gence was for the jury.-Wines v. Rio Grande
W. Ry. Co., (Utah,) 33 P. 1042.

11. Act March 13, 1890, (Sess. Laws 1890,
p. 78,) which renders railroad companies liable
for injuries to stock unless they fence their
roads and construct sufficient cattle guards
where such roads pass through lands "owned
and settled or occupied by private owners,'
requires such fencing and construction of
guards where the land in the vicinity of the
place where a horse is killed is settled
owned, and occupied by farmers, and forms a
portion of tracts which are under cultivation,
though not itself cultivated.-Stimpson v. Union
Pac. Ry. Co., (Utah,) 33 P. 369.

RAPE.

upon,

Description of offense, see "Indictment and In-
formation," 2.

Attempt to commit.

1. An ineffectual attempt to carnally and
unlawfully know a female under the age of 18
years, with or without her consent, is an at-
tempt to commit a rape, and may be punished
under the general statute providing for the pun-
ishment of attempts to commit offenses. In re
Lloyd, (Kan.) 33 P. 307.
Information.

RECORDS.

Of proceedings of adoption, see "Adoption,"
7, 8.
Record on appeal, see "Appeal," 33-44; "Crim-
inal Law," 55-58.
Amendment.

Where the clerk of the trial court,
through inadvertence, failed to enter on the
minutes the fact that the parties, by oral con-
sent, in open court, waived written findings, the
court properly directed that the minutes be cor-
rected and amended nunc pro tune as of the
day of the waiver, and denied a motion to set
aside the judgment on the alleged ground that
written findings had not been waived.-Sullivan
v. Hume, (Cal.) 33 P. 1121.

REFERENCE.

When granted.

1. In an action at law to recover part of
the price of goods sold and delivered, the court
has no authority, except by agreement of the
parties, to refer the cause to a referee to state
an account between the parties, and report a
judgment and findings in said cause.-Joshua
Hendy Mach. Works v. Pacific Cable Const.
Co., (Cal.) 33 P. 1084.

Waiver of objections to reference.

2. Though a court make an order of ref-
2. An information for rape need not al-erence to take testimony without consent of the
lege that defendant was a male, or over the parties, which it was authorized to make only
age of 14 years, or, if under that age, that he with their consent, still, they having appeared
possessed physical ability, as required by Pen. before the referee without objection, and never
Code, § 262, to commit the offense, since defend- having objected to the order before appeal was
ant's want of ability to commit the crime is taken to the supreme court, objection will be
a matter of defense.-People v. Wessel. (Cal.) held to have been waived to the reference.-
33 P. 216.
Shain v. Petersen, (Cal.) 33 P. 1085.

Instruction.

3. An erroneous order, referring issues to a
referee without the consent of the parties, is
not a ground for reversal, if no exception was
reserved thereto.-Joshua Hendy Mach. Works
v. Pacific Cable Const. Co., (Cal.) 33 P. 1084.

3. An instruction that, "while it is the law
that the testimony of the prosecutrix should be
carefully scanned, still this does not mean that
such evidence is never sufficient to convict; and
if you believe the prosecutrix it is your duty to
render a verdict accordingly."-is not equivalent
to telling the jury that they should convict if Of contracts, see "Equity," 1-3.
they believe the prosecutrix, regardless of
whether her testimony is sufficient to establish
the offense, but only means that the offense

Reformation.

Refreshing Memory.

may be proven by the testimony of the pros- See "Witness," 2.
ecutrix.-People v. Wessel, (Cal.) 33 P. 216.

Registration.

Of voters, see "Elections and Voters," 3.

Regulation of Commerce.

See "Constitutional Law," 9.

RELEASE AND DISCHARGE.

See, also, "Accord and Satisfaction;" "Pay-
ment."

Of guarantor, see "Guaranty," 2.

Of mechanic's lien, see "Mechanics' Liens," 12,
13.

Of sureties, see "Principal and Surety."
Of mortgage, see "Mortgages," 10.
Setting aside for fraud or mistake.

1. A release will not be set aside on the
ground of fraud without the strongest proof.-
Pederson v. Seattle Consolidated St. Ry. Co.,
(Wash.) 33 P. 351.

2. A release of all claims for personal inju
ries will not be set aside, on the grounds of
fraud and mistake, where it appears that plain-
tiff, after the injuries, was kept for six months
in a hospital at defendant's expense; that while
there he signed the release, which three wit-
nesses testify was read and explained to him.-
though he testifies that he thought he was sign-
ing some hospital regulation; that the paper

ing his hospital expenses.-Pederson v. Seattle On appeal, see "Appeal," 47-81; "Criminal
Consolidated St. Ry. Co., (Wash.) 33 P. 351.

days before the commencement of the action See "Waters and Water Courses."
is insufficient, in that it must show such facts
to exist at the time the action is commenced.-
Fredericks v. Tracy, (Cal.) 33 P. 750.

Of contract to sell land, see "Vendor and Pur- complete the sale, in case plaintiff should ac-
chaser," 4-7.

As to wrongful attachment, see "Attachment," it was received, did not affect the agreement.-

Delivery of order to agent-Revocation. date of this letter, at $30 per share." Within
4. An order for goods to a manufacturer, the two years, plaintiff told defendant he want-
given to his agent, to be forwarded to him, until ed the stock. Held, that the written offer to
it is accepted and notice of acceptance given plaintiff, and the latter's statement to defend-
the maker, does not constitute a contract of ant, constituted an agreement to sell and buy.
sale, or for the manufacture of the goods, so as containing concurrent conditions, mutually de-
to prevent the maker from revoking it.-Har- pendent on each other.-Hanson v. Slaven,
vey v. Duffey, (Cal.) 33 P. 897.
(Cal.) 33 P. 266.

5. A letter from a manufacturer to his
agent, acknowledging receipt of an order for
goods, does not constitute an acceptance, where
no notice thereof is given the maker of the or-
der before he revokes it.-Harvey v. Duffey,
(Cal.) 33 P. 897.

6. Defendants ordered goods from plaintiff
through its agent, having reference to its cata-
logue, stating that it kept the goods in stock.
The agent testified that the goods were to be
manufactured, but defendants claimed that they
thought they were already manufactured, and
dealt solely with reference to a contract of
sale, and that no mention was made of neces-
sity for manufacture. Held, that there was no
contract for manufacture of the goods, so as to
prevent defendants from countermanding the
order before shipment. - Harvey v. Duffey,
(Cal.) 33 P. 897.

Action for price.

14. Where defendant had agreed to sell to
plaintiff certain stock on demand, a direction
by defendant, to his agent, to tell plaintiff
"that he will get his stock. Our stock is all
free, I will give him his stock,"-did not con-
hypothecated,-tied up. As soon as we are
stitute such refusal to deliver the stock as will
excuse the failure of plaintiff to offer to per-
form on his part, where neither party regarded
it as a refusal at the time.-Hanson v. Slaven,
(Cal.) 33 P. 266.

15. Defendant had agreed to sell plaintiff
certain stock on demand, at a fixed price.
Plaintiff demanded the stock, but made no
tender of payment. Defendant replied that
his stock. It appeared that at the time large
his stock was pledged, and that he would get
few; and that an offer of the agreed price per
amounts of it were for sale; that buyers were
share would have secured to defendant any.
reasonable amount of it. Held, in an action
7 It is no ground of demurrer to a com-
for failure to deliver, that, though defendant's
plaint, in an action for wheat sold and deliv- stock was pledged, the evidence was insuffi-
ered, alleging sale by sample of a certain cient to support a finding that defendant had
amount of wheat to be delivered in a certain placed it out of his power to deliver the stock.
time, that it avers a delivery of a greater-Hanson v. Slaven, (Cal.) 33 P. 266.
16. Where a
amount, and that part of it was not delivered
purchaser retains the article
within the time specified, where it is further without any offer to rescind, and does not
averred that defendant's agent, through whom plead failure of consideration in an action on
it was delivered to defendant, accepted it for the purchase-money notes, he cannot set up, as
him and pursuant to his orders.-Bedel v. Ko- a defense to such action, fraudulent representa-
walsky, (Cal.) 33 P. 904.
tions by the seller in making the sale.-Toby v.
Oregon Pac. R. Co., (Cal.) 33 P. 550.
Conditional sales.

- Evidence.

8. In an action to recover the contract
price of saw logs, where the cause of action
had accrued at the time the action was com-
menced, it was error to allow plaintiffs to prove
the subsequent rescission of the contract by de-
fendant.-Johnson v. Hamilton, (Or.) 33 P.

571.

9. In an action for an agreed price, evi-
dence of the value of the goods is irrelevant.
Sanborn v. Cunningham, (Cal.) 33 P. 894.

10. In an action to recover the contract
price of saw logs, where logs had been de-
livered prior to the contract, and afterwards
payments were made without special applica-
tion, or without either party being able to say
how much was for work under the contract,
and how much was for previous work, it was
error for the court to withdraw from the jury
all evidence in regard to payments not made
directly under the contract.-Johnson v. Hamil-
ton, (Or.) 33 P. 571.

11. In an action to recover the contract
price of saw logs, which were to be "suitable
and usual" for defendant's mill, and the "com-
mercial purposes" thereof, it is not error to
refuse to allow defendant to cross-examine as
to the lengths of logs delivered, in order to
show their unsuitableness, etc., nor as to the
meaning of the terms quoted, unless the terms
are shown to have a local or peculiar signifi-
cance, or the witness is qualified to testify on
the subject.-Johnson v. Hamilton, (Or.) 33 P.
571.

Buyer's rights and remedies.

12. A rescission of a sale, on the ground of
fraud, 4 months after the fraud was discov-
ered, is not, in the absence of excuse for the
delay, the prompt action required by Civil Code,
1691, to justify a rescission.-Gamble v.
Tripp, (Cal.) 33 P. 851.

13. In a letter to plaintiff, defendant and
another agreed to take 2,000 shares of stock
of a specified corporation. subscribed by the
former, and granted him "the privilege of call-
ing for all or any part of said 2.000 shares, at
any time during the next two years from the

17. Where a person buys personal property
under a written contract that he will hold it
in trust for the seller until the latter be fully
paid, and that, if any sales are made, he will
hold the proceeds in trust for the seller, and
subsequently the buyer, without the consent of
the seller, gives a chattel mortgage on the
property to another to secure a prior debt, the
seller may recover the property from the mort-
gee-Standard Imp. Co. v. Parlin, (Kan.) 33
P. 360.

Satisfaction.

See "Accord and Satisfaction;" "Payment:"
"Release and Discharge."
Of mortgage, see "Mortgages," 10.

SCHOOLS AND SCHOOL DIS-
TRICTS.

Issue of bonds, see "Municipal Corporations,"
70-72.
Removal of Officers, see "Office and Officer," 1.
School lands, see "Public Lands," 17-21.
Division of district-Incorporation of
city.

1. Under Pol. Code, § 1576, providing that
each city or incorporated town, unless sub-
divided by the legislative authority thereof,
shall form a school district, by the incorpora-
tion of a portion of a school district as a city
or town, all that portion of the district within
the exterior boundaries of the city or town is
School Dist. v. Linscott, (Cal.) 33 P. 781.
withdrawn from the district.-Bay View
Issuance of bonds.

2. Under chapter 196, Sess. Laws 1891,
upon proper proceedings being had therefor, and
after a vote of a majority of the qualified elect•"
ors of the city in favor of such a proposition,
a board of education may issue bonds in ae-
cordance with the provisions of such chapter
to purchase a site and erect a high-school build-

ing.-Board of Education of Topeka v. Welch,
(Kan.) 33 P. 654.

Service of Process.

SET-OFF AND COUNTER-
CLAIM.

3. As the territory controlled by the board See "Writs," 3-5.
of education of the city of Topeka for school
purposes embraces the same territory as the
corporation of the city of Topeka, the mayor
and council of the city, under the ordinances
of the city providing for canvassing the re
turns of all special and general elections held
within the city, have power to canvass the re-
turns of a special election held under the pro-
visions of chapter 196, Sess. Laws 1891, to
issue bonds to purchase a school site or build
a school building within the city.-Board of
Education of Topeka v. Welch, (Kan.) 33 P.

654.

Enforcement of material man's lien
against district.

4. Where no bond from contractors condi-
tioned to pay laborers, etc., as required by Laws
1887-88, c. 12, is taken, and an action is brought
against the contractor, the statute does not
require the school district to be made a party
thereto, and a judgment in such action is not
a bar to an action against the school district.
Pacific Manuf'g Co. v. School Dist. No. 7, King
County, (Wash.) 33 P. 68.

When allowable.

ered, defendant cannot set up a counterclaim
1. In an action for goods sold and deliv-
for damages arising from an excessive levy un-
der a writ of attachment issued therein.-Es-
bensen v. Hover, (Colo. App.) 33 P. 1008.
Pleading and evidence.

2. In an action for services as an attorney
between certain dates, a finding of damages for
defendant because of negligent advice given de-
fendant at a time prior thereto must be disre-
garded, such negligence not having been pleaded.
Perkins v. West Coast Lumber Co., (Cal.) 33

P. 1118.

3 In an action for goods sold and deliv-
ered, the allegation of a counterclaim of $1,700
for 171,000 bricks sold and delivered by defend-
ant to plaintiff, no part of which has been paid,
states sufficient facts to support a judgment
Supervision of instruction-Power of for defendant.-Valley Lumber Co. v. Wood,
city boards.
(Cal.) 33 P. 343.
5. The boards of education of cities of the
first class are vested with discretion to deter-
mine what rules and regulations may best pro-
mote the interest of the schools, and what
branches shall be taught, other than those ex-
pressly prescribed by the statute for all school
districts, and the courts will not interfere with
such decision unless there has been such an
abuse of their discretion as works palpable in-
justice or injury.-Board of Education of To-
peka v. Welch, (Kan.) 33 P. 654.

6. The boards of education of cities of the
first class have the power to establish and
maintain various grades or departments in city
public schools, including a high-school grade or
department.-Board of Education of Topeka v.
Welch, (Kan.) 33 P. 654.

Taxation.

7. The power to assess a special tax in
school districts of the third class being vested
by Gen. St. §§ 3036, 3057, 3058, as amended
by Acts 1887, p. 398, § 29, in the electors, an
assessment by directors is unauthorized, and
a levy thereon void.-Board Com'rs Prowers
County v. Pueblo & A. V. R. Co., (Colo, App.)
33 P. 682.

School fund.

8. Where a portion of a school district is
incorporated as a city or town, the fact that
the trustees of the district continue to main-
tain, as before, for the benefit of the children
of their district, a school within the territory
Included in the city or town, does not entitle
such district to a portion of the school fund of
the county, in the absence of any school in the
portion of the district not included in such
newly incorporated city or town.-Bay View
School Dist. v. Linscott, (Cal.) 33 P. 781.

9. Laws 1887-88, c. 12, (1 Hill's Code,
2415,) requiring municipal corporations (con

4. In an action to which defendant pleaded
a counterclaim for brick alleged to have been
delivered to plaintiff corporation, the evidence
was undisputed that the bricks mentioned in the
answer were to be used in a certain building
in which plaintiff had no interest. The con-
tractor for the erection of the building testi-
fied that he ordered the bricks from defendant,
while defendant testified that they were ordered
by a member of an agency who were managing
agents for plaintiff corporation, but there was
action through the agency. Hell, that the evi-
no evidence to connect plaintiff with this trans-
dence did not justify a verdict for defendant
on the counterclaim.-Valley Lumber Co. v.
Wood, (Cal.) 33 P. 343.

SHERIFFS AND CONSTABLES.
Compensation.

Act,) § 201, subd. 14, provides that constables
St. 1889, p. 297, (County Government
in counties of the thirty-ninth class shall receive
"such fees as are now or may hereafter be al-
lowed by law, except that the constable's mile-
age shall not exceed 25 cents for each mile trav-
eled in going only, in the discharge of the du
ties of his office."
the law in force when the county government
Under St. 1869-70, p. 148,
act was passed, constables were entitled to 30
cents per mile for the distance traveled for the

purpose of arresting a prisoner, and also for
conveying him to the magistrate or to jail after
the arrest. Held, that the only change in the
later act was to reduce their mileage from 30
compensation of constables intended by the
cents to 25 cents per mile.-Nelson v. Breen,
(Cal.) 33 P. 85.

strued to include school districts) to take a
bond from contractors, conditioned to pay la-
borers, mechanics, etc., is not in conflict with
Const. art. 9, § 2, which provides for a gen;
eral and uniform system of public schools, and
the application of the revenue derived from the
common-school fund.-Pacific Manuf'g Co. v.
School Dist. No. 7, King County, (Wash.) 33 Of debt, see "Garnishment."
P. 68.

See "Homicide," 2-5.

Self-Defense.

Sentence.

See "Criminal Law," 49-51.

Situs.

Special Judge.

See "Judge," 3.

Special Legislation.

See "Constitutional Law," 2-5

2. A contract by which an old woman, in
apparent good health, and having the expect-
ancy of many years of life, agrees to leave all of cause of action, see "Action," 5.
her property, worth about $5.000, to a 16 year
old girl, in consideration of the latter's promise
to live with and take care of her as long as she
lives, is not void for want of mutuality and
fairness; and after her death the contract will See "Alteration of Instruments," 1

be specifically enforced in favor of the girl, who
performed her part of the agreement, though
the woman died within three or four months

after the execution of the contract.-Brinton Exercise of judicial power, see "Constitutional
v. Van Cott, (Utah,) 33 P. 218.

4. A part of the fund provided by Sess.
Laws 1893, c. 7, for the building of an addi-
tional wing to the state normal school may be
used to procure and pay for the necessary
Prior refusal of performance by com- ground on which such building is to be erected.
plainant.

6. Where a person who contracts to buy
5. Const. art. 3, § 35, provides that, "ex-
land refuses to accept a warranty deed when cept for interest on [the] public debt, money
tendered, on account of an alleged defect in the shall be paid out of the treasury only on ap-
title, he cannot subsequently, while the al-propriations made by the legislature." Article
leged defect still exists, maintain an action
for specific performance on a demand and a re-
fusal to convey.-Goldthait v. Lynch, (Utah,)