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SURETYSHIP. 1. JUDGMENT AGAINST A SURETY IS PRIMA FACIE EVIDENCE AGAINST
PRINCIPAL of the amount which the latter is liable to pay, but is not
conclusive. Knickerbocker v. Wilcox, 595. 2. SUBROGATION, DOCTRINE OF, WHEN APPLIED. To justify the application
of the doctrine of subrogation, a person must have paid a debt due to a third person, for the payment of which another was in equity primarily liable; and the person paying the debt must, in doing so, have acted under the compulsion of saving himself from loss, and not as a mere volun.
teer. Opp v. Ward, 220. 8. GUARANTOR OF JUDGMENT CREDITOR ENTITLED TO SUBROGATION TO
RIGHTS OF SURETY ON APPEAL BOND WHEN. Where a person becomes guarantor for a lessee, and the lessor recovers judgment against the lessee for his failure to perform the covenants guaranteed, and the lessee appeals from this judgment, which is affirmed, and the lessor then pues the guarantor, and recovers judgment against him for the rent of the demised premises from the date of the rendition of the judgment against the lessee up to the time of his death, which judgment the guarantor pays, the lessee having paid the judgment against himself, the guarantor is entitled to recover the amount so paid by him from the surety on the appeal bonci, and no demand before suit is necessary. The interposition of the second surety having been the means of involving the first in the liability which he was ultimately compelled to pay, the eqnity of the first is complete, and he is entitled, on the principles of subrogation, to stand as though the creditor had assigned the appeal bond to him. If the first surety suffers loss or his liability is increased or prolonged so as to render him liable to suffer loss by the intervention of the second, the
latter assumes all the risk resulting from his voluntary interposition. Id. Beo ASSIGNMENT, 2; ATTACHMENT AND GARNISAMENT, 1-3; NOTARIES PUB
TAXATION. 1. TAXATION OF CORPORATION. — No exemption of a particular corporation
from taxation can be iinplied from the mere fact of the payment of a
bonus by it for its franchise. New Orleans v. Orleans R. R. Co., 365. 2. ID. — EXEMPTION. – No railroad or other corporation can claim exemption
from taxation or from a license, simply because it has paid a bonus for its charter or franchise, in the absence of a stipulation on the part of the state or other taxing power that such bonus was received in lieu of any further or future taxation. Id.
TELEGRAPH COMPANIES. 1. TELEGRAPH COMPANY'S DUTY IN TRANSMISSION AND DELIVERY OF MES.
SAGES. When a telegraph company receives, without conditions, a message for transmis:ion, among other obligations implied is the duty to accurately transmit and deliver to the addressee the message received. It does not insure the accurate transmission and delivery of the message, but it undertakes to exercise due diligence to accurately transmit and deliver it. Pearsall v. ll'estern Union Tel. Co., 662.
2. PRIMA FACIE EVIDENCE OF NEGLIGENCE IN FAILING TO PROPERLY DELIVER
TELEGRAPHIC MESSAGE. - In an action against a telegraph company to recover damages for failing to accurately or promptly deliver a message, the plaintiff makes out a prima facie case of negligence against the company by proving the contract and its breach, without giving evi. dence of any negligent act of omission or commission on the part of the
company or of its agents. Id. 3. ASSENT OF SENDER OF MESSAGE TO CONDITIONS IN BLANK. — The sender
of a telegraphic message who write the same upon a blank which has printed upon it a condition that “the company will not be liable for damages in any case, where the claim is not presented in writing with: sixty days after sending the message,” is chargeable with knowledge of, and deemed to assent to, such condition. Hill v. Western Union Tel.
Co., 166. 4. Waiver OF CONDITION BY Agent. — A demand for damages for mistake
in the transmission of a telegraphic inessage is properly inade upon the agent on duty at the place from which the message was sent, and though he is not bound to recognize an oral demand, still, if he does so, and makes no objection to it on the ground that it is not in writing, but ob. jects to it on the sole ground that the company is not at fault, he thereby waives, on the part of the company, any right to have the demand made in writing, according to the condition attached to the message as sent.
Id. 6. TELEGRAPH COMPANY MAY BY CONTRACT, BUT NOT BY MERE Notici,
LIMIT ITS LIABILITY. A telegraph company incorporated under the general statutes of New York may by contract limit its liability for mistakes or delays in the transmission or delivery, or for the non-delivery, of messages, caused by the negligence of its servants, if the negli. gence be not gross, to the amount received for sending the message; but it cannot so liunit its liability by a mere notice, unless it is brought to the personal knowledge of the sender of the message and he is shown to have assented to it. In respect to the right of telegraph companies to limit their liability by notice, the same rule applies to them that
applies to common carriers. Pearsall v, Western Union Tel. Co., 662. 6. MEASURE OF DAMAGES FOR FAILURE TO PROPERLY DELIVER TELEGRAPHIC
MESSAGE. Where a member of a firm of stock-brokers delivers to a telegraph company a message directed to his firm, ordering it to buy certain shares of stock, but the operator negligently transmits the mes. sage directed to such member of the firm individually, in consequence of which the message remains unopened until his return home the next day, when he purchases the shares at an advanced price, in an action against the company for the negligent transmission of the message, the measure of damages is the difference between the price paid for the shares and that for which they would have been bought the day before,
had the message been accurately transmitted and delivered. Id. 7. INTEREST IN STREETS. Statutes authorizing a corporation to construct
lines of telegraph along and npon public streets, by the erection of the necessary fixtures, including posts, piers, and abutments for maintaining wires, do not grant any interest in such streets, and at most confer a license to enter thereon for the purposes named, and merely determine that one of the purposes for which the street may be used is the erection of poles and the stringing of wires for the business of telegraphing, and that such use is a public one, not inconsistent with the use of the streets
for general street purposes. The legislature did not intend by these statutes to divest itself, and it could not divest itself, of its control of the streets for the public welfare. The license conferred can be molisiel or revoked at any time when the public interest may so require. Amerirun
Rupid Tel. Co. v. Hess, 764. 8. GRANT OF THE RIGHT TO USE PUBLIC STREETS TO MAINTAIN AND OPERATE
TELEGRAPH LINES is subject to the control and regulation of the legislature. Such grant does not abdicate its power over the public streets, nor in any way curtail its police power to be exercised for the general welfare of the public; and if the poles and wires become a serious obstruction and nuisance in the streets, the legislature may take such action, and make such provisions by law, as are nee Iful to remove the
nuisance and restore the utility of the streets for public purposes. Id. 9. STATUTES REQUIRING THAT TELEGRAPI, TELEPHONE, AND ELECTRICAL
WIRES AND CABLES IN Cities having a population of five hundrell thousand shall be placed under the surface of the streets, lanes, and avenues of the city are valid and enforceable, though previous statutes had granted permission to maintain telegraph lines and poles upon the streets of such city. The statute may also require all subways for underground coo ductors of electricity to be built under the direction of the board of commissioners of electrical subways, and give the board authority to require all owners or operators of electrical conductors aboveground to make connection with such underground subways as shall be determined by the board, and to remove their poles and wires from the streets within ninety days after notice, and in the event of their refusal to make such
removal, the authorities of the city may be authorized to do so. Id. 10. Acrs of Congress PURPORTING TO GRANT TELEGRAPH COMPANIES the
right to construct and maintain lines of telegraph through, over, and along any of the military or post roads of the United States do not deprive the state of its control over its highways and its right to regulate their use, by the police powers, for the public welfare, and hence do not confer the right to maintain telegraph poles and wires above the surface of the public streets after the enactment of a statute by the state requir. ing them to be placed underground. Id.
TENANTS IN COMMON.
TRADE-MARKS. TRADE-MARKS, RIGHT TO RESTRAIN Use of. — WHERE A PATENT MEDI.
CINE is manufactured and sold by a physician, who dies, and another person becomes possessed of his formulas and acquires the right to his trade-mark, he cannot maintain a suit to restrain another person from
making and selling medicines from the same formulas, nor from using the trade-mark, because the only use of a trade-mark, after the death of the original proprietor, is to in licate that the medicines sold are of the same class as those which he manufactured, and therefore one person has no right to enjoin another from using them, where his use is not a fraud upon the public, nor an invasion of the exclusive right of any other person. Chadwick v. Covell, 442.
TRESPASS. EQUITABLE RELIEF AGAINST Trespass. — Equity may be at once resorted
to for appropriate relief when numerous acts of trespass are being committed and their continuance threatened under claim of right, and when the injury arising from each act is trifling, and the damages recoverable therefor inadequate as compared with the expense necessary to prosecute separate actions at law therefor. Sembeck v. Nye, 828.
TRIAL. 1. Upon Filing AN AMENDED COMPLAINT in a suit for partition, bringing
in new parties under an allegation that they have or claim an interest in the subject matter of the suit, all defaults previously entered, based upon the original complaint, must be regarded as vacated, and the amended complaint must therefore be served on all parties, whether they are in
default as to the original complaint or not. Reinhart v. Lugo, 52. 2. Right to READ FROM Law Book. – On the contest of a will, coun
sel has no right to read to the jury, in his argument, from a standard law work on wills, as the reading to the court or jury of scientific books recognized as stanrlard authority, when necessary to an understanding of any relevant matter, may be granted or denied, in the sound discretion
of the court. Richmond's Appeal, 85. 3. SufficieNCY OF COMPLAINT MAY BE CONSIDERED ON MOTION FOR A New
TRIAL if the defen lant moved for a nonsuit in the trial court on the ground that the contract set out in the complaint was against public
policy, and the motion was denied. Alpers v. Hunt, 17. 4. ERROR OF COURT IN DENYING NONsuit, IF EXCEPTED To, may be re
viewed on a bill of exceptions. Id. 6. Right to Except to INSTRUCTIONS. — Litigants cannot be deprived of
their right to except to instructions by the court, unless they have ex. pressly requested them. Requests by implication are unknown. Wil.
bur v. Stoepel, 568. 6. INSTRUCTIONS. Where there is evidence tending to support both sides
of an issue of fact, an instruction thereon should call attention to both
olasses of the evidence. Id. 7. INSTRUCTION Expressing OPINION, ERROR THROUGH Lapsus LINGUE
- In an action to recover damages for personal injury, an expression in a charge, "that these injuries are permanent, and that she will have to suffer the remainder of her life," omitting the word “if,” is error, al. though it appears from the whole charge that the omission was a lapsus of the engineer and fireman of the train, in testifying for the company, if they also call attention to the interest of plaintiff in testifying for him.
linguæ. Chattanooga etc. R. R. Co. v. Liddell, 169. 8. WITNFSSES, INSTRUCTIONS MAY CALL ATTENTION TO INTEREST OF. - In an
action against a railroxıl company to recover for personal injury received at a public crossing, the instructions may call attention to the interest
self. Ellis v. Lake Shore elc. R. R. Co., 914. 9. JURY AND JURORS – RIGHT TO REJECT JUROR WITHOUT CAUSE. - A court
has no right of its own motion to reject a qualified juror with whom the parties are satisfied, unless for sufficient cause, which must appear in
the record. Welch v. Tribune Pub. Co., 629. 10. JURY AND JCRORS — SICKNESS OF JUROR MUST BE ESTABLISHED IN PRES
ENCE OF ACCUSED. Where, upon the trial of a person accused of felony, the jury, after hearing the evidence, are allowed to separate and go to their homes, and the inability of a juror to attend because of sickness com. mencing during the recess is reported to the court, the fact of the sick. ness of such juror must be established as any other fact is established in a court of justice, in accordance with judicial methods, including the right of the accused to be present, and to introduce evidence and crossexamine witnesses; and it is reversible error for the court, of its own motion, or from mere reports unverified by affidavits or unsupported by oaths administered in open court, and in the absence of the accused, to determine that there exists, because of the sickness of such juror, an unavoidable necessity that the remaining jurors should be discharged without verdict, and by such an arbitrary exercise of judicial discretion
deprive the accused of the plea of once in jeopardy. Slate v. Smith, 266. ul. Jn. – RECORD MUST Show Facts AUTHORIZING DISCHARGE OF Jury.
When an order is made by a trial court discharging a jury without ver. dict, to which has been committed the question of the guilt or innocence of a person accused of crime, the record must show affirmatively the existence of the fact or facts which induced such order and justified the
exercise of such extraordinary power. Id. 12. EVIDENCE – BURDEN OF Proor. - When the execution of an instru.
ment sued on is denied by affidavit, the burden of proof is upon the plaintiff throughout the trial, to show the execution of the instrument. This in Michigan, under circuit court rule 79. Wilbur v. Stoepel, 568. See ABATEMENT, 2; AGENCY, 5; APPEAL AND ERROR; INSURANCE, 19.
TRUST AND TRUSTEES. 1. TRUSTS. TO THE CONSTITUTION OF EVERY EXPRESSED TRUST there must
be a trustee, an estate to vest in him, and a beneficiary. If property is devised to persons, to hold in trust, for their own benefit, no trust is created, but they take both the legal and equitable estate; for these two estates cannot be separately maintained in the same persons. Greene v.
Greene, 743. 2. DECLARATION OF Trust, WHAT SUFFICIENT. – Whore a person indebted
to another in a certain sum of money writes to him recognizing the in. debtedness; tells him that he will keep the money until he deems him capable of taking care of it; that he shall have it certain; that he does not intend to interfere with it; and that he may consider it on interest,
this is sufficient for the creation of a valid trust which is not within the operation of the statute of limitations. Hamer v. Tidway, 693.
See EXECUTIONS, 2; WILLs, 11.