pany was injured by the active negligence of the company, recovery cannot be defeated because there was another way over which she might have traveled; the question whether she was guilty of contributory negligence in selecting the path being for the jury.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246. § 401 (Tex.Civ.App.) In an action for injuries to a licensee who was struck while on the right of way of a railroad company by a piece of scantling thrown from a moving train, an instruction on the negligence of the railroad company held not improper, as casting upon the company the burden of keeping its tracks in good condition for the benefit of licensees.-St. Louis Southwestern Ry. Co. of Texas v. Balthrop, 167 S. W. 246. (H) Injuries to Animals on or near Tracks. 8411 (Mo.App.) Rev. St. 1909, § 3145, requiring railroad companies to maintain cattle guards sufficient to turn horses, only requires such guards as ordinarily will be sufficient to prevent horses from attempting to pass over them onto the right of way.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160. $413 (Tex.Civ.App.) Where a railroad company assumed the duty of keeping in repair a gate which, for the benefit of plaintiff, it placed in the fence along its right of way, plaintiff is entitled to recover for the value of a mule which escaped because of defects in gate and was killed on the right of way.-Missouri, K. & T. Ry. Co. of Texas v. Withers, 167 S. W. 5. $413 (Tex.Civ.App.) One whose mule was killed on the right of way of a railroad company may recover, where it strayed through a gate placed by the company to afford access between two different farms owned by separate individuals, if the company did not exercise proper care to keep the gate closed.-International & G. N. Ry. Co. v. Humphrey, 167 S. W. 797. (1) Fires. § 480 (Tex.Civ.App.) Proof that sparks escaped from a railroad engine and destroyed property by fire established a prima facie case of actionable negligence of the railroad company, and to escape liability it must show that the engine was equipped with proper spark arresters, and that the same were in good repair, and that the company exercised reasonable care to keep the same in good repair.-Texas & N. O. R. Co. v. Cook, 167 S. W. 158. § 485 (Tex.Civ.App.) Though a railroad company need only exercise ordinary care to equip its engines with suitable spark arresters, yet where, in an action for loss of property by fire set by sparks, there was no evidence by the company on that issue, it was not reversible error to charge that it was its duty to use suitable spark arresters.-Texas & N. O. R. Co. v. Cook, 167 S. W. 158. RAPE. See Criminal Law, §§ 200, 507, 678, 772, 11662 Indictment and Information. $$ 79, 110; Jury, § 31; Witnesses, §§ 270, 337. II. PROSECUTION AND PUNISHMENT. (A) Indictment and Information. § 23 (Mo.) An information for statutory rape on a child under the age of consent must allege that the child is under the statutory age, where no exact age is stated; but where the age is stated, and it is below the statutory age. the allegation as to the general statutory age is mere redundancy.-State v. Hughes, 167 S. W. 529. (B) Evidence. § 38 (Tex.Cr.App.) Where, on a trial for rape, there was no question of intercourse by consent, the testimony of a physician that one could not rape a woman without her consent, in the position testified to by her, was properly excluded.-Burge v. State, 167 S. W. 63. § 40 (Ark.) In a prosecution for rape, evidence of prosecutrix's previous intercourse with others, while not a defense, was admissible in mitigation.-Garrard v. State, 167 S. W. 485. 8441 (Mo.App.) In an action for killing plaintiff's horse, alleged to have strayed onto the right of way by reason of a defective cattle guard, the burden is on plaintiff to show that the guard was insufficient and that such defect was the cause of the entry of the horse on the right of way. Miller v. Chicago, M. & St. P.sidered in determining her previous chaste charRy. Co, 167 S. W. 1160. § 443 (Mo.App.) That plaintiff's horse and two or three of its companions crossed defendant's cattle guard was not of itself sufficient to make out a prima facie case of insufficiency, but such fact, connected with proof of the construction of the guard, might be sufficient for that purpose.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160. § 446 (Mo.App.) In an action for killing plaintiff's horse, which strayed onto defendant's right of way over a cattle guard, evidence as to the construction of the guard held to require submission to the jury of the question of its ordinary sufficiency to turn horses.-Miller v. Chicago, M. & St. P. Ry. Co., 167 S. W. 1160. Where a cattle guard was so constructed as to give solid support to animals attempting to cross it, and there was nothing to repel an animal except its serrated surface, no amount of opinion evidence or proof of the adoption of the plan of such guard would establish, as a matter of law, that it constituted a performance of the company's duty to provide sufficient guards, as required by Rev. St. 1909, § 3145.Id. $ 446 (Tex.Civ.App.) In an action for the value of a mule killed by one of defendant's trains, where there was evidence of defendant's negligence in the particulars charged, the question of negligence was properly submitted to the jury.-Missouri, K. & T. Ry. Co. of Texas § 40 (Mo.) On a trial for having carnal knowledge of an unmarried female between the ages of 14 and 18 of previous chaste character, her acts subsequent to the offense cannot be con acter.-State, v. Perrigin, 167 S. W. 573. § 41 (Tex.Cr.App.) Where prosecutrix testified that she was a little over 16 years of age at the time of the alleged assault, and that she was born in April, 1897, it was error to exclude depositions of her father and mother that she was born in April, 1895.-Caples v. State, 167 S. W. 730. § 43 (Tex.Cr.App.) The appearance of prosecutrix about four hours after the alleged rape of her may be proved.-Burge v. State, 167 S. W. 63. Where prosecutrix made complaint about four hours after the occurrence, it was proper to permit the persons to whom she made complaint to testify as to her condition and that she was in a wrecked, nervous condition on the Sunday afternoon following the offense on the preceding Friday morning.-Id. § 51 (Tex.Cr.App.) The failure of prosecutrix to make outcry or call for aid, when it may readily be obtained, or within reasonable time to disclose the offense after an opportunity to do so, tends to discredit her testimony.-Burge v. State, 167 S. W. 63. $52 (Mo.) Where, on a trial for rape of a child below the age of consent, the prosecutrix testified to the assault, and there were no facts rendering her testimony uncertain, a conviction was justified.-State v. Hughes, 167 S. W. 529. Though the testimony of prosecutrix on a trial for rape of a child under the age of con of prosecutrix to sustain a conviction should be convincing and leave the mind of the court free from doubt.-Id. $52 (Tex.Cr.App.) The evidence amply showed that prosecutrix was under 15 years of age, where, though the year of birth was not named, it was fixed by an event the date of which was shown. Mora v. State, 167 S. W. 344. Where penetration was testified to by the girl and admitted by appellant in his confession introduced in evidence it was sufficiently proven. -Id. (C) Trial and Review. 59 (Mo.) Instruction stating the elements of the offense of having carnal knowledge of an unmarried female of previous chaste character between 14 and 18 held not erroneous.-State v. Perrigin, 167 S. W. 573. RECEIVING STOLEN GOODS. See Criminal Law, § 508. 87 (Mo.) A charge of receiving stolen goods is not sustained by proof that the goods received were only embezzled.-State v. Gennusa, 167 S. W. 439. RECEPTION OF EVIDENCE. See Criminal Law, §§ 673-684; Trial, §§ 4884. RECORDS. See Appeal and Error, §§ 501-714, 837; Criminal Law, §§ 1086-1122, 1186; Evidence, § 348; Mandamus, §§ 15, 187. REDUNDANCY. REFERENCE. $ 59 (Tex.Cr.App.) Where there was no evidence that the intercourse was by consent, and See Pleading, § 22. the court charged that, if the jury had a reasonable doubt as to whether prosecutrix consented, accused should be acquitted, refusal to charge that consent would be presumed until the state proved the contrary was proper.Burge v. State, 167 S. W. 63. III. CIVIL LIABILITY. § 66 (Mo.App.) In an action for damages for rape, evidence held to support a verdict for plaintiff.-Williams v. Collins, 167 S. W. 1189. RATE. See Carriers, § 26; Interest, § 37. RATIFICATION. See Executors and Administrators, §§ 131, 150; Frauds, Statute of, § 116; Mortgages, 884; Principal and Agent, §§ 171, 175. REAL ACTIONS. See Arbitration and Award. REFORMATION OF INSTRUMENTS. See Cancellation of Instruments; Pleading, § 69; Trial, § 194. I. RIGHT OF ACTION AND DEFENSES. § 3 (Mo.) Where part of a description is inconsistent with other parts, and the remaining part is sufficient to designate the land, a remedy is afforded at law by disregarding the false description and giving effect to the other calls, and a resort to equity for the correction of the description is unnecessary.-Walker v. Garner, 167 S. W. 955. § 16 (Mo.) Where, after correspondence looking to the sale of a store building adjoining another building owned by the vendor, a deed was made which by mistake included 24 feet of the See Ejectment; Partition; Quieting Title; ground covered by the building retained, the unTrespass to Try Title. RECEIVERS. See Appeal and Error, § 874. VII. ACCOUNTING AND COMPENSATION. § 194 (Ky.) The allowance of $1,000 as fees to the attorney, in addition to $2,500 previously allowed, held excessive; the $2,500 being sufficient to cover any future services required of the attorney in the final settlement.-Stockholders of First State Bank v. First State Bank's Receiver, 167 S. W. 678. While due consideration is given the affidavits of attorneys as to the fees to be allowed to an attorney, the court is not bound thereby, but will review the extent of the services and fix what it thinks is a reasonable fee under all the facts. -Id. VIII. FOREIGN AND ANCILLARY RECEIVERSHIPS. 8210 (Tenn.) While a receiver has no legal right to sue in a state other than that of his appointment, the privilege of doing so will be accorded, as matter of comity; the suit being neither inimical to the interest of local creditors, or of any one who has acquired rights under a local statute, nor in contravention of the policy of the forum.-Hardee v. Wilson, 167 S. W. 475. doubted intention being to merely include the ground covered by the one building, the deed and a subsequent deed and mortgage by the purchasers containing the same description were properly reformed.-Fischer v. Dent, 167 S. W. 977. § 28 (Mo.) A purchaser from parties whose deed included by mistake 24 feet of an adjoining building owned by the original vendor stood in no better position in a suit to reform the deeds than his immediate vendors.-Fischer v. Dent, 167 S. W. 977. II. PROCEEDINGS AND RELIEF. included 24 feet of the ground covered by an § 44 (Mo.) Where a deed to a store building adjoining building retained by the vendor, the unquestioned possession by the respective parties to the line marked by the buildings measured their claim, and was evidence of their intention in a suit to reform the deed.-Fischer v. Dent, 167 S. W. 977. § 45 (Mo.) A reformation of a deed cannot be decreed on slight evidence, for the courts cannot deal lightly with the solemnly expressed terms of a written instrument.-Driskill v. Ashley, 167 S. W. 1026. § 45 (Tex.Civ.App.) Evidence in an action for the reformation of an insurance policy, naming L. as the insured and K. as mortgagee and payee in case of loss, held sufficient to support a judgment reforming the policy by inserting plaintiff's name in the mortgage clause, on the ground of mistake.-Western Assur. Co. v. HillyerDeutsch-Jarratt Co., 167 S. W. 816. In an action to reform an insurance policy, the evidence must be clear and convincing to overcome the presumption that the policy embodies the real intention of the parties.-Id. See Abatement and Revival, §§ 73, 77. RIGHT OF WAY. § 17 (Ky.) A release which an injured servant was induced to sign on the representation that it was for his policy money from defend- See Railroads, § 72. ant's relief department held no defense to an action for damages.-Wisconsin Steel Co. v. Dixon, 167 S. W. 682. RISK, ASSUMPTION OF. See Master and Servant, §§ 204-226, 228, 288, 295. See Insurance, § 464. RISKS. ROADS. See Highways; Municipal Corporations, §§ 763-822. ROBBERY. See Homicide, § 166; Indictment and Information, § 125. $1 (Mo.) Rev. St. 1909, § 4530, defining robbery in the first degree, defines but one offense, which may be committed either by taking the property of another from his person or in his presence and against his will, by violence or by putting him in fear of some immediate injury. -State v. Flynn, 167 S. W. 516. § 24 (Mo.) Evidence held to sustain a conviction of robbery.-State v. Flynn, 167 S. W. 516. See Brokers; Carriers, § 56; Deeds; Election of Remedies, § 3; Estoppel, § 63; Evidence, § 442; Execution; Executors and Administrators. $$ 333-388; Guaranty, § 38; Guardian and Ward, §§ 99, 103; Intoxicating Liquors; Judicial Sales; Mines and Minerals, §§ 58, 83; Vendor and Purchaser. I. REQUISITES AND VALIDITY OF CONTRACT. § 40 (Tex.Civ.App.) A statement of value of machinery sold is not ordinarily a material representation which, if false, will defeat a contract of sale.-A. S. Cameron Steam Pump Works v. Lubbock Light & Ice Co., 167 S. W. 256. II. CONSTRUCTION OF CONTRACT. $ 54 (Tex.Civ.App.) Where a buyer acquiesced in the seller's interpretation of a contract See Criminal Law, §§ 338-364; Evidence, $$ for the sale of cotton, the price of which was 123, 127. RES JUDICATA. See Judgment, §§ 565-717. RESOLUTIONS. to be determined with reference to the value of cotton thereafter, the courts will enforce the contract as construed by the parties; hence the refusal of an instruction correctly submitting the question as to the rights of the parties in case their minds never met was not error.Charles B. Smith & Co. v. Duncan, 167 S. W. 871 (Tex.Civ.App.) A contract for the sale § 72 (Tex.Civ.App.) Contract for sale and de- § 77 (Tex.Civ.App.) Where cotton was sold 922 Where cotton was sold under an agreement Where cotton was sold under an agreement § 88 (Tex.Civ.App.) In an action for the pur- III. MODIFICATION OR RESCISSION (B) Rescission by Seller. § 97 (Mo.App.) Where sale is induced by the (C) Rescission by Buyer. § 119 (Tex.Civ.App.) A contract of sale of § 126 (Mo.App.) The rule that a purchaser defeat the purchaser's right to rescission.-Pe- IV. PERFORMANCE OF CONTRACT. § 241 (Mo.App.) A sale of railroad ties was VI. WARRANTIES. 267 (Mo.App.) Where there was a special $270 (Ark.) The seller of corn, which the § 273 (Tex.Civ.App.) A manufacturer or deal- $287 (Tex.Civ.App.) A warranty by a seller § 288 (Mo.App.) Where a machine was sold § 288 (Tex.Civ.App.) Where a buyer under a VII. REMEDIES OF SELLER. (E) Actions for Price or Value. § 358 (Tex.Civ.App.) In an action for the agriculture held inadmissible.-Alsworth v. Rep- | after the institution of an action for breach of $ 364 (Mo.App.) Where defendants failed to (F) Actions for Damages. § 384 (Ky.) In an action for breach of a VIII. REMEDIES OF BUYER. §398 (Mo.App.) In an action to recover back (C) Actions for Breach of Contract. § 404 (Ky.) Where plaintiff was induced to 8416 (Ky.) Where, in an action for defend- 8421 (Ky.) Where, in an action for breach Louis P. Hyman & Co. v. H. H. Snyder Co., 167 S. W. 146. 8421 (Ky.) Instruction authorizing recovery $425 (Ark.) Where goods delivered were not § 429 (Mo.App.) Where there is a written $430 (Ark.) Where a buyer accepted goods warranty, defeat recovery by tendering the buy- § 440 (Tex.Civ.App.) In an action for the § 441 (Ky.) A warranty of a pump held to Evidence held to warrant a finding that plain- § 442 (Ark.) Where goods sold were not as § 446 (Tex.Civ.App.) Where, in an action for IX. CONDITIONAL SALES. § 477 (Tenn.) A seller having reserved title § 479 (Tenn.) Where a reservation of title SATISFACTION. See Accord and Satisfaction; Compromise and SCHOOLS AND SCHOOL DISTRICTS. II. PUBLIC SCHOOLS. § 53 (Ky.) Under Ky. St. §§ 448, 1596a, (E) District Debt, Securities, and Taxa- tion. § 103 (Ky.) Under Ky. St. § 3219, as amended |