RAPE. 1. COMMON LAW.-By the common law a boy under fourteen years of age cannot be convicted of rape. Gordon v. State, 189. 2 PRESUMPTION AS TO CAPACITY.-A boy under the age of fourteen years is presumed to be physically incapable of committing the crime of rape. Hence, he cannot be convicted of assault with intent to commit rape until the state proves his capacity to commit rape. v. State, 189. Gordon 1 ASSAULT WITH INTENT TO COMMIT.-One who, under the excitement of lust and with intention of gratifying it by force, enters the bedroom of a woman near midnight, and gets upon the bed in which she is sleeping for the purpose of ravishing her, commits an assault with intent to commit rape, though he does not actually touch her, or touches her casually and incidentally only as she escapes. Jackson v. State, 25. ATTEMPT TO COMMIT EVIDENCE.-On the trial of a person for an assault with intent to commit rape, social customs founded on race differences and the fact that the accused is a negro and the woman a white person may be taken into consideration by the jury in determining the intent of the accused. It is legitimate for the jury to note any departure from the customary modes of visiting involved in the nocturnal entrance by a negro into the bedroom of a white woman during the hours devoted to sleep, when there is nothing to show that the woman was not virtuous, or that she held out any encouragement to such negro or any other person to enter her bedroom for illicit intercourse. Jackson v. State, 25. ■ ASSAULT TO RAPE-EVIDENCE-INSTRUCTION.—While merely entering a room in which there is a female, for the purpose of committing a rape upon her, may be insufficient, without more, to authorize a conviction for assault with intent to commit rape, yet it is not error to instruct the jury that this would authorize them to find the defendant guilty if the evidence shows beyond doubt that it was his intention to ravish her, and that an actual assault was made upon her person in furtherance of such purpose, and the jury must necessarily understand from the whole charge that proof of an assault is essential to a conviction. Miles v. State, 140. & ASSAULT TO RAPE-INSTRUCTION.-It is not error, upon the trial of an indictment for assault with intent to commit rape, to charge as follows: "Because the prosecutor, the husband of the lady, did not kill the defendant on the next morning when he first saw him, is not to be considered as discrediting his testimony; because the law gives no citizen the right to take the law in his hands; and the prosecutor is rather to be commended for observing the law, than criticised for not taking it into his own hands." Miles v. State, 140. 7. ASSAULT TO RAPE-INSTRUCTION.-It is not error, upon the trial of an indictment for assault with intent to commit rape, to refuse to give in charge to the jury a lengthy and argumentative request, summing up various facts and circumstances favorable to the theory of the innocence of the accused. Miles v. State, 140. RATIFICATION. Bee CORPORATIONS, 5, 21; INSANE PERSONS, 7; MUNICIPAL CORPORATIONS, 1, 2, 9. REAL PROPERTY. 1. Landowner, Liability of for Fall of CHIMNEY.-One who constructs a chimney so that if it falls it will fall upon and injure the adjoin. ing premises, is bound to so construct it that it will withstand any gales which, from past experience, are reasonably to be expected in that locality. Cork v. Blossom, 362. 2 NEGLIGENCE WILL BE PRESUMED in the building and maintaining of a chimney when it falls, unless as a result of inevitable accident or the wrongful acts of third persons which the owner could not reason. ably anticipate. Cork v. Blossom, 362. & LANDOWNER, LIABILITY FOR FALL OF CHIMNEY.-A landowner constructing a chimney on his premises so that if it falls it will fall on and injure the property of his neighbor cannot relieve himself from liability by employing a competent mason to examine the chimney and relying on his opinion. Cork v. Blossom, 362. 4. LANDOWNER'S LIABILITY FOR FALL OF CHIMNEY.-The builder of a chimney so near the land of his neighbor that the latter may be injured by its fall is not an insurer of its safety so as to be liable, if the fall occurs from any hidden defect which no examination could have disclosed or prevented. Cork v. Blossom, 362. See LIENS, 1. REASONABLE DOUBT. See HOMICIDE, 11. RECORDS. See CHATTEL MORTGAGES, 5-9; CORPORATIONS, 24; Courts; DEBTOR AND CREDITOR; JUDGMENTS, 2; Mortgages, 8, 9. REDEMPTION. See EXECUTION, 6, 10, 12; MORTGAGES, 15. REFORM SCHOOL. AN INDUSTRIAL SCHOOL OF REFORM, THOUGH A CORPORATE BODY, IS NOT ANSWERABLE For an Assault upon and beating of an inmate by one of its employees, where the object of such reformatory institution is to take charge of such youths as may be committed to it, and to care for their moral and physical training and education, and it is under the control and oversight of the state, and is maintained by state aid. Williamson v. Louisville Industrial School, 243. REHEARING. RELEASE. L RAILWAY-DAMAGES FOR INJURIES, RELEASE OF BY ACCEPTING BENEFITS. If a railway corporation organizes a relief department for the benefit of its employees, and those electing to participate in its benefits enter into a contract stipulating that the acceptance of benefit from the relief fund for injury or death shall operate as a release of all claims for damages against the corporation arising from such injury or death, and that they will execute such further instruments as may be neces sary to formally evidence such release, sucn contract is valid, and an acceptance of benefits by an employee after an injury suffered by him releases all claims of damages therefor. It is not essential that the corporation shall have itself paid money into the treasury of the relief association, if it assumed the obligations of taking charge of the administration and to pay the operating expenses, to guarantee the obligations of the association, and supply all deficiencies in its revenues. Ringle v. Pennsylvania R. R., 628. 2 RELEASE GRANTED BY AN INCOMPETENT PERSON, RATIFICATION OF.-If a person injured by a railway accident executes a release of his claim for damages therefor while in an unconscious condition, resulting from the use of anaesthetics, and receives the amount in payment of which the release was granted, and, after recovering his faculties, is informed that the execution of a release is claimed by the railway corporation, and knows that he has in his possession two hundred and forty dollars more than he had before the accident, and neither returns, or offers to return, the money, he, by his acquiescence, ratifies the release, and precludes himself from any further recovery of damages. Gibson v. Western New York etc. R. R. Co., 586. See RAILROADS, 19. REMAINDERS. Bee CORPORATIONS, 16-19, REMOVAL See OFFICERS, 3. RENTS. See EXECUTORS AND ADMINISTRATORS, 2, 3; LICENSE REPLEVIN. CONDITIONAL SALES-RIGHT TO REPLEVIN GOODS.-Under a contract for the sale of goods providing that the purchaser shall give notes for the purchase price, the title to remain in the seller until a mortgage is given to secure such notes or the price is paid, the title to the goods remains in the seller, and, if no rights of innocent third parties intervene, he may, upon the failure of the purchaser to give such mortgage, recover judgment on the notes and subsequently recover the goods by replevin. Campbell Printing Press etc. Co. v. Rockaway Publishing Co., 410. RESCISSION. See DEEDS, 4; Sales, 5. RES GESTÆ See HOMICIDE, 5, 7. RES JUDICATA. 800 EVIDENCE, 6, 7; Judgments, 4-6; PLEADING, 2 RIGHT OF WAY. See EASEMENTS. SALES. L. WHEN EXECUTED - DELIVERY. — If, under a contract for the sale of wheat to be delivered by the seller to the purchaser at his place of business, the wheat is consigned to the order of the seller, and bills of lading taken accordingly, after which, and before the wheat arrives at its destination, the purchaser, upon a warranty from the seller that it is equal to a certain sample, pays the greater part of the purchase price, and receives from the seller the bills of lading duly indorsed, and which control the possession and delivery, the sale is executed, and the title passes to the purchaser. Woodruff v. Graddy, 33. 2. WARRANTY.-An offer to sell harness leather, if made by letter con. taining the statement that "Our leather is now thoroughly tanned," and accepted by letter stating that "If your leather is thoroughly tanned now, and all right in other respects, we would take it as before," constitutes a sale with a warranty that the leather furnished shall be thoroughly tanned." Groetzinger v. Kann, 676. 66 3. WARRANTY. —If a known, described, and definite article is ordered of a manufacturer, although it is stated to be required by the pur chaser for a particular purpose, yet, if such definite article is supplied, there is no warranty that it shall answer the particular purpose intended by the buyer; nor does a representation by the seller that it is as good as any in the market constitute a warranty that it shall answer such purpose. Jarecki Mfg. Co. v. Kerr, 674. 4. DAMAGES MAY BE RECOVered for a BREACH OF WARRANTY OF PERSONAL PROPERTY sold to the plaintiff and for which he gave a negotiable prom. issory note, though it remains unpaid, but the judgment should give the defendant the privilege of returning such note within a designated time, if he can, although he has negotiated it to a bona fide purchaser. Fahey v. Esterley Machine Co., 554. & RESCISSION FOR BREACH OF WARRANTY.-Where, on the sale of person. alty, a warranty is given and the purchaser is required to give notice both to the vendor and his agent of alleged defects in the property, the vendee cannot recover for a breach of warranty where, though he gave notice to the agent, he did not to the vendor as stipulated for. Waiver of this notice on the part of the principal cannot be presumed from the act of such agent, nor from that of any employee who is not shown to have had special authority from the vendor to make such waiver. Fahey v. Esterley Machine Co., 554. 6 BREACH OF WARRANTY-DAMAGES.-A purchaser of goods at an executed sale and upon warranty of quality by the seller does not, by receiving the goods without inspection, and retaining them after discovering their inferior quality, waive his right to recoup his damages for a breach of the warranty in an action for the purchase price. Woodruff v. Graddy, 33. See AUCTIONS; CONFLICT OF LAWS, 1; EXECUTIONS, 2-12; EXECUTORS AND ADMINISTRATORS, 4, 5; REPLEVIN. SAWMILLS. See LIENS, 1-4. SCHOOLS. 1. SECTARIAN TEACHING-WHAT CANNOT BE ENJOINED A8.-A board of school directors cannot be enjoined from employing teachers exclusively of the Catholic faith, nor from permitting them to act as such while wearing the distinctive sectarian garb, crucifixes, and rosaries of the order of St. Joseph, to which they belonged, provided they did not within school hours give any religious instruction, nor engage in reli. gious exercises of any character whatever, though the constitution of the state declares that no money raised for the support of the public schools of the commonwealth shall be appropriated to or used for the support of any sectarian school. Hysong v. Gallitzen etc. School District, 632. PERSONS CANNOT BE EXCLUDED AS TEACHERS FROM THE PUBLIC SCHOOLS on the ground that they are of a particular religious faith or wear the garb of a particular religious order to which they contribute all their earnings beyond what is necessary for their support. Hyeong v. Gallissin de. School District, 632. SEAL Bee CORPORATIONS, 25, SECTARIAN TEACHING, SELF-DEFENSE. Bee HOMICIDE, 13. SETOFF. 1. COUNTERCLAIM DEFECTIVELY STATED is cured by a reply containing the allegations omitted from the counterclaim. Gaskins v. Davis, 439. 2 PRACTICE-WAIVER.-THE FAILURE OF THE PLAINTIFF TO REPLY TO A COUNTERCLAIM IS WAIVED by the defendant proceeding to trial, treating the matters alleged in his counterclaim as being traversed and at issue. Power v. Bowdle, 511, SHERIFFS. POSSE COMitatus—SummONING-STATUS OF PERSONS ORALLY "DEPU. TIZED" TO ASSIST in Making Arrest. — A posse may be summoned under the form of "deputizing" the person or persons composing it. The mode is immaterial, so that the object is to require or command assistance. Persons orally "deputized" by a sheriff to assist him in making an arrest for felony are neither officers nor mere private persons while co-operating with him and acting under his orders, but occupy the legal position of a posse comitatus. Robinson v. State, 127. POSSE COMITATUs-Protection to MEMBERS OF.-A member of a posse comitatus, summoned by a sheriff to aid in the execution of a warrant for felony in the sheriff's hands, is entitled to the same protection in the discharge of his duties as the sheriff himself, and may do any act to promote or accomplish the arrest that he could lawfully do if he were himself the sheriff, having personal custody of the warrant, and bound to execute it. In order to have the benefit of this protection it is not essential for such member to be and remain in the actual physical presence of the sheriff. It is sufficient if the two are in the same neighborhood, actually endeavoring to make the arrest and acting in concert with a view of effecting it. Robinson v. State, 127. See ARREST. |