time within which messages must be transmitted and delivered, and not to accuracy and correctness in sending and transcribing them, and the company is not liable by virtue of the terms of the statute, for the penalty prescribed, merely because it makes a verbal, though material, mistake and error in transcribing a message received and transmitted. Western Uuion Tel. Co. v. Rountree, 93.

6. LIABILITY FOR FAILURE TO TRANSMIT MESSAGE-DAMAGES.-A telegraph company failing to send a message properly delivered to it is liable for the damages sustained by the sender by reason of such failure. Hence, if one having a definite offer of employment at so much per month, and in a particular business, accepts by telegraph, but the offer expires by lapse of time, and the opportunity is lost by a failure of the company to send the message, it is liable for the actual damages sustained by the sender. The plaintiff would be entitled to recover at least one month's wages, if he remained unemployed for that length of time and could not obtain employment elsewhere, as such offer would, prima facie, cover the term of at least one month. Baldwin v. Western Union Tel. Co., 194.

7. OMITTED CAUSE OF ACTION CANNOT BE INTRODUCED BY AMENDMENT THOUGH IT MIGHT HAVE BEen Joined with THE ONE SUED ON.-The statutory penalty for failure to transmit messages promptly is a separate and distinct cause of action from the damages recoverable under the general law for like default. While the statute allows both causes to be joined in the same action, there is no authority, where one is omitted, for introducing it by way of amendment to the declaration pending the action. No amendment adding a new and distinct cause of action is allowable unless expressly provided for by law. Baldwin v. Western Union Tel. Co., 194.

8. LIABILITY FOR FAILURE TO DELIVER MESSAGE-ERRONEOUS ADDRESS. If the sender of a telegraphic message gives the company the wrong street address of the sendee, and the company receives and carries the message promptly to the place designated by the sender, but is unable to deliver it because the sendee is not there, it is not bound, in order to escape the statutory penalty for failure to deliver with due diligence, to take the message to another address which it does not know, and has no reason to believe is the right one, although the name given at such address is the same surname as that given in the message. In order to hold the company liable it must appear that is knew the proper address of the sendee, or could have readily ascer tained it in the exercise of ordinary diligence. Western Union Tel Co. v. Patrick, 90.

9. PREPAID MESSAGE AS EVIDENCE CALLING FOR PROMPT DELIVERY.—In an action against a telegraph company to recover for failure to deliver a message with due diligence, the fact that the message as delivered was marked "paid" is evidence tending to show that it was a prepaid message, and should have been delivered with due diligence as required by the statute upon which the action is founded. Conyers v. Postal Tel. Cable Co., 100.

10. MESSAGE DELIVERED AS EVIDENCE OF MESSAGE SENT.-In an action against a telegraph company to recover for failure to deliver a message with due diligence, the message as delivered is admissible to prove the contents of the message as sent, without producing or accounting for

the absence of the message as sent. Conyers v. Postal Tel. Cable Co., 100.

1. LOCAL USAGE TO AVOID EXPRESS CONTRACT.-A local usage concern. ing telegraph messages inconsistent with an express contract entered into between a telegraph company and the sender of a message at the place where such usage prevails is not a part of such contract, and can. not be given in evidence to contradict or avoid it. Stamey v. Western Union Tel. Co., 95.

12. LIABILITY OF CONNECTING COMPANY FOR DELAY.-A telegraph company receiving a prepaid message from another such company, to whom the sender has delivered it, and who has transmitted it over its line, is liable for a penalty imposed by statute for failure to transmit and deliver the message with due diligence. Such statute being penal in its nature, the elaim by the connecting company that it acted merely as the agent of the first company is no defense. Conyers v. Postal Telegraph Cable Co., 100.

13. Delivery of a TelegraphIC MESSAGE to a messenger boy by the sender, without acceptance by the company, is not a delivery to it, and does not fix any liability on the company for faliure to transmit and deliver. Stamey v. Western Unlon Tel. Co., 95.

See INTERSTATE COMMERCE, 1; Pleading, 3.

TENANT FOR LIFE.

See CORPORATIONS, 16-19.

TIMBER.

See LIENS, 1-4; MORTGAGES, 13; TRESPASS, 4-6.

TOMBSTONES

See EXECUTORS AND ADMINISTRATORS, 1

TORTS.

See NEGLIGENCE, 6.

TOWNS.

1. LIABILITY OF, FOR INJURIES CAUSED BY DEFECTIVE SIDEWALKS. There being no statutory liability imposed upon a town for neglecting to keep its sidewalks in repair, one injured by slipping thereon, in consequence of their unsafe condition, cannot maintain an action against the town for such injury, especially where it has been relieved by its charter from liability in respect thereto. Buchanan v. Town of Barre,

829.

2 AN ABUTTing Owner In A TOWN IS NOT LIABLE FOR THE SAFE CONDI. TION OF THE SIDEWALK IN FRONT OF HIS PREMISES, in the absence of an ordinance imposing such liability, even as to one who is using the sidewalk for the purpose of obtaining access to the owner's prem ises at his invitation. Buchanan v. Town of Barre, 829.

8. IF A TOWN RENTS ITS TOWNHALL FOR PRIVATE PURPOSES IT IS UNDER THE SAME LIABILITY in respect to it while being so used that a private individual would be; and this simply requires, where there is a clear space between the building and the street, that it and its approaches and entrances shall be in a reasonably safe condition for their proper Buchanan v. Town of Barre, 829.

аве.

TRADEMARKS.

1. The Name of A PLACE may be selected and protected as a trademark. Parkland Hills etc. Water Co. v. Hawkins, 254.

2. THE NATURAL PRODUCT OF A SPRING may be the subject of the proteo tion afforded by a trademark. Parkland Hills etc. Water Co. v. Haw

kins, 254.

8. THE WORDS "BLUE LICK WATER" may be used as a trademark to desig. nate the waters of a spring, and if so used the owners of the waters and trademark will be protected from the use by a rival of the same words to designate waters which are not a product of such spring. Parkland Hills etc. Water Co. v. Hawkins, 254.

TRESPASS.

1. CONVERSION OF PROPERTY INTO DIFFERENT SPECIES-DAMAGES.—If a trespasser acting in good faith, and under an honest belief that title is in him, has converted property taken into a different species, the property in its altered state cannot be recovered, but only damages for the wrongful taking and conversion. Gaskins v. Davis, 439.

2 ENTRY UPON LAND-EXCESSIVE FORCE, WHAT IS.-If one having the right to enter upon the land of another, upon the door being opened, rushed into the house in a violent and rude manner, throwing back on the stairs a girl who opened the door, and one of the servants of the party so entering opened a window and pushed the wife of the occupant of the house violently, and when the owner of the house came and, find. ing persons in his parlor, inquired who they were and why they were there, and asked them to go away, and when he returned from another room armed with a rolling-pin they wrested it from him and committed an assault upon him, these facts justify the jury in finding that excessive force was employed in the entry. Lambert v. Robinson, 326. 8. ENTERING UPON LAND-WHAT FORCE MAY BE USED.-ONE WHO HAS A RIGHT to enter upon the land of another may use such force as is neces sary, and is liable only in case he uses excessive force. Lambert v. Robinson, 326.

4. UNLAWFUL REMOVAL OF STANDING TIMBER-DAMAGES.-In an action of trespass for an unlawful entry upon land and cutting, carrying away, and converting timber growing thereon, the injured party is entitled to recover the value of the timber when it was first severed from the land, together with adequate damage for any injury done to the land in removing it. Gaskins v. Davis, 439.

6. TIMBER UNLAWFUL REMOVAL-RIGHT OF PROPERTY AND RECAPTURESo long as timber unlawfully cut and removed from the land of another is not changed into a different species, as by sawing into boards, the owner of the land retains the right of property in the specific logs, and may regain possession of them, either by recapture or by any other remedy provided by law, although additional value may have been imparted to them by transporting them to a better market, or by improvements in their condition short of an actual alteration of species. Gaskins v. Davis, 439.

6. TIMBER UNLAWFUL REMOVAL-RECAPTURE.-A trespasser who, acting in good faith and under an honest belief that title is in him, removes timber from the land of another cannot, upon the recapture of the timber by the owner, claim the increase in value by reason of transportation by him to a better market, nor can he, in an action against

him to recover for other timber unlawfully removed by him, recoup by way of counterclaim the increase in value imparted by him to the timber so recaptured. Gaskins v. Davis, 439.

See MORTGAGES, 13.

TRESPASSER.

See RAILROADS, 10.

TRIAL.

1. PRACTICE.-There can be no reservation of a question of law in favor of the plaintiff. The verdict must be for the plaintiff, with authority to enter judgment for the defendant against the verdict. If that author. ity is not expressed, the reservation drops out of the case altogether, and judgment is entered for plaintiff, not on the point reserved, but on the verdict, as if there had been no reservation at all. sylvania R. R., 628.

Ringle v. Penn

2 PRACTICE-WAIVER OF OBJECTION TO EVIDENCE.-If the trial judge rules that certain admitted evidence is illegal, and offers to hear a motion to exclude it at a later state of the proceedings, a failure to file an excep tion or to call the court's attention to the matter before the verdict is a waiver of an objection to the admission of the evidence. Norfolk etc. R. Co. v. Anderson, 884.

3. PRACTICE-NEGLIGENCE-PROPER ARGUMENT.-In an action to recover for personal injury caused by negligence counsel may, in discussing the amount of damages to be awarded, properly state to the jury that a demurrer to the evidence is a practical admission of the negligence alleged. Michael v. Roanoke Machine Works, 927. INSTRUCTIONS-FULLER INSTRUCTIONS MUST BE REQUESTED.-No excep. tion lies to the failure of the court to give fuller instructions upon a given point, upon which correct instructions have been given, in the absence of a request therefor by the excepting party. State v. Harrison, 864. INSTRUCTIONS TO FIND IN FAVOR OF THE PARTY ON WHOM THE BURDEN OF PROOF RESTS CAN BUT RARELY BE GIVEN.-It is only when no inferences are possible from the testimony, except those which lead to one conclusion, that the jury can be required to find that a proposition has been affirmatively established. Anthony v. Mercantile etc. Acc. Assn., 367.

See NEW TRIAL.

TRUSTS.

1. Ir a Trustee COMMINGLES TRUST FUNDS with his own, and the mingling is followed by actual loss, accidental or otherwise, he must make good the entire loss to the trust fund, both principal and interest. In re Hodges' Estate, 820.

2 COMMINGLING OF TRUST FUNDS-INTEREST.-A trustee who commingles the entire trust estate with his own should be charged the highest legal rate of interest on the entire trust fund, which should be com puted with annual rests, including any balance of interest remain. ing in his hands at the end of each year. Nothing can be aliowed him for his services in caring for the trust fund. In re Hodges' Estate, 820.

& THE TRUSTEE HIMSELF IS A COMPETENT WITNESS, in the settlement of a trustee's account, as to all matters touching the management of the trust fund, its disposal, or its income. In re Hodges' Estate, 820. See INSURANCE, 8, 9.

TURNPIKES.

See HIGHWAYS, 3.

UNDUE INFLUENCE

See WILLS 3, 4

USAGE.

See CUSTOM; Evidence, 2; Telegraph CompaNIES, 12

USURY.

NEGOTIABLE Instruments.—USURY AS DEFENSE. -In an action on a note given for the price of a horse it is no defense that the holder, being a national bank, took usury in discounting the note at twenty-five per cent or upwards of its value. The act of Congress on the subject of taking usury by national banks does not apply to such a case; nor can this defense be made by the maker of a note in an action against him on the note as the only remedy given by such act is a penal action to recover double the amount of illegal interest charged. Second Nat. Bank v. Morgan, 652.

VIEWING PREMISES.

See HOMICIDE, 20.

VENDOR AND PURCHASER.

CONTRACT FOR PURCHASE OF LAND-REMEDY FOR DEFAULT — CHATTEL MORTGAGES-CONVERSION.-If one goes into possession of land under a contract of purchase conditioned that the title to the crops shall remain in the vendor until the terms of the contract are complied with, the transaction amounts, in effect, to a common-law mortgage of the crops. The vendor is not a chattel mortgagee thereof and cannot sell them under the chattel mortgage law in case of default. If he, after beginning to foreclose against the land, sells the crops at auction, he will be liable as for a conversion of the crops. Whiting v. Adams, 875.

VESTED RIGHTS.

See CORPORATIONS, 26; STATUTES, 8.

VICE-PRINCIPAL

800 MASTER and Servant, 18–20; Railroads, ♣

WAGES.

See LIENS, 6, 7; MERGER.

WAIVER.

See EXECUTION, 11; LIENS, 6; INSURANCE, 7; LIMITATIONS OF ACTIONS; NEGOTIABLE INSTRUMENTS; SALES, 6; SETOFF, 2.