Volume 99 — Washington Reports

<p>Nuisance—Abatement—Injunction—Pasties Bound — Notice— Disobdebly Houses. An injunction under tbe red light law, Rem. Code, § 946-4, abating the nuisance and enjoining the illegal use of the premises by the defendants, their agents, and servants, and all other persons, operates in rem against the specific property, and is constructive notice and binds all persons thereafter dealing with the property.</p> <p>Same — Abatement — Injunction — Notice — Evidence — Sufficiency. Actual notice of an injunction against the illegal use of premises is shown by evidence that defendant, an inmate of the under-world, had stated that she knew the place was closed up and “red lighted” and she admitted that she knew the place had been “in trouble.”</p> <p>Lis Pendens—Operation—Necessity of Filins. Notice of Us pendens is effective only before decree, and does not import into the decree a character affecting property in rem which it would not otherwise possess.</p> <p>Witnesses—Credibility—Character. In contempt proceedings for violating an injunction in a red light case, the fact that defendant was a prostitute conducting an unlawful establishment may be considered in passing upon her credibility as a witness.</p> <p>Nuisance—Abatement—Complaint — Injunction — Sufficiency. A prayer for the abatement of a disorderly house enjoining the defendants, their agents and servants, and perpetually restraining the practice of prostitution therein, and for such other relief as may seem proper, is sufficient to sustain an injunction against the defendants and all persons claiming by, through or under them and all other persons.</p> <p>Same—Abatement—Judgment—Punishment. A sentence against a prostitute for a flagrant violation of an injunction under the red light law, of less than half the maximum permitted by law, will not be held excessive because the fine against the owner was remitted on extenuating circumstances.</p>

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered June 24, 1916, upon findings in favor of the plaintiff, in an action upon contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered November 29, 1916, upon separate verdicts of the jury rendered by direction of the court, in consolidated actions on contract.</p>

Pierce county, Chapman, J., entered Februai-y 13, 1917, dismissing an action to recover overcharges on discriminatory switching charges, upon sustaining a demurrer to the complaint.

, entered January 11, 1917, upon sustaining a demurrer to the indictment, dismissing a prosecution for maintaining a public nuisance.

<p>Appeal—Review—Discretion—New Trial. The denial of a motion for a new trial on account of the insufficiency of the evidence will not be disturbed on appeal except for clear abuse of discretion.</p> <p>Master and Servant—Injury to Servant — Negligence — Saee Place—Duty to Inspect—Evidence—Sufficiency. In an action by a locomotive fireman to recover for personal injuries sustained when piling in a trestle gave way under the weight of a locomotive, the jury’s finding of negligence in failing to inspect the piling is sustained where it appears that the piling was honeycombed with teredos, that the trestle had been constructed 19 or 20 months, the presence of teredos in the harbor was well known, and the defective condition of the piling was indicated by the fact that piling had disappeared, no inspection was made to discover the 'cause, and the condition of the piling could have been discovered by a reasonable inspection; notwithstanding evidence that an inspection of some of the piling had been made and the evidence of a witness that piling should last for a period of three years.</p>

<p>Appeal from a judgment of the superior court for King county, Grimshaw, J., entered February 17, 1917, upon a trial and conviction of operating auto stages without licenses.</p>

, entered November 15, 1916, upon findings in favor of certain lien claimants, in consolidated actions to determine conflicting claims to a fund in court and to foreclose a mechanics’ lien, tried to the court.

<p>Executors and Adhinistbatobs—Sales—Ibbegulabities. Irregularities in an executor’s sale which do not go to the jurisdiction of the court are not available to one who fails to inquire into the same within the time limited by law, or within such time as she should have asserted her rights under equitable principles.</p> <p>Public Lands—Patents—Recitals. Recitals in a patent have no controlling force, and the patent must have read into it the law under which the title it conveys was acquired, regardless of limitations in the patent.</p> <p>Indians—Homesteads—Alienation—Statutes. The act of March 3, 1875, 18 Stat. 420, giving to every Indian the head of a family, who had abandoned his tribal relations, the privileges and benefits of the homestead law, is still in force and is not amended by the act of July 4, 1884, 23 Stat. 96, providing for the extension of the homestead laws to Indians located upon public lands under patents providing that the land should be held in trust for the use of the Indians for the period of twenty-five years; and the latter act does not make the law such that all Indian titles evidenced by patent theretofore issued would be subject to a trust limitation of twenty-five years.</p> <p>Public Lands—Patents—Construction. A notation on a final homestead receipt cannot change the law or the relation of the entryman to the government, or bind him to take under a statute mistakenly employed in receiving the application.</p> <p>Indians—Homesteads—Patents—Alienation. Where an Indian had severed his tribal relations and was possessed of all the qualifications neéessary to acquire title to public lands under the act of 1875, authorizing a patent to him with a limitation upon his right to convey fixed at five years, it is error for the land department to issue a patent under the act of 1884, authorizing patent to Indians who have not severed their tribal relations, with a limitation upon the power of alienation fixed at twenty-five years; and the fact that no fees were collected for the filings as authorized under the act of 1884, does not overcome other circumstances equally important tending to show an application and intent to take under the act of 1875.</p> <p>Same—Homesteads—Patents—Power to Correct. Since the land department has authority and jurisdiction to inquire into and adjudicate any claim to such tract, until the legal title thereto passes out of the United States, a patent to an Indian mistakenly made with a limitation of twenty-five years on the power of alienation, under the act of 1884, may be corrected by the department by cancellation and the issuance of a new patent, under the act of 1875, with a limitation upon the power of alienation of five years, to which the Indian was entitled.</p> <p>Indians—Homesteads—Acts oe Indian Agents. A defense in a foreclosure suit, made by the Indian agent, without the knowledge of the Indian patentee, under instructions from the land department, upon the ground that the Indian patent contained a restriction upon the power of alienation for twenty-five years, is not conclusive that the Indian intended to take under the act of 1884, governing patents issued to Indians who had not severed their tribal relations; and it does not preclude the Indian, who had severed his tribal relations, from applying for an unrestricted fee patent to which he was entitled under the act of 1875; especially where he had not filed the patent of record and was negotiating for the issuance of a fee patent.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Clifford, J., entered March 17, 1917, upon findings in favor of the plaintiffs, in an action to foreclose a mortgage, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered February 17, 1917, in favor of the plaintiffs, in an action for specific performance, tried to the court.</p>

<p>Cancellation of Instruments—Deeds—Mutual Mistake—Want of Consideration. Where a simple, unlettered, inexperienced girl, within a few weeks after attaining her majority, was induced, without consideration, to convey her interest in her mother’s estate, upon a request to sign a paper merely authorizing her aunt to manage and control the property until other heirs became of age, the deed of conveyance failed to express the true intent of either of the parties, and is open to attack upon the ground of mutual mistake.</p> <p>Estoppel—Laches—Delay Short of Limitations. Mere delay short of the statute of limitations by an heir in bringing suit to recover an interest in land, will not operate as an equitable estoppel, where no adverse equities have arisen in the interim, the claim was known to those claiming adversely, and there was no fraud or bad faith.</p> <p>Use and Occupation—Rents and Profits—Waste—Accounting. There is no right to an accounting in favor of one who gave control of farm property to an aunt, permitting her to occupy the same and use the proceeds, for a considerable period without any demand for an accounting; except as to waste by the removal of timber, as to which the right to an accounting must be recognized, where suit to recover the property was seasonably commenced.</p>

<p>Courts—Rule or Decision. A decision that has become a rule of property for over ten years should not be overruled, although the court, as now constituted, thinks it unsound.</p> <p>Dedication—Highways—“County Road”—Abandonment. A dedicated street in a plat outside the limits of an incorporated city or town is a “county road” within Rem. Code, § 5673, and therefore subject to abandonment by failing to open it to public travel for the space of five years after the dedication, as provided in the act.</p> <p>Adverse Possession—Abandoned Street—Adverse Holding. Adverse holding by actual possession of an abandoned street for more than ten years, ripens into a title, unless subject to an easement of a private nature.</p> <p>Taxation—Tax Sales—Right Subject—Easement. After the vacation of a street by abandonment, it becomes subject to taxation; and a tax foreclosure sale divests not only the legal title, but also a private easement therein acquired through receiving a conveyance of a lot abutting on the street.</p> <p>Same—Tax Deed—Action to Cancel—Limitation. In view of Rem. Code, § 162, limiting an action to cancel a tax deed to three years, after a tax deed has remained unchallenged for twelve years, it cannot he attached for premature commencement of the tax foreclosure. •</p>

<p>Payment—Recovery op Money—Duress — Presumption — Existence op Criminal Proceedings. Where a physician paid money to avoid disgrace from a false charge of abortion, and under threat of imprisonment, the demand being in bad faith without the existence of right, there is no presumption of want of duress as in the case of making settlements and compromises; and the money may be recovered as money paid under duress, although no criminal proceedings had been commenced against him.</p> <p>Same—Recovery op Money—Extortion—Right to. Rem. Code, § 2610, defining extortion as a crime against the person, creates a cause of action in favor of the person injured, although the statute is a general criminal statute.</p> <p>Same — Recovery op Money — Defenses — Compounding Felony. The compounding of a felony is not a defense to an action by a physician to recover money paid to avoid disgrace from a false charge of abortion and the false statement of the subject, supposed to be dying.</p>

, entered November 25, 1916, upon findings in favor of the plaintiff, in an action for personal injuries sustained by a pedestrian struck by a jitney bus, tried to the court.

, entered March 21, 1917, denying the petition of a receiver for an order determining the indebtedness of an insolvent corporation and authorizing an action to enforce unpaid stock subscriptions.

<p>Appeal—Decisions Appealable—Striking Pleading. An order striking parts of the complaint is not appealable where there was no dismissal or final judgment determining any matter in issue.</p>

Appeal froln a judgment of the superior court for Pierce county, Card, J., entered June 4, 1917, upon findings in favor of the defendants, dismissing an action for trespass.

Application filed in the supreme court October IS, 1917, for a writ of .mandamus to compel the superior court for Whatcom county, Pemberton, J., to sign foreclosure judgments upon a form prepared by the relator.

<p>Appeal—Requisites for Transfer—Time for “Perfecting.” Rem. Code, § 4940-14, providing for tbe “perfecting” of an appeal in recall proceedings within 15 days after the decision, does not contemplate that all the proceedings, statement of facts, abstract and briefs shall be served and filed within that time; but only requires that the appeal be perfected by the giving of notice and the filing of a bond.</p>

<p>Master and Servant—Compensation for Injury—Survival of Right—Statutes. The right to compensation under the workmen’s compensation act, Rem. Code, § 6604-1 et seq., does not survive to the personal representative; in view of Id., § 6604-10, providing that a claim shall not be assigned or subject to execution and that it shall not pass to any other person by operation of law.</p>

<p>Appeal from a judgment of the superior court for Lewis county, Reynolds, J., entered March 29, 1917, in favor of the plaintiff, in an action for an injunction, tried to the court.</p>

<p>Taxation—Assessment—Value oe Property—Evidence—Sufficiency. It sufficiently appears that the value of property assessed for taxation did not exceed $10,000, where it was shown that there was a bona fide sale of the property at that sum in the regular course of business and numerous witnesses testified that such sum was the fair market value.</p> <p>Same—Assessment—Excess—Constructive Fraud. Where property of the fair value of $10,000 was assessed upon a basis of more than three times that sum, the assessment is so grossly excessive as to he constructively fraudulent.</p>

<p>Appeal from a judgment of the superior court for Clallam cbunty, Ralston, J., entered December 22, 1916, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Grays Harbor county, Abel, J., entered January 4, 1917, upon findings in favor of the defendant, ordering the return of intoxicating liquors seized, after a hearing before the court.</p>

, entered March 26,1917, dismissing, upon the opening statement of counsel, an action for wrongful death, upon a trial before the court and a jury.

, entered December 23, 1916, upon findings in favor of the plaintiff, in an action to foreclose a mortgage, tried to the court.

<p>Indictment and Information—Duplicity—Intoxicating Liquor— Offenses. A complaint for violation of the general liquor ordinances of Seattle is bad for duplicity, where it charges the manufacture of intoxicating liquors, the selling and disposing of the same, the buying, receiving and keeping such liquors with intent to sell or dispose of the same, the receiving of other liquor without specific intent, and with having in possession more than the legal quantity; since it charges five distinct offenses arising out of distinct transactions and based upon different provisions of the ordinance.</p> <p>Criminal Law—Appeal From Justice—Trial De Novo—Withdrawal of Plea. An appeal in a criminal case from police court to the superior court transfers the cause for trial de novo; and allowing a demurrer to be filed has the effect of a withdrawal of the plea of not guilty entered in the police court.</p>

Motion filed in the supreme court 'October 8, 1917, for leave to file a petition in the superior court for Pierce county, Easterday, J., to vacate a judgment.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered March 19, 1917, upon a trial and conviction of violating an ordinance.</p>

, enteréd February 6, 1917, granting a change of venue, upon reviewing on certiorari an order of a justice of the peace denying relator’s motion therefor.

<p>Appeal from a judgment of the superior court for Walla Walla county, Mills, J., entered April 2, 1917, upon sustaining a demurrer to the complaint, dismissing an action in tort.</p>

<p>Covenants—Of Seizin—Measure of Damages for Breach. The measure of damages for breach of a covenant of seizin in a deed given in compromise and settlement of a partnership, where there was an entire failure of title and no possession was taken, is the consideration paid, with interest thereon; which, in case a balance has been struck and agreed upon, would be the amount of the balance given in consideration of the compromise.</p> <p>Partnership—Actions Between Partners—Covenants—Balance Agreed Upon. In a partner’s action to recover for breach of covenant of seizin in a deed given in consideration of a compromise of the partnership, evidence that a balance had been struck and $350 agreed upon as the amount due, is sufficient to prove the consideration for the deed; but the action would fail in case the balance had not been struck as agreed upon, since an accounting would be necessary and could not be had in an action at law.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered January 20, 1917, upon the verdict of a jury rendered in favor of the defendant by direction of the court, dismissing an action in tort.</p>

, entered May 12, 1917, upon sustaining a demurrer to the complaint, dismissing an action on contract, tried to the court.

, entered May 23, 1916, upon findings in favor of the plaintiff, in an action on a fire insurance policy, tried to the court.

, entered December 8, 1916, upon findings in favor of the defendants, dismissing an action on contract, tried to the court.

<p>Appeal from a judgment of the superior court for Pierce county, Card, J., entered January 25, 1917, upon a trial and conviction of assault in the second degree.</p>

<p>Appeal from a judgment of the superior court for Thurs-ton county, D. F. Wright, J., entered May 15, 1916, upon findings in favor of the plaintiffs, in an action on contract, tried to the court.</p>

, entered August 21, 1916, upon findings in favor of the defendant, in. an action to recover excessive water rentals, tried to the court.

<p>Appeal from an order of the superior court for King county, Jurey, J., entered March 10, 1917, denying the application of a receiver for an injunction, after a hearing before the court.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered February 10, 1917, in favor of the plaintiffs, in an action for specific performance, tried to the court.</p>

<p>Carriers—Relation—Special Contract. The relation of passenger and carrier arises where a railroad company agreed to stop its passenger train at a station which was not a regular passenger station and sold plaintiff a ticket from such station for such train; making it the duty of the carrier to exercise the degree of care due to a passenger, and liable in tort for failure to stop its train and transport the plaintiff, although there was no duty to do so but for its special contract.</p> <p>Same — Failure to Transport — Form op Action. An action against a railroad company for damages for failure to transport a passenger sounds in tort and not in contract.</p> <p>Same—Failure to Transport—Measure op Damages. The measure of damages for failure to transport a passenger whose necessities were imperative is such damages as proximately resulted from the breach; and includes injuries sustained through exposure and illness contracted in attempting to make the trip on foot.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered January 15, 1917, in favor of the defendants, dismissing an action for rescission, tried to the court.</p>

<p>Municipal Corporations—Streets'—Obstructions—Negligence — Liability. It is no defense to an action against a city for negligence in obstructing a street with wire netting that the abutting building, leased to the city, was used for a voting place, in the exercise of a governmental function, where the injury occurred in the street.</p> <p>Same—Streets—Obstructions—Liability oe City—Question eor Jury. The liability of a city in damages for allowing a portion of a street near a cement sidewalk to be obstructed with a low wire netting is a question for the jury, where the plaintiff was using the sidewalk in the ordinary manner on a dark night, there were no" lights, and the proximity of the netting was a menace to the traveling public and had existed for a period of time that rendered it a nuisance.</p> <p>Appeal—Review—Harmless Error. Error in instructions relating to a portion of the street not used by the public is harmless where the issue was as to negligence as to a portion of the street used by the public.</p>

<p>Mortgages—Liens—Priority. Where a trust deed by a mortgagor was made subject to a mortgage, and at the time of the execution of the mortgage a third person held sheriff’s certificates of sale of the property, the trustee may rely on the paramount title of the third party, and may take assignments of the sheriff’s certificates of sale which would be superior to the mortgage, although the third party had orally agreed to make her lien subject to the mortgage.</p> <p>Same—Liens—Priority—Equitable Estoppel. In such case, the grantee in the trust deed, holding legal title under the deed and the equitable title under the assignments of the sheriff’s certificates, is not equitably estopped to assert title on account of the verbal ■ agreement of the assignor of the certificates of sale that they should be subject to the mortgage, since the mortgagee not having relied on any representations but upon the oral promise with full information as to the state of the title, does not bring her case within any of the principles of equitable estoppel.</p> <p>Frauds, Statute op—Conveyance op Land—-Validity. Since a sheriff’s certificate of sale vests an interest in real property, an oral agreement by the holder that the certificates shall be subject to a mortgage creates no interest nor incumbrance upon the land, in view of Rem. Code, § 8745, requiring all such contracts to be by deed.</p>

<p>Frauds, Statute of—Broker’s Commission—Sufficiency of Memorandum. A contract for a broker’s commission on a sale of “my stock ranch located in sections 9, 17, and 21, township 3, south, range 13 east, Sweetgrass county, Montana,” is not sufficiently definite as to the description to constitute a compliance with Rem. Code, § 5289, requiring such contracts to be in writing (Ellis, C. J., Morris, Main, and Holcomb, JJ., dissenting).</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January 3, 1916, upon findings in favor of the defendant, in an action on contract, tried to the court.</p>

, entered June 10, 1916, granting a new trial, after a judgment rendered in favor of the defendants upon findings of the court, in an action for equitable relief.

<p>Appeal from a judgment of the superior court for King county, Gilliam, J., entered December 16, 1916, in favor of the defendants, in an action for equitable relief, tried to the court.</p>

<p>Application filed in the supreme court April 19, 1917, for a writ of prohibition to the superior court for King county, Mackintosh, J., to prohibit the entry of a judgment.</p>

<p>Bills and Notes—Action—Evidence—Sufficiency. Findings that defendant was liable upon a note as maker are sustained where, notwithstanding the complicated manner in which the parties acted and the substitution of another’s note in the transaction, it is evident that the note given was to remain as security for the substituted note which was taken by the bank desiring the third party to appear in the matter as a maker, so that he could raise no question as to the bank’s claim upon the security note in question.</p>

<p>Trover and Conversion—Household Goods—Measure of Damages. The measure of damages for the conversion of household goods kept for use and not for sale is their value to the owner, hased on the actual money loss under the circumstances; since such goods have no market value.</p> <p>Same—Household Goods—Pleading—Value. In an action for conversion of household goods kept for Use and not for sale, it is not necessary to allege that they have no market value in order to introduce proof of their actual value.</p> <p>Same—Household Goods—Damages—Evidence. In an action for the conversion of household goods kept for use and not for sale, the amount of the damages may be shown by evidence of their original cost when purchased new, in connection with evidence of the extent of the use and their condition.</p> <p>Same—Defenses. In an action for the conversion of household goods, evidence of the good or bad faith of the defendants in claiming the goods under void attachment proceedings is irrelevant and immaterial. •</p> <p>Appeal—Review—Excessive Damages. A verdict of damages for conversion upon conflicting evidence will not be held excessive, where there was nothing to indicate passion or prejudice.</p>

<p>Covenants—Wabeanty—Knowledge of Defects—Railboad Right of Way. The grantee may sue on his covenants of warranty when ousted by a railroad company from its 200 foot right of way defined by public statute, although he had knowledge of the existence of the right of way and the railroad’s use and occupation at the time .he took his deed; since a railroad right of way is not excepted from the covenants by reason of its public and notorious character.</p> <p>Limitation of Actions—Accbdal—Bbeach of Covenant. Where a railroad right of way by public grant was only a limited fee, with implied condition of reverter to the government, it was not subject to adverse use or occupation; and hence limitations against an action for breach of covenants of warranty by reason of the existence of the right of way do not begin to run until the covenants are broken by eviction, notwithstanding adverse use for a period beyond the statute of limitations.</p> <p>Same. In an action for breach of covenants of warranty by the existence of a railroad right of way, the land occupied by a line of telegraph poles, 40 feet from the center of the track, and all the land lying between it and the main track, was land occupied by the railroad company, to the knowledge of the grantee at the time he took his deed, and such possession by the company amounted to a constructive eviction so that the statute of limitations commenced to run from that time.</p>

<p>Judsment—Default—Vacation—Discretion. It is discretionary to vacate a default judgment against a sheriff upon a showing made the day after entry of default and two days after the time had expired, that failure to appear was due to understanding that the real party in interest would enter an appearance for him.</p> <p>Exemptions—Chattel Mortgage of Exempt Property—Validity. A chattel mortgage upon exempt property is not void, although the mortgagor afterwards attempts to claim his exemption.</p>

<p>Garnishment — Liability of Garnishee — Offsets—Payment of Liens After Writ. A contractor, indebted to, and garnished upon the debt of, a subcontractor, at the time the writ of garnishment was served, may show an offset against the subcontractor in that, when the writ was served, there were liens against the building which the subcontractor was required to discharge, and that, after the writ was served, the contractor was compelled to pay the liens out of the moneys credited on its boohs to the subcontractor.</p> <p>Same—Offset—Evidence—Burden of Proof. In such case, in discharging the liens, the garnishee took upon itself the burden of showing that the liens were bona fide debts created by the subcontractor and that it was necessary to pay them in order to discharge the liens.</p>

<p>Appeal — Record — Statement of Pacts—Affidavits. Affidavits used on a hearing before the court must be brought up on appeal by statement of facts or bill of exceptions.</p>

<p>Municipal Corporations—Use of Streets—Crossings—Contributory Negligence. It is not, as a matter of law, contributory negligence upon the part of a pedestrian, struck at a street crossing by a jitney, to fail to look a second time, after looking once along a street and in other necessary directions.</p> <p>Same — Use of Streets — Trial—Findings—Contributory Negligence. A finding that plaintiff’s injuries were due solely to the negligence of the driver of a jitney bus, negatives contributory neg- . ligence.</p> <p>Damages—-Personal Injuries—Evidence. In an action for damages from “extreme nervousness” as the result of an injury by a jitney bus, evidence of a fear of automobiles is admissible on the question of damages.</p> <p>Costs—On Appeal—Inadvertence. Where judgment was entered against a party by inadvertence and the error might have been corrected below and no separate appearance was made, on appeal no costs will be allowed against such party.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered March 29, 1917, upon findings in favor of the plaintiff, in an action on contract, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered October 20, 1914, dismissing an action for an injunction.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered August 3, 1916, upon sustaining a demurrer to the complaint, dismissing an action for equitable relief.</p>

, entered December 16, 1916, granting a new trial, after a verdict rendered in favor of the defendant, in an action for assault and battery.

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered November 29, 1916, upon sustaining a demurrer to the complaint, dismissing an action in tort.</p>

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered January 29, 191*7, in favor of the defendants, in an action for equitable relief, tried- to the court.</p>

<p>Appeal from an order of the superior court for Pierce county, Card, J., entered March 21, 1917, vacating an order of adoption, upon petition of the father, after a hearing before the court.</p>

Appeal by plaintiff from a judgment of the superior court for Snohomish county, Alston, J., entered December 20,1916, upon findings favorable to the plaintiff, in an action on a contractor’s bond, tried to the court.

, entered March 17, 1917, granting a new trial, after the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a pedesti’ian struck by an automobile.

<p>Criminal Law—Trial—Instructions—Comment on Pacts. An instruction that, in order to convict the accused of larceny, the state must prove beyond a reasonable doubt that the accused made certain false or fraudulent representations or pretenses as set forth in the information is not objectionable as a comment on the evidence.</p> <p>Larceny — Information — Sufficiency — Statutes. Rem. Code, § 2601, in defining larceny, does not make guilty knowledge an essential element of the crime except by implication from the phrases “with intent to deprive or defraud the owner thereof ... by color or aid of any fraudulent or false representations”; and it is not necessary to charge or prove facts or elements not specifically included in the definition of the crime charged.</p>

<p>Appeal from a judgment of the superior court for King county, Dykeman, J., entered June 29, 1917, dismissing an action for an injunction, after a hearing before the court.</p>

<p>Criminal Law—Evidence—Admissibility—Hearsay. In a prosecution for the possession of intoxicating liquors with intent to unlawfully dispose of the same, it is not inadmissible as hearsay for the agent of a wholesale drug company to testify that the accused bought liquor on behalf of a retail drug store, on orders signed by him declaring an intent to use for lawful purposes, where all other sales made to him in like manner were identified by other salesmen, making the testimony of all the sales complete.</p> <p>Intoxicating Liquors — Offenses — Unlawful Possession—Evidence—^Admissibility. In a prosecution for possession of intoxicating liquors with intent to unlawfully dispose of the same, the “certificate” issued by the state board of pharmacy to a drug store showing. compliance with the law but not showing ownership, is not admissible under Rem. Code, § 8464, making the “declaration” of ownership filed with the secretary of the board presumptive evidence of the ownership of the store or business mentioned therein.</p> <p>Same. In a prosecution for unlawful possession of intoxicating liquors at a drug store, it is admissible to show accused’s connection with the surreptitious possession of the intoxicating liquors seized the same day at a warehouse where liquors were stored with paraphernalia for its bottling, concocting and adulteration for unlawful disposition, the exact place being immaterial except as a detail in showing the crime charged.</p> <p>Same. In such a prosecution, cross-examination to show the ownership of the store in which accused kept the liquor is improper and immaterial, and the same is true of cross-examination as to whether witness ever “heard” of sales being made from the store.</p> <p>Same—Unlawful Possession—Instructions. In a prosecution for the unlawful possession of intoxicating liquors by a drug store, under Rem. Code, § 6262-7, granting the privilege to registered druggists to sell liquor on the prescription of physicians, it is favorable to give the jury the statutory definition of a registered druggist under Id., § 8457, where the accused failed to prove that he was a registered druggist.</p> <p>Same. In a prosecution for the unlawful possession of intoxicating liquors at a drug store, in which the accused was not charged as the keeper of the place, it is proper to refuse to instruct the jury that they must find that he was the keeper of the place and not a mere employee.</p> <p>Same—Unlawful Possession—Evidence—Admissibility. In a prosecution for the possession of intoxicating liquors at a drug store with intent to unlawfully dispose of the same, the great quantity of liquors purchased hy the accused and surreptitiously concealed and arranged therein is admissible to prove his intent in the possession of the liquor.</p>

Application filed in the supreme court November 24, 1917, for a writ of prohibition to the superior court for Adams county, Truax, J., to prohibit the amendment of a proposed statement of facts.

<p>Lis Pendens—Effect of Piling—Innocent Purchasers — Prior Conveyance Subsequently Recorded. Where a Us pendens in an action to quiet title is filed after the defendants had conveyed the property to an innocent purchaser, who subsequently filed the deed, judgment quieting the title in the plaintiff has the effect of cutting off the rights of the purchaser, in view of Rem. Code, § 243, which provides that, from the time of filing notice of lis pendens, the pendency of the action shall be constructive notice to’ a purchaser, and every person whose conveyance is subsequently executed or subsequently recorded shall be deemed a subsequent purchaser “to the same extent as if he were a party to the action;” the meaning being that he is bound by the judgment rendered and not merely by the judgment that might have been rendered had he appeared and defended.</p>

, entered December 9, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, in an action upon an official bond.

<p>Criminal Law—Intent—Evidence — Admissibility. On a trial for embezzlement of money collected for the prosecuting witness, who, in contemplation of a settlement, had made affidavit that she did not think defendant intended to defraud her, it is not error to allow her to explain the affidavit and statements therein.</p> <p>Criminal Law—Appeal—Harmless Error. It is not prejudicial error to permit evidence that the prosecuting witness had been sick and in bed a long time prior to the trial.</p> <p>Embezzlement—Evidence — Sufficiency — Degree of Offense. Upon a prosecution for embezzlement of $29 collected by defendant, where there was evidence that defendant was entitled to a fee of $5, and had converted but $24, a conviction of petit larceny is sustained.</p> <p>Criminal Law—Sentence—Excessive Punishment. A fine of $300 and imprisonment in the county jail for one year is not excessive punishment on conviction of embezzling $24; since it was clearly within the discretion of the trial court.</p>

<p>Appeal from a judgment of the superior court for King county, Hardin, J., entered February 21, 1917, upon findings in favor of the defendants, dismissing an action for rescission, tried to the court.</p>

<p>Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered January £, 1917, upon a trial and conviction of robbery.</p>

<p>Appeal — Contempt—Order Pending Appeal—Failure to Obey. Where, notwithstanding a supersedeas bond pending appeal from the dismissal of an action in replevin, the defendants unlawfully took possession of the property, the supreme court, in aid of its appellate jurisdiction to preserve the rights of the parties pending appeal, may order return of the property, and punish for contempt of court upon failure to comply therewith.</p>

<p>Appeal from a judgment of the superior court for King county, Ronald, J., entered January 2, 1917, upon findings in favor of the plaintiff, in an action for rent, tried to the court.</p>

<p>Appeal from a judgment of the superior court for King county, Jurey, J., entered December 9, 1916, upon findings in favor of the plaintiff, in an action for personal injuries sustained through being struck by an automobile, tried to the court.</p>

, entered October 4, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained through a defective highway.

<p>. Divorce—Support oe Children—Contempt—Ability—Evidence— Sufficiency. A judgment of contempt in failing to pay alimony for the support of children is unwarranted by the fact that the delinquent father might abandon his employment of crab fishing, which had become unprofitable, and learn a new trade, where the preponderance of the evidence showed his inability to make the payments and he purged himself of any wilful and contumacious intention to avoid payment of the money, his inability being real, but apparently only temporary.</p>

<p>Public Lands—State Lands—Power op Disposal. The state has power to confer (by Rem. Code, § 6828) upon the board of state land commissioners, the power to grant to a private individual the right to overflow state lands for the purpose of power plants for irrigation, mining, or other public use.</p> <p>Eminent Domain—Property Subject—Property Devoted to Public Use. The right to overflow state lands having been granted to a private person by the board of state land commissioners for public power purposes, under Rem. Code, § 6828, the same is not subject to condemnation by a corporation seeking to exercise the power of eminent domain for the same public purposes.</p> <p>Same. Such condemnation would not be authorized by the fact that the prior grantee had failed to devote the lanfls to a public use, in the absence of any revocation of the grant by the state board of land commissioners, vested with the discretion to make the grant.</p>

<p>Embezzlement—Elements—“Agent.” The delivery of a note and mortgage to one for the purposes of collection, makes him the agent of the owner, within the statute defining embezzlement by an agent.</p> <p>Same—Intent—Evidence—Sufficiency. In a prosecution for the embezzlement of the proceeds of a note and mortgage delivered to the accused for the purpose of collection, intent to deprive the owner of the property is sufficiently established by the ■ fact that accused sold the note and mortgage to a third person and converted the proceeds to his own use.</p> <p>Same—Defenses—Settlement. It is no defense to a prosecution for embezzlement that the accused subsequently settled the matter with the victim.</p>

<p>Appeal—Record—Statement op Facts—Notice op Settlement. Under Rem. Code, § 389, implying a reasonable time for notice of settling a statement of facts, three days’ notice of the time fixed for January 6, 1917, is sufficient, where the proposed statement was served October 23, 1916, amendments were made in November, the nonresident judge was unable to attend until December 26, at which time respondent demanded the statutory three days’ notice.</p> <p>Same—Harmless Error. The duplication of matters in the transcript and statement of facts, is not prejudicial, except as aifecting the taxation of costs, and is not ground for striking.</p> <p>Same—Record—Opinion. The memorandum decision of the trial judge in ruling on a motion for judgment is not properly part of the transcript, and will be stricken on motion.</p> <p>Physicians and Surgeons—Malpractice—Negligence—Question por Jury. In an action for malpractice, where there is any evidence tending to- show negligent performance, as distinguished from negligence in the choice of methods each having the approval of different schools, the question is for the jury; as where, in using the Lane method of reducing a' fracture, the defendant drilled holes in the bone too large, and therefore had to use wire, which he later removed with great force, pulling splinters of the bone away.</p> <p>Same — Malpractice — Contributory Negligence—Question por Jury. Upon an issue as to contributory ■ negligence in using a fractured arm, the question is for the jury where the use complained of was denied, and there was some evidence that the physician recommended moderate use, and at different times took hold of the hand and rotated the forearm.</p> <p>Depositions—Time por Taking—Stipulations. Where a deposition was taken on stipulations that it might be taken any day prior to March 24th and that the hearing might be adjourned from day to day, a recitation that it was taken beginning on March 16th and from day to day until March 24th, shows that it was properly taken, although it failed to indicate actual adjournments.</p> <p>Evidence—Opinion Evidence—Medical Experts. In an action for malpractice by a physician in reducing a fracture, the testimony of an osteopath is admissible, although he did not belong to the same school, where it appears that he had studied operative surgery and authorities thereon recognized the school of the operating physician; since the opinion of a medical expert is admissible, though based upon the study of boohs rather than experience, and the criterion of competency is the basis of his opinion, not the school to which he belongs.</p> <p>Evidence — Opinions — Hypothetical Questions—Reference to All Conditions—Assuming Pacts. In an action for malpractice in reducing a fracture, it is error to allow hypothetical questions to medical experts calling for their opinions, which did not include a reference to all the conditions; such as the use of splints used in addition to metal plates; the physical condition of the patient who was suffering from bronchial trouble, touching on the question of infection; and in assuming that wire was not boiled, and in assuming that there was a fibrous union, when there was no evidence of such facts, but evidence to the contrary.</p> <p>Physicians and Surgeons—Malpractice—Negligence—Evidence —Sufficiency. In an action for malpractice, it is error to refuse a requested instruction that the presence of infection was no evidence of negligence and that there was no liability for the infection first appearing, where the evidence of due care as to infection was uncontradicted and there was no sufficient evidence of responsibility for the primary infection.</p>

, entered December 11, 1916, upon findings in favor of the defendants, in an action for an accounting, tried to the court.

, entered February 5, 1917, upon findings in favor of the defendant, in an action by a trustee to recover a fund as property of a bankrupt, tried to the court.

, entered April 7, 1917, upon granting a nonsuit, dismissing an action to recover over from a contractor the amount paid in satisfaction of a judgment for wrongful death, tried to the court and a jury.

<p>Corporations—Actions—Capacity to Sue—Paying License Fee —Waiver op Objection. The failure of a plaintiff corporation to pay its license fee, as condition precedent to its right to sue, as provided in Rem. Code, § 3715, relates only to its capacity to sue, and is waived by failing to object either by demurrer or answer.</p> <p>Pleading—Answer—Codeeendants. One defendant’s separate denial of an allegation as to plaintiff’s capacity to sue does not inure to the benefit of a codefendant.</p> <p>Frauds, Statute or—Promise to Pay Debt or Another. The agreement of a promoter of the consolidation of two newspapers to pay a printing bill, in case the printers would forbear and continue to print the paper, is not void as an oral contract to pay the debt of another within the statute of frauds, where it appears that the promisor was interested in the continuation of the publication until the consolidation, which would redound to his benefit, and that the promise included the old debt as well as the continued printing.</p>

, entered May 17, 1917, upon granting a nonsuit, dismissing an action to recover over from a contractor the amount paid in satisfaction of a judgment for personal injuries sustained through a defective sidewalk.

<p>Appeal—Review—Harmless Error—Pleadings. Error in refusing to strike from the pleadings is harmless where the court clearly instructed the jury as to the exact issue in such manner that it could not he misled.</p> <p>Landlord and Tenant—Lease—Breach—Nuisance—Evidence— Admissibility. Upon an issue as to whether there had been a breach of the clause in a lease that the lessees’ business should be so conducted as not to create a nuisance or arouse criticism among other tenants, evidence as to the reputation of the lessees’ business is admissible.</p> <p>Same. In such a case, it is not admissible to show that the unlawful sale of intoxicating liquors by employees conducting the business had been without the knowledge and contrary to the orders of the lessees.</p> <p>Same—Lease—Breach of Condition — Waiver—Acceptance of Rent. Where an answer in unlawful detainer alleged acceptance of rent since notice to quit, a reply that the rent was accepted under an agreement that it did not waive the right of action, raises an issue for the jury upon conflicting evidence.</p>

Application filed in the supreme court December 11, 1917, for a writ of mandamus to compel the superior court for King county, Mackintosh, J., to issue a writ of habeas corpus and to proceed with the hearing thereon.

<p>Appeal from a judgment of the superior court for King county, Smith, J., entered February 9, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Appeal from an order of the superior court for Spokane county, Oswald, J., entered January 16, 1917, denying a motion to vacate a judgment, after a hearing before the court.</p>

<p>Contracts—Consideration—Sufficiency — Benefit to Promisor. Where it was to plaintiff’s advantage to cancel a contract for the sale of timber lands because he was unable to perfect title, the cancellation is not sufficient consideration for an agreement by defendant to the effect that, if the defendant ever purchased certain timber, he would do so through plaintiff and pay him a commission.</p> <p>Same—Consideration—Mutual Promises. An agreement with a broker to purchase certain timber lands, if at all, through the broker and pay him a commission, if he is then engaged in the brokerage business, in consideration of an agreement by the broker to secure the timber at the lowest price possible and protect the buyer’s interests, is lacking in mutuality and not supported by a sufficient consideration; the mutual promises being insufficient, since the broker did not obligate himself to sell to the other party, or act as his agent, or refrain from selling to some one else.</p>

<p>Estoppel—By Stipulation—Parties Bound. A judgment in condemnation proceedings for the value of property entered upon stipulation between the parties, in which action the county had intervened for the sole purpose of protecting the right of the county to have its taxes paid out of the award, does not estop the county, in an action to cancel the tax as excessive, from disputing the value of the property, although the county attorney had signed the stipulation; since the stipulation did not fix the value of the property and was merely to settle the litigation and the county was not interested in the issue.</p> <p>Taxation—Assessment—Excessiveness—Review. A tax upon a water works plant is not so grossly excessive as to amount to constructive fraud, where testimony of an engineer who had made a careful study of the plant sustained the assessment, and it could not be said that excessive valuation was established by evidence that is clear and convincing.</p>

<p>■ Appeal by plaintiff from a judgment of the superior court for Pierce county, Clifford, J., entered June 6, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for malpractice.</p>

<p>Insurance—Foreign Companies — Actions — Summons — Requisites. Under Rem. Code, § 6059-13, relating to the service of summons on insurance companies, the ordinary form of summons requiring appearance within 20 days is proper, under the practice act, Id., §§ 222 and 223, notwithstanding such section of the insurance code provides that, in case of service upon the state insurance commissioner as agent of the insurance company, no proceedings shall be had within forty days after date of such service.</p>

<p>Appeal from an order of the superior court for King county, Dykeman, J., entered November 18, 1916, requiring defendant to pay alimony or he deemed in contempt of court.</p>

Cross-appeals from a judgment of the superior court for King county, Ronald, J., entered November 15, 1916, upon findings in favor of the defendant lien claimant, in an action to determine the validity of conflicting claims to property held under a conditional sale contract, tried to the court.

<p>Building and Loan Associations—Stockholders—Withdrawal. Upon the withdrawal of a stockholder from a building and loan association, he must stand his pro rata share of any loss incurred, as determined by the financial condition of the association and the laws in force at the time of the withdrawal; in this case, Laws 1913, p. 326, Rem. Code, § 3601-1 et seq., and not the act of 1903, since the saving clause of the former act, Id., § 3601-26, has reference only to existing obligations of any association.</p> <p>Same. Notice of the withdrawal of a stockholder from a building and loan association, being for the benefit of the association, may be waived.</p> <p>Tender—Sueeiciency. There is in effect a tender where money due was exhibited and an offer made to pay the amount then admitted to be due, and any tender refused, as the refusal waives formalities.</p>

<p>Appeal from a judgment of the superior court for King county, Frater, J., entered December 23, 1916, in favor of the plaintiff, in an action to determine the validity of claims against a contractor’s bond, tried to the court.</p>

<p>Judqment—Merger op Notes. In an action upon notes against the maker and indorsers, in which the indorsers were not served and were dismissed without prejudice, judgment against the maker alone does not merge the notes as against the indorsers, and does not prevent subsequent action thereon against them, especially in view of Rem. Code, § 192, allowing separate actions against parties severally liable.</p> <p>Attachment—Bonds—Discharge op Surety. A surety on the bond to discharge an attachment cannot be held upon a judgment upon additional causes of action added after the discharge of the attachment by amendment of the complaint introducing new causes of action increasing the liability that existed when the discharge bond was given; notwithstanding Rem. Code, § 1004, requiring the discharge bond to he conditioned to pay any judgment rendered against the defendant.</p>

<p>Appeal from a judgment of the superior court for Franklin county, Linn, J., entered December £9, 1916, upon findings in favor of the plaintiff, in an action of replevin, tried to the court.</p>

, entered May 11, 1917, upon findings in favor of the plaintiff, in an action for damages sustained in an automobile collision, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Tallman, J., entered March 6, 1917, upon the verdict of a jury rendered in favor of the plaintiffs, in an action in tort.</p>

<p>Application filed in the supreme court January 21, 1918, for a writ of mandamus to compel the superior court for Pierce county, Card, J., to fix the amount of a supersedeas bond pending appeal in habeas corpus proceedings.</p>

, entered March 14, 1917, upon findings in favor of the plaintiffs, in an action for personal in-j ui'ies inflicted by a vicious dog, tried to the court.

<p>Appeal from a judgment of the superior court for King county, Mackintosh, J., entered March 81, 1917, upon the verdict of a jury rendered in favor of the plaintiff, in an action for fraud.</p>

<p>Insurance—Pire Insurance—Conditions—Title — Waiver. The adoption of the New York Standard form of policy hy Rem. Code, § 6059-106, which contains a clause that- a fire policy shall he void if the insured did not have a fee simple title to the ground, did not change the rule in this state that such clause is waived hy accepting the risk and issuing a policy upon a building upon leased ground without requiring any application or making any inquiry as to the title of the insured, who made no representations and did not know of the existence of the clause in the policy.</p>

, entered April 4, 1916, in favor of the defendants, dismissing on the pleadings an action on an indemnity bond, tried to the court.

<p>INTOXICATING LIQUORS-OFFENSES-ILLEGAL SALE—DRUGGIST-GOOD Faith—Information. The good faith of a druggist in selling grain alcohol for mechanical purposes is put in issue by an information charging that the defendant knew at the time of the sale that it was not to be used, and was not sold, for such purposes.</p> <p>Same — Illegal Sales — Druggist—Issues—Good Faith. Under the state-wide prohibition law, Rem. Code, § 6262-7, allowing druggists to sell alcohol for mechanical and chemical purposes only upon written application and requiring an exact, true record to be made of such sales, the good faith of the druggist in making a sale is an issuable fact, although the purchaser signed the written application required by law.</p> <p>Same—Sale by Druggist—Record Book—Evidence—Admissibility. Upon a prosecution of a druggist for an illegal sale of alcohol for other than mechanical or chemical purposes, evidence of defendant’s record book showing the number of such sales is admissible upon the main issue of his good faith.</p> <p>Same—Sale by Druggist—Evidence—Sufficiency. A conviction of a druggist for an illegal sale of alcohol for other than mechanical or chemical purposes is sustained by the testimony of two detectives making the purchase to the effect that the defendant was informed at the time of making the sale that it might be used for other purposes; their credibility being for the jury.</p>

<p>Appeal from a judgment of the superior court for King county, French, J., entered November 1, 1916, 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 Spokane county, Huneke, J., entered January 11, 1917, upon a trial and conviction of larceny.</p>

<p>Appeal from an order of the superior court for Okanogan county, Neal, J., entered February 8, 1917, vacating a default judgment on the ground of a defective summons.</p>

<p>Appeal—Review—Findings. Findings upon conflicting evidence will not be disturbed on appeal where it cannot be said that they are not sustained by a clear preponderance of the evidence.</p>

, entered February 5, 1917, upon findings in favor of the defendants, dismissing an action for rescission, tried to the court.

<p>Appeal from a judgment of the superior court for Kittitas county, Kauffman, J., entered January 6, 1917, in favor of the plaintiffs and certain defendants, in an action to establish the right to the waters of a creek, and for an injunction, tried to the court.</p>

Appeals from a judgment of the superior court for Stevens county, Frater, J., entered May 19, 1916, upon the verdict of a jury rendered in favor of the plaintiffs, in an action for malpractice.

<p>Application filed in the supreme court January 25, 1917, for a writ of certiorari to review an order of the superior court for Clarke county, Back, J., denying a motion for change of venue.</p>

, entered November 30, 1915, upon findings in favor of the plaintiff, in an action on an official bond, tried to the court.

<p>Application filed in the supreme court February 5, 1917, for a writ of mandamus to compel the secretary of state to strike from the records the name of a corporation and cancel the license issued thereto.</p>

, entered June 17, 1916, upon the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a minor through contact with an electric power line.

, entered May 12, 1915, in favor of the defendants, notwithstanding the verdict of a jury rendered in favor of the plaintiff, in an action for personal injuries sustained by a riveter in bridge construction.

, entered January 31, 1917, upon findings in favor of the defendants, in an action for equitable relief, tried to the court.