tified, accompanied the prosecutrix and the appellant to the lodging house where the crime charged against the appellant was committed. The witness denied the statement of the prosecutrix, and professed only a slight acquaintance with her. On crossexamination she was asked, and over the objection of the appellant was compelled to answer, whether or not she had written a letter to the prosecutrix asking her to meet the witness and Katon at the Aberdeen Cemetery, and whether or not she had attempted to persuade the prosecutrix to leave Aberdeen with her. The first question she answered in the affirmative, and the second negatively. The ruling of the court is assigned as error on the authority of the case of State v. Belknap (Wash.) 87 Pac. 934. But that case is not authority for the contention here made. The questions put to the witness in the case at bar were pertinent to the inquiry. They tended to show the intimacy of the witness with the prosecutrix, that the witness had sought to bring the prosecutrix and the appellant together, and tended in some degree to corroborate the prosecutrix's evidence. In the case cited the questions held objectionable were wholly foreign to any issue in the case, and tended only to the degradation of the witnesses, without in any way aiding the jury. But cross-examination, to be permissible, need not always bear directly on the question at issue. The witness may be examined on matters foreign to the issue, when it reasonably tends to affect his or her credibility. For example, in State v. Coella, 3 Wash. 99, 28 Pac. 28, it was held error to refuse to permit a woman witness to be asked whether she was not a prostitute. The question what is and what is not an abuse of the privilege admits of no general answer. Each case must largely depend upon the circumstances which surround it, relegating the question in a large measure to the discretion of the trial court, to be reviewed only for an abuse of that discretion. In this instance, we have no hesitancy in saying the discretion was not abused.

The cross-examination of witnesses Millete and IIollingsworth was also proper. The questions complained of tended to discredit their positive statement made while testifying in chief, and as such were admissible even under the most strict application of the rule contended for by the appellant.

The part of the charge of the court complained of is not properly before us for review. The exception was a general exception to an entire paragraph containing several distinct propositions, each of which, with possibly one exception, was free from error. Such an exception, we have repeatedly held, is insufficient to bring the objectionable portion of the charge into this court for review, since it does not call the attention of the trial court to the particular part of the charge that is deemed erroneous. Galla

more v. Olympia, 34 Wash. 379, 75 Pac. 978, and cases there cited.

The judgment is affirmed.

HADLEY, C. J., and MOUNT and CROW, JJ., concur.

ROOT, J. I dissent. I do not think the law justifies sending a man to the penitentiary upon the testimony of a woman, who, upon oath, confesses to being unchaste and a perjurer concerning the very subject-matter in question. Aside from that of the prosecuting witness, there is no evidence of defendant's guilt. At the trial she testified that he was the father of her child. On the very day before, on the trial of another man for that identical offense, she testified that this defendant had never had sexual intercourse with her and was not the father of her child. A few weeks before, she had sworn that one W. was the father of her child. She also admitted upon the trial of defendant that she had told a lady friend with whom she was living that defendant was innocent. She admitted that she had been sexually intimate with at least one other man. She mentioned three persons besides the defendant as being present and knowing of her going to a room in a Hoquiam lodging house with defendant, where she says the offense occurred. Every one of these three, as well as the defendant himself, positively disputes her. She also admitted that, at the preliminary examination, she had sworn that she and another girl and defendant and another man had all four occupied the same room. Upon this trial she swore that this was not true, but that she and defendant were alone in a room all night sleeping together. Nobody corroborated her except as to one circumstance. Her sister and her sister's husband testified to seeing her and defendant walking along the street in Aberdeen toward Hoquiam. This brother-inlaw, who so corroborated her, was one of the men whom she upon a former occasion had sworn to be the father of her child. was tried and acquitted of the offense. said he had never seen this defendant before that night; that he was about a block away; that it was "rather dark," being about 9:30 in the evening; that he thought it was about the 1st of April, but did not know how he fixed the time. His wife fixed the time as 6. p. m. It was about three miles from Hoquiam. She had never seen defendant before. This evidence is far from convincing, and, even if true, would have little bearing upon the question of defendant's guilt. ing two girls and two men in a town on a street that, if followed, would lead to another town three or four miles distant, is not very positive evidence that one of the men committed rape on one of the girls in the other town that night. The baby was shown to the jury. It had blue eyes. The eyes of

He

He

See

defendant are brown, and those of the mother black. The prosecuting witness also admitted saying, a few hours before the trial, that, if she did not swear against defendant, her father would kick her out of the house. In explanation of her former testimony (that defendant was innocent), she said she had promised to shield him. She gave no reason as to why she should shield him, instead of her brother-in-law. She admitted that defendant had offered her no inducement. Said she met him by chance on the street after her baby was born, and after a former charge against him had been dismissed, and promised (at a time when no charge was pending) to shield him.

It is urged that, the jury having found the defendant guilty, and the trial court having refused a new trial, this court should not review the question. I do not think we can escape responsibility so easily. Subdivision 6 of section 6965, Ballinger's Ann. Codes & St., gives as a ground for granting a new trial the following: "When the verdict is contrary to law and evidence." This means that somebody must pass upon the question of whether the jury has returned a verdict "contrary to law and evidence." This duty devolves first upon the trial judge. If he denies the motion, his ruling can be assigned as error upon appeal. That assignment of error must then be examined by this court. It becomes our duty to say whether the ruling was error or not. To do so, we must examine and pass upon the evidence. The statute leaves us no other course. To be sure this court should be slow to reverse the action of a trial court in denying a new trial because of alleged insufficiency of evidence, and especially where the trial judge is of the ability and character of him who presided at this trial. But where this court is clearly convinced that the verdict is, in the language of the statute, "contrary to law and evidence," it is the duty of the court to set aside the verdict, thereby correcting the error of the trial court in not so doing. Above and beyond all technical considerations is the paramount and inflexible demand of our jurisprudence that every defendant shall be entitled to a fair trial and be convicted of crime only upon evidence showing his guilt beyond a reasonable doubt. How any court can say that this evidence shows this defendant to be guilty beyond any reasonable doubt, or hold that any jury might properly have so found, is more than I can understand.

The statute making it a felony for a man to have illicit sexual intercourse with a girl under 18 is a good law. It was intended to protect innocent, inexperienced, imprudent girls. It was not enacted for the benefit of "streetwalkers," nor as an encouragement to blackmailers. Every conviction like the one before us is calculated to bring this law into disrepute. A noted judge once said that rape was a hard charge to prove, and a much harder one to disprove. The latter portion

of this observation becomes especially pertinent if a conviction is to be sustained upon such testimony of a confessed perjurer as we find here. Few things militate against a good law more than an unjust, unreasonable, and offensive enforcement thereof in a manner whereby its spirit and purpose are sacrificed to its letter or form. Such a proceeding tends to discredit the statute and to defeat its usefulness and legitimate objects. I think the law and justice demand a reversal of the judgment in this case.

(46 Wash. 692) FORSTER et al. v. RAZNIK et al. (HOL LAND BANK, Intervener).

(Supreme Court of Washington. Aug. 2, 1907.) 1. MUNICIPAL CORPORATIONS-STREETS — OBSTRUCTION INJUNCTION-ESTOPPEL.

A strip of land, alleged to have been dedicated as an alley, was never used as such at any time, and defendants and their predecessors in interest for more than 20 years were in actual, open, and notorious possession of the same under color of title and claim of ownership. During this time it was assessed annually for taxes, with possibly one or two exceptions, and such taxes were paid, as were also special assessments levied against it, and a permanent building was erected thereon, all of which was without objection from plaintiffs or their predecessors in interest who were adjoining landowners. The city council at one time adopted a resolution reciting that, whereas there was some controversy concerning the matter, they thereby disclaimed all right to the same as a public alley, and, though subsequently assuming a different attitude, it did not open or use the strip as an alley. Held that, though mere adverse possession was insufficient to acquire title to a public alley, yet plaintiffs were estopped to question defendants' right to occupy the strip of land and to maintain an action to enjoin them from obstructing the same.

2. INJUNCTION-PARTIES - HIGHWAYS - OB

STRUCTION.

A mortgagee of a strip of land alleged to have been dedicated as an alley is a proper party, though possibly not a necessary one, to an action to enjoin the obstruction of the same.

Appeal from Superior Court, Spokane County; Henry L. Kennan, Judge.

Action by Minnie C. Forster and another against Hannah Raznik and others, in which the Holland Bank intervened. From a judgment for defendants, plaintiffs appeal. Affirmed.

Merritt, Oswald & Merritt, for appellants. Post, Avery & Higgins, for respondent Holland Bank. Robertson & Rosenhaupt, for respondents Hannah Raznik and others.

ROOT, J. This is an action to enjoin respondents, except the Holland Bank, intervener, from obstructing a strip of land claimed by appellants to be an alley, in the city of Spokane. The Holland Bank, claiming to have a mortgage covering said parcel of land, was permitted to intervene. The trial court found that this portion of land had been, in effect, originally dedicated as an alley, but that the appellants were estopped from maintaining this action. Where

upon a judgment of dismissal was entered, from which this appeal is prosecuted.

The parcel of land involved is 141⁄2 feet wide, and lies between, or marks the boundary of, two additions to said city, and if treated as an alley it would connect Riverside and Sprague avenues. It was the contention of respondents that this parcel of land was never intended as an alley or public way by those who platted the additions mentioned. They further contend that, even if it be held to have been dedicated as an alley when the plats were filed, nevertheless these appellants and their predecessors in interest have been guilty of such laches as to estop them from maintaining this action. The appellants, as owners of a lot abutting upon said parcel of ground, claim an easement therein and thereover as a public alley, and urge that the defense of respondents is in effect a claim of title by adverse possession, which cannot be asserted in and to a public street or alley, and rely especially in support of their contention upon West Seattle v. West Seattle, etc., Co., 38 Wash. 359, 80 Pac. 549, and Rapp v. Stratton, 41 Wash. 263, 83 Pac. 182. It appears that this strip of land was by the makers of the plat of one of these additions, some years after the filing of said plat, conveyed, or attempted to be conveyed, to Frank H. Graves, by warranty deed, in October, 1885, and after various mesne conveyances a deed thereof was made, by one of his successors in interest, to the respondents Raznik. The ground appears never to have been used at any time as an alley. In 1887 the city council of Spokane adopted a resolution reciting that, whereas there was some controversy concerning the matter, they were of the opinion that the city had no vested right in said ground, and thereby disclaimed all rights to the same as a public alley or highway. Subsequently the city appears to have assumed a different attitude, although it did not open or use the strip as an alley. It has been assessed annually, with possibly one or two exceptions, since 1885, by or for the city, and the taxes were always paid. Special assessments were also levied against it by the city for the improvement of Riverside avenue, Bernard street, and Sprague avenue; some of these having the effect of lessening the amount assessed upon appellants' property abutting thereupon. A building was erected thereon in 1887, and a permanent building in 1897. The defendants Raznik and their predecessors appear to have been for more than 20 years last past in the actual, open, and notorious possession under color of title and claim of ownership. Neither appellants nor their ancestors are shown to have objected to this possession, or to have made any protest against the improvement or occupation of said strip of land by said defendants and their grantors. There was evidence that, when these defendants constructed the permanent building re

ferred to, the west wall thereof was connected with the east wall of a building owned by these appellants or their predecessor in interest, by consent.

We think the judgment of the trial court was correct. As said by appellants, this court has decided that mere adverse possession is not sufficient to acquire title to an alley or public street. But in one of the cases referred to, that of West Seattle v. West Seattle, etc., Co., the court said: "We hold, on both principle and authority, that a municipality is not barred of its right to remove an obstruction from a public street by mere lapse of time. Some other element of estoppel must enter into the case. Mere lapse of time and the payment of personal taxes on the improvements are here relied on. These are insufficient." It would seem that this language clearly implies that a case might arise where an element of estoppel would prevent the occupant of an alley or street from being disturbed, and such is undoubtedly the law. In Northern Pacific Ry. Co. v. Ely, 25 Wash. 384, 65 Pac. 555, 54 L. R. A. 526, 87 Am. St. Rep. 766, it was said: "If the doctrine of estoppel can ever be invoked, it seems to us that it should be invoked in this case against the appellant. In any event, the question of protecting the rights of the government is not one which can be raised by the appellant. * The appellant should not be allowed to escape the consequences of its own wrongful acts, and reap a fraudulent benefit, by pleading the rights of the government. Indeed, our government is presumably founded upon equitable principles, not in theory alone, but in practice, and the citizen has a right to expect equitable treatment, even at the hands of the government; and it has been held that in good conscience the government is frequently estopped from asserting rights which would destroy the equitable rights of the citizen." The court cited State ex rel. Attorney General v. Janesville Water Power Co., 92 Wis. 496, 66 N. W. 512, 32 L. R. A. 391, and Commonwealth ex rel. Attorney General v. Bala & B. M. Turnpike Co., 153 Pa. 47, 25 Atl. 1105, in the latter of which cases it was said, in substance, that the question involved was not one under the statute of limitations, but of laches, which might be imputed to the state as well as to an individual-that while time did not run as against the state, yet the lapse of time, together with other elements, might work an estoppel, even as against the sovereign. In the case of Spokane Street Railway Co. v. Spokane Falls, 6 Wash. 521, 33 Pac. 1072, a case where a street railway, not having authority under its franchise so to do, had taken possession of, used, and made valusble improvements in certain streets, and occupied the same in the operation of its road for over two years, this court said: "A municipal corporation should not be permitted

to stand by and see large amounts of money invested in enterprises of this sort by persons who act under the mistaken view that they have legal authority. In this case the appellant had authority by ordinance to lay down a street railroad upon a number of streets. It mistook its rights and placed a part of its track in a place not designated in the ordinance. Technically, it had no right to put its track where it did, but *the municipal officers knew that the track was being laid on Division street, and no objection was made.

*

The general rule would, of course, be that franchises of this kind could not be acquired except by the action of the corporation, which must be taken by ordinance, but the statute in question does not prohibit the courts from declaring an estoppel against the city in other matters in the same manner that they would as against private persons." In the case of State ex rel. Grinsfelder v. Street Railway Co., 19 Wash. 518, 53 Pac. 719, 41 L. R. A. 515, 67 Am. St. Rep. 739, where a street railroad company had occupied certain streets in which it had operated its railway line for several years without a grant, privilege, or franchise from the city or county, it was stated that the city could not object to the further occupation of said streets by said company.

It is urged by the appellants that the occupation of this strip of land was an obstruction in a public alley, and consequently a nuisance and a constantly recurring nuisance, by reason of which respondents could gain no property rights whatever. If there had been no question as to the dedication of the strip of land, and it had been conceded at all times that the same was a public alley, there would be more force in this argument; but it appears that these defendants and their grantors had for many years regarded and treated it as if it were not an alley, and as if it had never been dedicated; and the action of the city council, whether valid or otherwise, in disclaiming any rights to the land as an alley, would tend to confirm them in the belief that it was their property, and not that of the public; and the silence of appellants and their predecessors in interest, while this parcel of land was being built upon, occupied, and used for so many years, would seem to be a strong indication that they had acquiesced in the belief that the strip was not a public alley. It would probably serve no good purpose to analyze the evidence in detail. We think, from a consideration of all of the evidence and admitted facts in the case, that the appellants ought not to be heard to question the right of defendants to occupy the strip of land involved herein.

As to the right of the Holland Bank to intervene, we think it was a proper, although possibly not a necessary, party. We see no error in the action of the trial court in permitting the bank to intervene.

The judgment of the superior court is affirmed.

FULLERTON, CROW, and MOUNT, JJ.,

concur.

(47 Wash. 8)

O'CONNELL v. MARVIN et al. (Supreme Court of Washington. Aug. 5, 1907.) PRINCIPAL AND AGENT — AGENCY DISTINGUISHED FROM OTHER RELATIONS.

Plaintiff purchased real property from another for his accommodation, giving him the privilege of reselling it at a net price to plaintiff. Plaintiff's vendor listed the property with defendants, real estate agents, who found a prospective purchaser and received as earnest money two drafts payable to themselves. Plaintiff, though willing to sell on the terms proposed, declined to execute a contract of sale unless a larger sum than was tendered him was paid as earnest money, whereupon the larger draft was indorsed to him by defendants; the sum tendered having equaled the amount of the other. Held, that defendants were not agents of plaintiff, and hence their act in indorsing the draft was not plaintiff's act, and, the same haying been dishonored, they were liable on their indorsement.

Appeal from Superior Court, King County; Boyd J. Tollman, Judge.

Action by William L. O'Connell against Charles E. Marvin and others, doing business as Charles E. Marvin & Sons Company. From a judgment for plaintiff, defendants appeal. Affirmed.

M'Bride, Stratton & Dalton, for appellants. Samuel Morrison, for respondent.

PER CURIAM. This is an action upon a bank draft. The draft in question was taken by the appellants in part payment of the purchase price of certain real property owned by the respondent, and which the appellants, who are real estate agents, held for sale. It appears from the record that in 1904 the property was owned by one Cummings. Cummings at that time was in need of money, and the respondent purchased the property of him at an agreed price for his accommodation, and at the same time gave Cummings the privilege of reselling it at a net price to the respondent of a fixed sum, agreeing to give him all that he could obtain for the property over and above the sum so fixed. Cummings listed the property with the appellants. In October, 1905, the appellants found a prospective purchaser in one A. J. Palmour, and received as earnest of the prospective sale his draft on Molson's Bank of Port Arthur, Ontario, for $100, and his draft on A. V. Palmour of the same place for $400; the latter draft being the draft in suit. Cummings was notified of the prospective sale by the appellants, and he in turn approached the respondent and asked him to enter into a written contract agreeing to sell the property on payment of the

purchase price on or before November 1, 1905, tendering him at the same time the appellants' check for $100. The respondent told Cummings that he was willing to sell on the terms proposed, but did not want to tie up the property until November 1st for such a smal sum, and unless a larger sum as earnest money could be paid he would not sign the contract. Cummings thereupon told him to call at the appellants' offices the next morning, when he thought the matter could be arranged. The respondent did call as requested, and after some negotiation the appellants agreed to indorse and turn over to him the $400 draft. The contract was thereupon signed and the draft delivered to the respondent. The respondent presented the draft to his banker, when it was discovered that it had not been indorsed by the appellants. He returned with it shortly thereafter to them, received their indorsement, and had it forwarded for collection. The drawee failed to honor the draft, and it was returned to the respondent, who thereupon called upon the appellants to make good their indorsement, and on their refusing to do so instituted this action.

The contract of sale above mentioned was as follows:

"Seattle, Wash., Oct. 3, '05. "Received from Chas. E. Marvin & Sons Co., for account of a client, four hundred dollars, as surety deposit payment made by them on purchase made by their client of seventeen (17) acres of land near the mouth of the Duwamish river and known as the 'E. M. Tatterson tract and particularly described as follows: Beginning at a point on the west line thereof, distant 21.38 rods south of the north line thereof; thence east 125.46 rods, more or less, to a point distant 24.54 rods from the east line of said southwest quarter; thence south 14° 22' east, 17.60 rods; thence south 39° east, 5.39 rods, to a point distant 16.75 rods west from the east line of said southwest quarter; thence west 133.25 rods, more or less, to the west line of said southwest quarter; thence north, along said west line, 21.37 rods, to the place of beginning. The purchase price of this property is thirty-seven hundred ($3,700) dollars to me, with a condition that any margin which you secure in selling this property above thirty-seven hundred dollars shall be the total brokerage allowed you for selling the property

"Payments: Four hundred ($400) Dft. the receipt of which is hereinabove acknowledged and thirty-three hundred dollars ($3,300) payable on or before November 1st, 1905; the object of the extension being to enable you to have the time till November 1st, 1905, to fully close up the deal if necessary. If not closed by this time the four hundred ($100) shall be forfeited, with the condition, if the title is not satisfactory and complete to your attorney, I will return the four hundred

dollars (400) received this day. Deed to be made as ordered. "W. L. O'Connell.

"Witness: M. J. Cummings."

The appellants contend that they are not liable on their indorsement for the reason that they were the respondent's agents, authorized by him to sell the property, and that when they did sell it and took the draft from the purchaser they took it as the respondent's property, and their indorsement was nothing more than a means of transferring the legal title to the respondent, being necessary because the draft was payable to them; and they cite cases maintaining the rule that an agent who takes negotiable paper in his own name and indorses the same to his principal is not liable thereon, unless it is expressly agreed or intended that he shall assume a personal liability. But we think this rule has no application here. The appellants were in no sense the agents of the respondent. They were not empowered to make contracts for him or in his name, nor did they bear to him any fiduciary relation whatever. On the contrary, they dealt with him at arm's length, and owed him only that duty that every man owes to another with whom he contracts, namely, to deal honestly and not overreach his co-contractor by fraud or deceit. appellants' act, therefore, in indorsing the check, was not the act of the respondent Did they indorse it, then, for the purpose of obligating themselves upon it? We think there can be no dispute upon this question. The indorsement was without limitation of any kind, and the draft was delivered as a payment to the respondent under a contract entered into between him and the appellants, to be returned by him only on condition that the title he had to the land, when called upon to make a deed, was not satisfactory to the appellant's attorney. There was no forfeiture under this condition. The draft, therefore, became the absolute property of the respondent, and he had the right to enforce it against the indorsers, as well as against the drawer.

The judgment is affirmed.

The

(47 Wash. 22) CITY OF SEATTLE v. PUGET SOUND IMP. CO.

(Supreme Court of Washington. Aug. 5, 1907.) INDEMNITY NEGLIGENCE RECOVERY AGAINST CITY-RECOVERY OVER BY CITY.

Where the owner of premises abutting on a street placed trap-doors in the sidewalk, and owing to the unsafe condition of the doors a pedestrian sustained injuries for which he recovered from the city, it was entitled to recover over against the owner of the premises.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Indemnity. §§ 30. 31.]

Appeal from Superior Court, King County; Geo. E. Morris, Judge,