minors through the explosion of a dynamite cap.

, entered January 18, 1911, upon sustaining a challenge to the sufficiency of the evidence, dismissing, as to certain defendants, an action to vacate a tax sale and to quiet title.

, entered November 7,1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor employed as a blacksmith’s helper.

, entered February 20, 1911, in favor of the plaintiff, after a trial before the court without a jury, in an action to enjoin the execution of a contract for a public improvement.

, entered January 17, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee in a wood yard.

<p>Courts—Jurisdiction — Commerce — Carriers — Discrimination. The state courts have jurisdiction of an action brought by 'a shipper to recover for unjust discrimination by a common carrier engaged in interstate commerce, in violation of the act of Congress regulating interstate commerce, in view, of § 22 of the act (U. S. Comp. Laws 1901, p. 3170) providing that nothing in the act shall abridge existing common law remedies; since the right existed at common law.</p> <p>Carriers—Discrimination—Action for Damages — Complaint—■ Sufficiency. In an action by a shipper for unjust discrimination by a common carrier, seeking to recover switching charges paid, a complaint alleging that the defendant falsely represented that such charges were paid by other shippers when in fact the defendant was absorbing or itself paying the switching charges of many other shippers, is insufficient where it fails to allege that the defendant had failed to comply with the provisions of the act to regulate commerce with reference to the filing of a schedule of rates and that the rate charge exceeded the rate shown on the schedule.</p>

<p>Municipal Corporations—Use of Streets—Franchise—To Railroads-—Power to Grant. A city may grant a franchise to a railroad company to occupy a portion of a city street where the same does not exclude the public therefrom; and a franchise prohibiting an exclusive use at present or at any time in the future is valid.</p> <p>Eminent Domain — Use of Streets — Extent — Proceedings — Franchise. The nature of a railroad’s occupancy of a city street is not to be determined by its petition to condemn against the abutter, nor by the order of necessity, but by the terms of the franchise.</p> <p>Municipal Corporations—Use of Streets—Franchise—To Railroads. Authority to grant to a railroad company a franchise to lay tracks lengthwise in a street is conferred by Rem. & Bal. Code, § 7731, subd. 13, authorizing permits to lay railroad tracks and run cars drawn by horses, steam, or other power thereon.</p> <p>Eminent Domain—Property Subject—Streets. A railroad company may condemn a right to lay tracks in a street as against the rights of abutting owners, if it has a lawful franchise to use the street.</p> <p>Eminent Domain—Location—Change. A railroad company may make a change in its location in order to correct an error in engineering, where it was found that high water in a river did not admit of a grade line upon the route as surveyed and adopted; both at common law and hy virtue of Rem. & Bal. Code, § 8738 providing for such changes.</p> <p>Eminent Domain—Location-—-Necessity. The selection by a railroad of a route for a change in its location necessitated by an engineering error makes a prima facie case of necessity, which is conclusive in the absence of evidence of a more suitable and less injurious route; and the selection of a street does not show an abuse of power.</p> <p>Municipal Corporations—Organization—Change in Classification—Officers—Ordinances. After a town of the first class is raised to a city of the third class, the councilmen of the old corporation continue to act and have power to pass ordinances until the organization of the new corporation by the election and qualification of new officers at the next general election, pursuant to the provisions of Rem. & Bal. Code, § 7488, providing that it shall he a city of such class upon certification to the secretary of state and that notice thereof shall he taken when the corporation is actually organized by the election and qualification of its officers, and Id., § 7489, providing that the old officers shall act until the next annual municipal election and officers of the new corporation are elected and qualified.</p> <p>Municipal Corporations—Ordinances—-Defects—Collateral Attack. Reference in a franchise ordinance of the “town” of K., to “city” of K., signed and sealed by the clerk of the “city” of K., are mere informalities that do not affect the validity of the franchise, when attacked by private persons or in collateral proceedings.</p>

, entered August 8, 1910, upon findings in favor of the plaintiffs, after a trial on the merits without a jury, in an action to enjoin the obstruction of-the waters of a creek used for irrigation purposes.

Appeal by plaintiff from a judgment of the superior court for King county, Gilliam, J., entered February 8, 1911, reducing an assessment on a leasehold, upon a review on certiorari of the proceedings of the board of equalization.

, 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.

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered July 6, 1910, upon the verdict of a jury rendered in favor of the defendants, in an action on contract.</p>

<p>Limitation op Actions — Commencement op Actions — Piling Complaint. An ■ action is barred by the statute of limitations, where the complaint was duly served but was not filed, so as to commence the action within the time limited, under Rem. & Bal. Code, § 167, providing that the action is not commenced so as to toll the statute, until the complaint is filed.</p> <p>Limitation op Actions—Pleading—Supplemental Pleadings—• Demurrer Apter Answer. Under Rem. & Bal. Code, § 308, authorizing supplemental pleadings to show facts occurring after issue joined, it is proper to allow defendant to withdraw an answer and demur on the ground that the complaint wás not filed within time to toll the statute of limitations, where the objection was not available at the time the issue was made up.</p>

<p>Insurance—Fire Insurance—Forfeiture—Watchman— Breach of Warranty. A policy of fire insurance on a reconcentrating plant warranting that whenever the plant is idle, competent watchmen shall be employed and due diligence used to heep a continuous watch day and night in and immediately around certain parts of the plant, is violated and the policy forfeited, where, on shutting down, the insured employed the day and night foreman of a mill situated six to twelve hundred feet distant, paying each one dollar a day for watching intermittently while not engaged in their regular duties as foreman for which they received $5.50 per day from the other mill, and it appears that the night watchman at the time of the fire had no key and had never been in or near the premises.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered October 29, 1910, upon granting a nonsuit in an action for specific performance.</p>

<p>Appeal from a judgment of the superior court for Clallam county, Still, J., entered September 17, 1910, in favor of the defendants, after a trial on the merits before the court without a jury, in consolidated actions to foreclose tax certificates of delinquency.</p>

<p>Indians—Lands—Actions to Recover—Limitation op Actions— by Death. The written consent of an Indian allottee to the sale of his lands by commissioners, under 27 Stats, at L. 633, is not revoked by his death prior to the sale.</p> <p>Indians—Lands—Title op Allottee—Descent—Administration —Necessary Parties—United States. An Indian allottee of lands who, as a citizen of the United States, holds a patent subject to forfeiture if the lands were abandoned and restricting the right of alienation for a certain period and until removed by legislative act, has a base or qualified fee, which descends upon his death under the laws of descent of the state (made applicable by 24 Stats, at L. 388, §5), and the United States is not interested in the devolution of title by inheritance and is not a necessary party to proceedings in probate administering the estate.</p> <p>United States — Departments ■—■ Decision of Interior Department—Conclusiveness—Indians—-Lands •—• Heirship. Where lands were granted to an Indian by a patent subject to forfeiture if the lands were abandoned and restricting the right of alienation for a certain period and until removed by legislative act, and by 27 Stats, at L. 633, exercise of the power of alienation was provided for by sales and conveyances by a commissioner and trustee upon written consent of the allottee, and conveyance was made accordingly, the determination of the question of heirship of a deceased allottee, determined under rules and in the manner provided by the interior department in order to authorize a trustee’s sale, is final and res judicata.</p> <p>Indians—Lands—Actions to Recover—Limitation oe Actions— Retroactive Statutes. 32 Stats, at L. 284, providing that the statutes of limitations of the states shall /apply to actions by any Indian patentee, for the possession of lands patented in severalty, where a deed thereof has been approved by the secretary of the interior, the same as for the recovery of land patented to others than Indians, is retroactive, although the lands were not at the time subject to alienation, and the whole period of the limitations need not run after the issuance of the deed by the trustee; especially in view of the added proviso that “this act shall not apply to any suits brought within one year from and after its passage;” hence an action to recover lands in 1905 is barred where the patentee died in 1888, at which time the land immediately went into possession of one claiming as sole heir at law under a decree of the probate court, to the knowledge of the plaintiff.</p> <p>Indians—Lands—Actions to Recover—Laches. The doctrine of laches is not inapplicable to actions at law for the recovery of lands, and bars an action commenced in 1905 by an Indian who had severed his tribal relations and was a citizen of the United States, and who claimed as heir of an original allottee from the government who died in 1888, where defendant’s predecessor in interest was at that time adjudged the sole heir by the probate court, and went into possession, and it appears that plaintiff knew of such possession and claim of heirship and frequently visited there without making any claim to the land at that time, nor later when the interior department made a similar finding as to the heirship and issued deeds upon the consent of such heir, the land having increased in value from $90 to $600 per acre, and purchasers in good faith having paid for the lands and made extensive improvements thereon.</p>

<p>Pleading—Complaint—Demurrer—Inferences. In the absence of a motion to make more definite and certain, a demurrer should not be sustained because of the failure of a complaint to allege a certain fact, where the fact can be inferred from the whole complaint.</p> <p>Waters and Water Courses—Appropriation on Public Lands—■ Easement for Diversion—Change—Secondary Easement. The prior appropriator of the waters of a creek, not diverted on his own lands, has no right) under U. S. Rev. St. § 2340, providing that all patents shall be subject to any vested and accrued water rights or rights to ditches in connection therewith, to make any change in the character of the servitude by fixing a new point of diversion or changing the ditch to a pipe line, upon the washing out of the ditch by erosions and slides whereby the water supply was lost, even if the subsequent patentee of the servient estate is not able to make any beneficial use of the water; and such change cannot be sustained as a “secondary” easement to enter and repair the ditch.</p>

, entered December 9, 1910, in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action to foreclose a mortgage; also, an appeal from a judgment dismissing an action to enjoin the trial of the foreclosure action.

, entered May 23, 1911, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the issuance of municipal bonds, after a hearing before the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered November 18, 1910, upon sustaining a demurrer to the complaint, dismissing an action for libel.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered April 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 partition.</p>

, entered May 21, 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