by the companies the court was to determine them, and that it did not have to declare a necessity for a crossing at a particular point desired by the new road where it would greatly injure the senior road, and near by which the new road could pass without such injury, and with merely an additional expense to the new road. Seattle & M. Ry. Co. v. State, (Wash.) 34 P. 551. Taxation Exemption on paying percentage of gross earnings. accident at a crossing, unless that be the proimate cause of the injury, and there be no such negligence on the part of the person jured as to prevent his recovery.-Chicago, R I. & P. R. Co. v. Crisman, (Colo. Sup.) 34 P. 286. Contributory negligence. 12. Where the view of the track from the highway is obstructed, or the crossing is in other respects especially dangerous, it is the duty of a traveler, aware of such facts, to 1 5. Act Wash. T. Nov. 28, 1883, (Laws ercise a higher degree of care than when the Wash. 1883, p. 64,) known as the "Gross Earn-wise satisfy himself that it is prudent to cross view is unobstructed; and if he cannot other ings Law," which provided for the taxation of he must stop and listen before driving on the the gross earnings in lieu of any and all other track.-Chicago, R. I. & P. R. Co. v. Crisman, taxes upon any railroad or upon the equipment, appurtenances, or appendages there- (Colo. Sup.) 34 P. 286. of, or upon any other property situated in this territory, belonging to the corporation owning or operating such railroad," did not limit the exemption from taxation to property actually used in the operation of railroads, but exempted all property of such corporations.-Columbia & P. S. R. Co. v. Chilberg, (Wash.) 34 P. 163. Liability for negligence Of consoli dated company. 6. Where two or more railroad companies are consolidated under the statutes of the state, the new or consolidated company is answerable for the obligations of the old companies, including torts, in the absence of any evidence or stipulations to the contrary.-Berry v. Kansas City, Ft. S. & M. R. Co., (Kan.) 34 P. 805. Injury to trespasser on cars. 7. Where plaintiff was injured through the gross negligence of defendant's trainmen, who had knowledge that he was on the train, defendant is liable for the injury, even if the plaintiff was a trespasser.-Everett v. Oregon S. L. & U. N. Ry. Co., (Utah,) 34 P. 289. Statutory provisions-Rate of speed. 8. The mere fact that a train which caused an injury to a person on the track was running at a speed prohibited by an ordinance, which merely prescribed a penalty for its violation, is not, per se, conclusive proof of negligence, rendering the railroad company liable, but such violation must have been the proximate cause of the injury; and whether the company is liable is for the jury, and not the court, to say.-Beck v. Portland & V. Ry. Co., (Or.) 34 P. 753. Accidents at crossings. 9. Defendant, having a contract to build a length of sea wall, was hauling sand for filling, in a train of cars on a temporary track along the water front, said train making about 20 trips a day. Subcontractors were hauling stone and other material in large quantities by team on a road crossing over said track. Held, that a charge that said crossing was not a highway crossing was irrelevant on the question of defendant's liability for injuries to one of the teamsters.-Carraher v. San Francisco Bridge Co., (Cal.) 34 P. 828. 10. The complaint in an action against a railroad company alleged that the driver of a horse car in which plaintiff was a passenger, on approaching a crossing of defendant's track, observed an engine standing on the track within 25 feet of the crossing, whereupon he stopped the car; that, after ascertaining that the engine was not in motion, he started to cross the track; that when he was very near it the engineer of defendant's engine negligently commenced to back it towards the car, whereupon the passengers, including plaintiff, observing that a collision was imminent, jumped from the car, and that in so doing plaintiff, though using due care, was injured. Held, that the complaint stated a cause of action.-Stephenson v. Southern Pac. Co., (Cal.) 34 P. 618. 11. Failure to ring the bell or blow the whistle at a crossing, as required by law, does not render a railroad company liable for an road company does not excuse negligence a 13. Gross negligence on the part of the railthe part of one injured at a railroad crossing -Chicago, R. I. & P. R. Co. v. Nuney, (Cola Sup.) 34 P. 288. 14. Failure to give the statutory signak or running the train at a too rapid rate of speed, does not excuse negligence on the past of one injured on a railroad crossing.-Chi-are, R. I. & P. R. Co. v. Crisman, (Colo. Sup.) 34 P. 286. Injuries to persons on track-Contributory negligence. 15. In an action for injuries from being struck by a train while walking along a ral road track in a cut in a street with an embarkment on each side, an instruction that it is the duty of men walking on the track, on discovering the approach of a train, to leave the track. if possible, and it is negligence if they fail to do so; that, if plaintiff knew the train was ap proaching, and could have gotten away from even by throwing himself prostrate on the e bankment, and failed to use such means of selfpreservation as were obvious and were at hand. he was negligent,-is not erroneous, where there is evidence to warrant it -Beck v. Portland & V. Ry. Co., (Or.) 34 P. 753. 16. Nor is it error, in such case, after eridence that there was another road which plaintiff could have chosen, to charge that am cannot go deliberately, and with his eyes open. into danger, and then complain of another that he is injured; that it is his duty to use all or dinary means for self-preservation, and if he fails to do that,-if there is a choice of ways for him to pass, one safe and the other dangerous. and. with knowledge of the situation, he takes the latter, he must abide the consequencesBeck v. Portland & V. Ry. Co., (Or.) 34 P. 753 Stock-killing cases. 17. Plaintiff's son testified that he was on foot, driving the stock killed on the road crossing defendant's railroad; that when the stock were struck he was behind them, 300 yards from the crossing. It appeared that the tra was going fast. Held, that the evidence did not support a finding that the engineer's fail ure to whistle 80 rods from the crossing party caused the accident.-Atchison, T. & S. F. R Co. v. Bell, (Kan.) 34 P. 350. Fires. 18. Act Jan. 8, 1891, requiring railroad com panies, between September 1st and November 1st in every year, to burn the vegetation on their right of way as a guard against fire, and making them liable for damage resulting from failure to do so, does not authorize a recovery for fire occurring October 20, 1891. - Uni Pac. Ry. Co. v. Gilland, (Wyo.) 34 P. 953. 19. It is not per se negligence for a railway company to permit combustible material, such as "stalks, grass, grain, or stubble," to grow or remain on its right of way in consid erable quantities.-Union Pac. Ry. Co. v. Gi land, (Wyo.) 34 P. 953. 20. Under Act March 31, 1887, making railroad companies liable for loss from fire started by their engines, no negligence on the part of the prosecution showed that before the in- one whose property is destroyed is to be consid-| trict attorney unknown," and the evidence for Ratification. See "Principal and Agent," 5-7. Real-Estate Agents. See "Factors and Brokers." RECEIVERS. Estoppel to object to appointment, see "Estop- Appointment. See "Bail." Recognizance. Records. Correcting journal entry of conviction, see Estoppel by, see "Estoppel," 3, 4. On appeal, see "Appeal," 27-47. Right to have deed recorded, see "Constitu- Redemption. From execution sale, see “Execution," 6. Regents, Board of. 1. Although, under the statute, the pur- Of contracts, see "Equity," 3, 4. RELEASE AND DISCHARGE. 3. Where one has attached property the Liability for losses. 4. Where goods, under an order of the 5. A consent order for the appointment of RECEIVING STOLEN GOODS. 1. A subcontractor assigned to a creditor Fraud or mistake. ac- 2. In an action against a steamship com- 84. Scope of release. 3. A receipt for money, recited to be "in Pleading release-Necessity. Retrospective Laws. 4. A release of a cause of action is not available unless it is specially pleaded.-Grun- See "Constitutional Law," 11. wald v. Freese, (Cal.) 34 P. 73. Religious Societies. Disposition of property, res judicata, see "Judgment," 19. Escheat of property, see "Escheat." Remedy at Law. See "Equity," 1; "Injunction," 1, 2; "Specific Remittitur. See "Appeal," 98. Removal. Of officers, see "Office and Officer," 2-5. Repeal. Of statutes, see "Statutes," 14. REPLEVIN. Demand-When necessary. 1. Where the defense in replevin is founded on title in a defendant, and the right of possession incident thereto, it is not necessary to prove demand and refusal.-Greenawalt v. Wilson, (Kan.) 34 P. 403. Damages. Return. Of writ, see "Writs," 2-4. Revenue. See "Taxation." Review. On appeal, see "Appeal," 53-88; "Criminal REVIEW, WRIT OF. Extent of review. 1. A finding by the board of equalizatios that a person has omitted taxable property from his list to a certain amount is concise on the courts on writ of review, since Code Civil Proc. § 1074, provides that the review a such writ cannot be extended further than determine whether the inferior tribuna! r board has regularly pursued its authority-S curity Sav. Bank & Trust Co. v. Board Sep's Los Angeles County, (Cal.) 34 P. 437; Main Street Sav. Bank & Trust Co. v. Same, Id Los Angeles Sav. Bank v. Same, Id. 2. Even if the fact that property has be so omitted is necessary to give the board june diction, the court cannot review the eviden to determine whether there was evidesce show such fact, since the fact is one to be d termined by the board.-Security Sav. Bank Trust Co. v. Board Sup'rs Los Angeles County (Cal.) 34 P. 437; Main Street Sav. Back Trust Co. v. Same, Id.; Los Angeles Sav. But v. Same, Id. Revival. 2. In an action by a farmer to recover possession of horses, wagon, and harness, and for damages for their wrongful detention, a charge that the measure of damages is "the value of the use or hire of the property while in possession of defendant from the time of demand" is prejudicial to defendant when unaccompanied by considerations of whether the property could have been constantly employed Of judgment after satisfaction, see “Judgment,” by plaintiff at a given rate of earnings, either by letting for hire or by employment at home, and whether the gross earnings would have been diminished by expense for feeding and care.-Brunell v. Cook, (Mont.) 34 P. 1015. Right to maintain, see "Waters and Water See "Waters and Water Courses." Of cities, see "Municipal Corporations," 10-15. stolen property shortly after the crime, and Resulting Trusts. See "Trusts," 4-6. Retraxit. See "Judgment," 16. their failure to account for such possession, are circumstances to show their guilt, and that they were bound to explain the possession to remove its effect, is not error where the court has also charged that such possession is not of itself sufficient to warrant a conviction, but merely a circumstance to show guilt.-People v. Etting, (Cal.) 34 P. 237. SALE. See, also, "Vendor and Purchaser;" "Fraudu- Change of possession, see "Fraudulent Convey-der to transfer goods shipped to him from the levy, was presented with a bill for freight and On execution, see "Execution," 4, 5. 1. A change in possession of barrels of Revesting title in seller-What is nec- charges from the sheriff in possession, who Action for price. 9. A complaint alleging the sale to defend- 2. Where one who has sold and delivered 8. Even if this could be held a mere re -- -Warranty. 4. The fact that a contract for the sale of 5. Where the contract for the sale of a 6. The fact that part of a lot of potatoes 11. In an action for the price of a threshing 12. In an action for breach of a contract of 13. Statements by the owner of a mining 14. A statement that he and other lessors 15. A false statement that the mine was 271. 7. The vendee of a chattel cannot recover 16. Where there are grounds for rescission Stoppage in transit. 8. A merchant, having become insolvent, Sanitary Districts. and lost possession of his stock of goods by Police power, see "Constitutional Law," 22. to Satisfaction. SCHOOLS AND SCHOOL DIS- School lands, see "Public Lands," 7-11. A school district is a municipal corporation, within the meaning of Const. art. 16, § 5, which directs that the permanent school fund "may be invested in national, state, county or municipal bonds.' Hoyt, J., dissenting.-State . Grimes, (Wash.) 34 P. 836. Compensation. to no commission thereon.-Board of Educati 1. Laws 1891, c. 9, §§ 1, 3, provide for de See "Compromise;" "Payment;" "Release and issuance of a liquor license by certain of th Discharge." county or city officials on payment by the y plicant therefor of the fee to the county thes urer to be credited to the school fund. Cos Laws 1884, §§ 2903, 2904, provide for asse ment of license fees and collection by the iff. Held that, under the Laws of 1891, there is no provision for the collection of the dos fee by any person, and, where the sherif ro untarily collects the license fee, he is entita of Socorro v. Robinson, (N. M.) 34 P. 25. 159,) § 9, relating to sheriff's fees, provides 2. Act March 5, 1870, (St. 1869-70, p that the sheriff is entitled to receive, every mile necessarily traveled in going cy in executing any warrant of arrest, or for mileage in any criminal case or prone ing, thirty cents." St. 1887, p. 27. § 211, provides that the fees provided in the act shall be in full compensation, “provider further, that the board of supervisors shall alow to the sheriff his necessary expenses fr pursuing criminals or transacting any crimiza business without the boundaries of his ty." Held, that the sheriff was not entitled t mileage while unsuccessfully hunting fea caped prisoners for whose arrest he had bara, 3 P. 877, 65 Cal. 257, followed.-Ore rants. Broughton v. County of Santa Es V. Tulare County, (Cal.) 34 P. 519. Service of Process. See "Writs," 1. SET-OFF AND COUNTER- When allowable. 1. Defendant agreed to pay the debts of plaintiff corporation, and, as security, plaintiff conveyed to her all its notes and accounts, merchandise on hand, and all its property, with certain exceptions. It was agreed that plaintiff should endeavor to sell the merchandise, and apply the receipts to the payment of defendant, and that the property conveyed to defendant should not be sold at less than its cost to plaintiff, without the consent of plaintiff's directors. Subsequently, defendant, without plaintiff's knowledge, sold a portion of the goods, and plaintiff sued for conversion. Defendant, for answer, set up the whole agreement; alleged performance on her part, and that there was due her, above the value of the property sold, a large sum; and prayed an accounting. Held, that such answer was a proper counterclaim. within Code Civil Proc. § 438, providing that "a cause of action arising qut of the same transaction" may be so set up, and the fact that plaintiff alleged no facts to show that the counterclaim arose out of the same transaction did not prevent defendant from setting out the entire transaction, and thus showing the relation of her claim thereto. -Story & Isham Commercial Co. v. Story, (Cal.) 34 P. 671. Pleading. 2. On a petition for the sale of decedent's land to pay a debt due petitioner, a claim that the debt had been paid by petitioner's use and occupation of a portion of the estate is a counterclaim, which must be pleaded.-In re Couts' Estate, (Cal.) 34 P. 865. Settlement. 8. Where a sheriff arrests two or more per sons at the same time he is not entitled to che mileage at such statutory rate for each pri arrested.-Overall v. Tulare County, (Cal) S P. 519. Retaining property until payment of fees. 4. In order to justify a sheriff in retains for his fees, after notice of the filing of the stat bond, property levied on, he should, on de and for the property, state the amount of his s and offer to return the property on paye thereof.-Sam Yuen v. McMann, (Cal.) 34 Ps Liabilities. 5. Where a plaintiff seeks to amere i sheriff, for failure to return an execution, execution must conform strictly to the ja ment rendered, and if additional costs, have accrued subsequent to the rendition of judgment, are to be included in the exeqt 1. they should be indorsed upon or be re to in the execution as additional costs.-Gleas v. Itten, (Kan.) 34 P. 892. 6. The supreme court, at a prior term. ~ Pac. 200,) decided that plaintiffs were entite to the possession of certain mining claims, ordered that they be put into possession, and the court below thereon issued a writ of res tution. The sheriff made return to the w "that he found parties in possession of the premises that were not parties to the suit, and who were claiming the premises by location The sher See "Compromise;" "Payment;" "Release and der the laws of the United States." Between partners, see "Partnership," 2. Severable Contracts. See "Contracts," 1-4. SHERIFFS AND CONSTABLES. Conditions precedent to action against surety on constable's bond, see "Principal and Surety, 0. Liability in assumpsit for illegal fees retained, see "Assumpsit," 1, 2. Right to carry weapons, see "Carrying Weap olis." iff was cited to show cause why he did not execute the writ of restitution, to which he male Held, that the sheriff was not entitled to answer that plaintiffs refused to indemnify him demnity.-Ah Kle v. Gregory, (Idaho,) 34 P. |