3. SERVICE OF SUMMONS ON NON-RESIDENT DEFENDANTS in an action to

determine conflicting claims of title to real estate is as effectively authorized by a general statute applicable to all classes of actions as by a statute relating only to actions of the class in question. Perkins v. Wakeham, 67.

4. NOTICE BY PUBLICATION, WHEN SUFFICIENT. —Notice by publication is sufficient, where the proof shows that three full weeks of publication expired more than thirty days before the first day of the term at which the non-resident defendant was notified to appear. Horn v. Indianapo lis Nat. Bank, 231.

5. NUNC PRO TUNC ENTRY OF ORDER FOR PUBLICATION MAY BE MADE WHEN. - A nunc pro tunc entry of the order for publication of notice may be properly made at any time before final judgment is entered. Id.

6. Waiver of SERVICE. — A non-resident who voluntarily appears by counsel, and without interposing any objection to the jurisdiction of the court pleads to the merits of the case, thereby waives service of the complaint upon himself. Haussman v. Burnham, 74.

See ACTIONS, 4, 5; JUDGMENTS; JURISDICTION, 2, 3.

PROHIBITION, WRIT OF.
See JUDGMENT, 9.

PUBLIC POLICY.

See CONTRACTS, 5.

PUBLICATION.

See PROCESS.

QUIET TITLE.

See JUDGMENTS, 5.

QUO WARRANTO.

It was alleged in the petition that the defendants, as commissioners of Summit County, usurped, assumed, and exercised the power to loan the money that was or might be in the county treasury of that county. The defendants, in their answer, alleged that as such commissioners they are exercising such power under and by virtue of an act of the general assembly. The state demurred to the answer, claiming that the statute was unconstitutional. State v. Ellet, 772.

RAPE.

See CRIMINAL Law, 27.

RAILROAD COMPANIES.

1. RAILROAD COMPANY, WHEN LIABLE FOR NEGLIGENCE OF LEASING CONSTRUCTION COMPANY Where a contract between a railroad company and a construction company permits the latter to operate the road and to receive its earnings for two years from the time of the making of the contract, the railroad company is liable for injuries inflicted through the negligence of the construction company during that period. Chattanooga etc. R. R. Co. v. Liddell, 169.

2. RIGHT OF WAY-EJECTMENT BY REAL OWNER. - Where a railroad company relies only upon a grant of a right of way from an alleged owner in entering upon land to construct its road, the subsequent grantee of the real owner may maintain ejectment against the company, and upon the recovery of judgment, execution should be stayed a sufficient time to permit the company to obtain the right of way under its power of eminent domain. Richards v. Buffalo etc. R. R. Co., 892. 3. ESTOPPEL

RIGHT OF WAY - EJECTMENT BY REAL OWNER.

Where a railroad company, at the time of procuring a grant of a right of way from an alleged owner, had knowledge that another was the true owner of the land, the latter may subsequently assert title and maintain ejectment against the company; nor is he estopped by the fact that he was present when the grant was made, and encouraged its execution by his words or his silence, and afterwards permitted the company to construct and operate its road for eleven years without objection. Id. 4. RIGHTS AND OBLIGATIONS AT HIGHWAY CROSSINGS. - Where a railroad crosses a highway on the same level, those traveling on either have a legal right to pass over the crossing, and to require due care on the part of those traveling on the other, to avoid a collision. The train, however, has the preference and right of way, but is bound to give due warning of its approach, so that a wagon on the highway may stop, and it is bound to use every exertion to stop if the wagon is inevitably in the way. Hence it is negligence on the part of the railroad company to fail to give such warning by sounding the engine whistle at the distance from the crossing required by the rules of the company. Brown v. Texas etc. R'y Co., 374.

5. DUTY OF TRAVELER ON HIGHWAY TO LOOK and Listen for Approach of RAILWAY TRAINS. The law requires a traveler, before crossing a railroad track on a public highway, to look and listen for the approach of trains, and if he omits to do so, and suffers injury while crossing, he can. not recover. In an action to recover damages for injuries so sustained, the plaintiff must show that he did his duty in this respect, or at least prove facts from which the inference can reasonably be drawn that he did. It will not be presumed that he looked; it must be proven. Evidence that a person, killed by a locomotive while crossing a track on a highway, turned his face towards the approaching engine when he was eleven feet from the track on which it was running, but passed on, with out again turuing his head in that direction, until he was struck, is not sufficient to justify the jury in finding that he did look, and thus observed that measure of care and caution which the situation imposed. But even if it could be inferred that he looked when at that point, to look then, and not again, and to go on from that point without observing the further precaution of watching for the approach of trains upon tracks almost constantly in use, was not a proper observance of that care which it was his duty to exercise. Tucker v. New York etc. R. R. Co., 670.

6. COLLISION-NEGLIGENCE IN FAILING TO LOOK AND LISTEN. One who is traveling on a highway, and crossing a railway track on a common level, is bound to exercise ordinary care and due diligence under all circumstances, to ascertain whether a train is approaching and to avoid a collision; and if before attempting to cross, and being in possession of all his senses, he fails to look and listen, he is guilty of such contributory negligence as will preclude his recovery for an injury sustained from a collision with the train. Brown v. Texas etc. R'y Co., 374.

7. NEGLIGENCE OF COMPANY WILL NOT EXCUSE NEGLIGENCE OF HIGHWAY TRAVELER IN FAILING TO LOOK AND LISTEN. -The neglect of a railroad engineer to sound the whistle or ring the bell on nearing a highway crossing will not relieve a traveler on the highway from the necessity of taking ordinary precautions for his safety, nor will it excuse his contributory negligence in failing to look and listen before attempting to cross the railroad track. Id.

8. NEGLIGENCE-DUTY OF TRAVELER TO STOP, LOOK, AND LISTEN. — A traveler by vehicle on a highway, about to cross a railway track at a public crossing, who can obtain a view of track up and down without alighting, need not alight and go upon the track to look and listen for approaching trains before attempting to cross. The question whether or not, in a given case, the traveler stopped at the best place to look and listen is necessarily one of fact to be determined by the jury. Ellis v. Lake Shore etc. R. R. Co., 914.

9. NEGLIGENCE - DANGEROUS CROSSINGS - RATE OF SPEED. - Where a railroad crossing is dangerous, the company does not perform its whole duty to travelers in the highway by sounding the whistle and bell at a proper distance as the train approaches such crossing. It owes the additional duty to such travelers to pass such crossing at a reasonable rate of speed, proportioned to the danger, and is guilty of negligence in crossing at a high rate of speed. Id.

10. NEGLIGENCE IS ABSENCE OF CARE, ACCORDING TO CIRCUMSTANCES, and must be measured by the apparent danger; and while a high rate of speed by railroad trains is allowable in rural districts, the same rate of speed may be attended with peril to life in more thickly populated sections and at dangerous crossings, and may constitute negligence. Id. 11. LIABILITY FOR KILLING ANIMALS UPON TRACK.- Where a railway passes through a level country it is not enough that the servants in charge of a train use diligence to avert injury after they see an animal upon the track; but it is their duty to keep a vigilant lookout for objects and animals approaching or in dangerous proximity to the track, and if the circumstances indicate that there is danger that they will get upon the track, to use the means which they possess, such as sounding the whistle and ringing the bell, for driving them away. Missouri P. R'y Co. v. Gedney, 286.

See CARRIERS; DAMAGES, 3, 4; EVIDENCE, 2; Master and Servant.

RECEIVERS.

APPOINTED IN SUPPLEMENTARY PROCEEDINGS, POWERS AND RIGHTS OF. — A receiver appointed in supplementary proceedings under the code is vested with the legal title to all the personal property of the judgment debtor, and has the right to prosecute all actions to set aside all transfers of property made by the debtor to defraud his creditors. For the purpose of maintaining such actions he represents the creditors, and possesses the same rights as the creditor under whose judgment he was appointed would himself have had. Mandeville v. Avery, 678.

RECORD.

See HOMESTEAD, 2.

REDEMPTION.

See JUDICIAL SALES; MORTGAGES, 3.

RELEASE.

See JOINT LIABILITY.

REPLEVIN.

See OFFICE AND OFFICER, L

RES GESTÆ.

See CRIMINAL LAW, 1; EVIDENCE, 3–6.

RES JUDICATA.

See JUDGMENTS.

REVIEW.

See APPEAL AND ERROR.

RIPARIAN RIGHTS.

See MUNICIPAL CORPORATIONS, 1-3; WATERCOURSES.

SALES.

1. AGREEMENT TO YIELD PROPERTY IN EXCHANGE FOR PROPERTY-CONTRACT OF SALE NOT BAilment. - An agreement by which one party agrees to deliver to another wheat, for which the latter is to deliver, on request, a designated number of pounds of flour and bran for each bushel of wheat delivered, is essentially a contract of sale, and not of bailment. The party delivering the wheat is not entitled to the flour and bran produced from the wheat delivered by him to the other party, and the latter does not undertake to restore the wheat either in its original or in its altered form. If, therefore, a person agrees to furnish to a miller wheat for which the latter agrees to deliver to him, on request, a designated number of pounds of flour and bran for each bushel of wheat delivered, the flour and bran to remain in the possession of the miller, subject to delivery upon demand of the other party, and before the delivery of all the flour and bran the miller's mill and warehouse, with their contents, are, without his negligence or wrong, consumed by fire, the miller will be liable to such other party for the flour and bran which had not been delivered. Woodward v. Semans, 225.

2 POTENTIAL EXISTENCE. Where a contract of sale and purchase relates to the fruit which shall grow on a seller's trees during the five years succeeding that in which the contract is made, such fruit must be regarded as having a potential existence sufficient to support the contract of sale. Cutting P. Co. v. Packers' Exchange, 63.

3. SALE OF CHATTEL, WHAT CONSTITUTES.

- A sale of a chattel is the transfer

of the property in it for a consideration, and is ordinarily effected by the delivery of the thing sold to the buyer, and the delivery of the price or a security therefor to the seller. Stephens v. Gifford, 868.

Parties to a sale of

4. SALE OF CHATTEL INJURIOUS TO THIRD PARTY VOID. a chattel may make such terms and conditions as are convenient to them, but when such terms and conditions are prejudicial to others, or are calculated to mislead the public, they are void as to those who would otherwise be injuriously affected by them. Id.

5. SALE OF CHATTEL RETENTION OF TITLE BY SELLER · INVALIDITY AS TO INNOCENT THIRD PARTIES. - The title to a chattel sold may remain in

the seller as security for the purchase price by agreement of the parties, and so long as the rights of innocent third parties are not affected, it may be enforced according to its terms; still, as to innocent purchasers from and creditors of the buyer, such agreement gives him a deceptive appearance of ownership and a false credit, and will be disregarded. Id. 6. SALE OF CHATTEL-POSSESSION AS PRESUMPTION OF OWNERSHIP. — When one has possession of personal property, those who deal with him on the credit thereof must inquire into the origin and nature of his possession as to whether or not he is a purchaser or a bailee, and when it is learned that he is a purchaser, his continued possession raises a presumption of continued ownership which is conclusive in favor of bona fide purchasers and creditors.

CHASER.

Id.

7. SALE OF CHATTEL - RETENTION OF TITLE-RIGHT OF INNOCENT PUR. - Where the owner of goods sells them to one party and retains the possession, afterwards selling them to another innocent purchaser, who takes possession, the first purchaser loses his title, no matter if he acted in good faith, paid a fair price, and left the goods with the seller because of his confidence in and desire to aid him.

Id. 8. SALE OF CHATTELS - RETENTION OF POSSESSION AS EVIDENCE OF FRAUD. — Retention of possession by the seller, upon a sale of chattels, is not merely evidence of fraud, but in itself makes the transaction fraudulent as to subsequent bona fide creditors and purchasers from him. Id. 9. SALE OF CHATTELS CHANGE OF POSSESSION, HOW Determined. — In deciding the sufficiency of possession taken by the purchaser of a chattel, to protect him against subsequent purchasers or creditors in good faith, the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties, and the usages of trade or business must all be considered. Id.

-

10. SALE OF CHATTELS — SUFFICIENCY OF CHANGE OF POSSESSION. The purchaser of goods must, for the protection of himself and the public, take such possession as is usual and reasonable, in view of all the circumstances of his purchase, where the property is capable of delivery; and as between himself and subsequent purchasers in good faith and creditors, he must bear the loss of his neglect in this respect. Id.

11. SALE OF CHATTELS-SUFFICIENCY OF CHANGE OF POSSESSION. - A sale of horses and a wagon and harness under an arrangement by the purchaser with the seller that the former should have the use of the stable where they were kept, and should continue to care for them until ready to remove them, with no other change of possession, is fraudulent and void as against a subsequent execution creditor of the seller. Id. 12. SALE OF GOODS BY SAMPLE- MEASURE OF DAMAGES FOR BREACH OF WARRANTY. Where goods are sold by sample, with a warranty of quality, and are retained by the purchaser, the measure of damages for a breach of the warranty is the difference between the market value of the goods contracted for and of the goods delivered; and in an action for the price of the goods, the purchaser may interpose this difference as a defense pro tanto. Ogden v. Beatty, 862.

13. SALE OF GOODS BY SAMPLE SUFFICIENCY OF AFFIDAVIT OF DEFENSE IN ACTION FOR PRICE. An affidavit of defense, setting up a breach of warranty in a sale of goods by sample, in an action for their price, must contain a clear and concise statement of the facts which constitute a basis for the assessment of damages under the rule by which they are measured. All the elements of the defense must appear with reason.