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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 modified or revoked at any time when the public interest may so require. American Rapid 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 legisla ture. 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 lful to remove the nuisance and restore the utility of the streets for public purposes. Id. 9. STATUTES REQUIRING THAT TELEGRAPH, TELEPHONE, AND ELECTRICAL WIRES AND CABLES IN CITIES having a population of five hundred 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 conductors 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.

See Co-TENANCY.

TENDER.

See MORTGAGES, 6.

TICKETS.

See CARRIERS, 4.

TORTS.

See ACTIONS; Damages, 1, 2; Judgment, 1.

TRADE-MARKS.

TRADE-MARKS, RIGHT TO RESTRAIN USE OF. — - WHERE A PATENT MEDICINE 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 indicate 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.

See PATENTS.

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, counsel 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 standard 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 reviewed on a bill of exceptions. Id.

5. RIGHT TO EXCEPT TO INSTRUCTIONS. — Litigants cannot be deprived of their right to except to instructions by the court, unless they have expressly requested them. Requests by implication are unknown. Wilbur v. Stoepel, 568.

6. INSTRUCTIONS.

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- Where there is evidence tending to support both sides of an issue of fact, an instruction thereon should call attention to both classes of the evidence.

Id.

7. INSTRUCTION EXPRESSING OPINION, ERROR THROUGH LAPSUS LINGUÆ - 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, although it appears from the whole charge that the omission was a lapsus linguæ. Chattanooga etc. R. R. Co. v. Liddell, 169.

8. WITNESSES, INSTRUCTIONS MAY CALL ATTENTION TO INTEREST OF. — In an action against a railroad company to recover for personal injury received at a public crossing, the instructions may call attention to the interest

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 himself. Ellis v. Lake Shore etc. 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 JURORS. SICKNESS OF JUROR MUST BE ESTABLISHED IN PRESENCE 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. State v. Smith, 266. 1. ID. RECORD MUST SHOW FACTS AUTHORIZING DISCharge of Jury. When an order is made by a trial court discharging a jury without verdict, 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 PROOF. When the execution of an instrument 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.

Where a person indebted to another in a certain sum of money writes to him recognizing the indebtedness; 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.

UNDUE INFLUENCE.

See WILLS.

VENDOR AND VENDEE.

See SALES; SPECIFIC PERFORMANCE, 1, 2.

WAGERS.

See INSURANCE, 5.

WARRANTY.

See NEGOTIABLE INSTRUMENTS, 14-16; SALES.

WASTE.
See Co-TENANCY, 1.

WATERCOURSES.

1. WATER FROM ARTESIAN WELLS-LIABILITY FOR PERCOLATION. — One having artesian wells upon his land, and so using them that the water therefrom forms in a pool and thence percolates beneath the surface so as to injure the lands of an adjacent proprietor, is answerable in damages for the injuries thus occasioned. Parker v. Larsen, 30. 2. OWNERSHIP IN NON-NAVIGABLE LAKES-DEDICATION.

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A non-navigable inland lake is subject to private ownership; and the owner thereof cannot be deemed to have dedicated it to the uses of boating, hunting, and fishing, simply because he interposed no objection to such use by his neighbors, adjoining proprietors, or strangers. Other circumstances must clearly and satisfactorily appear manifesting an intent on his part to so dedicate it. Lembeck v. Nye, 828.

3. DEDICATION OF NON-NAVIGABLE LAKE.

The use of a non-navigable inland lake by the public for the purposes of boating, hunting, and fishing, without the knowledge of the owner, will not establish a dedication of any kind against him, no matter how long continued such use may be. Id.

4. RIPARIAN RIGHTS IN NON-NAVIGABLE LAKE. - The public has no right without prescription, as against the owner, to fish in and boat upon the waters of a non-navigable inland lake; nor have adjoining owners, without title in the lake, and without prescription, the right to engage in the business of letting for hire boats and fishing-tackle to such portions of the public as may resort to such lake to boat and fish for their pleasure and recreation. Id. 5. RIPARIAN RIGHTS IN NON-NAVIGABLE LAKE. A riparian owner, by virtue of his ownership to the edge of the water of a non-navigable lake, has access to and the right to use the water thereof for domestic and agricultural purposes. Id.

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6. RIPARIAN OWNER HAS NO RIGHT TO RETAIN BY MEANS OF A DAM THE WATERS of a natural stream running through his land, and then to discharge them in such quantities into such stream that it is insufficient to carry them, and they therefore overflow the lands of a riparian proprie. tor below, to his injury. McKee v. Delaware Canal Co., 740.

See DEEDS, 6–10; Municipal Corporations, 1–3; Nuisanoks, 2.

WIDOWS.

See EXECUTORS AND ADMINISTRATORS, 5–10.

WILLS.

1. CAPACITY REQUIRED OF A TESTATOR to make his will valid is, that at the time of its execution he be possessed of sufficient intelligence and memory to fairly and rationally comprehend the effect of what he is doing, and the nature and condition of his property, to understand who are or who should be the natural objects of his bounty, and his relations to them, the manner in which he wishes to distribute it among or withhold it from them, and the scope and bearing of the provisions of the will he is making. Richmond's Appeal, 85. 2. TESTAMENTARY CAPACITY. — Mere physical weakness or disease, old age, eccentricities, blunted perceptions, weakening judgment, failing memory or mind, are not necessarily inconsistent with testamentary capacity, but evidence of such facts, or of any of them, should be submitted to the jury to aid in determining whether or not the testator had sufficient testamentary capacity at the time of executing his will. Id. 3. PRESUMPTION OF UNDUE INFLUENCE. When the person who draughts a will or participates in procuring its provisions from the testator also occupies a relation of special confidence toward him, and would not be a beneficiary in the absence of the will, and is specially benefited by its terms, the presumption of undue influence arises, and the burden of proof is on him to show that the will was executed freely and without his influence. In such case, direct and positive proof that the beneficiary took part in procuring from the testator the terins and provisions of the will is not required to raise such presumption; it may be inferred from surrounding circumstances. Id.

4. PRESUMPTION OF UNDUE INFLUENCE. The mere existence of a confidential relation will not in all cases necessarily raise a presumption of undue influence in the execution of a will, especially when it appears that the opportunity of familiar and secret communication and intercourse between the testator and the beneficiary, at a time proximate to the execution of the will, is wanting; but when a legacy is given to an attorney, confidential adviser, guardian, or other person sustaining a relation of special confidence to the testator, or when the person who prepares the will or conducts its execution, not being a relative who would, in the absence of the will, be an heir, derives a benefit from its provisions, such presumption may arise from the surrounding circumstances which would justify the jury in finding that undue influence existed, in the absence of rebutting or explanatory proof. The question of unde influence should be left for the jury to determine, under proper instructions. Id.

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6. EVIDENCE TO RAISE PRESUMPTION OF UNDUE INFLUENCE. — On the issue of undue influence in the execution of a will, exercised over the testatrix by a legatee who was her confidential agent, all the facts affecting or attending the relations of the parties, and having a direct, positive, important bearing upon the question, such as the amount, situation, and character of the property with which he was intrusted during any and all portions of his stewardship, as well as the degree of knowledge which the testatrix possessed in regard to the same, and the agent's conduct in imparting information upon the subject to her, or in with. holding it from her. are relevant, important, and admissible. Id.

6. OPINION OF MENTAL CAPACITY BY COMPARISON AS EVIDENCE. Оп the issue of undue influence, a witness may give his conception of the testatrix's mental capacity by comparison, and state that it is his

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