1. What Constitutes-Hoisting Safe.
A person hoisting a heavy safe in a public thoroughfare where
people are constantly passing is bound to use such care as the nat-
ure of the employment and the situation and circumstances of the
same require of a prudent person experienced and skilled in such
or similar work. Spokane Truck and Dray Co. v. Hoefer, 45.
2. Contributory Negligence- Matter for Defense.
In an action by a passenger for injuries received from the falling
of an upper berth in a "free emigrant car" while she was away from
her seat warming herself at the stove, it is not necessary for her to
plead and prove the necessity for leaving her seat, as contributory
negligence is a matter for the defense to establish.-Northern Pacific
R. R. Co. v. Hess, 383.
3. Evidence- Sufficiency of.
Where plaintiff testified she thought it was a brakeman who
raised the berth which afterward fell and crushed her fingers, and
letters written by her to the company soon after the accident were
put in evidence, in one of which she said she was injured through
the negligence of an employé of the company, and in another she
stated that it was a newsboy who raised the berth, there was suf-
ficient evidence to sustain a verdict for plaintiff, as the jury might
have believed from her testimony that it was a brakeman who negli
gently raised the berth.-Id., 383.
4. Injuries to Child - Trespassers on Cars-Contributory Negligence.
Where a boy, nine and one-half years of age, is injured while
stealing a ride upon the foot-board of a switch engine, the facts that
he is of ordinary intelligence, familiar with the workings of a switch
engine, and aware of the danger of his act, that he has frequently
been forbidden by his parents from going upon the cars, and has
been driven away from them by the employés of the railroad, are
sufficient to establish contributory negligence on his part.-O. R. &
N. Co. v. Egley, 409.
It is not negligence on the part of a railroad company for its em-
ployés to fail to ascertain that a boy of tender years is stealing a
ride, unknown to them and out of their sight, on the back foot-board
of a switch engine, when they have made a practice of prevent-
ing such acts by driving boys away when they saw them about the
cars.Id., 409.
See DAMAGES, 1, 4; TRIAL, 1.
NEGOTIABLE INSTRUMENTS. See HUSBAND AND WIFE, 1;
VENDOR AND VENDEe.
Application-Joint Parties-Motion.
In an action against joint defendants, where judgment by default
has been rendered against one and judgment recovered against the
others on the trial of the action, it is not error to grant a new trial as
to the defendants who answered and deny it as to the defaulting de-
fendant, although the motion for a new trial may have been made in
the name of all the defendants. - Ex parte Lowman v. Hanford Co.,
427.
See APPEAL AND ERROR, 16; CRIMINAL LAW, 3; JURY, 3.
NOTICE. See APPEAL AND ERROR, 9, 18; EMINENT DOMAIN, 3;
LOGS AND LOGGING, 1, 2, 4; MUNICIPAL CORPORATIONS, 5;
SPECIFIC PERFORMANCE, 1.
Obstructing Public Road — Abatement.
The obstructing of a public road by building a fence therein is a
nuisance which may be abated by any person injuriously affected
thereby, provided it be done without committing a breach of the
peace, or doing unnecessary injury,—Johnson v. Maxwell, 482.
OFFICE AND OFFICER. See JUSTICE OF THE PEACE, 3; MU-
NICIPAL CORPORATIONS, 7; QUO WARRANTO; SCHOOL AND
SCHOOL DISTRICTS.
ORDINANCES. See MUNICIPAL CORPORATIONS, 5, 11.
PARTIES. See APPEAL AND ERROR, 9; ATTACHMENT, 3; INTOXI
CATING LIQUORS, 2; JUDGMENT, 2, 3; NEW TRIAL.
PAYMENT.
Evidence-Sufficiency.
Goods recently sold to plaintiff were attached by a creditor of
her vendor, and in consideration of plaintiff's giving her note and
a mortgage on the goods for the debt, the vendor promised to pay
the note at its maturity. The note and mortgage were assigned by
the payee to the vendor's brother, who foreclosed the mortgage. In
replevin against the sheriff in possession of the goods under the
foreclosure proceedings, plaintiff alleged that the vendor in fact paid
the note, but instead of discharging the mortgage he fraudulently
procured its transfer to his brother. It was shown that the brother
had no money with which to buy the note, and it was conflicting as
to whether the money with which the note was purchased was fur-
nished him by the vendor or another person. Held, That a judg-
ment for plaintiff would not be disturbed.— McGraw v. Franklin, 17.
PLATS. See BOUNDARIES, 2, 3; ESTOPPEL, 3.
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1. Amendment — Time of— After Evidence in.
The refusal of the superior court to permit defendant to amend
its answer so as to set up another defense, after the plaintiff had
rested his case, which amendment would have necessitated a con-
tinuance to enable plaintiff to procure witnesses to meet the new
defense, is not such an abuse of discretion as to justify a reversal of
the judgment.- Skagit Railway and Lumber Co. v. Cole, 57.
2. Pleading and Proof- Variance-Evidence Admissible.
Where the complaint alleges that plaintiff was prevented from
carrying on his business by reason of defendant's failure to furnish
supplies, and that plaintiff could not procure and pay for supplies
elsewhere, proof is admissible to show that plaintiff had attempted
to procure supplies from other parties and had failed to get them.-
Id., 57.
3. Motion to Strike- Not Waived by Answering.
The filing of a substituted answer by defendant does not operate
as a waiver of his exception to an o ler striking out an affirmative
defense in his original answer. — Schulte v. Littlejohn, 129.
4. Affirmative Defense to Surplusage―Judgment on Pleadings.
Where plaintiffs allege in their complaint that they had filed a
lien upon certain lumber and shingles, but the copies of liens form-
ing part of the complaint show that liens were not claimed upon the
shingles, the answer of defendant specifically denying all the alle-
gations of the complaint, and setting up as a new defense that the
shingles were cut and sawed from shingle bolts made by other par-
ties than the plaintiffs, to which plaintiffs file no reply, does not
entitle defendant to judgment on the pleadings. -Dexter Horton &
Co. v. Sparkman, 165.
5. Bill of Particulars-Action on Public Accounts.
Where the accounts sued on are public accounts, equally accessi-
ble to defendants as to plaintiff, it is not error for the court to refuse
to order plaintiff to furnish a bill of particulars to defendants, as it is
a matter resting largely in the discretion of the trial court whether a
bill of particulars should or should not be ordered in a particular
case.- Ferry v. King County, 337.
6. No Reply to Affirmative Defense- Evidence Inadmissible.
Under Code 1881, 103, providing that every material allegation
of new matter in the answer not controverted by the reply shall, for
the purpose of the action, be taken as true, it is error for the trial
court to treat affirmative matter in the answer as denied, and permit
testimony to be given accordingly.-Johnson v. Maxwell, 482.
See ATTACHMENT, 5, 6; DAMAGES, 4; EQUITY, 2; EVIDEnce,
7; JUDGMENT, 6, 7; LANDLORD AND TENANT, 1, 2; MORT-
GAGES, 1, 2; NEGLIGENCE, 2; SALE, 3, 4; SPECIFIC PER-
FORMANCE, 5; VENUE IN CIVIL ACTIONS, 3.
PRESUMPTION. See APPEAL AND ERROR, 10, 23; BOUNDARIES,
1, 2; CONFLICT OF LAWS; EVIDENCE, 4; JUDGMENT, 5;
MUNICIPAL CORPORATIONS, 5.
PRINCIPAL AND AGENT. See DAMAGES, 5; FACTORS AND
BROKERS, 1, 2.
PROHIBITION, WRIT OF.
1. When Granted-Court Exceeding Jurisdiction.
The supreme court will not grant a writ of prohibition to re-
strain the superior court from further proceedings in an applica-
tion for mandamus, where the superior court has already exercised
jurisdiction and issued the writ of mandate, and no proper applica-
tion was made at the hearing before the superior court to test its
jurisdiction.-State v. Superior Court of Whatcom County, 9.
2. When Granted-No Other Remedy.
As the writ of prohibition will be granted only in a clear case,
when no other remedy is available, the court is not authorized to
grant it for the purpose of preventing, the harbor commission from
defining harbor lines. — Harbor Line Commissioners v. State, 530.
3. Court Exceeding Jurisdiction ·
The writ of prohibition will not lie to restrain courts having origi-
nal jurisdiction of cases in equity from issuing injunctions in excess
of their jurisdiction, when there is a complete remedy by appeal
from any final judgment that may be rendered by said courts in
such cases.-State ex rel. Reed v. Jones, 662.
PUBLIC LANDS.
1. Cancellation of Entry.
Until the issuance of patent for an entry under the pre-emption
laws of the United States, the commissioner of the general land
office may suspend the entry, and order a re-examination as to the
pre-emption claimant's residence upon and improvement of the
land for which he holds the final receipt of the register and re-
ceiver, and if, on said re-examination, it is shown that the claimant
has not complied with the law, the commissioner of the general
land office has power to cancel the entry.- Pierce v. Frace, 81.
2. Pre-emption Within Town Limits― Knowledge of Entryman.
Plaintiff's grantor in 1874 pre-empted vacant, unoccupied public
lands which had been included in the corporate limits of the city of
Seattle in the year 1869 by the act of the territorial legislature in-
corporating said city, and did not ascertain until after entry that
the land was within said corporate limits. The secretary of the
interior, in 1879, canceled the entry, on the ground that, as plaint-
iff's grantor was at the time marshal of the city of Seattle, he must,
by virtue of his office, have known that the land pre-empted was
within the corporate liinits. Held, That the secretary's decision was
erroneous, as, under 2 of the act of congress of March 3, 1877 (19
U. S. St. at Large, 392), confirming entries which, though regular
in other respects, had theretofore been allowed upon lands after-
ward ascertained to have been embraced in the corporate limits of
any town, no knowledge of the law or the fact of incorporation can
be imputed to the entryman. — Alger v. Hill, 344.
3. Entry of Tide Lands- Location of Valentine Scrip.
A tract of land, shown by the public surveys to be a portion of
the bottom of Elliott Bay, an arm of the sea, and which is covered
and uncovered by the flow and ebb of the tide, is not "land," but
"water," to which none of the public or special and private land
laws of the United States, including the Valentine scrip act, have
any application. — Baer v. Moran Brothers Co., 608.
As the rule is a fixed one that high water mark is the limit of
government grants, the fact that a portion of tide flat is uncovered
at low tide, and, in consequence, not covered by navigable water,
will not render such tide flat subject to entry under the act of con-
gress (17 St. at Large, p. 649) known as the Valentine scrip act. — Id.,
5. Oregon Donation Act-Rights Under — Effect of Divorce.
Where a married man became a resident of the Territory of
Oregon prior to December 1, 1850, and settled on 640 acres of land in
April, 1852, claiming same under the act of congress, Sept. 27, 1850
(9 U. S. St. at Large, ch. 76, p. 497), his divorce in December, 1852,
reduces his rights under said act to those of a single man, and his
subsequent marriage in 1853 will not put him in a position to claim
more than 320 acres. — McSorley v. Hill, 638.
6. Same-Extension of Time.
Section 5 of the act of February 14, 1853 (10 U. S. St. at Large,
158), amendatory of the act of September 27, 1850, merely extends
the time within which persons may acquire title under the donation
act, and does not change the qualifications of the applicant there-
under. Id., 638.
7. Same-Register's Certificate-Cancellation of Entry.
The fact that the register of the local land office issued a certificate
to a man and his wife entitling them to 640 acres under the donation
law, gives them no vested right in said land where the commissioner
of the general land office, under the discretion vested in him by 7
of said act, reverses the action of the local officers. Id., 638.
PUBLIC LANDS (Continued).
8. Same-Vested Rights-Innocent Purchaser.
Where such parties, having no vested rights in the land, and be-
fore the issue to them of a donation certificate therefor, convey said
land to another, their grantee cannot be considered an innocent
purchaser for value. Id., 638.
9. Military Entries-Porterfield Warrants.
Under the act of congress, April 11, 1860, for the "relief of the
legal representatives of Charles Porterfield, deceased," Porterfield
warrants may be located upon lands which are occupied under an
invalid entry. - Id., 638.
The act of congress, March 22, 1852, 21, providing "that all war-
rants for military bounty lands which have been or may hereafter
be issued under any law of the United States, are hereby declared
assignable," applies to the Porterfield warrants. — Id., 638.
11. Same-Location Upon Unoffered Land.
Where rights have been acquired under the construction of the
executive department allowing Porterfield warrants to be located
upon unoffered land, such rights will not be disturbed when it does
not clearly appear from the act of congress that it contemplated
restricting such locations to lands that were subject to private entry.
- Id., 638.
1. Against Officers - Who May File Information.
Under the statutes of this state (Code 1881, 2 702, et seq.), relating
to information in quo warranto proceedings, the mayor of a city
has no interest in the office of city councilman sufficient to entitle
him to appear as relator in such proceedings to oust an alleged
usurper of that office.- Mills v. State ex rel. Smith, 566.
RAILROADS. See EMINENT DOMAIN, 2, 3; MECHANICS' LIENS, 1.
1. Assault With Intent to Rape - Female Under Age of Consent·
Variance.
To warrant a conviction under an information charging an as-
sault with force, with intent to rape a female under the age of sixteen
years, an assault with force must be proved; and an instruction, that
the fact that she consented to the advances made constitutes no de-
fense, is erroneous.-Whitcher v. State, 286.
Though the laws of Washington make it rape to have carnal
knowledge of a female under the age of consent, even with her con-
sent, there can, in the absence of fraud, be no assault with intent
to rape, when she consents, since there can be no assault without
force or fraud. - Id., 286.
RATIFICATION. CORPORATIONS.
REHEARING. See APPEAL AND ERROR, 22.
REPLEVIN.
Where it appears that the verdict in an action of replevin was
for damages only, it is sufficient without being in the alternative
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