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creek, for the purpose of carrying it on their land, in May, 1881, and that the water reached the land aforesaid the next year, the ditch being some 15 miles long. The testimony is quite extensive, and it is not necessary to specifically review it; but to our minds it clearly appears that the appropriation by the respondents of 1,500 inches of the water of First creek was made prior to the appropriation of the appellant. In coming to this conclusion, we have not taken into consideration the appropriation of the water from Swauk creek proper, but have considered only the divergence from First creek and the appropriation of the waters of that creek. The judgment will therefore be

affirmed.

ANDERS, HOYT, SCOTT, and STILES, JJ., concur.

(10 Wash. 11)

FIRST NAT. BANK OF ABERDEEN v. CARTER.

(Supreme Court of Washington. Nov. 7, 1894.) SUPREME COURT OBJECTIONS TO JURISDICTIONRIGHT OF APPEAL-ORDER AFTER JUDGMENT.

1. The supreme court will consider an objection to its jurisdiction, though not incorporated in the brief of the party making it.

2. Under a judgment for defendant in replevin, there was collected, on execution, from plaintiff the value of the goods replevined. The judgment was reversed on appeal, and the cause remanded. On plaintiff's motion, the trial court made an order that the money collected from plaintiff be restored to it. Held, that an appeal would not lie from the order, under Laws 1893, p. 119, § 1, subd. 7, providing for an appeal from any final order made after judgment which affects a substantial right.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action of replevin by First National Bank of Aberdeen against H. H. Carter. Judgment was rendered for defendant, and under execution the value of the goods replevined was collected from plaintiff. On appeal, the judgment was reversed, and, on motion by plaintiff, an order was made by the trial court that the money collected be restored to it, and defendant appeals. Appeal dismissed.

Doolittle & Fogg and J. C. Cross, for appellant. Linn & Bridges and Wm. O. McKinlay, for respondent.

DUNBAR, C. J. This is an appeal from an order of the superior court commanding the defendant in a replevin action to turn over to the plaintiff a certain sum of money, the said sum having been received by the said defendant from the said plaintiff by virtue of an execution issued out of the court in said cause. On the 24th day of September, 1891, the plaintiff, respondent here, began a suit in replevin against the defendant, appellant here. Upon the trial of the cause, the jury rendered a verdict in favor of the defendant, to the effect that the defendant was

After

entitled to the possession of the property mentioned in the complaint, and also found the value of the property to be $2,500. a motion for a new trial had been overruled by the court, the court made and entered a judgment in the cause for the defendant in accordance with the verdict of the jury. In such judgment the court required the plaintiff to turn over to the defendant the identical property mentioned in the complaint within five days after the date of said judgment, and, in default of such delivery within the said five days, that the defendant have and recover of and from the plaintiff the principal sum of $2,497.36, the same being the value of the defendant's interest in said property, together with costs and disbursements of the action. Thereafter, on the 8th day of August, 1892, the defendant, he being the sheriff of the said county, procured to be issued out of the court in said cause a writ of execution directed to the coroner of said county; whereupon the coroner proceeded to levy upon the property of the plaintiff in a sufficient amount to make the amount of the judgment, interest, costs, and increased costs out of the property of the said plaintiff, by delivering into the hands of the cashier of the plaintiff a copy of the writ of execution, and making a demand upon the cashier for the payment of the debt. Upon said demand the cashier delivered to the coroner, who took into his possession, the money of the said plaintiff in the sum of $2,973.88, who thereafter paid the same into the court. same was afterwards paid by the clerk of the court to the defendant. After the execution had been issued as aforesaid, and the money levied upon, but before the said money had been paid by the coroner to the clerk of the court, or by the clerk paid to the defendant, the plaintiff gave notice of appeal from the judgment to the supreme court, filed his supersedeas bond, and afterwards, upon the trial of the case in this court, judgment was entered reversing and remanding said cause. 33 Pac. 824. Upon this reversal the plaintiff made a motion praying for the reversal of the order from which this appeal is taken. Respondent, in a supplementary brief, filed after the time allowed for the filing of brief had expired, moves this court to dismiss the appeal herein, and refuse to consider the same, for the reason that this court has no jurisdiction of the matter, inasmuch as there is no statute or law of this state allowing appeals from such orders as the one appealed from in this case. Appellant objects to the court entertaining this motion, for the reason that the motion was not made in respondent's original brief. This motion going to a jurisdictional question, the court would entertain it at any time, even upon suggestion or upon its own motion, if it came to the attention of the court, whether or not it was incorporated in a brief. If there can be an appeal from this order at all, it must be by reason of the provisions of the law of 1893; for there cer

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tainly were no provisions of the law prior to that time providing for an appeal from an order of this kind, and, as liberal as the law of 1893 is in relation to orders from which an appeal can be taken, we are unable to find any authority for an appeal from such an order. Section 1, Laws 1893, p. 119, provides that any party aggrieved may appeal from the final judgment entered in any action or proceeding,-subdivision 2, from any order refusing to vacate an order of arrest in a civil action; subdivision 3, from any order denying or granting a motion for a temporary injunction; subdivision 4, from an order refusing to discharge an attachment; subdivision 5, from an order appointing or removing, or refusing to appoint or remove, a receiver; subdivision 6, from any order affecting a substantial right in a civil action or proceeding which determines the action or discontinues the action, or grants a new trial, or sets aside or refuses to affirm an award of arbitrators. Certainly, the right is not given in any of these subdivisions, and if it is found at all it must be in subdivision 7, which provides that an appeal may be taken from any final order made after judgment, which affects a substantial right. But this order is not an order made after judgment. The judgment of the court below was reversed, and the cause remanded by this court for a new trial, so that at the time this order was granted by the court below the cause was there for trial as though no judgment had ever been rendered in the cause. Clearly, under the statute, which provides that an appeal from any final judgment shall also bring up for review any order made in the same action or proceeding, either before or after the judgment, provision is made for the determination of this question of possession upon the final trial of the cause on its merits when it arrives here. The statute, in section 1 of the act above ferred to, especially provides that there shall be no appeal from any other orders or judgments than those mentioned in the succeeding sections, which we have referred to. There being no provision in the law for permitting an appeal from this kind of an order, the motion must be sustained, and the appeal dismissed.

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and the contract assigned to the lessee, who continued to publish the paper, and performed work under the contract. the city, by accepting such work, waived its right to declare the contract forfeited by reason of the assignment. Stiles, J., dissenting.

Carroll B. Graves, Judge.
Appeal from superior court, Kittitas county;

Action by R. H. Norton against the city of Roslyn and others to restrain the letting of a contract. Judgment for defendants, and plaintiff appeals. Reversed.

Pruyn & Ready, for appellant. Wager & Graves, for respondents.

HOYT, J. This action was brought to restrain the city of Roslyn and its board of trustees from letting a contract for the advertising and printing of the city from November 16, 1893. Among other allegations of the complaint was one to the effect that the city of Roslyn had in June, 1893, let a contract for the advertising and printing of the city for the year ending June, 1894, to the Roslyn News and its proprietors, and that such proprietors had entered upon the performance of the work required of them by the city in pursuance of the contract so let; that the plaintiff had succeeded, by lease, to the plant of the Roslyn News, and, by assignment of its proprietors, to their rights in the contract in question; that he had continued, and was continuing, the publication of such paper, and had done work under said contract for the city, and presented bills therefor, which were audited by the common council and paid. There were other allegations of the complaint necessary to constitute a cause of action. At least, we shall assume that the complaint contained the other necessary allegations, for the reason that the objections thereto, as stated in the brief of the respondents, are all founded upon the insufficiency of the allegations above specified. There is, in addition to the objections founded upon these allegations, a general one which raises the question of the jurisdiction of courts of equity to interfere with municipal corporations in relation to their transaction of business of the kind set out in the complaint; but it is not necessary to say more in reference thereto than that it has been determined by this court adversely to the contention of respondents. See Times Pub. Co. v. City of Everett (decided Sept. 4, 1894) 37 Pac. 695.

The first objection which goes to specific parts of the complaint is that there is no sufficient statement therein to show that the contract upon which the rights of the plaintiff are founded was entered into with the formalities required by statute, and that without these allegations it is not made to appear that plaintiff has any rights founded upon a legal contract with the city. We think, however, that it was not necessary to allege in the complaint every step which led up to the making of the contract. It was sufficient to allege that bids had been adver

tised for, and that in pursuance thereof a contract had been let and duly entered into by the city, and the person to whom the contract was awarded. So much appearing, the presumption as to the rightfulness of the action of public officers will obtain in aid of the complaint, and, until the contrary appears, it will be presumed that the contract was entered into in pursuance of the statute. The plaintiff alleged that the city had entered into a contract under which he claimed rights, and this was all that was necessary to warrant the court in presuming that the contract was a legal one.

The other objection grows out of the fact that the ownership of the paper in which the advertising was to be done had changed, and that the rights of the proprietors under the contract had been assigned. The first part of this objection is not sustained by the allegations of the complaint. It does not appear therefrom that there has been any change in the ownership of the paper, or of the plant. It only appears that the same has been leased to the plaintiff. It does appear, however, that the proprietors of the paper had assigned their interest in the contract to the plaintiff, at the same time requiring of him a contract, with security, that he would discharge the obligations resting upon them thereunder. It appeared from the allegations of the complaint that the form of the bid, and of the acceptance thereof by the council, as preliminary to the execution of the contract, had particular reference to the Roslyn News as the basis of the contract, and that it was with this paper, through its proprietors, that the contract was entered into. It further appears that this same paper was yet being published in such a way as to enable the work to be performed through it by its present proprietors as fully as it could have been under its former ones. If, immediately upon the transfer of the paper and the assignment of the contract, action had been taken by the city to cancel it on that account, there might be some ground for claiming that it was no longer in force; but it appears from the allegations of the complaint that no such action was taken by the city.

On the contrary, it appears that the contract was allowed to remain in full force and apparently binding upon the city and the plaintiff, as owner of the Roslyn News, and that certain work under the contract was performed by him, to the knowledge of the respondents. We are therefore of the opinion that, if there was any technical ground upon which the contract could have been declared forfeited by reason of the acts above set forth, the right to declare such forfeiture was waived.

Other questions in relation to the rights of the parties growing out of the allegations of the complaint were discussed by counsel, but we do not think it proper that we should enter into an investigation thereof upon the record before us. The only question pre

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1. Evidence that the defendant in an action for malicious prosecution employed a person to search for property he had lost, and to take all legal steps necessary for its recovery, and that such person charged plaintiff with larceny of the property, and caused his arrest, does not sustain a verdict for plaintiff.

2. To charge one with the act of his agent in instituting a malicious prosecution, it must be shown that the business in which the agent was employed was unlawful, and that the proceedings for the arrest of plaintiff were had in pursuance thereof, or that the principal had some connection with the proceedings.

Appeal from superior court, Lewis county; M. J. Gordon, Judge.

Action by M. E. Murrey against John Kelso, impleaded with another. Judgment for plaintiff, and defendant Kelso appeals. Reversed.

Edward F. Hunter, for appellant. W. I. Agnew and S. C. White, for respondent.

HOYT, J. This action was brought against appellant and one Webster to recover damages for malicious prosecution. The injury complained of was that plaintiff had been arrested, charged with grand larceny, upon the complaint of said Webster, who, it was claimed, was the agent of appellant. Numerous exceptions were taken during the progress of the trial, and errors founded thereon have been argued here, but the conclusion to which we have come as to the force of the evidence introduced upon the trial renders it unnecessary for us to consider them. There is no evidence in the record tending in the least degree to connect the appellant with the proceeding for the arrest of the plaintiff, except the fact that he had employed said Webster to search for certain property which he had lost, and to take all legal steps necessary for its recovery. There is not a particle of proof tending to show that he authorized or directed the institution of the proceedings for the arrest of the plaintiff. The most that appeared from the entire case was that he had employed Webster as his agent to do what he lawfully could in the prosecution of his business. This being so, it is clear that

he would not be responsible for an illegal act of said Webster, as he was authorized only to do legal acts.

In order to sustain the action for malicious prosecution, there must be positive wrong on the part of the defendant, either through something which he has done himself or which he has authorized. There was nothing unlawful in the employment by the defendant of Webster as his agent for the purposes for which he was employed. Hence from the fact of such employment no wrong could be imputed to the appellant; and, since some wrong must be brought home to him before he can be made liable in this action, there was an absolute failure to prove an element necessary to establish liability on his part. It is true that there were some statements made by the appellant after the institution of this suit put in evidence against his objection, but we are unable to see that they tended in any manner to establish his liability for the unlawful acts of said Webster. The most that can be gathered from such statements is that he was aware that Webster had gotten himself into this trouble while he was at work for him, and that for that reason he was going to stand by him and see him through. But this did not tend in any manner to prove that he had authorized or encouraged the institution of the criminal proceedings. That such was not his intention in making the statements is clearly evidenced by the fact that in the same conversation he stated that he had no knowledge whatever of the institution of the proceedings by Webster. In order to sustain this action against appellant, it was necessary for plaintiff to show more than that Webster was the agent of appellant for the transaction of lawful business. He must show either that the business in which he had employed him was in itself unlawful, and that the proceedings under consideration were in pursuance thereof, or he must show that appellant had some connection with the proceedings which are the foundation of the action. We have carefully examined the entire record, and have been unable to find any proof tending even in the most remote degree to establish either of these facts. It follows that there is nothing to sustain the verdict of the jury, and that the judgment must be reversed, and the cause remanded for a new trial.

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there was no attempt meanwhile to prosecute the appeal, and no excuse is offered for the delay, the appeal should be dismissed.

2. Damages will not be allowed on the dismissal of an appeal for want of prosecution, where no special damages are shown.

Appeal from superior court, Chehalis county; Mason Irwin, Judge.

Action by W. T. Cady against E. E. Case and others. Judgment was rendered for plaintiff, and defendants appeal. Appeal dismissed.

Geo. D. Schofield, for appellants. Austin E. Griffiths, for respondent.

PER CURIAM. Respondent moves to dismiss the appeal in this case, and to affirm the judgment appealed from, and to award damages on appeal, on the following grounds: (1) That the record on appeal has not been sent up to the supreme court; (2) that the appeal has not been diligently prosecuted; (3) that the appeal was taken merely for delay; (4) that no briefs on appeal have been served. The case is here upon a short reeord. The appeal in this case was taken April 17, 1894, from the final judgment rendered April 4, 1894. The judgment was for the foreclosure of a lien upon shingles. No brief has been filed by the appellants or served upon the respondent up to this time, and no attempt of any kind appears to have been made by appellants to prosecute their appeal, and no excuse is offered for such failure. The motion will therefore be allowed, and the appeal dismissed, with judgment against the sureties on the appeal bond. There being no showing of any special damages, however, the motion for damages will be disallowed.

STATE v. KEEN.

(10 Wash. 93)

(Supreme Court of Washington. Nov. 12, 1894.)

ASSAULT-INFORMATION.

Actual violence, alleged as a fact in an information for assault with intent to commit rape, will justify a conviction of assault and battery.

Appeal from superior court, Yakima county; M. J. Gordon, Judge.

C. A. Keen, convicted of assault and battery, appeals. Affirmed.

John G. Boyle and Reavis & Milroy, for appellant. J. A. Rochford, Pros. Atty., and Jones & Newman, for the State.

STILES, J. The information charged an assault with intent to commit rape, and the appeal is from the judgment on a verdict of guilty of assault and battery. Contained in the information is an allegation that the accused "did then and there make an assault upon the body of Mrs. -, a female over the age of twelve years, and did then and there unlawfully beat, lay hold of, and ill

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STILES, J. Respondents brought their action for damages resulting from the negligent construction of a water ditch, and the consequent flooding of their lands adjoining. Special damages were alleged as follows: By reason of an overflow in November, 1892, destruction of potato crop, $30; by reason of overflow April 16, 1893, destruction of fence, $15; permanent injury to land, $400; and by reason of washouts prior to April 16, 1893, permanent injury to land, $100. Plaintiff John Rieckhoff was the only witness who attempted to name the damages in figures. Under examination he was asked: "Q. Now, what do you put the damage in April, 1893, at, Mr. Rieckhoff,-this last April? A. Made by that break? Q. Yes. A. Well, it is about $100, anyway." Under the allegations of the complaint, this reduction of damage for the April, 1893, washout, from $400 for injury to land, and $15 for fence, to $100 in all, left the total recovery submissible to the jury only $230. Appellant asked the court to charge the jury that no more than $245 could be assessed, but the request was refused, and the verdict was for $400. Motion to set aside the verdict overruled, and judgment for the sum found. This was error, and appellant is entitled to a new trial. Respondents make no appearance. Judgment reversed, and cause remanded for a new trial.

DUNBAR, C. J., and HOYT and SCOTT, JJ., concur.

v.38p.no.13-56

(105 Cal. 214) (No. 15,397.)

BOLTON v. GILLERAN et al.
(Supreme Court of California. Dec. 26, 1894.)
MUNICIPAL IMPROVEMENTS-CONTROL BY COUNCIL
-DELEGATION OF POWERS-INVALID AS-
SESSMENT SUIT TO SET ASIDE.

1. The exclusive power over street improvements conferred by the legislature on the legislative department of the various city governments cannot be delegated to any officer or committee, but must be exercised by that department itself as a body.

2. Under Laws 1889, p. 157, § 2, giving authority to the city council to direct street improvements, such council must direct the manner and extent of the improvement, the items of material and work, ascertain the total expense, and definitely fix the price in the contract of construction.

3. Laws 1889, p. 157, § 3, requires the city legislative body, which in San Francisco is the board of supervisors, before contracting for street improvements, to pass a resolution of intention, "describing the work" proposed, and requires "plans and specifications and careful estimates of the cost and expense" to be furnished said board. A resolution of intention passed by said board described the work as the construction of certain sewers according to plans and specifications furnished by the city engineer. One of such specifications provided that, if the soil was unfit for a foundation, planking and concrete must be used. The bid accepted, and on which the contract was made, gave different prices per lineal foot, depending on whether such materials were necessary, the price being about one-third greater in such case. The specifications did, not fix the amount of sewer work requiring such material, but the matter was left to the superintendent of streets, with whom the contract was made; he thus having the power to determine the amount of tax to be levied, to the extent of one-third the cost of construction. Held, that an assessment levied for work done under such contract was invalid.

4. An abutting owner may sue to set aside an invalid contract for sewer construction, and the assessment levied thereunder, when there is nothing on the face of the assessment to show its invalidity, since such assessment would constitute a cloud on his title.

Department 1. Appeal from superior court, city and county of San Francisco; Charles W. Slack, Judge.

Action by Ellen Bolton against James Gilleran and others to set aside a contract for sewer construction made by defendants with the superintendent of streets for the city and county of San Francisco. Judgment for defendants, and plaintiff appeals. Reversed.

J. C. Bates, for appellant. Ash & Mathews, F. E. Spencer, C. T. Bird, and D. W. Burchard, for respondents.

HARRISON, J. The board of supervisors of the city and county of San Francisco passed a resolution of intention, June 1, 1891, to construct sewers in Fell street, and certain connecting streets, "according to plans and specifications prepared by Charles S. Tilton, city engineer." After an order for said improvement of the streets had been passed, the board of supervisors caused notice for sealed proposals to do the work to be given, and upon receiving bids therefor awarded the

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