and strangers, and exempt from the excise classes nearer in blood to the
decedent. State v. Hamlin, 569.
7. COLLATERAL INHERITANCES-CONSTRUCTION of Statute.- A statute im-
posing an excise tax on all collateral inheritances "above the sum of
five hundred dollars," exempts that sum from each and every collat-
eral inheritance, and is not an exemption from the corpus of the estate
alone. State v. Hamlin, 569.
8. PUBLIC OFFICERS FIREMEN-TAXATION FOR BENEFIT OF.-Firemen are
not servants of the state, nor of a county, but of the municipality in
which they serve, and the taxing power of the state cannot be exerted
for their benefit upon only a portion of a class of the citizens of the
state. Henderson v. London etc. Ins. Co., 410.
See MUNICIPAL CORPORATIONS, 47.
1. FAILURE TO DELIVER MESSAGE-DAMAGES.-The negligent failure of a
telegraph company to deliver a message whereby a purchase of bonds
is not completed does not entitle the sender to recover more than
nominal damages if the evidence fails to show that in case the pur-
chase had been consummated the purchaser would have sold at a
profit before the delay was discovered, even though the bonds advanced
in price before that time. Western Union Tel. Co. v. Fellner, 81.
2. DAMAGES.-If, through a mistake in the transmission of a telegram,
the owner of property is induced to sell it for its then market value
he suffers no damage, and cannot recover any, though when the property
subsequently advanced in value he repurchased a part thereof at the ad-
vanced rate. Hughes v. Western Union Tel. Co., 782.
3. DAMAGES-MENTAL ANGUISH.-Unless otherwise provided by statute,
mental anguish alone, resulting from negligent delay in the delivery
of a telegram, does not constitute sufficient basis for the recovery of
damages. Summerfield v. Western Union Tel. Co., 17.
4. STATUTORY LIABILITY.-Wisconsin statute, chapter 171, laws of 1885,
which provides that telegraph companies shall be "liable for all damn-
ages occasioned by failure or negligence of their operators, servants, or
employees in receiving, copying, transmitting, or delivering dispatches
or messages," creates no new elements of damage, and gives no right of
action for damages resulting from mental suffering alone. Summerfield
▼. Western Union Tel. Co., 17.
TENANTS IN COMMON.
See COTENANCY.
See DEBTOR And Creditor, 1, 2.
1. MASTER AND SERVANT-THEATER MANAGERs-Duties and Liabilities of.
Theater managers who invite the public to become their patrons and
guests owe a special duty to those accepting such invitation to protect
them from injury while present, and particularly that they shall not
suffer wrong or injury from the agents or servants of those who have
invited them; and if such a servant, acting within the line of his duty,
commits a wrongful act toward such patron or guest, the manager and
master is liable in damages therefor. Dickson v. Waldron, 440.
2 MASTER AND SERVANT-THEATER MANAGER'S LIABILITY FOR WRONGFUL
ACT OF HIS SERVANT.-The servant or agent of a theater manager whose
duty it is to preserve order in and about the theater must necessarily
be the judge as to whether the conduct of a patron or guest is so offen.
sive and disorderly as to require his removal, but if such servant, act-
ing in the line of his duty, makes a mistake and wrongfully and unjustly
attacks and injures an inoffensive patron of the theater, the manager
thereof must respond in damages, and the fact that such servant is a
special policeman will not relieve the manager and master from liability.
Dickson v. Waldron, 440.
THREATS.
See EVIDENCE, 6.
See RAILROADS, 4-14; Statutes, 23.
See MUNICIPAL CORPORATIONS, 11.
1. WHETHER LAWFUL. -A cigar label reading as follows: "This certifies
that the cigars contained in this box have been made by a first-class
workman, a member of the Cigar Makers' International Union of
America, an organization opposed to inferior, rat shop, coolie, prison, or
filthy tenement-house workmanship," is not unlawful as transgressing
the rules of morality and public policy, and may be legally adopted.
Cohn v. People, 304.
2 WHETHER LAWFUL.-A party may, without condemning or aspersing
the product of other manufacturers, adopt a trademark commendatory
of the article he has for sale, or he may lawfully procure the certificate
of others as to the quality of the article he places upon the market,
without transgressing the rules of morality or public policy. Cohn v.
People, 304.
TREATIES.
See EXTRADITION, 1.
1. EVIDENCE-REASONABLE DOUBT.-A reasonable doubt must be actual and
substantial as contradistinguished from a mere vague apprehension, and
must arise out of the evidence introduced. And the jury may be said
to entertain a reasonable doubt when, after the entire comparison and
consideration of all the evidence, they cannot say that they feel an abid-
ing conviction, to a moral certainty, of the truth of the charge. Carb
ton v. People, 346.
2. EVIDENCE-REASONABLE DOUBT-PROOF TO A MORAL CERTAINTY.-The
two phrases, "proof beyond a reasonable doubt," and proof “to a moral
certainty," are synonymous and equivalent, and each signifies such proof
as satisfies the judgment and conscience of the jury, as reasonable men,
and applying their reason to the evidence before them, that the crime
charged has been committed by the defendant, and so satisfies them as
to leave no other reasonable conclusion possible. Carlton v. People, 346.
3. PRACTICE-OBJECTIONS TO EVIDENCE.-When specific objectious are made
to evidence all objections not specified are waived. St. Louis ete. Ry.
Co. v. Hackett, 105.
4. PRACTICE-Oyer of InstrumENT.-At common law, in suits upon sealed
instruments, of which it was necessary to make profert, the defendant
might demand oyer, and thereby have an inspection of the instrument
sued upon. And, by the Illinois statute relating to practice, this rule
is extended to all instruments declared on, whether under seal or not.
The common law also furnished another mode, not confined to instru-
ments under seal, which was by application, pending the action, to the
equitable jurisdiction of the court for an order to inspect, but such order
was obtainable only in a very limited number of cases. Lester v. People,
375.
5. PRACTICE.—OYER OR INSPECTION IS CONFINED to instruments in writing
declared upon, and constituting the cause of action, or set up in a plea
by way of defense, and does not apply when the deed is stated as mere
inducement. Lester v. People, 375.
6. STATUTORY CONSTRUCTION-PRODUCTION OF BOOKS AND PAPERS — Under
the Illinois statute relating to the production of books and papers (IIL
Rev. Stats., c. 51, sec. 9), the court may compel the production of the
books of a party, to be used in evidence on the trial by his adversary,
upon proper showing that they contain entries tending to prove the
issues. But the statute cannot be construed as giving the court power
to take the books and papers of the party and impound them with an
officer of the court for inspection or examination out of the presence of
the court. It does not give the right to compel the submission of the
books of a party to general inspection or examination for fishing par
poses, or with a view to find evidence to be used in other suits or pros
ecutions. Lester v. People, 375.
7. ERROR CURED BY INSTRUCTION.-An instruction to the jury not to
consider a particular count in the complaint cures error in admitting
evidence thereunder. Mighell v. Dougherty, 511.
8. INSTRUCTIONS.-If in an action there is a counterclaim as well as a com
plaint and answer, and an instruction is asked respecting the burden
of proof in its terms applicable to the whole case, it may be refused
if it is correct with respect to the issue presented by the complaint
only. Glover v. Henderson, 695.
9. MOTION TO DIRECT VERDICT.-A motion by defendant to direct a
verdict in his favor can only be sustained by the court when there is
a failure to prove some material fact in the case, by reason of which no
liability of the defendant to plaintiff is shown. For the purposes
of such motion every point which the evidence tends to prove in favor
of plaintiff must be considered as established. Union Stockyards Co. v.
Conoyer, 738.
See CONSTITUTIONS, 4; OFFICERS, 11.
CONVERSION-RETURN OF PROPERTY-DAMAGES FOR LEVY OF EXECUTION.
If property not liable to seizure on execution is levied upon by mistake,
or if the levy is insufficient, and the property or part of it is returned
to the person from whom it was taken upon discovery of the mistake,
and before an action for the conversion is brought, the damages recovered
for the taking of the part so returned should be merely nominal, unless
special damages apart from the mere value of the property are shown.
Farr v. State Bank, 40.
1. PAROL EVIDENCE TO ESTABLISH.-Under the statute of frauds the exist-
ence of a direct or express trust in lands cannot be established by
parol; but, when there is some written evidence of the existence of a
trust, parol evidence is admissible to show the truth and nature of the
transaction. Johnson v. Calnan, 224.
2. DEEDS TO A B "TRUSTEE"-PAROL EVIDENCE TO EXPLAIN.-When the
word "trustee" is inserted in a deed to land after the name of the
grantee, and, in a subsequent contract relating to the same land, he
affixes this word "trustee" to his signature such word is not merely
descriptio persona. It indicates that the grantee takes the title, not in
his individual capacity, but in trust for another not disclosed, and parol
evidence is admissible to show for whom, and for what purpose, he was
constituted a trustee. Johnson v. Calnan, 224.
3. JURISDICTION, APPOINTMENT OF TRUSTEES. A trust will not be allowed
to fail for want of a trustee, and therefore, where the trustee named
refuses to act, another will be appointed to take his place. Brandon v.
Carter, 673.
THE APPOINTMENT OF A TRUSTEE MADE AT THE INSTANCE OF A BENE-
FICIARY in place of one named in the will, on the ground that he
refuses to act or accept such trust, cannot be collaterally attacked by a
third person on the ground that the original trustee did not so decline
or refuse to act, and was not a party to the proceeding by which the new
trustee was appointed. Brandon v. Carter, 673.
5. PARTIES TO SUIT FOR APPOINTMENT OF NEW TRUSTEE-If the complaint
filed in a suit for the appointment of a trustee under a will alleges
that the trustee designated in such will declines and refuses to act,
and did not accept the trust, he is not a necessary party to the suit,
and because if such allegation is true, no title ever vested in him.
Brandon v. Carter, 673.
6. IN THE EVENT OF A VACANCY in the office of trustee, a court of equity
has power to supply a trustee by appointment to assume the duties
of such trust. Brandon v. Carter, 673.
7. DISCLAIMER BY A PERSON NAMED AS A TRUSTEE may be established
by his action, or by his nonaction long continued. Brandon v. Carter,
673.
8. IF A TRUSTEE NAMED IN A WILL REFUSES TO ACCEPT the trust, the
title to the trust property does not vest in him.
VACANT AND UNOCCUPIED.
See INSURANCE, 4.
VERDOR'S LIEN.
See MECHANICS' LIENS, 1.
VENDOR AND PURCHASER.
See SPECIFIC PERFORMANCE, 2,
Bee MASTER And Servant, 6; RAILROADS, 22
See CONTRACTS, 20; JURISDICTION, 4 5; LIENS; MECHANICS' LIENS; Trial, &
See BROKERS, 1; Evidence, 1; Sales, 4-10.
See MASTER AND SERVANT, 5; RAILROADS, 21.
CONTRACTS TO SUPPLY CITY WITH Water, PropeRTY OWNER'S SUIT THEREON.
If a water company contracts with a city to supply water for the extin.
guishment of fires, and to be answerable for damages resulting from a
failure to comply with such contract, a property owner and taxpayer
within such city has no contract relations with such water company
and therefore cannot maintain an action against it upon the contract
for damages arising from a failure to supply water as agreed upon
though such failure has resulted in the destruction of his property by
fire. Howsmon v. Trenton Water Co., 654.
1. WATERS ARE not Deemed NAVIGABLE in North Carolina, unless they are
navigable for seagoing vessels. State v. Eason, 811.
2. RIGHT TO POLLUTE. —One who sinks artesian well upon his own land, and
uses the water to bathe the patients in a sanitarium or hospital erected
by him on such premises is not liable to an injunction, nor for damages
for allowing the water, after being so used, to flow into a stream which
is the natural watercourse of the basin in which the artesian well is
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