daughter and her children expelled from their home into the street by the husband, and suddenly meeting him in the heat of sudden passion caused by the violence to the wife, the father shot him, not in necessary self-defense, and without malice, he is guilty of manslaughter. Id. 20. MURDER-INTENT PRESUMED FROM PERPETRATION OF ANOTHER FELONY. A homicide committed by an accused while engaged in the perpetration of a felony, as rape or sodomy, is murder, and the absence of proof of premeditation or preconceived design to kill is insufficient to reduce the crime to manslaughter. State v. Deschamps, 392.

21. MURDER-PROOF NECESSARY TO ESTABLISH. - Simple proof of a homicide is insufficient to establish the crime of murder. The prosecution must first affirmatively prove the existence of malice in the perpetrator, in order to put him upon his defense.

22. ID.

Id.

PRESUMPTION FROM ACT OF Killing. - When an act is committed deliberately with a deadly weapon, and is likely to be attended with dangerous consequences, the malice requisite to murder will be presumed; but the presumption which arises from a killing, unattended with such circumstances of violence, is that of murder in the second degree, or of manslaughter. Id.

23. ID. - PROOF OF MALICE.

- Malice

may

be inferred from many circumstances, other than the use of a deadly weapon, and since proof of it usually lies in circumstantial evidence, evidence of any facts which go to afford an n'erence of its existence is admissible. Id.

24. ID. EVIDENCE OF INTENT.

Where the scienter or quo animo forms an essential or indispensable part of the inquiry, testimony is admissible of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent, notwithstanding they may constitute a differtne crime in law. Id.

25. MURDER EVIDENCE. — On a trial for murder, where it appears that a father, receiving information that his daughter was being abused by her husband, seized his pistol and went to the residence of the husband, and found the daughter and her children, at night, in the street, driven from her home, and on meeting her husband, shot and killed him, after some words had passed between them, evidence of the son-in-law's previcus threats against the accused, and of previous violence against the wife, is competent to show the lawful purpose of the accused in going to the place of the tragedy; but the exclusion of such evidence is not reversible error, when other evidence admitted shows the good faith of the father in his effort to protect the daughter, and that she was in constant danger of bodily harm from her husband. Campbell v. Commonwealth, 348.

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26. ID. EVIDENCE OF SELF-DEFENSE. Where a father has knowledge of cruel treatment inflicted upon his daughter by her husband, endangering her life, it is his natural and legal right to go to the rescue of his daughter, to prevent the infliction upon her person of cruel and inhuman blows; and if in his effort to do so he kills the husband, evidence of the threats of the latter to take the life of the accused, accompanied by an effort to do so, such as an attempt to draw a pistol at the time, is competent on the issue of self-defense. Id.

27. RAPE AGE OF CONSENT. A female under the age of twelve years is incapable of yielding consent to sexual intercourse. State v. Miller, 418.

See MUNICIPAL CORPORATIONS, 10.

DAMAGES.

1. IF A STATUTE IMPOSES UPON ANY PERSON a specific duty for the pro-
tection or benefit of others, if he neglects or refuses to perform such
duty he is liable for any injury or detriment caused thereby, if the in-
jury so caused is of the kind the statute was intended to prevent. Fer-
guson v. Gies, 576.

2. ABSENCE OF MALICE on the part of defendant and his agents will not
relieve him from liability for damages occasioned by his or their wrong.
ful acts. McKee v. Delaware Canal Co., 740.

3. MEASURE OF DAMAGES. In an action against a railroad company to
recover for personal injury, a finding of gross negligence against the
company, without a finding of willful misconduct or an entire want
of care raising a presumption of conscious indifference to consequences
and the legal rights of others, will not authorize a verdict for exemplary
or punitive damages. Such finding will only justify a verdict for com-
pensatory damages. Chattanooga etc. R. R. Co. v. Liddell, 169.

4. NEGLIGENCE-INSTRUCTION. — In an action against a railroad company to
recover for personal injury, an instruction that a finding of gross negli
gence against the company would entitle plaintiff to recover punitive
damages as punishment of the railroad company is error, when the
statute provides that such damages may be given "to deter the wrong.
doer from repeating the trespass." The instruction should be given in
the words of the statute. Id.

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5. NOMINAL DAMAGES MEAN NO DAMAGES AT ALL. They exist only in
name, and not in amount, and should only be awarded where there has
been a breach of contract, and no actual damages whatever have been
or can be shown. Stanton v. New York etc. R'y Co., 110.
6. MENTAL ANGUISH, RECOVERY MAY BE HAD FOR, WHEN. The jury in
assessing damages for the breach of a contract may take into consideration
the mental anguish of the plaintiffs, if they suffered any mental anguish
on account of the matters set out in the complaint. If a person contracts,
upon a sufficient consideration, to do a particular thing, the failure to do
which may result in anguish and distress of mind on the part of the other
contracting party, he is presumed to have contracted with reference to
the payment of damages of that character in the event such damages ac-
crue by reason of a breach of the contract on his part. Renihan v.
Wright, 249.

See AGENCY, 4; ANIMALS; ASSIGNMENT, 2; CIVIL RIGHTS, 1, 2; CONTRACTS,
3, 4; CORPORATIONS, 14; JUDGMENTS, 10; LIBEL AND SLANDer; Sales,
12; TELEGRAPH COMPANIES.

DECLARATIONS.

See AGENCY, 5; EVIDENCE, 3-6; WILLS, 20.

DEDICATION.

1. STREETS DEDICATED BY MAPS. - Laying out a large tract of land, and cut-
ting it up into house lots and ways, does not give every purchaser of a lot
a right of way over every street. He has no right to insist upon the keep-
ing open of a street which does not connect his lands with the pub-
lic highway, and which is desirable because it is nearest the water and
in full view thereof. Pearson v. Allen, 426.

2 DEDICATION BY MAPS. — Including a space upon a map with dotted lines is
not a sufficient indication that it is to be kept open for the benefit of the
public or of a purchaser of lands in the tract represented on the map. Id.
See WATERCOURSES, 3.

DEEDS.

1. DELIVERY. —It is an essential characteristic and an indispensable fea-
ture of every delivery of a deed, whether absolute or conditional, that
there must be a parting with the possession of it, and with all power
and control over it, by the grantor for the benefit of the grantee at the
time of the delivery. Porter v. Woodhouse, 131.

2 DELIVERY of a deed is as essential to the passing of the title as is the
signing or acknowledgment of it. It is the final act, without which
all other formalities are ineffectual; and to constitute delivery, the
grantor must part with the legal possession of the deed, and with all
right to retain it. The present and future dominion over the deed must
pass from the grantor in his lifetime. Id.

8. DELIVERY, WHAT IS NOT. - Where a grantor formally executes a deed,
except delivery, and then places it in a locked box, putting the lat-
ter in the possession of her servant, with the information that it con-
tains the deed, but without divulging the name of the grantee therein,
and directing that the box be not opened until after the death and fu
neral of the grantor, which direction is followed, there is no such parting
with the possession, custody, and control of the deed by the grantor as
constitutes a valid delivery. Id.

4. DELIVERY of a deed includes not only an act by which the grantor
parts with the possession of it, but also a concurring intent on the part
of the grantor that it shall vest the title in the grantee; but where the
proof fails to show that the grantor ever did any act by which he parted
with the possession of the deed for the benefit of the grantee, the ques-
tion of intent becomes immaterial. Id.

5. DEED POLL, ACCEPTANCE OF, EFFECT OF. The acceptance of a deed poll
by the grantee makes it the mutual written contract of the parties, and
therefore the statute of limitations respecting verbal contracts does not
apply thereto. Midland etc. R'y Co. v. Fisher, 189.

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6. CONVEYANCE OF LAND OF NON-NAVIGABLe Lake. · Where the owner of
land surrounding a non-navigable inland lake, longer than it is broad,
conveys a portion of the land bordering on the lake by a deed which
describes the lake as one of the boundaries, the title of the purchaser
extends to the center of the lake. Lembeck v. Nye, 828.

7. ID.Where the owner of land surrounding a non-navigable lake con-
veys a portion thereof by deed describing the margin of the lake as
one of the boundaries, the title of the purchaser extends to low-water
mark only. Id.

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8. ID. Where the owner of land surrounded by a non-navigable inland
lake conveys a portion of the land by deed describing it by metes and
bounds, without reference to the lake, the title of the purchaser only ex-
tends to the lines mentioned in the deed. Id.

9. CONVEYANCE OF BATTURE OR ALLUVION RIGHTS.-A deed which de-
scribes the property sold as fronting on a certain street, and extend-
ing between certain lines to the river, without guaranty of measure-
ment, conveys the batture or alluvion rights to the river frontage
described in the deed. Meyers v. Mathis, 385.

AM. ST. REP., VOL. XXI.-61

10. WHEN DEED CONVEYS Batture or AllUVION RIGHTS.- A deed describ-
ing the property sold as fronting on a river conveys the batture or al-
luvion rights without any provision to that effect contained in the
deed. Id.

See Co-TENANCY, 2-4; Covenants; Easements; Husband and W172, 2–12;
MORTGAGES, 1.

"If." Chattanooga etc. R. R. Co. v. Liddell, 169.
Lapsus lingua. Chattanooga etc. R. R. Co. v. Liddell, 169.
Negligence. Ellis v. Lake Shore etc. R. R. Co., 914.

"Order of myself." Jenkins v. Bass, 344.

Sale of a chattel. Stephens v. Gifford, 866.
"The directors." McKensey v. Edwards, 339.
"Trust." Emery v. Ohio Candle Co., 819.
"You are my meat." Croom v. State, 179.
"You are mine." Croom v. State, 179.

DENTISTRY.

1. VALIDITY OF STATUTE REGULATING PRACTICE OF DENTISTRY. -The le-
gislature may by statute regulate the practice of dentistry within the
state, and may provide that only those possessing skill and learned in
that profession shall be permitted to practice. It may prescribe the
nature and extent of the qualifications required and the rules for ascer-
taining and determining whether those proposing to practice come up
to the statutory standard. If the statute operates equally upon all
who may desire to practice, and is enacted to promote the health and
welfare of the people by excluding those who are ignorant and inca-
pable, then the fact that the conditions may be rigorous, impolitic, and
unjust will not render the statute invalid. Such legislation is not re.
pugnant to section 2 of article 4 of the United States constitution, nor
in conflict with section 1 of the fourteenth amendment thereto. State v.
Creditor, 306.

2. ID. —A statute regulating the practice of dentistry, and prescribing
the nature and extent of the qualifications required, and the rules for
ascertaining and determining whether those proposing to practice come
up to the statutory requirement, cannot be deemed to unduly discrimi
nate between persons or classes, or to be unconstitutional because it
exempts those engaged in the practice of dentistry within the state at
the time of its enactment from the necessity of obtaining a diploma
from a dental college, and requires such a diploma from all others.
Although this fact may work a hardship upon a practicing dentist who
comes into the state after the enactment of the statute, it does not ren-
der the law invalid. Id.

DEPUTY.

See SHERIFFS, 1.

DISORDERLY CONDUCT.

See CARRIERS, 3.

DIVORCE.

See MARRIAGE AND DIVONCE.

DRAFTS.

See NEGOTIABLE INSTRUMENTS, 6, 7.

EASEMENTS.

1. PUBLIC EASEMENTS, ACTION BY PRIVAte Person for OBSTRUCTION OF. —
Though lands are dedicated to public use as streets and ways, their ob-
struction as such will not give a cause of action to a private person, unless
he suffers private damages. Pearson v. Allen, 426.

2. RIGHT TO HAVE LAND BUILT UPON FOR THE BENEFIT OF LIGHT AND
AIR to neighboring land may by deed be made an easement, and may
be created by words of covenant as well as by words of grant. Ladd v.
City of Boston, 481.

3. IN ORDER TO ATTACH AN EASEMENT TO A DOMINANT ESTATE, it is not
necessary that it shall be created at the moment when either the dom
inant or the servient estate is created, if the purport of the deed is
to create an easement for the benefit of the dominant estate. Id.

4. EASEMENTS RESTRICTING THE USE OF LANDS. If the owners of lots front-
ing upon a square of land in a city mutually agree that certain places,
avenues, and passage-ways, as laid out upon a plat, shall remain open as
an appurtenant to several lots, and that no building shall be erected upon
certain lots within ten feet of the front line thereof, unless a majority
of the owners shall so elect, nor shall any building extend above a speci
fied height, such agreement entitles each of the owners to an easement,
and if a city, in the exercise of the right of eminent domain, takes a lot
which is subject to such easement in favor of an owner of another lot, it
must compensate him for the loss of his easement. Id.
5. EASEMENT ATTACHED TO LAND BY PLAIN AND DIRECT Language oNLY.
It is only by the use of p'ain and direct language of a grautor that it can
be held that he has created a right in the nature of an easement in land
and attached it to one parcel as the dominant estate, and made the other
servient thereto for all time to come. The creation of such a right will
not be inferred by a forced construction of a covenant, nor by any am-
plification of its language beyond its natural ineauing. Where, there-
fore, the owner of two adjoining city lots conveys one of them by a deed
in which he covenants, for himself, his heirs, executors, administrators,
and assigns, to and with the grantee, his heirs, executors, administra-
tors, and assigns, that he will not erect or cause to be erected on said
lot any building which shall be regarded as a nuisance, or which shall be
occupied for any purpose which may render it a nuisance, this covenant
must be regarded as personal to the grantor, and solely against his own
acts, and will not make him liable for the acts of his grantees or of sub-
sequent owners, provided he neither does such acts himself nor causes
them to be done. Clark v. Devoe, 652.