MUNICIPAL CORPORATIONS-CONTINUED.
one proposition, so as to have one expression of the voter
answer both propositions.-Id......
5. Amendment of Charter-Submission to City Council-Di-
rectory Provisions. Sec. 225 of the freeholders' charter of
Spokane (adopted March 24, 1891) providing that amend-
ments thereto shall be proposed by the city council and
entered upon the record of proceedings, "and at the second
regular meeting of the council thereafter shall be again
submitted to a vote of the council," is merely directory as
to time of submission, and such proposed amendment may
be submitted to the council after the time of its second
regular meeting without affecting the validity of the pro-
posed amendment.-Pierce v. City Clerk of Spokane...
6. Submission of Questions to Voters. Under §518, Gen. Stat.,
providing for the submission to voters of amendments to
city charters by number, the action of the city clerk in affix-
ing numbers to the amendments, both in the election notice
and on the ballots, is a sufficient compliance with the law,
although the city council may have failed to number the
proposed amendments.-Id..
7. Power to Extend Streets Over Tide Lands. The act author-
izing a city of the first class (Laws, 1889–90, p. 223, §5, subd.
37), "to project or extend its streets over and across any
tide lands within its corporate limits, and along or across
the harbor areas of such city," does not empower such city
to lay out over the tide lands of the state a street which is
not an extension of any of the existing streets of the city.
-Seattle & Montana Ry. Co. v. State..
8. Purchase of Electric Lighting Plant — Recitals in Ordinance
·Surplusage. The recital in an ordinance adopting a sys-
tem of electric lighting for a city that it was passed in pur-
suance of the act of March 26, 1890, as amended by the act
of March 9, 1891, is mere surplusage, and the fact that the
ordinance was passed in pursuance of the act of February
10, 1893, which was a reenactment of said former acts with
an immaterial amendment, is not ground for enjoining the
issuance of bonds for the purchase of such lighting system.
-Lewis v. Port Angeles..
9. Void Incorporation —Effect of Re-incorporation — Void Street
Assessments. A street assessment levied by a town which
was illegally incorporated under the act of February 2, 1888,
cannot be validated by the re-incorporation of such town
under the authority of the act of March 27, 1890 (Laws, p.
133, § 4).-Town of Medical Lake v. Smith...
MUNICIPAL CORPORATIONS-CONTInued.
10. Same-Estoppel. Although a person receiving the benefit
of a street improvement, authorized by an attempted but
illegal incorporation of a town, may be estopped by his acts
from denying his liability as against those who actually
did the work, the town cannot, by subsequent re-incorpora-
tion, take advantage of such estoppel.-Id..
11. Special Charter-Effect of Reference to General Laws. The
special act passed by the territorial legislature incorporat-
ing the city of North Yakima (Laws 1885-6, p. 373), and pro-
viding that the levy and collection of taxes should be done
in accordance with the provisions of the existing general
law on that subject, does not make such law a part of the
charter, for the reason that no special act, section or pro-
vision of the general law is set out or indicated in the char-
ter.-Newman v. North Yakima..
12. Street Grading Contract—Bond for Protection of Laborers
and Material Men. Section 2415, Gen. Stat., requiring mu-
nicipal corporations to take a bond from contractors doing
work or making improvements for such corporation con-
ditioned for the payment of all laborers, mechanics, material
men and others employed thereon by such contractors, is
not applicable to a street grading contract.-Clough v. Spo-
kane
13. Emergency Requiring Employment of Special Counsel-Li-
ability of City. Where the mayor of a city employs special
counsel to defend him in mandamus proceedings to require
him to sign an illegal issue of bonds, for the reason that nei-
ther the legal officers nor the legislative body of the city
will assist him nor procure counsel for the purpose, the city
is liable for the services of the special counsel so employed
by the mayor, although the employment of such special
counsel may be contrary to the provisions of the charter.—
Wiley v. Seattle...
See CONSTITUTIONAL LAW, 1, 3, 4; OFFICE AND OFFI-
CERS, 1; STATUTES, 2.
1. Defective Appliances. The fact that a spur track is so con-
structed that cars may be drawn therefrom to the main
line by an engine, or "staked off," and that the men en-
gaged in removing the cars choose the method of "staking
off," whereby injury results to an employé, does not render
the railroad liable on the ground of defective construction
NEGLIGENCE-CONTINUued.
of the track or the omission to furnish safe and suitable ap-
pliances to its servants.-Watts v. Hart.
2. Personal Injuries — Contributory Negligence. In an action
for damages by the conductor on a cable car for injuries
received by him in pushing a trail car from the power house
so as to attach it to the grip car, it was shown that the track
outward from the power house was on a slightly upward
incline, requiring vigorous pushing to get a car out; that
there was an open space under the track in the power
house, and that the men pushed the cars by walking along
a plank placed on the side of the track; that the doorway
through which the cars had to pass from the house allowed
but three and a half inches between the car and the pier on
the side; that plaintiff in pushing out the car took hold of
one of the uprights on the side of the car, and, failing to
let go when he came to the doorway, was caught by the car
and the walls of the pier, and was badly injured; that
plaintiff had been recently employed, had never done this
work before, and had not been informed of the danger.
Held, That he was guilty of contributory negligence, as the
danger was apparent.-Jennings v. Tacoma Ry. & Motor Co... 275
3. Falling Building. In an action for damages for injuries
received from the falling of a building which plaintiff was
employed with others to tear down and remove, the plaint-
iff should be non-suited when his only evidence tending to
show negligence is the fact that the building fell after some
of the boards and timbers had been removed.- Weideman
v. Tacoma Ry. & Motor Co.
4. Contributory Negligence-Standing on Platform. It is not
negligence per se for a passenger to stand upon the front
platform of the trail car in a moving cable train, when
there is no rule of the company against it, and it has been
the custom for passengers to occupy that position. -Mul-
doon v. Seattle City Ry. Co.....
See CARRIERS; MASTER AND SERVANT, 1-5.
NEGOTIABLE INSTRUMENTS.
1. Possession by Maker-Presumption of Payment. Possession
by the maker of a promissory note, after it has been in
circulation, is presumptive evidence of its payment, al-
though the time allowed for its payment may not have ex-
pired.-First National Bank v. Harris.
NEGOTIABLE INSTRUMENTS-COntinued.
2. Action on -Parties. An indorser of a promissory note may,
under § 146, Code Proc., be joined as defendant in an action
against the makers.-Main v. Johnson..
3. Judgment Against Maker - Discontinuance as to Indorser.
Judgment by default against the makers of a promissory
note will not affect the issue joined with an indorser who
is a party defendant to the action.-Id..
4. Discharge of Maker by Payment of Collateral Security. In
an action on a promissory note, sufficient facts are stated
to constitute a defense when the answer sets up that the
note was given by the defendant to a bank for money bor-
rowed, and as collateral security a note executed by certain
other parties to the defendant was indorsed to the bank;
that the collateral note falling due, suit was instituted upon
it by the bank, and that the father of the makers, as their
agent, and with money furnished by them, paid to the bank
the money due on defendant's note, and induced the bank
to dismiss the suit against his sons, and to deliver to him
the defendant's note together with the one held as collateral
security.-Gilliam v. Davis...
5. Same. The transfer by a pledgee of a promissory note held
as collateral security for a debt to the maker of the note is
a payment pro tanto of the debt secured.-Id..
6. Guaranty by Payee of Promissory Note Reimbursement.
Where a promissory note has been paid by a guarantor,
the makers cannot avoid liability to him on the ground
that his contract of guaranty was a voluntary one, when
the evidence shows that the makers had originally exe-
cuted a note to the guarantor which he had negotiated to a
bank, and that, upon a series of renewals, the note was
finally made directly to the bank by the original makers,
and a contract of guaranty indorsed thereon by the original
payee, although without the direct request of the makers,
as the note upon which the guaranty was given stands as
a continuation of the original transaction between the
parties.—Austin v. Hamilton.
7. Same-Right of Guarantor to Attorney Fees. An action to
recover money paid out as guarantor upon a promissory
note is not an action upon the note, and the plaintiff is
not entitled to recover the attorney fees provided for in the
note.- Id.
See CORPORATIONS, 6, 7; EVIDENCE, 8; JUDGMENT, 7;
1. Grounds for-Misleading Statements of Prosecuting Attor-
ney. Where a defendant has been misled into not making
proper preparation for his defense by the statement of the
prosecuting attorney that he did not intend to further pros-
ecute the defendant, the defendant will be entitled to a
new trial upon a showing of newly discovered evidence.-
State v. John Port Townsend.
2. Newly Discovered Evidence-When Cumulative Character
Not Objectionable. Where the testimony adduced at the
trial of a criminal prosecution was exclusively that of In-
dians, given through the medium of interpreters, defendant
is entitled, on a proper showing, to a new trial on the
ground of newly discovered evidence, although cumulative
in character, when the newly discovered evidence is shown
to be that of a white witness.-Id
1. What Constitutes. Where the holder of a contract for the
sale of land assigns the same, and the assignee, in presence
of such purchaser and his vendor, tells the vendor to look
to him for the balance of payments on the land, to which
the vendor replies, "It makes no difference to me, I will
make the deed to whoever pays the money; whoever makes
the last payment will get the deed," no contract by nova-
tion is thereby created binding the assignee to the payment
of the balance of purchase money.-Osburn v. Dolan..
2. Same-Consideration. In such a case, the promise of the
assignee of the contract to pay a written order by the ven-
dor upon him is without consideration.-Id.....
1. Disorderly Houses - Employment of Women to Draw Cus-
tom-Information. In order to set forth the facts consti-
tuting the crime of keeping a house or saloon where women
are employed to draw custom and to dance, the information
should aver that women were employed for the purposes
mentioned at the time when it is alleged the defendant
kept the house described in the information.-State v.
Brown..
2. Same. It is not sufficient, under § 2894, Gen. Stat., to aver
in an information that the defendant kept a house "used
as a place of resort, where women are employed to draw
custom and to dance, all of which is to the injury and com-
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