Volume 68 — Washington Reports

, entered February 10, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for a breach of promise.

, entered May 18, 1911, upon a trial of soliciting orders for the sale and delivery of liquor in a dry unit in violation of the local option law, upon a verdict directed by the court.

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered August 30, 1911, upon findings in favor of the plaintiffs, in an action for an injunction.</p>

<p>Waters and Water Courses — Riparian Rights — Extent oe Use —Irrigation—Statutes'—Construction. A lower riparian owner may not go above an upper proprietor and divert the water already appropriated by such upper proprietor, to be used on lands down the stream or on contiguous lands that are not riparian to the stream, to the exclusion of the upper proprietor; as each is entitled to a reasonable use only; and such right is not given by Rem. & Bal. Code, § 6327, authorizing a nonriparian owner to acquire a right of way through other lands for purposes of irrigation.</p>

<p>Executors and Administrators — Sales—Validity-—Estoppel. An irregular administrator’s sale is valid as against the two sole heirs, where one of them participated as administrator, both petitioned for the sale as made, and the sale was confirmed with their consent, and the full value paid to the estate and distributed to the heirs.</p> <p>Execution — -Interests Subject — Rights op Heirs- — Prior Administrator’s Sale — Confirmation. The interest of heirs in real property cannot be levied upon and sold under execution against the heirs, where, prior to the levy, the land was sold at administrator’s sale and the money paid into court, although the sale was not confirmed until afterwards; since the confirmation relates, back to the time of the sale.</p>

, entered May 13, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for wrongful injunction.

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered June 14, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action by a passenger for wrongful ejection.</p>

<p>Appeal — Record—Statement of Pacts — Affidavits. Affidavits used on motion for a new trial cannot be considered on appeal unless made part of tbe record by bill of exceptions or statement of facts.</p>

<p>Judgment — Res Judicata — Mattebs Concluded — Subsequent Performance. Where a contractor had turned over his work as completed, refused further performance, and the only issue was whether there had been a substantial performance, the other party claiming that the work was worthless and a damage, a judgment dismissing an action to foreclose his lien, after a trial on the merits, is res judicata and a bar to another action to recover on the same contract in which the plaintiff offered to show that subsequently to the former judgment he had tendered full performance involving only a nominal expense of $12, and that the tender was refused.</p>

Cross-appeals from a judgment of the superior court for King county, Gay, J., entered May IS, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action on contract.

<p>Eminent Domain — Proceedings—Adjudging Public Use — Review —Appeal or Certiorari. There being a remedy by appeal, certiorari does not lie to review an order adjudging a public use for the condemnation of a street; and the adequacy of the remedy by appeal from the award of damages is not affected by the fact that, during the delay, the city may start construction which will interfere with plaintiff’s use of the property.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered April 19, 1911, in favor of the plaintiff, after a trial on the merits before the court, in an action to foreclose a lien on a barge.</p>

<p>Appeal — Review—Amendments to Conform to Proof. Where evidence was admitted without objection, the complaint might have been amended to conform to the proof, and the supreme court will consider the amendment as made.</p> <p>Fraud — Fraudulent Representations — Evidence—Sufficiency— Reliance on Representations. The evidence sustains findings of fraudulent representations in the exchange of property, upon which the plaintiff had a right to rely, where it appears that the defendant knew that plaintiff had no time to examine the land, which was at a distance, and falsely represented that it was good land with a bearing orchard, when in fact it was bari’en and rocky and had no trees on it; and the fact that defendant honestly believed the representations to be true does not relieve him from the payment of damages.</p>

, entered March 24, 1911, upon findings in favor of the plaintiff, upon defendant’s default, in an action upon contract.

, entered February 10, 1911, upon the verdict of a jury rendered in favor of the defendants, in an action upon a replevin bond, after a trial to the court.

, entered June 16, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for the death of a pedestrian at a railroad crossing.

, entered April 8, 1911, dismissing an action for injuries sustained through defects in a county road, upon withdrawing the case from the jury.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered June 10, 1911, dismissing an action to subject property to a judgment, upon sustaining a demurrer to the complaint.</p>

<p>Party Walls — Agreement—Construction. An agreement for a party wall is not obscure and uncertain by rea^m of the use of the phrase that the parties shall “lease” the right to use the premises for the construction of such a wall, the parties having subsequently construed it as a party-wall agreement and not as an executory agreement for a lease.</p> <p>Party Walls — Agreement Running With Land — Estoppel. There is an estoppel to assert that a party-wall agreement is personal to the original parties by reason of its failure to covenant that it shall run with the land, or to mention the heirs, successors, or assigns of the parties, where the party wall was constructed within a short time, and subsequently both of the original parties conveyed, each deed expressly stipulating that all rights under the party-wall agreement were transferred to the grantees, subsequent deeds in the chain of title containing the same stipulations.</p> <p>Corporations — Actions — Payment oe License Fee — Statutes. Rem. & Bal. Code, § 3714, providing that every corporation having a capital stock shall pay an annual license fee, has no application to a corporation organized for fraternal purposes having no capital stock, which can accordingly maintain an action without payment of such a fee.</p>

, entered February 21, 1911, upon findings in favor of the defendants, dismissing an action on contract, after a trial to the court.

<p>Contracts — Promoter’s Agreement— Construction — Conditions —Performance—Actions—Instructions. Where an agreement between promoters of an electric company provided that defendant, who had put up the money and retained certain shares and bonds and had borrowed $16,000 for the purpose of carrying the bonds, would, in consideration of the plaintiff’s past services, upon payment within six months of half of the sum borrowed to carry the bonds, assign one-half of the bonds- and one-half of the remaining stock to the plaintiff, and the plaintiff testified that the agreement was understood to require him to sell the bonds at any time within six months in order to earn one-half of the stock, a purchase or sale of the bonds was a condition precedent to plaintiff’s ownership of any part of the stock; and in an action for breach of contract, the jury was properly instructed to that effect and that the agreement itself did not make the plaintiff owner of the stock until he had performed the conditions.</p> <p>Same — Option—Relinquishment. In such a case, where it appears that defendant for a time requested plaintiff not to make any effort to sell the bonds, as he contemplated taking them himself as a permanent investment, but later plaintiff advised an immediate sale because of competition by a new company, and defendant finally sold both the bonds and stock before the expiration of the six months, an instruction as to plaintiff’s rights, if the jury find that the defendant prevented him from performing the conditions, is not objectionable in that it refers to the agreement as an “option,” and that plaintiff could not recover if he consent to the defendant’s acts and relinquished any rights he had under the agreement.</p> <p>Same — Termination. In such a ease, it is proper to instruct that the parties had a right to terminate the “option” agreement, and that it would be terminated by an agreement that the defendant should retain the bonds.together with the stock bonus for his pri-' vate investment, remaining stock to be equally divided between them.</p> <p>Evidence — Intent—Admissibility. Where the character of a transaction depends upon the intention of a party, he may testify what his intent was, its weight being for the jury.</p> <p>Evidence — Weight and Sufficiency — Letters — Mailing — Presumption. Testimony that a letter was properly addressed and mailed, with a return card, and that the letter was not returned, raises a presumption that it was received, and where its receipt was denied, the question is for the jury.</p> <p>Corporations —■ Stock and Bonds — Ownership — Title of Promoter. Where a promoter bought an electric light plant, incorporated a company, sold the plant to it and took stock and bonds in payment, he is the owner of the stock and bonds and not a trustee for the corporation, and it is immaterial that he borrowed the money to put the deal through.</p> <p>Contracts — Promoter’s Agreement — Modification — Evidence— Sufficiency. One of two promoters cannot be heard to rely upon a letter from the other intimating that he might hold certain bonds as a permanent investment, thereby abrogating a prior agreement for their sale, where shortly after receipt of the letter he wrote the sender of threatened competition, advising an immediate sale, knowing that he would not thereafter desire to hold the bonds as a permanent investment.</p>

, entered April 15, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for injuries sustained by an employee in a fall from a telephone pole.

, entered September 1, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a passenger on a street car.

<p>Corporations — Representation— Owners — Apparent Authority of Officers and Agents — Contracts—Liability—Innocent Parties —Equity. Under the rule that persons dealing with corporate agencies have a right to rely upon the apparent authority of those in charge, and the rule that, whenever one of two innocent persons must suffer, he who has enabled a third person to occasion the loss must sustain it, mortgages and notes executed by the secretary of a holding company, by authority of its active managers holding the stock as trustees, which notes and mortgages were given in consideration of the stock of a fire insurance company without the knowledge or consent of the cestui que trust and real owner of the stock, are valid and binding obligations, as between the cestui que trust and the creditors of the fire insurance company, where it appears that the holding company, organized primarily for that purpose, was in fact more than a holding company, and had power to purchase the stock of other companies and to do a general agency and traffic business, that all of the stock of such company was, by the owner and president, placed in the absolute control of trustees as active managers and stockholders, who did engage in an agency and other business with the approval of the cestui que trust, and their purchase of the stock of the fire insurance company, in consideration of .the notes and mortgages of the holding company, executed by one of the trustees as secretary who was in charge of the principal office, was ratified by a vote of the stockholders holding practically all of the stock for the purpose of managing and controlling the company.</p>

<p>Courts — Jurisdiction—Mandamus—To “State Officers” — Insurance Commissioner. The state insurance commissioner is a state officer, within the meaning of Const., art. 4, § 4, conferring original jurisdiction upon the supreme court in mandamus to “all state officers,” the same not being limited to the heads of executive departments recognized eo nomine as state officers in Id., art. 3.</p> <p>Insurance — Regulation—Statutes— Scope — Pre-Existing Companies. A domestic fire insurance company authorized to and doing a fire and plate glass insurance business prior to the adoption of the insurance code is subject to the restrictions of the code after its adoption, in view of § 238 (Laws 1911, p. 298), providing that all prior acts are superseded and repealed, and §20 (Id., p. 177), providing that all domestic insurance companies then or thereafter formed, and every person doing an insurance business in the state shall be subject thereto.</p> <p>Insurance — Regulation—Authority—Character of Insurance— Fire and Plate Glass — Statutes. Such a fire insurance company has no right to issue plate glass insurance after the adoption of the insurance code, in view of §§83 and 84 (Laws 1911, pp. 217, 223), dividing insurance companies into classes, and limiting fire insurance companies to other classes of insurance (marine and team and vehicle insurance).</p> <p>Same. Section 79 of the insurance code (Laws 1911, p. 216) providing that existing companies previously authorized to transact business in the state are recognized and shall have the right to continue such business under the provisions of the act, provided their capital stock meets the requirements, and that they shall have two years to meet the requirements, does not authorize a fire insurance company formerly doing also a plate glass insurance business, to continue issuing both fire and plate glass insurance in violation of the act, especially in view of a further proviso expressly excepting preexisting life companies from restrictions against issuing both life, accident, health and liability insurance; the specific exception in favor of life companies being an implication against any other exception not expressed.</p>

Application filed in the supreme court February 23, 1912, for a writ of mandamus to compel the industrial insurance commission and the attorney general to collect delinquent assessments.

, entered November 17, 1910, upon findings in favor of the plaintiffs, in an action to recover a penalty for failure to comply with an order of the railroad commission, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered September 27, 1911, dismissing an action on a fire insurance policy, upon sustaining a demurrer to the complaint.</p>

<p>Estoppel — Against County — Conveyance oe County Property— Tax Titles. The principle of equitable estoppel applies against a county’s asserting title to land acquired by it in a proprietary capacity at a county tax sale, where, before the running of limitations against an action to set aside the tax deed, upon the advice of its attorney and the existence of a controversy over the validity of the tax deed, the county commissioners allowed the owner to “redeem” by paying all taxes, and executed and delivered to him a quitclaim deed, and thereby induced a bona fide purchaser to rely on the title and to pay taxes for six years; although, under Rem. & Bal. Code, § 9272, lands acquired by a county at tax sale could only be sold and disposed of at public sale.</p> <p>Evidence — Parol Evidence to Vary Writing — Admissibility. Where a county commissioners’ record recited that the county claimed title to property by virtue of a tax deed, and that it would be for the county’s best interest to relinquish all its right upon payment of the tax, parol evidence that there was a controversy as to the validity of the tax deed is admissible, as it does not contradict, but only supplements the writing.</p> <p>Counties — County Board — Powers—Compromise of Disputed Tax Title. Under Rem. & Bal. Code, § 3890, giving the county commissioners the care of county property and the power to prosecute and defend actions, the commissioners have power to compromise a controversy as to the validity of a county tax sale and deed by conveying the land to the owner un his payment of the taxes, regardless of whether suit has been commenced; and it is immaterial that the transaction was called a “redemption,” which was not authorized by law.</p>

, entered January 20, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action upon an oral contract of insurance.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered April 12, 1911, upon a trial and conviction of manslaughter.</p>

, entered May 11, 1911, upon findings in favor of the plaintiffs, in an action to foreclose a lien for digging a well, after a trial on the merits to the court.

<p>Equity — Mistake—Evidence—Sufficiency. There is sufficient evidence to establish that a bid for county work was submitted under a mistake, where one of the plaintiffs so testified, and that the mistake resulted from the inadvertent omission of an item of $3,500 intended to he included in the total of specific estimates.</p> <p>Equity — Mistake—Relief—Eobfeitube—Mistake in Bid — Counties — Contbacts—Bids. Where bidders on county work by inadvertence omitted an item of $3,500 from the total estimates, and notified the county commissioners as soon as the mistake was discovered that they desired to withdraw or amend the hid, and the work could not he done at the price bid without loss, equity will grant relief from the mistake and allow a recovery of the sum deposited as a forfeiture for refusal to enter into the contract, the mistake not being the result of wilful neglect; and this, whether the forfeiture was stipulated or provided by statute.</p> <p>Same. In such a case, the county’s loss of the deposit is not a loss or injury to others constituting a ground for denying relief from the mistake.</p>

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered April 21, 1911, upon sustaining a demurrer to the complaint, dismissing an action for an injunction.</p>

, entered September 2, 1911, upon findings in favor of the plaintiffs, in actions by vendees for the rescission of land contracts.

<p>Appeal from a judgment of the superior court for Pierce county, Gay, J., entered May 5, 1911, upon findings in favor of the defendants, in an action to quiet title.</p>

, entered December 27, 1911, in favor of the plaintiff, upon overruling a demurrer to the complaint, in an action for an injunction.

<p>Appeal — Briee—Reverences to Record. Error in rulings on the evidence will not be considered when the brief makes no references or citations to the pages of the statement of facts disclosing the error.</p> <p>Appeal — Preservation ov Grounds — Exceptions to Instructions. Error cannot be predicated upon instructions where no exceptions were taken.</p>

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

, entered July 26, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for breach of covenant.

, entered August 11, 1911, upon sustaining a demurrer to the complaint, dismissing an action to enjoin the enforcement of a city ordinance.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered July 13, 1910, upon findings in favor of the plaintiff, after a trial before the court upon an agreed statement of facts, in an action to recover a penalty for failure to comply with an order of the railroad commission.</p>

<p>Appeal from a judgment of the superior court for Cowlitz county, McMaster, J., entered January 7, 1911, upon findings in favor of certain defendants, after a trial on the merits before the court without a jury, in an action to determine the ownership to money paid into court under an award in condemnation proceedings.</p>

Cross-appeals from a judgment of the superior court for King county, Gay, J., entered September 6, 1910, after a trial on the merits before the court without a jury, settling an account, discharging a receiver, and refusing a dissolution, in an action for an accounting between a corporation and its stockholders and creditors.

, entered May 5, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for breach of covenant.

Application' filed in the supreme court March 29, 1912, for a writ of mandate to the superior court for Kitsap county, Yakey, J., to require a call for another judge to hear certain .causes.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 8, 1911, dismissing- an action to recover unpaid stock subscriptions, upon granting a nonsuit.</p>

<p>Railroads — Fires—Cause of Fire — Negligence—Evidence—Sufficiency — Prima Facie Case. The evidence is sufficient to make a prima facie case of negligence against a railroad company, rendering it liable for a fire set out by an engine, where it appears that the engine hauling a large train of cars and working heavily, emitted an unusual amount of large cinders and sparks that were carried a distance by a strong wind, and that within ten minutes after the train passed, the roof of a house within reach of the sparks was discovered to be on fire, there being no fire in the house and no other explanation of the origin of the fire.</p> <p>Railroads — Fires—Negligence—Rebuttal of Prima Facie Case —Question for Jury. In an action to recover for property destroyed by a railroad fire, set out by sparks emitted from the engine, it is a question for the jury to determine whether plaintiffs prima facie case is sufficiently rebutted by defendant’s evidence that the engine in question was equipped with an efficient spark arrester and the train carefully operated, where it appears that the engine was working heavily to haul a long train of cars, that the brakes on one of the cars were firmly set, that the engine was emitting an unusual amount of large cinders and sparks that were carried a distance by a strong wind, while the defendant’s evidence of inspection of the spark arrester consisted of defendant’s records and the testimony of employees, the employee who made the inspection not being called; since this is nothing more than evidence opposed to evidence, and the credibility of the witnesses was for the jury.</p>

<p>Shipping — Charter Parties — Warranties—Presumption. In tbe absence of an express stipulation to the contrary, a charter party carries an implied warranty that the ship would be in fit condition for tbe voyage.</p> <p>Shipping — Charter Party — Condition oe Ship — Exemptions— Liability- — Abandonment oe Voyage — Damages. A clause in a charter party exempting the owner from performance in case of dangers of tbe sea resulting from latent defects in boilers etc., does not apply to defects occurring after tbe execution of tbe contract while tbe vessel was completing a voyage on which she was engaged at tbe time of tbe chartering, and before tbe commencement of tbe voyage contracted for; and tbe defendant is liable for damages by reason of failure to make tbe voyage, especially where tbe voyage was abandoned and other voyages undertaken for several months, and tbe defects could have been repaired so as to enable her to undertake tbe voyage within fifteen days from her sailing date.</p> <p>Shipping — Charter Party — Time eor Sailing — Essence oe Contract. Tbe sailing date of a steamship is of tbe essence of a contract for affreightment of machinery and lumber from Seattle to Nome, where tbe steamship company bad notice that tbe shipper was under bond to complete a dredge at Nome before Sept. 1, and bad cancelled a prior charter party in order to save time, which was of vital importance.</p> <p>Shipping — Charter Party — Breach—Failure to Make Voyage— Measure oe Damages. Upon breach of a charter party, by failure to make tbe voyage, tbe sailing date being of tbe essence of tbe contract because of tbe necessity of tbe prompt delivery of machinery and lumber for tbe shipper’s performance of a contract to build a dredge on or before a certain date, all of which was within tbe contemplation of tbe parties, tbe measure of damages is tbe shipper’s expense incurred in retaining an idle crew of employees during tbe period of delay caused by tbe breach of contract; and a claim for expense and delay in securing bis final payments for tbe dredge is too remote and speculative, especially where it is not shown that such delay would not have occurred in any event.</p>

<p>Pleading — Answer—Inconsistent Defenses. In an action by a vendor to recover money paid to a bank by the vendee in a land contract, executed and claimed by the plaintiff, a defense that money which had been paid by the bank to the plaintiff’s father for an assignment of the contract had been deposited to the father’s credit in the bank and checked out and used by him on improvements to the plaintiff’s property, is not inconsistent with other defenses to the effect that the land contract was for the sale of lots in reality belonging to the father, for whom the plaintiff was only a trustee of the title, and that the father was insolvent and indebted to the bank, had sold the contract to the bank, had been fully paid, and that an account had been stated between plaintiff and the bank; and it is immaterial that the conclusions of the pleader were not consistent, it being the province of the court to draw conclusions from the pertinent facts stated.</p> <p>Principal and Agent — Authority of Agent — Evidence—Admissibility. In an action by a vendor against a bank for money paid by the vendee in a land contract, executed and claimed by the plaintiff, in which the bank made the defense that the lots in reality belonged to the father of the plaintiff, for whom she was only a trustee of the title, and that the father, who was insolvent and indebted to the bank, had sold the contract to the bank, which was the true owner thereof, it is error to exclude evidence tending to show, the relations between the plaintiff and her father with respect to the lots and contract, that he had represented her in other like matters about the same time, that she had placed the contract in his hands, that he was insolvent, and had sold the contract to the hank for its face value, that he had used the proceeds in the improvement of property belonging to the daughter, and that she had appropriated the property to her own use; as the evidence tends to show that the father had authority to represent the plaintiff in making the sale to the bank, and that by reason of his insolvency, the bank would have no other means of recovering the loss if his acts were unauthorized, and in equity could inquire into the dealings between father and daughter.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered May 1, 1911, upon findings in favor of the defendants, in an action of ejectment, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered June 28j 1911, in favor of the plaintiff, upon motion for judgment on the pleadings, in an action on contract.</p>

<p>States' — Actions—Liability for Torts — Statutes—Construction. No cause of action is created or liability imposed upon the state by Const., art. 2, § 26, providing that the legislature shall direct by law in what manner and in what courts suits may be brought against the state, nor by Rem. & Bal. Code, § 886, providing that any person having a claim against the state shall have the right to begin an action against the state in the superior court of Thurston county.</p> <p>States — Actions—Liability for Negligence — Acts of Officers —Governmental Functions — Sovereignty. In the absence of voluntary assumption of the obligation, the state is not liable for the torts or negligence of its officers or agents;, and this applies to personal injuries to a spectator, sustained through a defective railing in a state armory, negligently constructed by a state commission created for the purpose, and leased for a compensation to private parties by the state officer in charge of it for the purpose of giving a public exhibition; since the state’s immunity from liability is not confined to the discharge of purely governmental functions of the state, the sovereignty of the state extending to any private enterprise taken over or administered by the state.</p> <p>States — Sovereignty—Private Enterprises • — • Lease of Armory. Rem. & Bal. Code, § 7334, authorizing the leasing of state armories for purposes other than military, upon recommendation of the officer in charge, does not relinquish the state’s governmental functions or amount to the assumption of- a private enterprise, where the armory was constructed for governmental purposes and there is nothing in the military code showing any intent that the state shall engage in conducting a hall for entertainment purposes as a business venture; the lease being a matter of grace and accommodation to the public rather than a business enterprise.</p> <p>States — Liability for Torts — Contracts. The fact that the state makes a contract — the lease of an armory — does not create a liability for a tort committed by its officers in connection with the subject-matter of the contract, or make the action arising thereon one on contract.</p> <p>States — Sovereign Powers — Liability. The state, through its legislature alone, has the sovereign power to waive its immunity from liability for torts.</p>

<p>Pleading- — Answers—Inconsistent Defenses — Breach ' of Contract. In an action on contract, an admission of the execution of the contract and a general denial of performance on the part of plaintiff, is not inconsistent with affirmative defenses to the effect that plaintiff had breached the contract, which was thereupon terminated, and the plaintiff had elected to rescind and receive full satisfaction under a quantum meruit for the work done at the time of rescission.</p> <p>Contracts — Actions—Issues—Proof and Variance. In an action for wrongful discharge and breach of a contract whereby tunnel work was sublet to the plaintiff,' he agreeing to furnish an approved bond in the sum of $25,000, it is admissible, under a general denial of performance, to show that any performance by plaintiff was under an oral working agreement pending his efforts to procure the bond.</p> <p>Appeal — Review-—-Pleadings—Amendments. Upon an objection that evidence was not admissible under a general denial, the supreme court may on appeal regard the pleadings as amended to conform to the proof.</p> <p>Contracts — Performance or Breach- — Forfeiture. Where a subcontractor had breached his contract in failing to give a bond called for, and had not made the progress expressly required, upon which a forfeiture was declared pursuant to a provision in the contract, he cannot make the contract or his discharge the basis of recovery.</p>

<p>Appeal — Decisions Reviewable — Finality of Orders — Refusing to Vacate Judgment. The denial of a motion to vacate a default judgment for want of jurisdiction, in that the application must be by petition and service of original process, is final and appealable and conclusive on the parties, if not appealed from; and the same is true of the denial of a petition to vacate because service had been made upon the attorney for the plaintiff in the action.</p> <p>Same — Sustaining Demurrer to Petition. An order sustaining demurrers to a petition to vacate a default judgment because not commenced within the time limited by law, is appealable as a final order.</p> <p>Judgments — Defaults—Actions to Recover Real Property — Vacation — Limitation. An action to forfeit a land contract and remove the cloud upon the title, the complaint alleging that the defendants were nonresidents and not seeking any award of possession, is not an action to recover the possession of land, within Rem. & Bal. Code, § 806, authorizing the vacation of default judgments in actions to recover the possession of real property at any time within two years after judgment where the service was by publication; and a petition to vacate is therefore barred after one year, under the provisions of Id., §§ 235, 464, 466, providing for the vacation of judgments in other cases within one year.</p> <p>Appeal — Review—Interlocutory Orders on Appeal from Pinal Order — Independent Proceedings' — Vacation of Judgment. Where, under Rem. & Bal. Code, § 466, a motion in the original action to vacate a default judgment on service by publication was made within one year, and denied for want of jurisdiction in that the proceeding must be by petition and original process, and a petition, called an amended petition, was filed under Rem. & Bal. Code, §§ 467 and 468, and dismissed because served only on plaintiff’s attorney, whereupon another amended petition was served and filed and demurrers thereto sustained because not served within the time limited by law, the so-called amended petition was a new and independent proceeding, and an appeal from an order of dismissal on sustaining demurrers to the petition does not bring up for review the prior order.</p> <p>Executors and Administrators • — • Actions — By Executor for Heirs — Judgment—Validity—Quieting Title. A judgment quieting title in the heirs of a deceased person is not void because the action was brought by the executor and not in the name of the heirs.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered April 29, 1911, upon findings in favor of the plaintiffs, in an action of ejectment and to quiet title, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered April 17, 1911, upon findings in favor of the defendants, in mandamus proceedings, after a trial on the merits.</p>

<p>Municipal Cobpobations- — Steeets—Defective Sidewalks — Evidence — Admissibility. In an action for injuries to one stepping on a loose plank, laid across a muddy alley for the use of foot passengers, evidence that a city street sweeper had occasionally swept the plank is competent as tending to show that the city had recognized it as part of the street, on the question of its liability to keep the same in repair.</p> <p>Municipal Coepoeations — Claims—Vebifigation — Husband and Wife. A claim by a husband and wife for personal injuries to the wife, required to be sworn to by the “claimant,” may be sworn to by either, the wife being a proper party under Rem. & Bal. Code, § 182, and therefore a claimant.</p> <p>Municipal Corporations — Streets—Defects-—Contributory Negligence — Question for Jury. The contributory negligence of plaintiff in stepping on a loose plank without giving any particular heed to it is for the jury, where she and others had constantly used it for many months and it was not known to be particularly dangerous.</p> <p>Same — Negligence-—Question fop. Jury. Whether the city exercised ordinary care in suffering the use of a loose plank across an alley is for the jury, although the street was ungraded, where it appears that several hundred people passed over it daily and there were several business houses in the opposite block.</p>

, entered May 17, 1-911, dismissing an action for breach of contract, notwithstanding a directed verdict for the plaintiffs, after a trial on the merits before a jury.

<p>Evidence — Oral Evidence — Incomplete Written Contract. Where a written agreement for subletting railroad contract work contained nothing respecting advances, in an action between the parties for advances made by plaintiff to defendants under an oral agreement, in which the defendants also pleaded an oral agreement limiting their liability for the advances to the contract price, oral evidence as to the agreement between the parties is admissible, since it was conceded that the written contract did not contain the entire agreement.</p> <p>Evidence — Oral Evidence — Written Contract — Construction— Fraud. In an action upon a contract subletting railroad construction work, in which defendants claimed fraud in misrepresenting the “classification” or character of the work and the “haul” or distance that the earth was to be moved, and that the contract had been modified by a subsequent oral agreement whereby plaintiff was to pay defendants for extra work in moving rock and cement gravel instead of earth, and for the extra distance of over 1,000 feet, as an overhaul, oral evidence is admissible as to the meaning of the words “classification” and “haul” in the contract, and as to the character of the work and distance the earth was to be moved.</p> <p>Same. The fact that plans and specifications were by reference made a part of a subcontract for railroad construction work, does not preclude oral evidence as to the character of the work to be done, when the same was misrepresented to the defendants, who were thereby prevented from seeing the plans and inspecting the work.</p>

<p>Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered May 25, 1911, dismissing a will contest, after a trial on the merits to the court.</p>

<p>Appeal from a judgment of the superior court for Chelan county, Grimshaw, J., entered June SO, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Intoxicating Liquors — Offenses—Unlawful Sale — Prohibited Districts — Druggists—Statutes—Construction. Rem. & Bal. Code, § 4744, making it unlawful to sell or in any way dispose of intoxicating liquors with or without a license, within two thousand feet of any normal school, prohibits sales by druggists within the restricted district; as exceptions cannot be made by construction where the language is plain and unequivocal.</p>

, entered March 7, 1911, dismissing an action for the dissolution of a partnership and for an accounting, after a trial on the merits to the court.

<p>Eminent Domain — Condemnation for Railroad Purposes — Statutes — Construction. The power conferred hy Rem. & Bal. Code, § 8740, authorizing a railway company to condemn lands for depots, yards, terminals, etc., is a continuing power, not exhausted by its exercise in the first instance, and may be resorted to to change the location of the depot; hence it is unnecessary, in condemning for a connection between a main line and new terminals in a city, that there be a resolution of the board of directors in any particular form, as required by Id., §§ 8662 and 8668, relating to the construction of branch lines, those sections being inapplicable.</p> <p>Eminent Domain — Condemnation for Railroad Purposes — Necessity — Evidence—Sufficiency. There is a sufiicient showing of reasonable necessity for the condemnation of land for a new depot and terminal grounds, where it appears that the company’s present depot is more than one mile from the business center of the city and inconvenient to patrons, that the present site is inadequate in size, and without sufficient trackage facilities to meet present necessities.</p>

, entered July 31, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries sustained by a boiler maker’s helper assisting in hoisting a stack.

<p>Appeal by plaintiffs from a judgment of the superior court for Yakima county, Kauffman, J., entered March 31, 1911, upon the verdict of a jury assessing damages in a condemnation proceeding.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Neill, J., entered August 1, 1911, upon findings in favor of the defendants, in an action to enjoin an issue of school bonds.</p>

<p>Divorce — Grounds—Indignities—Evidence-—Sufficiency. A divorce sought by a husband on the ground of indignities is properly denied, where it appears that the wife’s impatient and bitter remarks made in the presence of the children, which constitute the only substantiated charge against her, were provoked, by the conduct of the husband, who had deserted his wife and family.</p> <p>Divorce — Grounds—Inability to Live Together. Rem. & Bal. Code, § 982, subd. 7, authorizing a divorce “for any other cause deemed by the court sufficient, and the court shall be satisfied the parties can no longer live together” should not be granted against a wife who is not at fault and who is willing to attempt to continue the marriage relation, simply because it appears that the parties can no longer live together; since there must be some other sufficient cause.</p> <p>Divorce — Costs—-Attorney’s Fees. On appeal by the husband from the dismissal of his divorce action, the supreme court will not allow further costs to the wife, where the trial court allowed her $2,000 for expenses and $3,000 for attorney’s fees, and she is financially able to meet additional expenses incurred.</p>

. Certiorari to review a judgment of the superior court for King county, Main, J., entered January 31, 1912, adjudging a public use in condemnation proceedings for a commercial waterway.

<p>Appeal — Supersedeas—By Appellate Court — Injunction — Suspension. While the discretionary action of the trial court in denying an order staying a prohibitory injunction pending appeal to the supreme court will not be reversed on appeal, the supreme court has power, in aid of its appellate jurisdiction, to grant a supersedeas suspending the injunction pending the appeal, where it is necessary to maintain the status quo and preserve the fruits of the appeal; and such a case is presented where, upon appeal from a perpetual injunction against the operation of a logging road over respondent’s lands, the damages to the land, if the order is affirmed, could be easily ascertained and is amply covered by a bond; while if the judgment is reversed, the damages to the appellant by reason of enforced suspension of its operations would be a great and indeterminate loss.</p>

, entered May 15, 1911, upon findings in favor of the plaintiff, in an action upon a promissory note, after a trial to the court.

, entered March 18, 1911, upon findings in favor of the plaintiff, in an action for damages to property, after a trial to the court.

, entered May 10, 1911, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, in an action upon a draft.

Cross-appeals from a judgment of the superior court for King county, Robert H. Lindsay, Esq., judge pro tempore, entered September 2, 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>Motion to recall remittitur and enter judgment for costs against surety; and counter petition for offset against costs.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, Mitchell, J., entered November 15, 1911, upon a trial and conviction of murder.</p>

, entered May 3, 1911, upon findings in favor of the plaintiff, in an action for the dissolution of a partnership, after a trial on the merits to the court.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered December 12, 1911, in favor of the defendants, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Rice, J., entered October 6, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

, entered November 25, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a fireman employed in a boiler room.

, entered August 5, 1911, upon findings in favor of the defendant, modifying the report of a referee in an action for an accounting.

<p>Counties — County Officers — Salary—Clerk of Court — Fees— Title to Naturalization Fees. One-half of the naturalization fees paid to a salaried county clerk, under 34 U. S. Stat. 596, and authorized by the act to be retained by the clerk for his own use, belong to the county and must be accounted for by the clerk, under Const., art. 11, §§ 5 and 8, requiring the legislature to regulate their compensation, provide for strict accountability by them for all fees collected, and fix their compensation by salaries, and Rem. & Bal. Code, § 4065, providing a salary which shall be full compensation for all services, § 4066, requiring salaried officers to collect and pay into the county treasury all fees now or hereafter allowed by law, paid, or chargeable, and § 4073, to the same effect and prohibiting the retention to his own use or profit of any sum paid him in his office or by virtue of his office, by virtue of the laws of this state or of the United States.</p> <p>Counties- — -County Officers — Salary-—Statutes — Construction —State and Federal Conflict. The United States statute, 34 U. S. Stat. 596, authorizing clerks of state courts to retain one-half of the naturalization fees paid to them, does not conflict with the state constitution and laws providing a salary for county officers which shall be in full compensation for their services, and providing that all such fees received shall be the property of the county and paid into the county treasury; since the fees are paid for acts done in official capacity, and the Federal act evinces no purpose to interfere with the disposition of the clerk’s fees as between him and the state.</p>

<p>Appeal — Review—Pleadings—Amendments. Upon appeal, pleadings will be deemed amended to correspond to proofs admitted without objection as within the issues raised by the pleadings.</p> <p>Specific Performance — Defenses — Fbaud — Evidence — Sufficiency. Where an exchange of property was negotiated by a broker, who dealt with different parties apart and secured their assent and signatures by falsely representing to one that the other had agreed to his terms, the broker, who subsequently acquired an interest in part of the property exchanged, is guilty of such fraud as to preclude himself and his assignee from enforcing specific performance of the exchange, after it had been repudiated and rescinded by the parties thereto.</p>

Application filed in the supreme court March 9, 1912, for a writ of prohibition to restrain a receiver’s sale, pursuant to an order of the superior court for Pierce county, Easter-day, J.

Application filed in the supreme court April IS, 1912, for a writ of mandamus to the insurance commissioner, directing him to issue a license to a foreign insurance company.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered December 29, 1910, dismissing an action for injuries to a passenger on a street car, upon granting a nonsuit.</p>

, entered February 25, 1911, upon findings in favor of the plaintiffs, in consolidated actions for personal injuries sustained in the fall of a scaffold, after a trial to the court.

<p>Watebs and Water Courses — Conveyance—Actions—Parties— Defect of Parties Defendant. In an action to enforce a contract for the delivery of water by an irrigation company, the contract calling for all water not theretofore sold to others, the parties to the contract are the only necessary parties, there being no defect of parties by reason of the absence of the prior purchasers of water.</p> <p>Waters and Water Courses — Contracts for Water — Actions— Defenses — Fraud. In an action to enforce a contract for the delivery of water by an irrigation company, made in consideration of the sale of the stock of the company, the fact of false representations in the sale is no defense, where no damages for loss caused by such false representations are claimed and no rescission of the sale is sought by the defendants.</p> <p>Waters and Water Courses — Irrigation — Water Contracts— Quantity of Water — Losses—Construction of Agreement. A contract of an irrigation company reciting that it was at one time the owner of 31 cubic feet of water per second of time appropriated from the Y. river, and agreeing to deliver all of the same not theretofore sold to other parties along an open canal (the amount thus disposed of being 25.87 cubic feet per second of time), does not convey 5.13 cubic feet of water to be delivered at points distant from the point of diversion no specific quantity being mentioned, but covers only such part of the 31 cubic feet appropriated as remained in the canal at the point of delivery, and could be made to flow by the exercise of reasonable diligence and care under the existing conditions, after allowing for evaporation, seepage, and other losses.</p> <p>Same — Estoppel to Dispute Deed. In such a case, the company, having executed a deed for the 5.13 cubic feet of water, would not be estopped to dispute its deed for the 5.13 cubic feet by showing that there was not sufficient water to supply what had theretofore been sold to others, where the officers of the company making the deed had knowledge of the facts, and assumed to act for the company and caused the deed to be made to a corporation for their own benefit.</p> <p>Same — Quantity of Water — Construction of Contract. The fact that the company had since enlarged the canal and added other waters thereto would not extend the grant of water to be delivered under the contract.</p>

<p>Carriers — Of Goods — Delivery—Loss of Goods — Fire. Where a car load of spirits, received with one of the containers in a broken condition, was spotted on the railway company’s delivery tracks, the bill of lading surrendered, and notice given of the broken condition of the contents, and the consignee’s agent reached the car with teams, broke the seal and entered the car, whereupon it almost immediately. broke into flames and was consumed, there was an actual delivery and acceptance of the car before the fire.</p> <p>Same — Proximate Cause of Loss — Waiver. In such a case, the right to insist upon a delivery in safe condition is waived by the consignee by attempting to remove the goods in their unsafe condition after notice thereof; and the railway company is not liable for its loss, regardless of its negligence in forwarding the goods in a dangerous condition or in failing to remedy the defect oh receipt of the car, as such negligence cannot be the proximate cause of the loss.</p> <p>Same — Delivery of Goods — Agent of Consignee. A transfer company, appointed by a consignee to receive' its property from a railway company, is the agent of the consignee, and notice to it of the dangerous condition of goods is notice to the consignee.</p>

Appeal by defendants from a judgment of the superior court for Spokane county, Kennan, J., entered April 10, 1911, upon findings'awarding damages for property appropriated in condemnation proceedings, after a trial to the court.

<p>Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered March 8, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</p>

<p>Cross-appeals from a judgment of the superior court for Skagit county, Joiner, J., entered October 26, 1910, upon findings after a trial to the court, in proceedings to mandamus city officers.</p>

<p>Cross-appeals from a judgment of the superior court for Spokane county, Huneke, J., entered June 6, 1911, upon findings in favor of the defendant, in an action for rescission, after a trial to the court.</p>

<p>Witnesses — Cross-Examination — Criminal Law — Privilege of Accused — Evidence of Former Conviction. Upon cross-examination of the accused, it may, under the provisions of Rem. & Bal. Code, § 2290, be shown that he has previously been convicted of a crime, whether a felony or a misdemeanor.</p> <p>Criminal Law — Trial—Order of Proof — Rebuttal. The order of proof being under the discretion of the trial court, the admission in rebuttal of matters not strictly rebuttal evidence is not ground for reversal, unless prejudice is clearly shown.</p>

, entered November 11, 1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

<p>Statutes — Subject and Titles — Matters Embraced Within Title. A provision authorizing a railroad, company to condemn property is germane to the title “An act to provide for the formation of corporations,” and does not violate the organic act which provides that every law shall embrace but one subject, to be expressed in the title.</p> <p>Eminent Domain — Property Subject — Public Use — Material eor Railroad Pill. The taking of soil to make a railroad embankment is a public use, where it appears that for twenty-two miles the railway line lias been damaged and washed away by floods, which interfered with traffic and the safety of the public, that it was necessary to raise embankments upon which the railroad is constructed, and that the land is necessary to obtain earth therefor.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered July 1, 1911, overruling objections of a property owner to an assessment for a local improvement, upon appeal from the city council.</p>

, entered May 1, 1911, in favor of the defendant, confirming an assessment roll for a public improvement, upon appeal from the city council.

<p>Appeal — Preservation oe Grounds — Exceptions—Time for Taic- ■ ing. Exceptions to instructions, taken immediately after the jury retired, are within time, in compliance with Rem. & Bal. Code, § 339.</p> <p>Larceny — -Identification of Property — Instructions. In a prosecution for stealing a nugget chain, in which the issue was as to the identification of a chain found in the possession of defendant’s wife, and claimed hy the prosecuting witness as her chain and as the one- stolen without any suggestion of error in her identification of it as her property, and defendant showed such chain to he a gift from a third person, it is reversible error to instruct the jury that, although they find the prosecuting witness to be mistaken in her identification, still they may convict if they find that the prosecuting witness did own a chain which was stolen hy the defendant.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered September 30, 1911, upon a trial and conviction of grand larceny by false pretenses.</p>

<p>Appeal from a judgment of the superior court for Snohomish county, Black, J., entered March 1, 1911, upon findings in favor of the plaintiffs, in an action for an injunction, after a trial to the court.</p>

, entered July 13, 1911, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff for personal injuries sustained by an employee engaged in installing heavy machinery.

, entered December 91, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained at a railroad crossing.

, entered January 16, 1912, upon findings in favor of the plaintiffs, in an action to reduce the assessment value of property.

, entered April 11, 1911, upon findings in favor of the defendant, in an action on' contract, after a trial to the court.

, entered October 30, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by an employee through defects in a private road, while conveying a heavy drum by wagon.

<p>Mortgages — Absolute Deed as Mortgage' — Burden oe Proof — Evidence — Sufficiency. Clear and convincing evidence is required to establish, that an absolute deed was intended as a mortgage, even if there is a contemporaneous written agreement for a resale; and the same in insufficient, where the conveyance was made upon the grantee’s furnishing money to redeem the property from a mortgage foreclosure sale, the grantor was given a mere option to repurchase, and remained in possession under an agreement to pay rent; especially where the option declared that it was the only contract, except the lease, existing between the parties, and there was no evidence that any debt was created.</p> <p>Unlawful Detainer — Rent —Payment—Evidence—Sufficiency. In an action of unlawful detainer, evidence that checks were given for the rent does not establish payment of the rent, where it appears that the checks covered rent for some other month, or that payment of the checks was refused for want of funds to meet them.</p>

, entered April 28, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a lineman through the fall of telephone poles.

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered May 10, 1911, upon a trial and conviction of attempted kidnapping.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered January 2, 1912, upon findings in favor of the plaintiffs, in an action for an injunction.</p>

<p>Eminent Domain — Power—Authority of County — Statutes— Construction. Under the rule that counties have only such powers as are conferred by statute, and that statutes of eminent domain, being in derogation of common right, are to be strictly construed, a county has no power to condemn lands within a city of the first class for a public wharf or dock, not connected with a county road; since a wharf is in no sense a county road; Rem. & Bal. Code, § 8114, limiting the right of eminent domain to wharf sites at the terminus of county roads and not within the limits of first-class tide lands.</p> <p>• Same. Such power is not conferred by the act of 1911, p. 8, authorizing a county to sell bonds in aid of enterprises undertaken by the state or county in aid of commerce and the “acquisition” of canals, docks, wharves, etc., the act not expressly conferring the power of eminent domain, and the power never being implied from the power to “acquire.”</p> <p>Same. Laws 1895, eh. 2, passed for the single purpose of permitting King county to condemn a right of way for the Lake Washington Canal, and granting the power of eminent domain expressly limited to the purposes mentioned in the first section, cannot he extended hy implication to authorize a county to exercise the right of eminent domain to acquire a public wharf or dock, under Laws 1911, p. 3, providing for county aid to certain state and Federal enterprises in aid of commerce and the acquisition of docks and wharves, which contains no grant of the right of eminent domain.</p>

<p>Appeal from a judgment of the superior court for Chehalis county, Sheeks, J., entered June 6, 1911, dismissing an action for reformation, after a trial on the merits to the court.</p>

<p>Woods and Forests — Offenses— Prohibited Fires — Statutes — Construction. Under Laws 1911, p. 629, § 8, prohibiting the burning without a permit, during the summer months, of any forest material, defined by § 1 to mean “forest slashing, chopping, woodland or brush land,” one may be convicted of burning “logs and stumps” located in his own dooryard; since a yard in which there are logs and stumps is manifestly located in a forest or slashing or woodland.</p> <p>Same — Statutes—Repeal. Rem. & Bal. Code, § 5287, permitting the burning of logs, stumps, drift and brush heaps in small quantities under personal supervision was repealed by Laws 1911, p. 629, § 8, prohibiting the burning of any forest material without a special permit.</p>

<p>Embezzlement — Evidence—Sueeiciency. There is sufficient evidence to sustain a conviction of larceny by embezzlement, where it was admitted that the defendant, employed as a bookkeeper, took small sums from a cash drawer, secreting the fact by the execution of a note charged off to profit and loss, which he kept in his possession, and he claimed that he returned the money secretly and destroyed the note, while his employer testified that he had not returned any part of the money.</p> <p>Appeal — Preservation oe Grounds — Objections. Error cannot be predicated upon the reception of evidence to which no objection was made below.</p> <p>Embezzlement — Evidence—Other Oeeenses — Admissibility. Upon a prosecution of a bookkeeper for embezzlement, in which the defendant testified that he had subsequently returned the money in small amounts without showing on his books where the money came from, making his cash more at times than the books showed, it is proper on cross-examination to ask if certain persons had not paid him money which he had not credited, even if it did show other offenses, as it tended to explain how the cash came to overrun.</p> <p>Same. Upon a prosecution of embezzlement by a bookkeeper, evidence of other offenses than the one charged is admissible, where it tended to show a general scheme or system adopted in keeping his accounts in furthering his embezzlement.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered November 27, 1911, upon a trial and conviction of graft.</p>

Hyland, Esq., judge pro tempore, entered December 13, 1911, upon findings in favor of the defendants, in an action by a fraudulent grantee to enjoin an execution sale, after a trial to the court.

<p>Intoxicating Liquors — “Regulation”-—Power Conferred on City —Anti-Treating Ordinance. As the power to “regulate” the sale of intoxicating liquor implies the power of partial prohibition, an anti-treating ordinance prohibiting the sale of intoxicating liquors in lcensed saloons to be drunk on the premises by any other person than the one buying the same, is within the power conferred by Rem. & Bal. Code, § 7507, authorizing cities of the first class to regulate the selling or giving away of intoxicating liquors, to grant licenses for any lawful purposes, to regulate the carrying on of occupations affecting the public health or good order of the city, and to make all regulations necessary for the preservation of public morality, health, peace, and good order within its limits.</p> <p>Intoxicating Liquors — Regulation—Anti-Treating Ordinance— Reasonableness. An ordinance having for its purpose the prohibition of treating in licensed saloons is not an unreasonable regulation of the liquor trafile, under the power to regulate such traffic and to make regulations necessary for the preservation of public morality; the decision of the city authorities being controlling upon the courts unless the unreasonableness of the ordinance is free from doubt.</p> <p>Same — Constitutional Law — Inherent Rights. A citizen has no inherent right to treat another to intoxicating liquors in a licensed saloon.</p> <p>Ordinances — Enactment—Amendment. An anti-treating ordinance is not an amendment to the general ordinance upon the subject of the regulation of intoxicating liquors, required by charter to be enacted by a new ordinance containing the entire ordinance as amended, merely because it provides additional regulations and restrictions upon the sale of intoxicating liquors, where it is not enacted as an amendment, but in the form of an original ordinance, and each law could stand without conflicting with the other.</p> <p>Constitutional Law — Class Legislation — -Equal Protection of the Laws — Intoxicating Liquors — Anti-Treating Ordinance. An anti-treating ordinance prohibiting the sale of intoxicating liquors in licensed saloons to be drunk on the premises by any other person than the one buying the same, does not violate the provisions of the Federal and state constitutions securing to the citizen his property and the equal protection of the laws, from the fact that only the act of selling liquor and not the purchase thereof is punishable.</p>

<p>Appeal from a judgment of the superior court for Thurston county, Mitchell, J., entered May 8, 1911, upon findings in favor of the defendant, in an action on contract.</p>

<p>Appeal from a judgment of the superior court for Columbia county, Miller, J., entered June 6, 1911, upon findings in favor of the plaintiff, in an action for cancellation of mortgages.</p>