Volume 69 — Washington Reports

<p>Interest — Bate — Contract—Fraud—Mortgage Note—Fraudulent Representations. Only seven per cent per annum can be collected on the foreclosure of a mortgage, where the note called for 108 monthly payments, each of which was slightly in excess of the accrued interest at date of payment, thereby decreasing the principal, and was ingeniously drawn with much detail, studiously avoiding any express statement relative to the annual rate of interest, so that it required considerable intelligence and business capacity to understand its import, and the payee represented that it called for less than seven per cent per annum, when in fact the interest aggregated nearly twelve per cent on the unpaid principal, and the makers had agreed to make a loan at seven per cent and failed to comprehend the legal effect of the intricate and involved expressions employed, and believed and acted upon the representations that it called for less than seven per cent.</p>

, entered March 20, 1911, in favor of the defendant, notwithstanding the verdict of a jury in favor of the plaintiff, in an action for malpractice.

<p>Railroads—Injury to Travelers—Overhead Bridge—Negligence —Construction—Evidence—Sufficiency. In an action against a railroad company for injuries sustained by reason of an alleged defective overhead highway bridge, the fact that the defendant constructed the bridge is prima facie established by its admission of ownership of the track and roadbed and the fact that it accepted a city franchise requiring it to construct and forever maintain a suitable highway bridge over its tracks at that point.</p> <p>Same. A jury is warranted in finding negligent construction of a highway bridge over railroad tracks as a contributing cause of the running away of a team, which became frightened by smoke and steam coming up through the floor of the bridge, where it appears that the bridge had a single floor with cracks one-half to one and one-half inches in width, and a carpenter testified that the usual method of constructing such a bridge is to lay a double floor, the first floor laid diagonally and the second at right angles.</p> <p>Same—Negligent Construction—Excessive Speed—Proximate Causes of Accident—Evidence—Sufficiency. Where a team took fright and ran away on a highway bridge over railroad tracks, when a train passed under at an excessive speed, and smoke and steam came up through wide cracks in the floor of the bridge, the jury is warranted in finding that the excessive speed and the smoke under the team were the proximate causes of the fright, and a verdict thereon is not open to the objection that it was based on speculation or conjecture.</p> <p>Same—-Contributing Causes—Excessive Speed—Evidence—Sufficiency. Where it was not usual or customary to operate a train at excessive speed, under a highway bridge in a thickly inhabited part of the city, and there was evidence that smoke and steam came up through the cracks in the floor and frightened a team, there is sufficient evidence that negligent operation of the train contributed to the fright, where it appears that the driver could not see the track when he drove on the bridge nor until about fifty feet from a point directly over the track, the approach being on a down grade of eight per cent, that he did not see or hear the train until at the bridge, no bell was rung or whistle sounded, and the train was traveling at forty-five miles per hour.</p> <p>Negligence—Liabilities—Concurrent Acts. Where the concurrent negligence of two persons combined results in an injury to a third person, he may recover from either or both of them.</p> <p>Railroads—Injury to Travelers—Contributory Negligence— Question eor Jury. In such a case, the driver’s contributory negligence is for the jury, where he could not see the train until within fifty feet of the tracks, when he could see the track for half a mile, but the train was upon him, and he testified that before driving on the bridge he listened for it but could not hear it.</p> <p>Appeal—Decisions Reviewable—Einality—Order Granting New Trial—Excessive Verdict. Where a new trial was granted upon the sole ground that the verdict was excessive, the plaintiff refusing to accept a reduction and make a remission, plaintiff’s appeal cannot be dismissed on the ground that an order granting a new trial is not appealable.</p> <p>Damages—Personal Injuries—Excessive Verdict. It is not a clear abuse of discretion to set aside a verdict for personal injuries for $5,215.50, as excessive and grant a new trial, unless the plaintiff consents to a remission of $2,000, where it appears that the plaintiff, a boy, seventeen years of age, was injured in a runaway, the end of his collar bone was detached from the breast bone, and eight months later had not united, and the boy was 31 days in the hospital and testified that he was not able to work; the burden being upon the trial court to exercise its discretion.</p> <p>Appeal—Review—Discretion. The setting aside of a verdict as excessive will not be reviewed on appeal except for clear abuse of discretion.</p>

, entered October 10, 1911, upon the verdict of a jury rendered in favor of the plaintiff for injuries sustained by the operator of a resaw in a mill.

, entered November 29, 1911, dismissing an action to set aside a special assessment, upon sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the superior court for Chehalis county, Sheets, J., entered April 24, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on contract.</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 larceny.</p>

, entered November 9, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a coal miner in the fall of rock.

<p>Appeal from a judgment of the superior court for Pacific county, Smith, J., entered August 15, 1911, dismissing an action for malicious prosecution, upon sustaining demurrers to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered September SO, 1911, upon findings in favor of the defendant, in an action to restrain the foreclosure of a chattel mortgage.</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 forgery.</p>

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered January 20, 1912, upon a trial and conviction of robbery.</p>

<p>Appeal—Record—Statement of Pacts—Settlement—Reference. Where, upon the settlement of a proposed, statement of facts, to which no amendments were proposed, an issue of fact arises between the judge and counsel as to what occurred at the trial, the supreme court will order a reference to another judge to take evidence and report his findings.</p>

<p>Master and Servant—Safe Appliances—Promise—Assumption of Risks—Question for Jury. It is for the jury to determine whether there was contributory negligence, and whether the servant could rely on a promise, where it appears that the foreman in a lumber camp promised to furnish the plaintiff, employed in sawing trees, with an undercutter rigging for making undercuts, that the appliance would have rendered his work safer, that he relied on the promise, and was injured while attempting to cut up two logs as directed, being unable to make the cut of the lower log first for want of the rigging.</p> <p>Same—Promise—Reasonable Time—Question for Jury. In such a case, it is for the jury to say whether the lapse of three or four days after the promise was a reasonable length of time in which plaintiff might rely thereon.</p> <p>Same—Contributory Negligence—Question for Jury. In such a case, it is for the jury to say whether plaintiff was guilty of contributory negligence in failing to block the log that rolled on him, in failing to cut the log as marked, or in not adopting the proper avenue for escape, where there was evidence that he blocked the log, and considered it safely blocked, but some of the supports fell, that he used his judgment in making the cut, and in endeavoring to escape he was compelled to act hurriedly.</p>

, entered April 15, 1911, upon the verdict of a jury rendered in favor of the plaintiff, for personal injuries sustained by a passenger knocked down and run over by street cars.

<p>Perjury—False Oath—Administration—Authority oe Notary. Under Rem. & Bal. Code, § 8298, authorizing a notary public to take depositions and affidavits and administer all oaths required by law to be administered, a notary cannot, unless it is required by law, administer an oath with such binding force as is necessary to support a charge of perjury, in case of a false sworn statement.</p> <p>Perjury—False Oath—Power and Jurisdiction of Tribunal— Investigating Committee. Since perjury can only be predicated on a false oath in a proceeding of which the tribunal had jurisdiction, an indictment is insufficient where its basis is a false oath before a committee authorized by resolution of a city council “to' investigate and probe charges made by the acting mayor,” without showing against whom the charges were made or that the matter was within the council or its jurisdiction.</p>

, entered November 25, 1911, upon findings in favor of the plaintiff, in an action for rent, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered December 16, 1911, upon a trial and conviction of rape.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered September 15, 1911, in favor of the plaintiffs, in an action to restrain an execution sale.</p>

, entered August 17, 1911, upon findings in favor of the defendants, in an action to foreclose mortgages, after a trial to the court on the merits.

<p>Appeal from a judgment of the superior court for King county, Main, J., entered April £9, 1911, upon findings in favor of the plaintiff, in an action for an accounting, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered' July 7, 1911, upon findings in favor of the defendant, in an action in tort, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered January IS, 1912, upon findings in favor of the plaintiff, in an action to foreclose a mechanics’ lien.</p>

<p>Divoece—Decree—Disposition op Real Property — Venue op Action. In a divorce action, commenced in the county where the plaintiff resides, under Rem. & Bal. Code, § 984, the court has jurisdiction to dispose of real property situated in another county, where it is described in the complaint, under Id., § 989, authorizing the court to dispose of any property of the parties; and Id., § 204, providing that actions to recover real estate shall be brought in the county where the subject is situated, does not apply.</p> <p>Gaming—Contracts—Money Loaned—Husband and Wipe—Community Debt. Money loaned to a husband for the express purpose of gambling in futures in a manner prohibited by law cannot he recovered either from the husband or the community, and is therefore not a community debt.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered September 30, 1911, dismissing an action in tort, upon sustaining a demurrer to the complaint.</p>

, entered February 15, 1912, upon findings in favor of the defendants, iipon an agreed statement of facts, in an action for demurrage charges.

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered July 3, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered November 27, 1911, dismissing an action for the foreclosure of a mortgage, upon sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the superior court for King county, Prigmore, J., entered June 10, 1911, in favor of the plaintiff, upon stipulated facts, in an action on contract.</p>

, entered December 23, 1911, in favor of the defendant by direction of the court, in an action upon an accident insurance policy.

, entered December 3, 1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

<p>Appeal from a judgment of the superior court for Chehalis county, Irwin, J., entered October 17, 1911, upon findings in favor of the defendants, dismissing an action for cancellation.</p>

, entered November 4, 1910, sentencing the defendant for malfeasance in office, upon his plea of guilty, upon overruling a motion in arrest of judgment.

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered April 15, 1912, dismissing an action for an injunction, after a trial to the'court.</p>

, entered December 12, 1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

<p>Certiorari to review a judgment of the superior court for Chelan county, Grimshaw, J., entered November 18, 1911, dismissing a condemnation proceeding, after a hearing on the merits before the court.</p>

, entered January 15, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a sawyer in a mill.

<p>Appeal from a judgment of the superior court for Pacific county, Smith, J., entered September 15, 1911, dismissing an action on contract, on sustaining an objection to the introduction of any evidence.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered December 18, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action in tort.</p>

, entered January 26, 1912, upon findings in favor of the plaintiff, in an action for money paid, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Myers, J.,-entered October 27, 1911, dismissing an action for libel, upon sustaining a demurrer to the complaint.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered January 16, 1912, in favor of the plaintiff, in mandamus proceedings, upon overruling a demurrer to the application.</p>

Motion by appellant filed in the supreme court May 27, 1912, for suit money and temporary alimony, pending appeal from a judgment of the superior court for King county, Myers, J., entered May 6, 1912, denying a divorce, after a trial on the merits.

<p>Appeal from a judgment of the superior court for Cowlitz county, McKenney, J., entered March 18, 1912, granting letters of administration, after a hearing upon conflicting applications.</p>

, entered June 24, 1911, upon findings in favor of the plaintiff, in an action for money paid, after a trial to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered May 27, 1911, upon findings in favor of the defendant, dismissing an action to foreclose a mechanics’ lien.</p>

Motion filed in the supreme court June 8, 1912, to stay an affirmance of a judgment of the superior court for Thurston county, Mitchell, J., entered November 15, 1911, upon an appeal from a conviction of murder in the second degree, pending an inquisition of lunacy.

, entered February 15, 1912, upon findings in favor of the plaintiffs, in an action on contract, after a trial to the court.

, entered June 5, 1911, upon sustaining a demurrer to the complaint, dismissing an action for personal injuries sustained by a track worker.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered November 1, 1911, upon sustaining a demurrer to the complaint, dismissing an action for damages to property.</p>

, entered October 25, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for the wrongful death of an employee in a quarry.

<p>Abatement and Revival—Action eor Death—Abatement—■ Death op Wrongdoer. Under Rem. & Bal. Code, § 183, providing that a cause of action for death by wrongful act or neglect of another may be maintained by heirs or personal representatives against the person causing the death, and Id., § 967, providing that all other causes of action by one person against another survive to the personal representatives of the former against the personal representatives of the latter, a cause of action for wrongful death survives only against the wrongdoer and abates upon his death.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered September 9, 1911, dismissing a petition to vacate a judgment.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered December 14, 1911, dismissing an action in equity, upon sustaining demurrers to the complaint.</p>

<p>Elections—Offenses—Fraudulent Registration—False Oath— Loss of “Civil Rights.” The registration oath, required by Rem. & Bal. Code, § 4768, that the elector had not lost his civil rights by having been convicted of an infamous crime, is not shown to be false by an allegation in an information for false swearing that the accused had taken the oath after conviction of a felony, where, by such conviction, he had lost no civil rights, but only the right to vote, which is a political and not a civil right.</p> <p>Same—Statutes Construed. Const., art. 6, § 3, providing that persons convicted of infamous crimes shall be excluded from the elective franchise unless restored to their civil rights, cannot be taken as a construction of the existing territorial statute (Rem. & Bal. Code, § 4755), to mean that such persons lost their civil rights, When the act only forfeited their right to vote, a political and not a civil right.</p> <p>Same—Infamous Charge—Jail Breaking. An information for falsely swearing, in a registration oath made pursuant to Rem. & Bal. Code, § 4768, that the accused had not lost his civil rights, by being convicted of an infamous crime, is insufficient where it merely alleges that the accused had been convicted of the infamous crime of jail breaking in another state without showing that at the time of his escape he was held on an infamous charge; since by Rem. & Bal. Code, § 2342, jail breaking is a felony only where the prisoner was held on a felony charge, and a misdemeanor if held otherwise.</p> <p>Statutes—Conflict of Laws—Extraterritorial Force of Foreign Laws. Where, under the law of this state, jail breaking was only a misdemeanor at the time the offense was committed in another state, the offense would not be an infamous crime, within the meaning of Rem. & Bal. Code, § 4768, denying the elective franchise to certain citizens, even if jail breaking were a felony in such other state; since the laws of such state could not be given extraterritorial force in opposition to the laws of this state.</p> <p>Statutes—Foreign Laws—Pleading and Proof. The laws of another state must be pleaded and proved.</p>

<p>Appeal from a judgment of the superior court for What-com county, Kellogg, J., entered December 30, 1911, upon a trial and conviction of rape.</p>

<p>Certiorari to review an order of the superior court for Kitsap county, Bell, J., entered April 16, 1912, adjudging a public use in condemnation proceedings'.</p>

<p>Certiorari to review an order of the superior court for Spokane county, Webster, J., entered September 22, 1911, for the issuance of a writ of garnishment.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered September 29, 1911, upon the verdict of a jury rendered in favor of the defendants, in an action for damages for breach of contract.</p>

, entered February 26, 1912, upon findings in favor of the plaintiff, in an action for an injunction, after a trial to the court.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered December 14, 1911, upon an agreed statement of facts, dismissing an action to restrain the collection of a tax.</p>

<p>Work and Labor—Contracts—Evidence-—Sufficiency. A claim that plaintiffs deceased uncle had agreed to give her the house and lot on which he lived, worth $20,000, in consideration of her coming west and keeping house for him, she to have no -salary or other compensation, is not sustained hy the evidence, where it appears that the deceased’s letters making such an offer were not acted upon for three years, that meanwhile he made a will disposing of the property, that plaintiff came west when she was not expected by him about a month before his death, and that she did not contest the will, hut filed a claim against his estate for her expenses in coming west and for services in attendance upon the deceased, amounting to $470, which was allowed.</p>

<p>Certiorari to review an order of the superior court for Thurston county, Mitchell, J., entered June 20, 1912, adjudging. a public use in proceedings to condemn land for a railroad right of way, after a hearing before the court.</p>

, entered November 7, 1911, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for damages from flooding and for an injunction, after a trial on the merits.

<p>Judgment—Conclusiveness—Vacation—Action—Laches. A defendant is estopped by laches and by a restraining order, unappealed from, from attacking a judgment on the ground of fraud, where, on his appeal from an order refusing to vacate the judgment on his petition, the appeal was dismissed because he had failed to obtain permission of the supreme court to attack the judgment, and for three years thereafter neglected to obtain such permission, and was meanwhile restrained from bringing any action affecting plaintiff’s title to the land1 which was the subject of the former suit.</p>

, entered June 5, 1911, upon the verdict of a jury rendered in favor of the plaintiff by direction of the court, after a trial on the merits.

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered December 9, 1911, upon findings in favor of the plaintiff, in an action on a promissory note, upon a trial to the court.</p>

, entered April 8, 1912, affirming the action of the board of equalization in refusing to reduce an assessment, after a hearing on certiorari.

<p>Appeal from a judgment of the superior court for Cowlitz county, McKenney, J., entered February 7, 1912, upon findings in favor of the plaintiff, in an action upon a promissory note, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Easterday, J., entered August 30, 1911, dismissing on the merits an action for rescission, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Myers, J., entered December 19, 1911, confirming an assessment for a local improvement, upon appeal from the city council.</p>

, entered September 25,1911, upon findings in favor of the defendant, dismissing an application for a mandamus to compel the institution of quo warranto proceedings.

, entered July 1, 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 stone quarry.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered October 21, 1911, upon findings in favor of the plaintiff, in an action for materials furnished a contractor on public work.</p>

, entered February 15, 1912, dismissing an action to cancel a tax deed, upon sustaining an objection to the introduction of any evidence.

<p>Appeal from a judgment of the superior court for Spokane county, Sullivan, J., entered February 27, 1911, upon a trial and conviction of violating the school law for compulsory attendance.</p>

<p>Municipal Corporations — Streets—Assessments—Permanent or Temporary Street Repairs. The city charter and statute authorizing improvements to be made by planking, a plank roadway is a “permanent” improvement and not repair work, for which an assessment can be made, where it was intended for use until it wears out.</p> <p>Same. The power to levy special assessment for a street improvement is not exhausted by being once exercised.</p> <p>Same—Discretion op Council—Review. It is entirely within the discretion of the city to determine the necessity of an improvement, its character, and the materials out of which it shall be constructed.</p>

<p>Waters and Water Courses—Appropriation—Public Lands— School Lands—Reservations in Territory. School lands in a territory reserved by the Federal government for the use of the common schools of the future state are public lands of the United States, within the rule that the waters of streams on public lands are subject to appropriation under the acts of Cong. 14 Stat. at L. 253, and 16 Id. 218, granting the right as to all public lands generally.</p> <p>Judgment—Conclusiveness—Persons Concluded. A judgment against the holder of a contract tor the purchase of land from the state, determining his right to the waters of a stream, is conclusive upon one deriving his title through the grantee of the state, to whom the contract holder assigned the contract.</p> <p>Contempt—Violation of Judgment—Water Rights. Where a deed conveyed one-half of the waters awarded to a party by a decree, the grantee is guilty of contempt in violating the decree if he uses more than half of the quantity fixed by the decree.</p>

, entered March 3, 19X1, in favor of the plaintiffs, in an action for equitable relief, after a trial on the merits before the court.

<p>Appeal from a judgment of the superior court for Snohomish county, Bell, J., entered July 5, 1911, dismissing an action to quiet title, upon sustaining a demurrer to the complaint.</p>

<p>Trusts—Constructive Trust—Sale of Land—Evidence—Sufficiency. A constructive trust in lands in favor of the plaintiff is established where it appears that plaintiff purchased state lands at public sale and fully performed the contract, but defendants procured the state deed by representing to the commissioner of public lands that a default judgment awarding defendants the right to the property and operating as an assignment of the state contract had become final, when in fact a petition for the vacation of the judgment was pending, and it was finally vacated and' the action dismissed, and there was no consideration for a direction by the plaintiff to allow defendants to purchase the land which constituted the basis for the action.</p> <p>Vendor and Purchaser—Bona Fide Purchasers—Notice—Lis Pendens. The recording of an original contract for the sale of state lands, and the filing of a Us pendens in an action against the purchaser for the recovery of the land, by one claiming the right to purchase from the state, imparts notice of the rights of the original purchaser as against grantees of the plaintiff in the suit.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 3, 1912, 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>

, entered November 7, 1911, upon granting plaintiff’s motion for nonsuit at the close of defendants’ case, in an action on contract.

, entered September 28, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action on an indemnity bond.

<p>Criminal Law—Trial—Comment on Pacts. In a prosecution for incest, in which the female, testifying for the defendant, contradicted an affidavit previously made by her, it is unlawful comment on the facts in violation of Const., art. 4, § 16, for the court, in the presence of the jury, to order the witness into the custody of the sheriff and to direct the filing of an information against her for perjury:</p>

<p>Fish—Right to Fish. There is no private right or privilege to take fish in waters of the state except as granted by the state.</p> <p>Constitutional Law-—Class Legislation—Fish. Laws 1911, p. 496, regulating the fishing for salmon and making a different closed season in different waters of the state is not unconstitutional as class legislation or arbitrary and unreasonable, as it affects equally and impartially all persons similarly situated.</p>

<p>Appeal—Review—Evidence—Sueeiciehcy. A verdict will not be disturbed wben still sustained by tbe preponderance of tbe evidence after appellant’s propositions of law are resolved in bis favor.</p>

, entered September 8, 1911, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on a note and to foreclose a chattel mortgage.

, entered July 1, 1911, upon findings in favor of the plaintiffs, after a trial on the merits before the court without a jury, in an action on contract.

, entered November 18, 1911, upon findings in favor of the plaintiff, after a trial on the merits before the court without a jury, in an action for personal injuries.

, entered May 23, 1912, in favor of the defendant, upon an agreed statement of facts, sustaining the action of county commissioners in establishing election precincts.

, entered December 30, 1911, upon findings in favor of the defendant, after a trial on the merits before the court without a jury, in an action on an accident insurance policy.

<p>Waters and Water Courses—Appropriation—Right to Obstruct —Disseizin—Adverse Possession. Tbe right to obstruct the outlet of a lake, acquired by appropriation in 1883, is lost by disseizin and adverse possession, where the dam was removed in 1892, and thereafter the shores of the lake were held in open, exclusive, notorious and adverse possession for more than ten years, and until a new dam was built in 1909, without any obstruction of the lake except by permission in 1907 for four months, and except that once each year during the rainy season, without the knowledge of the owners, a few stones and pieces of wood were thrown into the narrow outlet of the lake (the work requiring about fifteen minutes) and removed in April or May thereafter.</p>

<p>Intoxicating Liquors—Offenses—Sale to Indian—“Disposing of.” One who, with money furnished by an Indian, procures intoxicating liquor and delivers the same to him, is guilty of a felony within Rem. & Bal. Code, § 6288, making it a felony to sell, give away, dispose of, exchange, or barter spirituous liquors of any kind to an Indian.</p>

Application filed in the supreme court July 29, 1912, for a writ of certiorari to review an order of the superior court for Klickitat county, McKenney, J., entered July 6, 1912, vacating an emergency restraining order and denying a temporary injunction.

<p>Sales—Contract—Breach—Delay in Performance. Where an order for two tons of turkeys to arrive at Spokane on November 23d was accepted, the seller is bound to ship the same so that the whole lot will arrive at Spokane during business hours on the 23d; and where they were shipped in two lots so that the first lot could not arrive until the night of the 23d, the buyer is justified in rejecting them.</p> <p>Same—Waiver of Breach. Where two tons of turkeys were ordered to arrive at Spokane on November 23d and they were shipped in two lots so that the first lot could not arrive until the night of the 23d, the buyer did not waive the breach where, upon being notified of the arrival of the first lot, he examined and immediately rejected it, without assigning any special reason.</p>

, entered July 81, 1911, in favor of the plaintiffs, after a trial before the court without a jury, in an action for damages to real property.

, entered September 25, 1911, upon the verdict of a jury rendered in favor of the defendant by direction of the court, in an action for fraud.

, entered January 2, 1912, upon findings in favor of the defendants, after a trial on the merits before the court without a jury, in an action to obtain the construction of a will.

, entered October SO, 1911, in favor of the plaintiff, after a trial on the merits before the court, in an action to quiet title.

<p>Wills—Probate—Nuncupative Wills—Time for Proof. Rem. & Bal. Code, § 1331, which provides that no “proof” shall be received of any nuncupative will unless offered within six months after speaking the testamentary words, refers to the testimony and not merely to the petition offering the will; and failure to offer the proofs within six months, is not excused by delay in consequence of the several pleas of the next of kin; in view of Rem. & Bal. Code, §§ 1297, 1302, providing that the court may immediately receive the proofs when the will is exhibited.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered May 31, 1911, dismissing an action on an indemnity bond, upon sustaining a demurrer to the complaint.</p>

<p>Attachment — Grounds — Disposing of Property to Hinder Creditors—Evidence—Sufficiency. There is sufficient evidence to support an attachment on the ground that the debtors had disposed of their property with intent to defraud their creditors, where it appears that the debtors were insolvent, and owed four principal creditors $34,000, that they had property of the value of $24,000 to $30,000, all of which they transferred by absolute conveyances to a creditor whose claim was $5,000, who made inconsistent statements and claimed at first, according to several witnesses, that he took the property as security for his claim and a surety claim of $6,000, and afterwards offered to pay off other creditors who were not consulted; and there was evidence that the debtors’ purpose was to prevent the attaching creditor from carrying out threats to enforce its claim by suit; the fact that they intended to prefer a creditor, as claimed by them, not being sufficient to warrant a dissolution of the attachment, where it appears that they also intended to hinder and delay other creditors and that the preferred creditor aided therein.</p> <p>Appeal—Review—Hearing on Affidavits. Upon reviewing an order dissolving an attachment, the supreme court is not called upon to follow the findings of the lower court upon disputed questions of fact, where the hearing was entirely upon affidavits.</p> <p>Fullerton, J., dissents.</p>

Appeals from judgments of the superior court for King county, Myers, J., entered January 10, 1912, confirming an assessment, upon appeals from the city council.

<p>Appeals from judgments of the superior court for King county, Myers, J., entered January 10, 1912, confirming an assessment upon appeals from the city council.</p>

<p>Highways—Collisions Between Vehicles—Actions—Questions roe Jury. In an action for personal injuries, the negligence of the defendant in driving into plaintiff’s vehicle is for the jury, where defendant made no effort to check his speed and needlessly called for the plaintiff to get out' of his way.</p> <p>Damages—Excessive Verdict—Personal Injuries. A verdict for' $2,000 for personal injuries sustained by a farmer fifty-six years of age in good health, will not he set aside as excessive, where he received internal injuries, confining him to the house for three months, and incapacitating him from work up to the time of the trial, ten months after receiving the injuries.</p> <p>Appeal—'Review — Harmless Error—Instructions. In an action for personal injuries, it is not prejudicially erroneous to instruct that the jury.may take into consideration “the age and condition in life” of the plaintiff, as referring to his financial condition, where there was no evidence of his financial worth.</p>

, entered September 9, 1911, affirming an order of the railroad commission respecting the published list of railway stations.

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered December 1, 1911, dismissing an action to cancel’ an assessment, upon sustaining a demurrer to the complaint.</p>

, entered June 5, 1911, upon findings in favor of the plaintiff, in an action upon a policy of fire insurance, after a trial on the merits to the court.

<p>Schools and School Distbicts—School Supeeintendents— Powees—Consolidation op Districts. In the absence of statutory-authority, the county school superintendent has no power to dissolve a consolidated school district, whether the consolidation was legal or illegal.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Chapman, J., entered January 2, 1912, upon the verdict of a jury awarding damages for property condemned.</p>

<p>Appeal from a judgment of the superior court for Whitman county, Neill, J., entered October 17, 1911, upon findings in favor of the plaintiff, granting a writ of mandamus requiring a water company to supply water.</p>

<p>Libel and Slander—Instructions—Charge of Larceny. In an action for slander in applying the word “thief” to an agent who had taken his principal’s money, it is proper to instruct that defendant must show on his plea of justification, that the plaintiff not only took the money, but did so with criminal intent, where the plaintiff had full charge of the business, receiving all moneys and paying all demands, including his own salary, and claimed that he took the money under- a good faith claim that he was entitled to take it to pay a debt.</p> <p>Same—Words Actionable—“Thief”—Justification. Since calling plaintiff a “thief,” is only prima facie actionable, malice being the gravamen of the charge, the defendant would not be liable if the words were used merely as terms of abuse in relation to a transaction that was fraudulent but not criminal, and justified by the attending circumstances and relations of the parties.</p> <p>Same — “Pimp” — Justification—Truth of Charge—Evidence. In an action for slander in calling a man a “pimp,” the plaintiff was “living with” a prostitute, within Rem. & Bal. Code, § 2440, and the defendant was accordingly justified, where it appears that the plaintiff was a clerk in a hotel where prostitutes frequently stopped for several days at a time, and that as a rule he assigned them to a room convenient to his own, and consorted with one of them regularly and with others occasionally, although there was no proof that they “lived with” each other as man and wife.</p>

<p>Appeal—Review—Findings. Findings upon conflicting evidence will not be disturbed if sustained by any evidence.</p>

Appeal by plaintiff from a judgment of the superior court for Walla Walla county, Brents, J., entered July 21, 1911. upon findings in favor of the defendant, in an action for rescission, denying a rescission and granting plaintiff a money judgment.

, entered February 20, 1912, dismissing certain defendants in quo warranto, upon sustaining their demurrers to the complaint, and from a judgment of dismissal entered February 23, 1912, by Bell, J., after a trial on the merits.

<p>’ Appeal from a judgment of the superior court for Walla Walla county, Brents, J., entered October 17, 1911, upon a trial and conviction of assault and battery.</p>

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered December 27, 1911, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a hook tender in a logging camp.</p>

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

, entered November 10, 1911, upon findings in favor of the plaintiffs, in an action of claim and delivery, after a trial to the court.

<p>Insane Persons—Restoration op Sanity—Discharge op Guardian—Jurisdiction—Notice—Adversary Proceeding. Under Rem. & Bal. Code, § 1671, providing tbat wben tbe court shall receive information that an insane ward has recovered bis reason, it shall immediately inquire into the facts, and discharge the ward if found to be of sound mind, no notice to the ward is necessary to authorize a discharge of the guardian, since the court has jurisdiction through the appointment and qualification of the guardian, and the proceeding is not an adversary proceeding requiring notice.</p> <p>Judgment — Jurisdiction — Presumptions—Collateral Attack. An order discharging a guardian of an insane person by a court having general jurisdiction, will be presumed to have been regularly made until the contrary appears, and is conclusive on collateral attack.</p> <p>Insane Persons—Restoration op Sanity—Conveyance—Mental Capacity. Where a person who had been adjudged insane was discharged as restored to capacity and his guardian discharged and he thereupon sold real estate for $2,500, the fact that two days later it was resold by the purchaser for $4,100 does not indicate that the sale was invalid for want of mental capacity.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered December 14¡, 1911, quashing a writ of certiorari to review an order of the public service commission for a spur track to a warehouse.</p>

Cross-appeals from a judgment of the superior court for Spokane county, Sullivan, J., entered October 25, 1911, upon findings favorable to part of the plaintiffs, in an action to foreclose mechanics’ liens.

<p>Sales—Beeach by Vendee—Measure op Damages. Where, upon a breach by the buyer of a contract to purchase hogs, the market price went down, and the seller used due diligence and made as advantageous sales of the remainder as the circumstances would permit, both as to the time and the price obtained, the measure of damages is sufficiently fixed by the difference between the contract price and the price obtained, plus his expense in feeding the hogs beyond the time he had agreed to do so; as it is a fair conclusion from his diligence that his loss was no greater than if he had sold at the market price on the day of the breach.</p>

<p>Indictment and Information—Robbery—Attempt—Language of Statute. An information charging an attempt to commit robbery is not insufficient in that the physical acts done towards the commission of the offense are not set forth, where it follows the language of Rem. & Bal. Code, § 2418, defining robbery and charges the defendant with an attempt to do the precise thing recited in the statute as constituting the crime.</p> <p>Criminal Law—Appeal—Harmless Error. It is error without prejudice for the court, in a prosecution for attempt to rob, to inadvertently instruct the jury that the crime of attempted robbery includes the lesser offense of grand larceny, where no finding was made thereon and the error did not enter into the verdict.</p> <p>Criminal Law—Evidence—Res Gestae—Several Defendants— Acts of One. Where one of two robbers was immediately captured and given to the prosecuting witness to hold while the officer pursued the other, whereupon the first offered money to be allowed to escape and finally escaped, what was said and done while the other was absent is admissible as part of the res gestae, and also for the reason that there was concert of action between the two in the commission of the offense.</p> <p>Criminal Law—Evidence—Illustrations. It is not error to allow a witness who had been robbed to illustrate upon the person of another the position of the defendant’s arms with relation to his person when his pocketbook was taken.</p>

<p>Pbincipal and Surety — Bonds — Building Contract—Conditions—-Waiver. Stipulations in a surety bond guaranteeing a building contract that the owner -should give immediate notice in writing to the president of the surety company at its principal office of any defaults by the contractor in the performance of the work, and that the owner should retain a certain percentage of the amounts due the contractor, are modified and waived, where, upon the contractor’s inability to pay the materialmen out of estimates certified by the architect, it was agreed that the owners should pay all claims approved by the surety company, and this was done on the written approval of the company’s resident attorney in fact, he having authority to represent the surety company.</p> <p>Same—Waiver by Agent—Authority. It sufficiently appears that a resident attorney in fact for a surety company had authority to waive conditions in an indemnity bond, where he was its accredited representative in that city and executed the bond in the name of the company, and his general authority was not questioned except by mere denials in the pleadings, no evidence being offered thereon by the defendant.</p> <p>Same—Contractor’s Bond—Liability — Demurrage Charges— Conditions. Failure to promptly notify a surety company of defaults by a contractor in the performance of a building contract, as required by stipulations in the bond, relieves the surety company from liability for demurrage charges on failure to complete the building on time.</p>

<p>Taxation—Foreclosure — Sale—Notice — Description op Property—Mining Claims. Upon a collateral attack of a tax foreclosure sale of mining claims, a notice of sale describing the claims as the R. lode and the C. lode, with the number of acres in each, when the government patents named them as the R. lode and the C. “Fraction,” is sufficient, in the absence of a showing that the claims could not be found from the description given.</p> <p>Taxation—Foreclosure Proceedings—Presumptions. The presumption being in favor of the regularity of tax proceedings, an assessment of two mining claims in solido instead of in parcels, as required by law, will not be found from the mere fact that the certificate of delinquency was for the total amount.</p> <p>Process—Summons by Publication—Form—Substantial Compliance. A summons for publication requiring the defendant to appear within sixty days after a specified date, is substantially in the form prescribed by Bal. Code, § 4878, which requires appearance to be within “sixty days after the date of the first publication of this summons, to-wit, within sixty days after.....day of.........;” the omission of reference to the first publication being immaterial where the date thereof itself is given.</p> <p>Same—Notice—Proop. Proof that a notice of a tax sale was duly given as required by law may be shown by recitals in the county treasurer’s return of the sale.</p> <p>Same—Foreclosure Proceedings—Collateral Attack—Deed— Evidence op Regularity. In a collateral attack upon a tax foreclosure sale, the deed is conclusive of the regularity of the proceedings as against mere omissions in the recitals contained in the record, in view of the statute making the deed prima facie evidence that the sale was conducted in the manner required by law.</p> <p>Same—Action to Set Aside—Conditions Precedent—Tender op Tax—Waiver. A tender of taxes, made by statute a prerequisite to a suit to set aside a tax sale, cannot be excused by an allegation that the county had proclaimed and stated that any tender on account of taxes for the year in question would be refused; no officer of the county having any authority to make any such waiver.</p>

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered June 19, 1911, upon findings in favor of the plaintiff for services performed, etc., after a- trial to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Hinkle, J., entered October 9, 1911, upon findings in favor of the defendant, in an action for cancellation, after a trial to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Main, J., entered February 18, 1911, denying a motion to vacate a judgment forfeiting a bail bond.</p>

, entered December 6, 1911, upon findings in favor of the plaintiff, in an action of replevin, after a trial to the court.

<p>Divorce—Decree—Collateral Attack. An action for a divorce and the division of community property, seeking also the annulment of a foreign divorce fraudulently obtained by the defendant, constitutes a collateral attack on such decree, the annulment of which is a mere incident to the primary purpose of the action.</p> <p>Same—Service or Summons—Fraud. A foreign decree of divorce, valid on its face, by a court of general jurisdiction, adjudicating a valid service of summons, is conclusive on collateral attack and cannot be impeached for fraud.</p> <p>Divorce—Community Property—Division—Subsequent Action. Where a divorce obtained by a husband made no mention of community property, the title thereto vests in the parties as tenants in common; and the wife has a right of action for a division or in lieu thereof some provision for maintenance.</p> <p>Same — Subsequent Action — Limitations — Tenants in Common. A decree of divorce making no mention of community property is not an assertion of an adverse claim thereto; and as the husband holds possession as a tenant in common, limitations do not run against the wife’s right of action for a division.</p>

<p>Appeal — Review — Discretion — Continuance. The refusal to grant a continuance will not be reviewed except for abuse of discretion.</p> <p>Continuance—Absence op Party—Discretion, It is not an abuse of discretion to refuse a continuance, asked on account of the absence of the defendant, where it appears that the defendant in an action on promissory notes was absent in Alaska several months while the case was pending; that on June 24th the case was set for trial on September 26th, and later continued to October 5th and 9th; that defendant could have been reached by telegraph or mail and advised of the date of trial in time to attend, but he failed to keep his attorney posted as to his address or how to reach him.</p> <p>New Tbial—Gbounds. Where it is not an abuse of discretion to refuse a continuance on account of the absence of a party, it is not an abuse of discretion to refuse a new trial asked on the same grounds; the showing of a meritorious defense not being alone sufficient.</p>

, entered March 16, 1912, upon the verdict of a jury rendered in favor of the plaintiff, in an action for injuries received by a visitor at an amusement park.

, entered May 20, 1911, upon findings in favor of the defendants, in an action of ejectment, grant-mg redemption from a mortgage foreclosure as prayed by interveners, after a trial to the court.

Appeal by defendants from a judgment of the superior court for Spokane county, Kennan, J., entered March 6, 1912, upon the verdict of a jury assessing damages to abutting property from a change of grade.

<p>Warehousemen—Delivery—Breach oe Contract—Liability. A warehouseman who loads out wheat, stored under the usual form of warehouse receipt, which was “wet, mouldy and in a growing condition,” is liable in damages, where there was no acceptance at the warehouse and no evidence that it was damaged in transit.</p> <p>Appeal—Review—Evidence. The credibility of the evidence sustaining a judgment will not be considered on appeal.</p>

<p>Appeal from a judgment of the superior court for King county, Albertson, J., entered February 15, 1912, upon findings in favor of the city, modifying an assessment, upon appeal from the confirmation of the city council.</p>

, entered May 11, 1911, in favor of the plaintiff upon withdrawing the case from the jury, in an action on a fire insurance policy.

<p>Appeal from a judgment of the superior court for What-com county, Hardin, J., entered February 1, 1912, upon findings in favor of the plaintiffs, in an action to restrain the flooding of land by the maintenance of a dam.</p>

<p>Adverse . Possession—Boundary Line—Mistake op Fact. Adverse possession of land for more than ten years under the mistaken belief that the fence inclosing the land was on the true boundary line, with claim of ownership during such period, ripens into title by adverse possession.</p>

<p>Damages—Liquidated Damages or Penalty. A contract whereby the vendor of capital stock of a corporation agreed to surrender up three notes for $3,000 for cancellation, as liquidated damages in case of his failure to effect a settlement of claims aggregating only $1,800, is an agreement for a forfeiture or a penalty, and only the actual damages sustained by its breach can he recovered; since a larger sum agreed to he paid as security for a less sum cannot he considered as liquidated damages, even if so designated in the contract.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered October 7, 1911, upon a trial and conviction of false registration.</p>

<p>Appeal from a judgment of the superior court for Adams county, Holcomb, J., entered January 23, 1912, upon findings in favor of the plaintiff, in an action for an injunction.</p>

, entered October 24, 1910, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a street car.

<p>Appeal from a judgment of the superior court for King county, Gay, J., entered December 22, 1910, upon the verdict of a jury awarding damages in condemnation proceedings.</p>

, entered March 31, 1911, upon findings in favor of the defendant, dismissing an action on contract, after a trial before the court without a jury.

, 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.

<p>Appeal from an order of the superior court for Adams county, Pendergast, J., entered November 27, 1911, dissolving an attachment, after a hearing before the court upon affidavits.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Webster, J., entered January 30, 1911, dismissing an action to cancel an assessment, upon sustaining a demurrer to the complaint.</p>

, entered September 6, 1911, upon findings in favor of the plaintiff, in an action on contract, after a trial to the court.

<p>Appeal from a judgment of the superior court for Ferry county, Pendergast, J., entered April 3, 1911, dismissing an action to set aside a tax sale, upon sustaining a demurrer to the complaint.</p>