of their lands. To remedy this difficulty, in a measure, the corporation constructed a reservoir at a point above where the plaintiffs' ditches take their water from the stream, and in a natural basin, which in the early times was called the "McIntosh Lake." This was an ancient slough known to the residents of that section in the very early 60's as an alkali slough. According to the description given of it by the witnesses, in the rainy season it contained considerable water, but towards the latter part of the summer it was nearly dry, and its surface became, apparently, one white mass of alkali. In the execution of their plans, the Highland Ditch Company built a dam across the lower part of the lake, and thereby flooded two or three hundred acres of land, and were able to put into the lake water to a depth of 10 or 15 feet. The opportunity to get this water was furnished by a contract which they had with another ditch company, and was apparently exercised at that season of the year when waters were high, and unused by other appropriators. After the dam was built, the company started to construct a drain ditch from the reservoir down to St. Vrain creek for the purpose of drawing off all the water in the lake, or substantially all of it, after it should have been filled, to flush it, and purify it by the removal of the alkalies, which would necessarily be absorbed, and held in solution, by the body of water with which the lake was filled. The plaintiffs filed their bill on the theory that the turning of this vast body of alkali water into the St. Vrain creek, which was the declared purpose of the ditch company, would so pollute the waters of the St. Vrain as to render them unfit for irrigation or domestic purposes. It will be observed that the water had never been turned into the creek, and that the ditch had not been constructed at the time the bill was filled. To sustain their action the plaintiffs showed, by chemical and professional testimony, as well as by the testimony of farmers, that the waters of the lake were impure, and held (according to some of the witnesses) nearly 200 grains of solid alkaline matter to the gallon, when 35 is the limit consistent with safety. They also offered proof concerning the digging of the ditch through the lower end of the slough, and the consequent appearance of alkali wherever the land was disturbed, and considerable proof showing that the whole country was thoroughly impregnated with these foreign and deleterious substances. On the other hand, there was evidence which tended to show that the flushing of the lake would purify the water, and do no permanent harm to other appropriators, and that the storage would be a very great benefit to the shareholders of the ditch, and bring a large quantity of land under cultivation. On the hearing the interlocutory injunction which had been granted was dissolved, and a decree entered dismissing the bill.

Under the well-established rule governing

appellate procedure, the judgment must be affirmed. There is no question that riparian owners and these prior appropriators of water are entitled to have the St. Vrain creek flow unimpaired in quantity and unpolluted in any permanent and unreasonable way. The law which entitles parties to preserve the purity of the streams whose waters are theirs by purchase or by appropriation is so thoroughly well settled that it can only be assumed the court found, upon the evidence, there was no proof which would establish a probable permanent injury to the complainants. It is quite true that the record furnishes a very strong basis for the opinion that the result may be otherwise. If the present judgment was conclusive of the question, and resulted in the permanent settlement of it against the rights of the complainants, this court might be disposed to review the case, and send it back for another hearing. We are always reluctant to disturb the findings of a lower court as to questions of fact, and do not concede this to be a case where necessity requires a departure from the ordinary rule. Before this time the drain ditch has been constructed, the reservoir has undoubtedly been flushed, and it is a matter probably susceptible of proof, to the satisfaction of a jury and of the court, as to what the actual result of the proceeding is. The parties undoubtedly have the right to bring what was formerly an action on the case to recover damages, or a right to file a bill, and restrain the company from using the reservoir, if they are able to satisfy the court that it is of a permanently injurious and wrongful character. Since this is true the judgment dismissing the bill will be affirmed, with costs, but without prejudice to the right of appellants to bring such action at law, or file such bill in equity, as they may be advised.

(6 Wash. 181) TOOTLE et al. v. FIRST NAT. BANK OF PORT ANGELES.

(Supreme Court of Washington. April 7, 1893.) BANKS-CONTRACTS BY OFFICERS ULTRA VIRES.

Where a bank receives property from a debtor worth $7,000 to pay its claim of $2,000, under an agreement by its officers out of the surplus to pay other creditors of the debtor, it cannot set up the defense of ultra vires in an action by a creditor to recover his share of the surplus. Hoyt, J., dissenting, on the ground that there was no evidence of such contract.

Appeal from superior court, Clallam county; James G. McClinton, Judge.

Action by Kate Tootie and others, partners under the firm name of Tootle, Hosea & Co., against the First National Bank of Port Angeles. The court nonsuited plaintiffs, and they appeal. Reversed.

The facts are as follows: The B. F. Schwartz Company, a corporation, was the proprietor of a mercantile establishment in the city of Port Angeles, Wash., separately

managed and conducted by it under the name and style of the Port Angeles Mercantile Company. On April 20, 1891, said mercantile company was indebted in a sum exceeding $7,000, included in which sum was its indebtedness to plaintiffs amounting to $759.38. Its stock of goods and other property was worth some $8,000. A portion of the indebtedness had been guarantied by the cashier of defendant, which was then, and is now, a national bank, on which guaranties the bank was being importuned. The affairs of the mercantile company were not prospering, and money was needed to pay its most pressing obligations in order to extricate the business, and put it in position to pay its debts. On that date the said Schwartz Company applied to defendant for a loan of $2,500 for that purpose. The defendant loaned the money to the Schwartz Company, and took therefor the two notes of one B. F. Schwartz, the president of the B. F. Schwartz Company; and to secure said notes said company, by its president and one I. Salhinger, as its secretary, conveyed the property of said mercantile company, by bill of sale, to said Schwartz, and said Schwartz, as a part of the same transaction, conveyed the same, by bill of sale, to defendant. It is admitted that the last bill of sale was given to secure said notes, but plaintiff's claim that it was intended simply as a mortgage, while defendant claims it was intended as a conditional sale, to become absolute, practically, at its option. The money loaned was left with the bank, and was paid out by it to certain creditors of the mercantile company, under Schwartz's direction. After these transfers Schwartz remained in possession and control of the property until about June 9, 1891, buying and selling goods, and applying the proceeds of the property to the payment of expenses and for goods, and disbursing the same by the check of the mercantile company, “per Schwartz," as before the sale. About that date, and before the notes matured, the bank notified him that he must pay the notes, and it thereupon applied on said notes the proceeds of the sales of said goods not disbursed, in the sum of about $400. Certain creditors of the mercantile company threatened to attach the property, and the bank proposed to all the creditors that it would take the property, and pay 50 cents on the dollar of all the claims against the company. Schwartz then turned over to the bank all of said property, on the promise of the bank, through one Gray, its president, in consideration therefor, to pay and settle all the debts of said mercantile company, amounting to about $7,000, including the claim of appellants, then due, of which claim the bank had notice; and the bank further promised to cancel and return said notes to Schwartz, on which about $2,000 was still to become due. The property so turned over Was worth about $7,000 or $7,500. The defend

ant canceled and returned said notes, and sold said property, but did not pay the debts, and now denies that it ever did owe the Schwartz Company. By reason of these acts the Schwartz Company was rendered insolvent. The claim of plaintiffs was not paid, and on September 2, 1891, in the superior court of Clallam county, plaintiffs recovered judgment against the Schwartz Company for the sum of $759.38, and for costs taxed at $28.95; and thereafter they issued execution, which, being unsatisfied, became the basis of proceedings supplemental under the Code, in behalf of plaintiffs and against defendant as debtor of the Schwartz Company, which resulted in the court's directing plaintiffs to sue defendant to recover its indebtedness to the Schwartz Company.

Ballinger & Ballinger, for appellants.

DUNBAR, C. J. We think there can be no question that the bill of sale of the property of the mercantile company was intended as a mortgage to secure the payment of the notes. This is apparent, both from the testimony and from the answer, and the only serious question in the case to consider is whether the bank is bound by the action of its officers in the transaction upon which this suit is based. This fact seems certain from the testimony, viz. that the bank has received property worth about $7,000, when its claim was only $2,000. It is not necessary to decide whether or not the contract was ultra vires, for it was not immoral, it was fully performed by the other party, and the bank received and retained the benefits, and in such a case the plea of ultra vires is unavailing. 2 Morse, Banks, (3d Ed.) § 740. "The doctrine of ultra vires as a defense has died so hard that it is well to repeat the proposition which seems to be fully established by the more recent decisions,that where a contract has in good faith been fully performed, either by the corporation or the other party, the one who thus has received the benefit will not be permitted to resist its enforcement by the plea of mere want of power. Time and again corporations have been held estopped to plead ultra vires to an action on the contract performed by the other parties, where the corporation has received the benefits, although clearly beyond its powers." 2 Beach, Priv. Corp. § 425. To the same effect is 2 Mor. Priv. Corp. (2d Ed.) § 6SS, and Green's Brice, Ultra Vires, p. 729, note a. The doctrine of ultra vires, when invoked for or against a corporation, should not be allowed to prevail where it would defeat the ends of justice or work a legal wrong. Railroad Co. v. McCarthy, 96 U. S. 258. This rule is so well established that it is the work of supererogation to quote authorities to sustain it. While it is not shown that the contract to pay this indebtedness was entered into by resolution of

the trustees of the bank, it does plainly appear to our minds from the testimony that the trustees were in consultation about the matter, and that the business was done in the bank through its president and cashier, the men who practically do the business of the bank; and, even if it did not authorize the transaction, it has indorsed it by receiving and appropriating the benefits flowing from the transaction, and it would be against conscience and right to allow it to repudiate the contract, and still retain the benefits. We think the plaintiffs made out a prima facie case, and were entitled to a judgment thereon, and that the court erred in sustaining defendant's motion for judgment. The judgment will therefore be reversed, and the cause remanded for a new trial in accordance with this opinion, with costs to appellants.

1. A city is not liable for the negligence of a fireman engaged in the line of duty.

2. Since the apparatus used by a fire company is not under the control of a city, the latter is not liable for its defective condition.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Mary Lawson against the city of Seattle for the death of her husband, Herman Lawson, who was employed by the city as a fireman. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

Tustin, Gearin & Crews, for appellant. George Donworth and James B. Howe, for respondent.

DUNBAR, C. J. We believe there are no authorities which support appellant's contention that a municipal corporation is liable for the negligence of firemen engaged in the line of their duty. The authorities cited by appellant certainly do not maintain this proposition, but on the contrary most of them assert exactly the opposite proposition, viz. the rule that a municipal corporation is not liable for the negligence of firemen engaged in the live of their duty. This is so plainly the well-established rule that it is

scarcely necessary to discuss it. See Dill. Mun. Corp. (4th Ed.) § 976, and cases cited. This is all the proposition that is discussed by the appellant, and is probably all the point that could be raised under the pleadings, for while the complaint alleges that the city furnished an unsuitable and defective frame or brace, known as a "dead man," for use in the work in which Lawson was engaged, yet it does not appear very clearly, if at all, that the defective dead man was the cause of the accident. But, conceding that it was so stated in the complaint, it is a well-known fact that the apparatus used by a fire company is not under the control of the city, and such city can therefore no more be held for the defective condition of the apparatus than it can for its negligent operation by the company. We think the demurrer to the complaint was properly sustained, and the judgment is therefore affirmed.

STILES, HOYT, and ANDERS, JJ., concur. SCOTT, J., concurs in the result.

(6 Wash. 298)

THOMPSON v. McDONALD. (Supreme Court of Washington. April 7, 1893.) DISMISSAL OF APPEAL-FAILURE TO FILE TRANSCRIPT.

An appeal will be dismissed on short record, and judgment affirmed, where the transcript is not filed within the time required by law, and no sufficient excuse for the failure so to do is shown.

Appeal from superior court, King county; R. Osborn, Judge.

Action by Louise Thompson against J. R. McDonald. Judgment for plaintiff. Defendant appeals. Dismissed.

White & Munday, for appellant. Winsor, Farwell & Simon, for respondent.

DUNBAR, C. J. Respondent brings here a short record, and moves the court to dismiss the appeal, and affirm the judgment, for the reason that the transcript has not been filed within the time required by law. The affidavit of the appellant utterly fails to show a sufficient reason for not complying with the provisions of law, and the motion will be granted to the extent of dismissing the appeal.

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

(6 Wash. 186),

STATE v. BILES. (Supreme Court of Washington. April 7, 1893.) CHALLENGE TO JUROR-SPECIFICATION OF GROUND -ARSON-PLEADING AND PROOF-VARIANCE.

1. In order to make a refusal to sustain a challenge to a juror for cause available for the reversal of the judgment, the ground of the challenge must be specified at the time, and it

is not sufficient to declare generally that a party objects to a juror "for cause."

2. An information for arson, which describes the property burned as 'a two-story wooden storehouse building," is sustained by proof that the building had two stories with no communication between them, and that the lower one, which was set on fire, was used as a storehouse, while the upper was used as a lodging house.

Appeal from superior court, Whatcom county; John R. Winn, Judge.

Frank E. Biles appeals from a conviction of arson. Affirmed.

J. C. McFadden and Fairchild & Rawson, for appellant. Thos. G. Newman, Pros. Atty., and W. C. Jones, Atty. Gen., for the State.

DUNBAR, C. J. This proceeding was upon an information filed by the prosecuting attorney, charging appellant with the crime of arson. The jury found the defendant guilty as charged. Motion for new trial was denied, judgment was entered, and the case appealed. The appellant alleges as errorFirst, error of the court in allowing evidence to be introduced upon the indictment amended, and not having been resworn to after such amendment; second, error of the court in the impaneling of the jury, duly excepted to; third, error of the court during the trial concerning the introduction of evidence; fourth, error of the court in refusing to instruct the jury to find a verdict for the defendant.

As to the first proposition, it is not necessary to discuss it, as the record does not show that any amendment was made. At the commencement of the trial the counsel for appellant objected to the introduction of testimony on the ground that an amendment had been made to the information. What the alleged amendment was does not appear. The court overruled the objection, and the case proceeded. Whether it was overruled because the amendment was permitted by the law, or because it was immaterial, or because there was no amendment, does not appear, and this court is therefore unable to determine from the record whether or not any error was committed.

So far as the second alleged error is concerned, we think, in consideration of the plain language used by the legislature in section 339, 2 Hill's Code, viz.: "If the ballots become exhausted before the jury is complete, or if, from any cause, a juror or jurors be excused before the jury is complete, or if, from any cause, a juror or jurors be excused or discharged, the sheriff, under the direction of the court, shall summon from the bystanders, citizens of the county, as many qualified persons as may be necessary to complete the jury,"-that the action of the court in this case was in strict compliance with the law, so far as the manner of selecting the jury was concerned. In regard to the ineligibility of the juror Daniels,

the challenge was the general challenge for cause, without specifying the cause; and, if it be conceded that the juror was ineligible, the grounds of ineligibility were not called to the attention of the court, and a defend ant cannot keep concealed from the court the ground of objection on which he relies, and spring it here for the first time. Although an examination was made of the ju ror in regard to his residence, the burden of appellant's objection had been to the manner of the selection, and when the appellant said, "We now challenge the juror for cause," the court answered, "If for the reason that Mr. Daniels was subpoenaed and summoned on a special venire to fill out the regular panel, I will deny the challenge, and allow you an exception." No reply was made by the appellant, and the jury was sworn in. It is very evident from the record that this is the only ground of challenge that was brought to the attention of the court, and appellant, not having objected on any other grounds, must be presumed to have waived any other objection. The ground of all challenges must be specifically stated. Thomp. Trials, § 98, and cases cited. The better rule, and that sustained by the weight of authority, is that, in order to make a refusal to allow a challenge for cause available for the reversal of the judgment, there must be a specification of the ground of the challenge. It is not sufficient to declare in general terms that the party objects to the juror, or that he challenges the juror. The cases upon this question are in conflict, but the rule we have stated is the only one that is sustained by principle, and is the only one that is sustained by decisions in analogous cases. Elliott, App. Proc. § 778. The adoption of the other rule would, in our opinion, encourage sharp practice, and tend to defeat the ends of justice, and we therefore adopt the rule announced above. Without further particularizing, we are convinced that no error was committed by the court in the selec tion of the jury.

Neither do we think that appellant's contention can be sustained that the building burned was not such a one as was described in the information. The description was "a two-story wooden storehouse building," and the proof shows that that was substantially what it was, notwithstanding the upper story had been used as a lodging house. It was a two-story building. The lower story, which was set on fire, was used for a storehouse. There was no communication between the two stories, but they were both under one roof, and as under the Penal Code a separate apartment may be a dwelling house, although the roof covering it also covers a storehouse, so the building in this instance is none the less a storehouse because the same roof protects a lodging house. Bish. St. Crimes, §§ 277-279. This building was sufficiently described to notify the defendant what building it was he was charged

with burning, and, when that requirement is met, the requirements of the law are met. The contention that this building was not subject to arson because it had previously been injured by fire is not in our opinion worthy of serious consideration.

So far as the question of ownership is concerned, at the common law, arson being an offense against the habitation, it necessarily followed that the building burned must be deemed the building of the person in possession; and notwithstanding the fact that our statute, as stated in McClaine v. Territory, 1 Wash. St. 345, 25 Pac. Rep. 453, has also incorporated in the statutes the idea of protection to property, yet the statutes provide in special terms that in the prosecution of cases solely affecting property, if it be proved on the trial that, at the time when the offense was committed, either the actual or constructive possession was in the person alleged to be the owner, it shall be sufficient, and shall not be deemed a variance. See 2 Hill's Code, § 1377. A thorough examination of the record fails, in our opinion, to discover any error. The judgment will therefore be affirmed.

Where the purchasers of land buy with knowledge that a tenant is in possession, and has a written contract with the vendor for a lease, they cannot offer to execute a lease containing terms not mentioned in the contract, but which, they contend, were a part of the agreement, and, on the tenant's refusal to accept such lease, maintain an action for forcible detainer, but their remedy is to have the contract reformed.

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

Ejectment by B. F. Roderick and Ellen W. Roderick against A. Swanson. Plaintiff's amended their complaint, and turned the action into one for forcible detainer. From the judgment, plaintiffs appeal. Affirmed.

J. E. Sligh, for appellants. Hartman & Tremper, for respondent.

STILES, J. This case represents one stage of a remarkable litigation. On the 5th of November, 1890, appellants bought a certain farm in Mason county of one Walter. Before the conveyance was made, they were fully acquainted by Walter with the fact that the premises were then in the possession of the respondent under an agreement made December 18, 1889, as follows: "William Walter agrees to rent his place to A. Swanson for three years, and A. Swanson agrees to pay, as rent, at the end of the first year,

or before, one hundred dollars, and at the end of the second year, or before, two hundred dollars, and at the end of the third year, or before, three hundred dollars. Possession will be given on or before February, 1890." (Signed, etc.) Appellants contend that both Swanson and Walter gave them to understand that only a portion of the foregoing agreement had been reduced to writing, but what the unwritten portion consisted of, or what terms were to be imposed upon either party, appellants are unable to show by any witness, although they argue with force and great length as to what it must have been. After their purchase of the premises, and before the first year of respondent's tenancy had expired, appellants endeavored to obtain from respondent some certain or written declaration or agreement to the effect that in addition to money rent he would make certain specific improvements upon the land, in the way of clearings, building fences, etc. In this they were unsuccessful, and the first year of the respondent's tenancy having ended February 1, 1891, they went to respondent, upon the premises, on the 9th day of that month, and offered to execute a lease to him of the unexpired two years, in accordance with their understanding of the agreement between Walter and him, which included the making of a certain amount of improvements each year in addition to the money rent. Respondent refused this offer, and, a few days later, appellants commenced an action to obtain the possession of the premises. This action, and two others of a like character, which were brought in April and June of the same year, were unsuccessful, each of them being terminated by the court sustaining a demurrer to the complaint. September 2, 1891, this action was brought, in the form of an ordinary action of ejectment, alleging the ownership of the property in the plaintiffs, and the wrongful detention of the same from their possession by the defendant. A trial by jury was had, and a verdict rendered for the defendant. The court granted a new trial, and gave plaintiffs leave to amend their complaint. This amended complaint, probably for the first time in the history of the cases, stated the facts, not with the view, however, to further litigation in an action of ejectment, but to a proceeding under the statute for unlawful detainer. This amended complaint, with a supplement thereto covering rent for the second year, and the amended prayer, which desired to take advantage of the act of the legislature concerning unlawful detainers, passed in 1891, were strenuously objected to by respondent, who, by his motion to strike, endeavored to remove them from the record. The court, however, required him to go to trial upon his answer subsequently filed, after denying the motion to strike. The result of this trial was a nonsuit entered by the court, but subsequently the court, on motion of the respondent himself,