Km- CORNELL LAW LIBRARY QJnrnfll ICam ^rljnnl SItbtary Cornell University Library KFM2445.1.T52Suppl. Digest of the decisions of the Supreme J 3 1924 017 671 904 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017671904 DIGEST OF THE DECISIONS OF THE SUPREME JUDICIAL COURT OP THE Commonwealth of Massachusetts A.S CONTAINED IN THE SERIES OF REPORTS BEGINNING WITH THE ONE HUNDRED AND FORTY-SECOND AND ENDING WITH THE ONE HUN- DRED AND FIFTY-FIRST VOLUME OF MASSACHUSETTS REP0R18 BY CHAELES F. WILLIAMS VOLUME III BANKS & BEOTHEES NEW YORK ALBANY 1891 «^4 Entered according to act of Congress in the year one thousand eight hundred and nmety-one, hy BANKS & BROTHERS, in the oflBce of Librarian of Congress, at Washington. PREFACE. This volume is a Digest of the opinions of the Supreme Judicial Court of the Commonwealth of Massachusetts, contained in volumes 142-151, inclusive, and is designed as a supplement to or continuation of Throop's Massachusetts Digest, which ended with volume 141. The system of classification, arrangement, cross-references, etc., adopted in that work has been followed here, except so far as the lesser quantity of matter has made it practicable to dispense with many cross- references and subdivisions of titles, and with some titles. It has been found feasible to make the cross-references specific — to particular paragraphs — as well as general. While the notes are so drawn as to present specific applications of the principles of law to the facts of the cases, care has been taken to avoid that prolixity which obscures rather than elucidates. It is believed that the work will be found accurate and thorough. No labor has been spared to make it so. Boston, April 25, 1891. CHARLES F. WILLIAMS. TABLE OF CONTENTS. VOLUME III A. PAGE ABATEMENT AND SURVIVOR OF AN ACTION OR CAUSE OF ACTION 1 Abuse of female child. [See Rape.] Accession. [See Alluvion.] ACCESSORY AND ACCOMPLICE 1 Accident insurance. [See Insurance.] ACCORD AND SATISFACTION 1 Account; account annexed; account stated. [See Equity Jurisprudence; Joint Tenants, 3, 3.] ACTION 3 Ademption. [See Devise and Bequest.] Adulteration. [Of Butter; set; Butter; of Milk; see Milk.] ADULTERY (Criminal Law) 3 ADVERSE POSSESSION; DISSEISIN 3 AGENCY 3 I. Agents' Power and Authority 3 II. Ratification ,. '. 3 III. Principal and Agents' Mutual Rights and Liatiilities. 8 IV. Rights and Liabilities as Respects Others „ 3 V. Particular Kinds of Agency 3 AGISTMENT 4 Agreement. • [See Contract; Statute of Frauds.] Alienation of real property. [See Deed.] Alienation, suspension of the power of. [See Perpetuity.] Alimony. [See Divorce.] ALLUVION 4 ALTERATION OF INSTRUMENT 4 Ambiguity. [See Contract; Deed; Devise and Request; Evidence.] AMENDMENT 4 ANIMAL 4 Annuity. [See Contract, 18; Devise and Bequest; Trustee and Cestui que Trust, SO.] APPEAL 5 I. Appeal to the Supreme Judicial Court ... 5 II. Appeal to the Superior Court 5 III. Security upon Appeal 5 IV. Practice and Proceedings 6 V. Appeal in a Criminal Case 6 vi TABLE OF CONTENTS. Application of payments. [See Payment.] Apportionment. [See Income; Trust.] Aqnednct. [See Watercourse.] ARBITKATION „ 6 ARREST AND FALSE IMPRISONMENT 7 I. Arrest in a civil case 7 II. Arrest in a criminal case 7 III. Action for false imprisonment 7 ARSON AND OTHER CRIMINAL BURNING 7 ASSAULT AND BATTERY 7 I. Criminal proceedings 7 II. Action for damages 8 Assessment. [See Highway; Taxation; Town and City.] Assessor of taxes. [See Taxation.] ASSIGNMENT 8 I. What operates as an assignment 8 n. What is or is not assignable 8 III. Validity and effect 8 IV. Actions and defenses founded upon assigned demands 8 V. Assignment for benefit of creditors 9 Association. [See Benevolent Association; Loan and Fund Association; Keligious Asso- ciation.] ASSUMPSIT ATTACHMENT Attempt to commit a crime. [See Mill and Mill Dam, 1.] Attestation. [See Deed; Will, and the titles of various instruments.] ATTORNEY AT LAW 10 AUCTION AND AUCTIONEER 10 AUDITOR 10 Antrefois acqnit; antrefois convict. [See Former Adjudication.] Award. [See Arbitration.] B. BAIL 11 BAILMENT 11 BANK AND BANKING 11 I. National banks , 11 II. Collections H III. Officers and servants _.. H BANKRUPTCY 11 BASTARD AND BASTARDY PROCESS 12 I. Complaint; Accusation; Examination 12 II. Proceedings in the superior court before trial 13 III. Trial; Evidence 13 Bawdy -honse and prostitution. [See Indictment, 8.] Breach. [See Flats.] BENEVOLENT ASSOCIATION; BENEFICIARY ASSOCIATION 13 Benevolent trust. [See Charity; Devise and Bequest; Trust; Trustee.] Bequest. [See Devise and Bequest.] Betterments. [See Highway; Town and City.] BETTING; WAGERING; GAMING 14 BILL OF EXCHANGE AND PROMISSORY NOTE 14 TABLE OF CONTENTS. vij Bill of Exchange and Peomissohy Note, continued. I. Nature, requisites, and general validity 14 II. Indorsement 15 III. Presentation, demand, and notice 15 rv. Check 15 V. Action 16 Bill of exceptions. [See Exception.] BILL OF LADING 16 BOAKD OF HEALTH 16 BOND 17 Books. [As evidence, see Evidence.] BOSTON 17 BOUNDARY LINE 17 BRIDGE 18 Broker. [See Agency, 5.] Burden of proof. [See Evidence.] BURIAL; CEMETERY 18 Burning a bnilding. [See Arson.] BUTTER 18 c. Capital and income. [See Income.] CARRIER 18 I. Carrier of Property 18 n. Carrier of Persons 19 III. Homicide by Negligence 20 CASE STATED 20 Cause of action. [See Action.] Cemetery. [See Burial, etc.] CERTIORARI ^ 20 CHAMPERTY AND MAINTENANCE 20 Chancery. [See Equity Jurisdiction; Equity Pleading and Practice.] Charge. [See Exception; Trial.] Charitable association. [See Benevolent Association,] CHARITY AND CHARITABLE TRUST 20 CHATTEL MORTGAGE 21 Cheat. [See False Pretenses; Fraud.] Check. [See Bill of Exchange and Promissory Note.] Child. [Abuse of Female Child, see Rape. Generally, see Bastard; Infant; Nerfig-ence- Parent and Child.] . . s s , Church. [See Religious Association.] City. [See Tov?n and City.] Cloud upon title. [See Quieting Title; Specific Performance; Vendor and Vendee.] Co-operative saving fund and loan association. [See Benevolent Association- Loan and Fund Association.] COLLATERAL SECURITY 22 Collector. [See Taxation.] Common Carrier. [See Carrier.] Common Council. [See Town and City.] COMMON LANDS; GENERAL FIELDS 23 COMMONWEALTH , !.!..!"!!"! 23 viii TABLE OF CONTENTS. Complaint. [See Indictment and Complaint.] COMPOSITION WITH CREDITORS 23 Computation of time. [See Time.] CONDITION 23 CONFLICT OF LAWS 23 Consideration. [See Bill of Exchange; Contract.] CONSPIRACY 24 CONSTITUTIONAL LAW 24 Contingent remainder. [See Devise.] CONTRACT 24 I. General Rules 25 II. Consideration 25 III. Validity 25 IV. Interpretation 25 V. Performance 26 VI. Modification; Extinguishment 27 Contribution. [See Joint Liability.] ControTersy, submission of. [See Case Stated.] Conversion, action for. [See Trover.] Conversion, Equitable. [See Equitable Conversion.] Conveyance. [See Deed; Fraud; Mortgage.] Convict. [See State Prison.] CONVICTION AND SENTENCE 27 CORPORATION 27 I. Incorporation and organization 28 II. Stock; stockholders; members 28 III. Officers; powers; general liabilities , 28 IV. Liability of officers and members for corporation debts 29 V. Powers and liabilities of corporations 29 VI. Foreign corporations 29 VII. Actions and suits in equity against corporations 30 VIII. Insolvency 30 IX. Miscellaneous ruling relating to particular corporations 30 COSTS. 30 Counsellor. [See Attorney-at-Law.] County commissioners. [See Jail.] COURT OF COMMISSIONERS OF ALABAMA CLAIMS 30 COVENANT 30 I. Warranty; quiet enjoyment 30 II. Against incumbrances 31 Creditor and debtor. [See Assignment; Attachment; Bankruptcy; Chattel Mortgage; Composition; Equity Jurisdiction; Fraud; Insolvent; Mortgage; Payment; Pledge.] Creditor's bill [See Equity Jurisdiction.] Criminal lavr. [See the titles of the diffierent crimes and offences; also Accessory; Appeal; Arrest; Bail; Conviction and Sentence; Evidence; Exception; Former Adjudication; Grand Jury; Indictment; Jury; Lord's Day; Record; Witness.] Criminal pleading. [See Indictment.] Criminal procedure. [See Conviction and Sentence; Practice; Trial.] Cruelty. [To animals, see Animal.] Custom and usage. [See Usage.] Cy-pres. [See Charity] TABLE OF CONTENTS. i^ D. Dam. [See Mill and Mill Dam; see, also, Indictment, 12.] DAMAGES 31 I. In actions of contract < ■• 31 II. In actions of tort 33 III. Recoupment of damages 33 Death. [Action for causing death, see Carrier. Presumption of death, see Evidence, 39.] Debtor and creditor. [See Assignment; Attachment; Bankruptcy; Chattel Mortgage; Composition; Fraud; Insolvent; Mortgage; Pledge.] Deceit. [See Fraud.] Declaration. [See Pleading.] Declarations, admissions, etc. [See Evidence.] DEOICATION 33 DEED 32 I. Parties; delivery; escrow 33 IE. Recording; notice '. 33 III. Interpretation ■ 33 Defamation. [See Libel and Slander.] Defence. [See Pleading; Trial.] Defrauding. [Bee Conspiracy; False Pretences; Fraud.] Delivery. [See Deed; Gift; Savings Bank; Statute of Frauds.] Demurrer. [See Equity Pleading; Pleading.] Deposit. [See Savings Bank.] DEPOSITION 38 Descent and distribution. [See, also. Devise, 16, 53.] DESCENT 33 DEVISE AND BEQUEST ". 34 I. Sufficiency in general 34 II. Interpretation and effect, in general 34 (1.) Description of the property 84 (3.) When specific, general, or demonstrative 84 (3.) Designation of the devisee ^r legatee 34 (4.) Residue, and residuary clauses 35 (5.) Per stirpes or per capita 85 III. Interpretation and effect, as to the estate or interest given 35 (1. ) Life estate; legacy for wife; income 35 (3.) Annuity 36 (3.) Estate tail 36 (4.) Estate in fee simple; absolute legacy 36 (5.) Shares; tenancy, joint, in common, or several 37 (6.) Remainders 37 (7.) Conditions; charges; gifts for support 87 IV. Interest 38 Discharge. [See Bankruptcy; Conflict of Laws; Insolvent; Poor Debtor; Release.] Disseisin. [See Adverse Possession.] Distribution. [See Descent and Distribution.] District court. [See Police Court.] Dividend. [See Bankruptcy; Corporation; Insolvent.] DIVORCE 88 I. Jurisdiction 38 II. Causes for Divorce 38 III. Decree and Effect Thereof 3g Vol. Ill— B X TABLE OF CONTENTS. Dog. [See Animal.] Domicil. [See Poor; Taxation.] Donatio mortis causa. [See Gift.] DOWER 39 Drain and drainage. [See Town and City.] Drunkenness. [See Intoxicating Liquors.] DURESS • 39 Dwelling house. [See Arson.] E. EASEMENT; SERVITUDE 39 I. General Rules; How Created; Interpretation; Effect 39 II. Rights and Liabilities 40 Ejectment. [See Landlord and Tenant.] Election. [Of Remedies, see Waiver.] ELECTIONS AND ELECTORS ^0 Embezzlement. [As to the form and sufficiency of the indictment, see Indictment, 13.] EMINENT DOMAIN 40 EQUITABLE CONTEESION 41 EQUITY JURISDICTION 41 L GeneralRules 41 II. Equitable Attachment; Creditor's Bill 41 III. Particular Heads 43 EQUITY PLEADING AND PRACTICE 43 I. Pleading 42 II. Practice ''3 ESSEX COUNTY 43 Estate. [See Adverse Possession; Deed; Easement; Devise and Bequcsl; Executor and Admin- istrator; Heirs; Mortgage; Trust.] ESTOPPEL 43 EVIDENCE 43 I. General Rules as to Competency , 44 (1.) In general 44 (2.) Opinions; experts 44 (3.) Rebuttal of adverse testimony; fortifying testimony 4.'i 11. Judicial Notice 4.'i in. Burden of Proof 4.'i IV. Presumptions 45 V. Best and Secondary Evidence 4") VI. Admissions; Declarations ; Confessions 46 (1.) General principles 40 (3.) Admissions 46 (3.) Declarations 46 (4.) Confessions 47 VII. Oral Testimony to Affect a Writing 47 VIII. Documentary Evidence 47 IX. Evidence as to Particular Subjects 47 (1.) Character; Reputation 47 (3.) Handwriting 47 (3.) Value 48 EXCEPTION 48 I. Where and How Maintainsible 48 (1.) In general 48 (3.) Petition to establish its truth. - 48 TABLE OF CONTENTS. xi Exception, continued. II. Where it Does Not Lie 48 III. Bill of Exceptions 50 IV. Practice; Proceedings. Judgment 50 EXECUTION 50 EXECCTOR AND ADMINISTRATOR 50 I. General Rules; Different Kinds of Executors and Administrators 50 II. Appointment; Bond; Removal 51 III. Inventory; Assets 51 IV. Real Property 51 V. Rights, Liabilities, and Remedies in Administering the Estate 51 VI. Accounting; Compensation 51 Executory Devise. [See Devise and Bequest.) Exemption. [See Taxation.] Expert. [See Evidence.] EXTORTION 52 R False imprisonment. [See Arrest.] FALSE PRETENCES 53 False representations. [See False pretences; Fraud.] Federal conrts. [See Removal of Cause.] Felony. [See Conviction and Sentence; Indictment; and the titles of the different felonies.] Female cliild; abuse of. [See Rape.] FENCES; FENCE VIEWERS , 52 FIRE; FIRE DISTRICT; FIRE DEPARTMENT 53 Fire insurance. [See Insurance.] FISH; FISHING; FISHERY 53 FIXTURE 53 Flats. [See Flovrage.] FL0WA6E 53 Foot way. [See Highway; Railroad.] Forcible entry and detainer. [See Landlord and Tenant.] Foreclosure. [See Chattel Mortgage; Collateral Security; Mortgage] Foroign attachment. [See Trustee Process.] Foreign corporation. [sSee Corporation.] Foreign law. [See Conflict of Laws.] FORGERY AND COUNTERFEITING 54 FORMER ADJUDICATION 54 I. In a criminal cause _ ka II. In a civil cau-e ' rA Francliise. [See Corporation; Taxation.] FRAUD; FRAUDULENT CONVEYANCE 5,5 I. Fraudulent representations gg II. Conveyance or transfer to defraud " gg III. Remedies -p ■- Ob Frauds, statute of. [See Statute of Frauds.] Fraudulent conveyance. [See Fraud.] Fraudulent representations. [See False Pretences; Fraud.] xii TABLE OF CONTENTa G. Gaming. [See Betting and Gaming; Indictment, 17.] Garnishment. [See Trustee Process.] General conrt. [See Constitutional law, 5, 6.] GIFT 56 GRAJiD JURY 56 Great pond. [See Fish; Pond.] GUARANTY; INDEMNITY : 56 GUARDIAN AND WARD 57 H. HABEAS CORPUS 57 Healtli. [See Board of Health; Nuisance.] HEIRS 57 HIGHWAY 58 I. General rules 58 II. Highway by dedication or prescription 58 III. Statutory proceedings to lay out, alter, or discontinue a way 58 (1.) Laying out the way 58 (2.) Altering or relocating 58 (3.) Disco atinuing , 58 rV. Damages; expenses; benefitB; betterments 59 V. Construction; repairs; obstructions 59 VI. Action against a city or town for an injury from defect 60 (1.) Nature and cause of the defect 60 (2.) Notice of the injury required by statute 61 (3.) Proceedings; evidence; instructions 61 VII. Powers, duties, and liabilities of a surveyor of highways 62 HOMICIDE 63 Horse railroad. [See Street Railroad.] HUSBAND AND WIFE 62 I. Marriage 62 II. Husband's Rights and Liabilities 62 HI. Wife's Eights, Disabilities, and Liabilities 62 IV. Conveyances, Contracts, and Other Transactions Between Husband and Wife 63 V. Ante-Nuptial Agreements; Marriage Settlements 63 VI. Criminal Proceedings Against Husband and Wife 63 ICE 64 Illegal contract. [See Contract.] Imprisonment. [See Arrest; Conviction and Sentence; Habeas Corpus; Poor Debtor; State Prison.] Imprisonment, false. [Action for, see Arrest.] Improvements. [See Highway; Town and City.] INCEST 64 INCOME AND CAPITAL 64 Incnmhrances, covenant against. [See Covenant.] Indemnity. [See Bond; Collateral Security; Contract; Guaranty; Joint Liability; Mortgage.] TABLE OF CONTENTS. xin INDICTMENT 64 I. In General; Subsequent Pleadings; Complaint 64 II. Indictments and Complaints in Particular Cases 65 (1.) Assault and battery. (2.) Betting and gaming, see post (8). 65 (3.) Butter 65 (4.) Dam 65 (5.) Embezzlement 65 (6.) Fish 65 (7.) Forgery 65 (8.) Gaming 65 (9.) Intoxicating liquors 65 (lO.'i Lord's day 60 (11.) Milk 66 (12.) Nuisance 66 (13.) Street railroad ' 66 Indorsement. [See Bill of Exchange; Writ.] INFANT 66 INJUNCTION 67 INN AND INNKEEPER 67 INSOLTENT; INSOLVENCY 67 I. General Rules 67 II. The Court of Insolvency; Review of its Proceedings 67 III. Application; Warrant; Schedule 67 IV. Debts and proof thereof 68 V. Assignment and assignee 68 VI. General Powers, Duties, and Liabilities of the Assignee 68 VII. Discharge 69 VIII. Unlawful Preferences and O'her Frauds on the Insolvent Laws 69 INSURANCE 70 I. Rules Common to the Different Kint's of Insurance 70 II. Accident Insurance 70 III. Fire Insurance 70 IV. Life Insurance 71 V. Marine Insurance 71 INSURANCE COMPANY 72 INTEREST 72 INTOXICATING LIQUORS 72 I. The Statutes 73 II. Statutory Prohibitions 72 III. License 72 IV. Civil Action 73 V. Criminal Proseeution 73 (1.) General principles 73 (2.) Evidence '.'.'.'..','.'.'.'.'.'. 74 (4.) Keeping with intent to sell; keeping tenement for unlawful sales '.!!!'.!!!. 74 VI. Search ; Forfeiture; Seizure 75 J. AIL; JAILOR 75 JOINT LIABILITY; SETERAL LIABILITY 75 JOINT TENANTS; TENANTS IN COMMON : 76 JUDGMENT 76 I. General Rules i^g IT. .Judgments in Particular Cases Y(. III. Arrest of Judgment; Judgment Non Obstante Veredicto 7fi IV. Action Upon a Domestic Judgment r.ij xiv TABLE OF CONTENTS. Judicial sale. [See Execution; Taxation,] JURISDICTION 77 JURY; JURORS 77 JUSTICE or THE PEACE; TRIAL JUSTICE 77 K. Kin, next of. [See Descent and Distribution; Devise and Bequest; Executor and Ad- ministrator.] L. LACHES 78 Lading, bill of. [See Bill of Lading.] Lake. [See Fish; Ice; Pond.] Land. [See Adverse Possession; Boundary Line; Deed; Devise and Bequest; Easement; Fixture; Highway; Landlord and Tenant; Land Owner; Negligence; Nuisance; Rail- road; Town and City; Water Course.] Land damages. [See Eminent Domain; Highway; Railroad; Town and City.] LANDLORD AND TENANT; LEASE 78 I. The relation; how created 78 II. Different kinds of tenancy ,-. 78 III. Notice to quit 78 IV. Eights, duties, and liabilities proceeding from the relation 78 V. Lease; validity; effect; duration 79 VI. Lease; certain special stipulations 79 VII. Landlord's remedies 79 LANDOWNER bO Lapse. [See Devise and Bequest; Laches; Limitation of Action.] LARCENY 80 Law and fact, questions of. [See the titles of the various actions and proceedings, and, particularly. Negligence.] Lease. [See Covenant~; Landlord and Tenant.] Legacy; legatee. [See Devise and Bequest.] Legislature. [See Constitutional Law.] Levy. [See Execution; Taxation.] LIBEL AND SLANDER 80 I. In what cases an action does or does not lie 81 II. Malice; justification 81 HI. Privileged communications 81 IV. Pleading; evidence 83 LICENSE 83 LIEN 82 I. General rules; common law lien , 83 II. Mechanic's lien 83 (1.) How created; effect thereof 82 (2.) Filing the statement; subsequent proceedings to enforce the lien 83 Life es+ate. [See Devise and Bequest; Trust; Trustee.] LIMITATION OF ACTION 83 I. General rules 83 n. Pleading the statute 83 HI. Decedent's estate 83 IV. What times are limited in other cases , 81 V. Running of the limitation 84 VI. Suspension of the limitation 84 Limitation of estate. [See Deed; Devise and Bequest; Trust.] ^TABLE OF CONTENTS. xv Lienor. [See Intoxicating Liquors.] LOAK AND FUND ASSOCIATION 84 LORD'S DAT ^^ LOTTERY 85 LUNATIC; IDIOT; PERSON OE UNSOUND MIND 85 M. Machinery. [See Fixture.j Magistrate. [See Justice of the Peace; Police Court.] Maintenance. [See Cliamperty and Maintenance.] Malice. [See Indictment; Libel and Slander; Malicious Prosecution.] Malicious mischief. [See Street Railway.] MALICIOUS PROSECUTION; ABUSE OF PROCESS 85 MANDAMUS ' 85 Marine insurance. [See Insurance.] Marriage; married woman. [See Husband and Wife.] MASTER AND SERVANT 86 I. The relation 86 II. Master's liability for an injury to person or property 86 (1.) To (he servant, for a personal injury from the work 86 (3.) To the servant, for a personal injury from a fellow servant's fault 88 (3.) To a third person for the servant's fault 88 (4.) The employer's liability act 88 Mechanic's lien. [See Lien.] Meeting house. [See Religious Association.] Mercantile agency. [See Equity Jurisprudence, 4.] MILK 89 MILL; MILL DAM 89 Minor. [See Guardian and Ward; Infant; Negligence; Parent and Child.] Misdemeanor. [See the titles of the various criminal offenses; also Indictment. Misnomer. [See Name.] Mistalie. [See Equity Jurisdiction.] Mortgage (of personal property.) [See Chattel mortgage.] MORTGAGE (OF REAL PROPERTY.) 90 I. General rules 90 II. Particular kinds of mortgages 90 III. Discharge; extinguishment 90 IV. Redemption 90 V. Mortgagee's or purchaser's remedies upon condition broken 91 Municipality. [See Town and City.] Municipal court of Boston. [See Police Court.] Mutual insurance. [See Insurance Company.] N. NAME; MISNOMER 92 National bank. [See Bank.] Navigable waters. [See Water-course.] Ne exeat. [See Equity Jurisdiction, 6.] NEGLIGENCE ,. 93 I. What is or ig not actionable negligence ,.,,..., 92 xvi TABLE OF CONTENTS. Negligence, continued. II. Plaintiflf's oonducl, as affecting his right to recover 93 III. Particular cases "" IV. Pleading and evidence ^4 NEW TKIAL 95 Next of kin. [See D. scent and distdbution.J Nolle prosequi. [See Practi.e.] Nolo contendere. [See Conviction and Sentence.] Non compos mentis. [See Guardian and "Ward; Lunatic.] NOTARY PUBLIC • 95 Notice; demand. [See Betting and Gaming, 5.] NUISANCE 95 I. Common lavr nuisances 95 II. Liquor nuisances " 96 0. OFFICE AND OFFICER 98 ORDER 98 Ordinance. [See Town and City.] P. PARENT AND CHILD 98 Park. [See Dedication, 1; Judgment, 8. See, also. Town and City.] PARTIES 98 PARTITION 99 PARTNERSHIP 99 PARTY WALL 100 PATENT 100 PAYMENT , 100 PENSION 100 Performance of contract. [See Contract, As to specific performance in Equity, see Specific Performance.] PERJURY 101 PERPETUITY; REMOTENESS 101 Personal property. [See Attachmeni; Chattel Mortgage; Executor and Administrator; Fixture; Gift; Sale.] Pleading iu equity. [As to ijleading in Equity cases, see Equity Pleading.] PLEADING AT LAW 101 Pledge. [See Collateral Security.] POLICE COURT; DISTRICT COURT; MUNICIPAL COURT 101 Police officer. [Sec Office and OfScer; Town and City, 15, 16, 17, 18. See, also Equity Jurisprudence, 2.] POND 102 POOR;t'OOR LAWS; PAUPER 102 POOR DEBTOR 103 POWER 103 PRACTICE 1 104 Prescription. [See Dedication; Easement; Highway; Nuisance; Railroad; Town, 41.] Presumption. [See Evidence; Payment.] Principal and accessory. [See Accessory and Accomplice.] Principal and agent. [See Agency.] TABLE OB" CONTENTS. 3cvii Principal and surety. [?ee Guaranty; Statute of Frauds; Surety.] Prison. [See State Prison.] Private way. [See Easement; Highway; Railroad.] Privilege. [See Libel and Slander,] Probable cause. [See Libel and Slander; Malicious Prosecution.] PROBATE COURT 104 Process. [See Writ.] Promissory note. [See Bill of Exchange and Promissory Note.] Protective department. [See Fire, 1, 3.] Protest. [See Bill of Exchange; Taxation ] Public improvements. [See Highway; Town.] Public officer. [See Office and Officer; Town; and titles of the different offl'cers.] Public school. [See School.] Public way. [See Highway.] Punishment. [See Conviction and Sentence.] Q. (Questions of law; questions of fact. [See the titles of the different proceedings and subjects of action.] Quiet enjoyment. [See Covenant; Landlord and Tenant.] QUIETING TITLE 105 E. Bailings. [Liability of Town or City for failure to erect railings in the highway, see Highway.] RAILROAD; RAILROAD COMPANY 105 I. Railroad Company 105 II. Locating the Railroad; Acquiring the Land; Damages 106 III. Constructing and Maintaining the Railroad 106 IV. Operating the Railroad , 106 RAPE; ABUSE OF FEMALE CHILD 107 REAL ACTION 107 Real property. [See Adverse Possession; Alluvion; Boundary; Covenant; Deed; Devise and Bequest; Dower; Easement; Pish; Fixture; Flats; Highway; Joint Tenants; Landlord and Tenant; Land Owner; Mill and Mill Dam; Mortgage; Petition; Raihoad; Real Action; Water Course.] RECOGNIZANCE 107 Record. [See Conviction, 5; Evidence, 65.] Redemption. [See Chattel Mortgage; Collateral Security; Mortgage.] Reference; referees. [See Arbitration.] Reformation of an instrument. [See Equity Jurisdiction.] RELEASE; DISCHARGE 107 RELIGIOUS ASSOCIATION; CHURCH 107 Remainder. [See Devise and Bequest; Trust.] Remoteness. [See Perpetuity.] REMOVAL OF CAUSE 108 RENT. [See Landlord and Tenant.] REPLEVIN 108 REPORTER OF DECISIONS; REPORTS 109 Res gestat. [See Evidence.] Vol. m— c xviii TABLE OF CONTENTS. Res adjudicata. [See Former Adjudication.] Restraint of trade. [See Contract.] Restriction. [Upon the use of land, see Condition; Easement.] Resulting trust. [See Trust.] REVIEW, WRIT OF 109 Revocation. [See Agency; Will.] Road. [See Highway.] S. SALE (OF PERSONAL PROPERTY) '. 110 Saturday. [Kc^eping, as tlie Sabbatli, no excuse for violation of Lord's day statutes, see Lord's Day.] SAYINGS BANK HO SCHOOL Ill Scire facias. [See Bail; Poor Debtor; Recognizance; Trustee Process.] Seashore. [See Fish; Flats.] Search warrant. [See Intoxicating Liquors, 63, 61, 65.] Seisin; disseisin. [See Adverse possession.] Selectmen. [See Highway; Town.] Sentence, [See Conviction and Sentence.] Sepulture. [See Burial.] Servant. [See Master and Servant.] Service. [See Writ; and the titles of the different writs.] Services. [See Master and Servant.] Servitude. [See Easement and Servitude.] SETOFF Ill Settlement. [See Accord and Satisfaction; Payment; Poor; Release and Discharge.] Several liability. [See Joint and Several Liability.] Sewer. [See Town and City.] Shade tree. [See Tree.] SHIPPING Ill Sidewalk. [See Highway; Town and City.] Slander. [See Libel and Slander.] Snow. [See Highway; Landlord and Tenant; Land Owner; Negligence.] Soldier. [As to military settlement, see Poor and Poor Laws.] SPECIFIC PERFORMANCE 112 Spendthrift. [See Guardian, 8.] Spirituous liquors. [See Intoxicating Liquors.] Spring. [See Water Course.] Stale demands. [See Laches; Limitation of Action.] Stare decisis. [See Former Adjudication.] State. [See Commonwealth.] STATE PRISON 113 STATUTE 112 STATUTE OF FRAUDS AND PERJURIES 113 Statute of limitations. [See Limitation of Action.] Steamboat; steamship. [See Carrier; Negligence; Shipping.] Steam engine. [See Nuisance.] Street. [See Highway; Town and City.] STREET RAILWAY; HORSE RAILROAD COMPANY 113 TABLE OF CONTENTS. xix Submission of controTersy. [See Arbitration; Case Stated.] Sunday. [See Lord's Day.] Superior court. [See Commonwealth, 1.] SUPREME JUDICIAL COURT 114 SURETY 114 Surface water. [See Water Course.] Surveyor of Highways. [See Highway.] Survival of action. [See Abatement.] Suspension of the power of alienation. [See Perpetuity.] T TAXATION 114 I. General Constitutional Requirements 114 II. Persons and property subject to or exempt from taxation 114 III. To whom and where real property is assessable 115 IV. To whom and where polls and personal property aie assessable 115 V. Taxpayers' duties and liabilities upon assessment 115 VI. Assessors; their rights, duties, and liabilities 115 VII. Collection of taxes 116 VIII. Actions and suits by persons taxed 116 IX. Taxation of corporations by the tax commisaioner . 116 Tenant. [See Landlord and Tenant.] Tenant for life. [As to when a gift in a will creates a tenancy for life, see Devise and Bequest. See, also. Dower; Income; Trust.] Tenants in common. [See Joint Tenants and Tenants in Common.] Tender. [See Contract, 21.] Time. [See Corporation, 8, 9.] Title to property. [See Chattel Mortgage; Contract; Deed; Devise and Bequest; Mort- gage; Personal Property; Sale; Shipping; Vendor and Vendee.] Tort. [See Action; Assault; Conspiracy; Damages; Fraud; Highway; Libel and Slander; Malicious Prosecution; Master and Servant; Negligence; Nuisance; Town.] TOWN AND CITY 117 I. General rights and powers 117 II. Municipal legislation; Ordinances : 117 III. Officers; committees, and other municipal agents II7 IV. Finances Hg V. Liabilities Hg VI. Public improvements Hg (1.) Street; road. [See Highway.] II9 (3-) Park ; ; ; ; ; ^^g (3.) Sewer J•^9 (4.) Water works !!!!!..!!!' 119 (5.) Miscellaneous .!.'.!!!!"!!'. 130 Town road. [See Highway.] Trade, restraint of [See Contract.] TRADE MARK 12q Traveller. [See Carrier; Highway.] ™EE ^ 130 TRESPASS . 130 TKIAL .'.'.'''^.''''.Z^.'.'.'.'.. 120 Trial justice. [See Justice of the Peace.] TROVER jgj ™^ST "i!"!!!""':."::.'::.:::::::::::::::: m XX TABLE OF CONTENTS. Tkust, continued. I. Creati n; Interpretation , . . . . 132 II. Extinguishment 123 TRUSTEE AND CESTUI QUE TRUST 133 I. Appointment of trustee; Tenure; Security 133 (1.) Appointment; qualification 133 (3.) Resignation; removal 133 (3.) Bond 128 II. Trustees' powers, rights, duties, and liabilities 133 III. Rights and remedies of the cestui que trust 134 TRUSTEE PROCESS. 12.5 u. Undue influence. [See Will.] United States courts. [As to removal of cause to, see Removal of Cause] Unlawful amusement. [See Betting and Gaming.] Unsound mind, person of. [See Lunatic; Will.] USAGE; CUSTOM '. 135 Use and occupation. [See Landlord and Tenant.] User. [See Adverse Possession; Easement; Prescription.] V. VARIANCE 126 TENDOR AND TENDEE 126 Terdict. [See Trial.] Vessel. [See Shipping.] Vested and conting'ent interests. [See Devise and Beiuest; Trust.] Victualler, common. [See Intoxicating Liquors.] Void and voidable. [See Fraud; Infant; Lunatic] Voluntary association. [See Benevolent Association; Loan and Fund Association; Religious Association. Voluntary conveyance. [See Fraud.] Voter; voting. [See Elections and Electors.] W. Wager. [See Betting and Gaming.] Wages. [See Master and Servant; Trustee Process.] WAIVER J37 Wall. [See Fence; Paity wall.] Warehouseman. [See Bailment.] Warrant. [See Indictment; Intoxicating Liquors; Search Warrant.] Warranty. [See Covenant; Estoppel; Sale.] Waste. [See Joint Tenant, 4.] WATERCOURSE; SURFACE WATER 127 Water works. [See Town and City.] Way. [See Basement; Highway.] WHARF; DOCK 128 Widow. [See Dower.] Wife. [See Husband and Wife.] "^^^^ 138 TABLE OF CONTENTS. xxi WITNESS 128 I. Witness's general rights and liabilities 138 II. General rules as to a witness's competency and credibility 129 in. Party to the record 129 IV. Discrediting and sustaining a ■witness 139 WOMAN 130 Work and labor. [See Master and Servant; Trustee Process.] WRIT 180 DIGEST. Abatement and surTivor of an ac- tion or cause of action. [As to abatement of a nuisance, see Board oi' Health ; Nuisance ; of a legacy, see Devise and Bequest ; of a tax, see Taxation. See, also, Ap- peal, 9, 10; CoNELiCT Off Laws, 10.] 1. An action, under Pub. St., ch. 99, §§ 1, 2, to recover of the owner of a building treble the amount of money lost therein by gaming, does not survive against the legal representatives of the defendant, either at common law or by Pub. St., oh. 165, § 1. Yarter ». Flagg, 143 380. 3. An action for deceit in letting a dwelling- house infested with diphtheria, to the injury of the person, survives against the defendant's ex- ecutor, under Pub. St., eh. 165, § 1. Cutter v. Hamlen, 147 471. 3. Where, in an action for personal injuries, it appeared that the person injured was found dying and unconscious ten minutes after the accident, it was held that a ruling that there was evidence to warrant a finding that a cause of action accrue! to the person injured during his lifetime, and survived to his administrator, was not inconsistent with a ruling that there was no evidence to warrant a finding that con- sc ous pain or suffering were endured.' Mulchahey v. Washburn Car Wheel Co., 145 381. 4. The pendency of an action in another state for the same cause of action must be pleaded, if it can be pleaded at all, in abatement, not in bar. Moore ». Spiegel, 143 413. 5._ An answer, which avers that the defend- ant is a foreign corporation, that it has no usual place of business in this commonwealth, that no property was attached on the writ, and that the person on whom service of the writ was made was not authorized to receive service of process for it, is an answer in abatement and not to the jurisdiction or in bar. Young V. Providence & Stonington 8. S. Co., 150 550. Vol. ni— 1 Abuse of female child. [See Eapb.] Accession. [See Alluvion.] Accessory and accomplice. [See Trial, 8.] 1. For evidence of corroboration of the testi- mony of an accomplice sufficient to justify a refusal to rule that there was no evidence, see Comm. J}. Chase, 147 597. 3. For rulings on evidence offered on the trial of an indictment whereupon the accused was convicted of being an accessory to brealiing and entering with intent to commit larceny, see Comm. V. ]V[uUen, 150 394. 3. Where, on the question of the unlawful keeping of liquor for sale by the accused, there is evidence tending to show that the accused and A. were accomplices, evidence of A's acts immediately after tlie arrest of the accused is competent, the rights of' the accused being guarded by a direction to the jury to disregard such evidence unless satisfied that the parties were acting together as confederates in a com- mon enterprise. Comm. V. IVIcDonald, 147 537. Accident insurance. [See INBUBANOE.] Accord and satisfaction. [See, also, Composition; Payment.] 1. There is no accord and satisfaction where A. sends a check to B. in settlement of an ac- ACCOED AND SATISFACTION— AGENCY. count and 3. credits the amount of the check on account and demands more, which A. re- fuses to pay. Tompkins v. HiU, 145 379. 3. An authorized compromise, between an assignee in insolvency and one whom he has sued to recover land charged to have conveyed to him in fraud of creditors, wherehy the case is entered " neither party " and the defendant pays the costs, constitutes an accord and satis- faction sufficient to bar a second action. Dana d. Taylor, 150 35. Account ; account annexed ; ac- count stated. [See Equitt Jukisprudence ; Joint Tenants, 2, 8.] Action. General principles as to tbe right to maintain an action. [For rulings applicable to particular Mnds of ac- tioDa, or actious in favor of or against particular persona or bodies, see those titles respectively.] 1. A woollen manufacturer, who, in dyeing his cloths, uses a common mordant not known to have caused injury, is not liable fo a pur- chaser poisoned by handling the cloth. Gould i>. Slater "Woolen Co., 147 315. 2. Where the employee of a coal-dealer, in- jured by the breaking of an appliance used in unloading a cargo from a barge, sues the owner of the barge, the right of action is not defeated by a failure to show an implied agreement be- tween the defendant and the dealer that the defendant should furnish the appliances, it appearing that they were furnished and were intended by the defendant for the use to which they were put. Hayes ». Philadelphia & R. Coal Co., 150 457. Ademption. [See Devise and Bequest.] Adulteration. [Of butter, see Butteb; of milk, see Milk.] Adultery {criminal law). [For adultery as a ground of divorce, see Di- vorce.] 1. On the trial of an indictment for adulteiy it was held that the defendant had no ground of exception in an instruction that " If a mar- ried man is found with a woman not his wife in a room with a bed in it, and stays through the night with her there, that is sufficient to wavrant a finding of adultery against him." Comm. V. Clifford, 146i 97. Adyerse possession ; disseisin. [See, also. Limitation of Action.] 1. A mortgagee cannot be disseised by the mortgagor or those claiming under him until it is made known to the mortgagee that a claim adverse to his title is set up. Holmes v. Turners' Falls Co. 150 535. 2. A lessee's possession beyond his bound- ary, in the mistaken belief that he is within the boundary, is not a disseisin by the lessor. Holmes*. Turner's Falls Co. 150 535. 3. Where, for more than twenty years, the owner of land is excluded from it, he loses, by adverse possession, the right of flowage inci- dent to the title to the land, as well as the land itself. ]yilddlesex Co. ■». Lane, 149 101. 4. An unexercised equitable right, on the part of a railroad company, to take land out- side the location, cannot prevent the acquisition of title by more than twenty years adverse pos- session. Littlefield v. Boston & Albany Railroad, 146 268. 5. Evidence that a niece took possession of her uncle's house under a parol gift, lived in it twenty years, told people that she owned it, let a portion of it, with her uncle's approval, collected the rent herself, and that her uncle, during the time, paid for insurance and re- pairs, and for taxes, for which the property was assessed to him, will not support a finding of title by adverse possession in the niece. DufE V. Leary, 146 538. 6. Where A's woodland is wholly surrounded by B's, evidancc that B fenced his own and let his cattle run on the land (A's as well as his own) and opened a road through A's land and used it, " and from time to time, " during twenty years, cut a little wood on A's land, is insufficient to show a title in B by adverse possession. Richmond Iron Works v. Wadhams, 142 569. 7. A finding of adverse possession is justified by evidence of a continuous, open, and adverse possession up to the line of a certain fence built more than twenty years before, the pos- session being under a claim of right. Holloran «. HoUoran, 149 398. 8. For a recital of facts warranting a finding of acquisition of title by adverse possession, see Wheeler v. Laird, 147 421. Agency. I. Agents' Poweb amd Authokitt. II. Ratification. III. Peincipal and Agents' IVIutual Rights AUD Liabilities. , IV. Rights and Liabilities as kkspbcts Others. V. Paeticttlaii Kinds of Agency. [For other cases bearing upon the law of Agency, see Corporation, 5, 21 ; Husband and Wipe. "; Mortgage, 27; Pleading, 5; see, also, Insurance.] AGMCT, I, 11, III, IV, T. T. Agents' Power and Authobity. 1. A WU of lading, -which purports to be the contract of the owners of the ship and which is signed "A. & Co., Agts.," is the contract of the owners and not of the agents. (Jabot ». Shaw, 148 459. 2. That A., who ordered material for the price of which B. sues C, was an independent contractor, does not prove conclusively that he may not, also, have been C.'s agent in ordering the material. Paul V. Forbes, 148 628. 3. Authority to let a house sufficiently ap- pears to render the owner liable on an implied covenant for quiet enjoyment where, though the authority was given by parol and the lease was executed by the agent, the owner was in- formed of the letting and of the receipt of a month's rent from the tenant by the agent, and settled with the agent, allowing him a commis- sion on the stipulated rent for the whole of the term of the lease. Duncklee «. "Webber, 151 408. 4. Where, in an action against A for the price of work and materials on A's lot, it ap- peared that the plaintiff was engaged by A's son, who signed the agreement in his own name, but that A had talked about having im- provements made and that, during their pro- gress, A and the son conferred about them, it was held that there was sufficient evidence of agency to support a verdict against A. Ford«. Linehan, 146 383. 5. An action on an unlawful agreement whereby the defendant promises to pay a part of the plaintiffs' claim against the insolvent estate of their common debtor in considera- tion of a vote for a certain person as assignee, is not maintainable, though the agreement was made, not by the plaintiff, but by his agent, and there is no proof of authority or r.-.tifica- tion beyond that implied from the bringing of the action. Eaton t). Littlefleld, 147 132. 6. For evidence sufficient to take to the jury the question of the authority of a seller's agent to agree with a buyer to advertise the goods, see Ayer v. Bell Manuf. Co., 147 46. 7. For evidence sufficient to support a find- ing that a daughter had authority to sign her mother's name to a receipt for money, see Gannon®. Ruffin, 151 304. 8. Evidence that the husband had the gen- eral management of premises belonging to his wife, that he employed A to perform labor upon a house on the land, that the wife knew that A was working on the house, and that she gave him directions as to parts of the work, will justify a finding tha*. the husband, in em- ploying A acted as the duly authorized agent of his wife. "Wheaton «. Trimble, 145 345. _ 9. For evidence tending to show, in an ac- tion against a. wife for the price of fertilizer brought by her husband, that he was her agent, see Jefferds v. Alvard, 151 94. II. EATIPICATIOir. III. Principal and Agents' mutuai, Eights AND Liabilities. 10. Wliere an agent purchased stock for the principal and gave a memorandum showing with reasonable clearness that the stock men- tioned therein was the principal's, it was held that the agent was not chargeable for a subse- quent depreciation on the ground that the principal did not read or understand the inemo- randum and supposed other stock to be his. Metcalf V. "Williams, 144 453. IV. Rights and Liabilities as respects OTHERS. 11. An agent who pays over to' his principal money received from a third person for the principal, and who does this in good faith and before a demand made for repayment, is not liable to such third person, though he has a right to recall the payment; nor does it matter that the principal and agent had not settled an open running account between them. Cabot V.Shaw, 148 459. 13. If an agent, authorized by his principal to sell goods at not less than a certain price, agrees with a purchaser, who knows the limi- tations of the agent's authority, on a less price, the principal, who delivers the goods in ignor- ance of the agreement, is not bound thereby; and may sue the purchaser in contract for the difference between the agreed price and the price authorized by himself. Rogers v. Holden, 142 196. 13. One may be sued for money borrowed for him by his wife as his agent. ■ Wheeler v. Young, 143 143. V. Pabticulab kinds of Agency. 14. For evidence sxifflcient to authorize an action by one to whom a note had been sold against a broker who insisted on holding the note for an antecedent indebtedness of the seller, see Security Bank v. Fogg, 148 373. 15. Where a correspondent, who is indebted to his broker in commercial paper, sends a note to him for the purpose of drawing against it, the broker must accept the draft or return the note; he cannot retain it on the antecedent in- debtedness. , ' Security Bank v. Fogg, ' 148 273. 16. A broker authorized to sell for " fifteen thousand dollars, about one-half cash," earns his commissions by procuring a customer who will pay all cash on the delivery of the deed. Witherell ». Murphy, 147 417. 17. A real estate broker is not to lose his commission because the sale arranged falls through owing to the buyer's failure to pay as agreed. Ward 1). Cobb, 148 518. AGISTMENT— ANIMAL Agistment. 1. If the loss of an animal is charged, in an action ty the owner against the agister, to the negligence of the latter, the burden of proof is on the plaintifl. "Wood «. Kemick, 143 453. Agreement. [See Conthact; Statute of Fbauds.] Alienation of real property. [See Deed.] Alienation, suspension of the power of. [See Pebpetuitt.] Alimony. [See DrvOKCB.] AlluTion. 1. For facts justifying the conclusion that a riparian owner on a tidal stream had no title by accretion, see Sewell & Day Cordage Co. v. Boston Water Power Co., 147 61. Alteration of instrument. 1. For a publisher, after a contract to take a book has been signed, to insert in the contract the kind of binding, though in a blank space seemingly left for this, is a material alteration such as will avoid the contract. Osgood V. Stevenson, 143 399. 2. The attestation of a note before delivery, by one not a party to it and without the pro- curement or knowledge of either party, does not make the sale void, it being received and accepted by the payee without knowledge that it had been attested and without relying upon the attestation as a part of the contract; and such, unauthorized alteration may be stricken out. Church V. Fowle, 143 12. Ambiguity. [See Contbaot; Deed; Devise and Bequest; EvrDENCE.] Amendment. [As affecting: an attachment, see Attachment; See, also. Highway, 16.] 1. Where a judgment, recovered by A for B's benefit, and assigned to B by A's executor, is sued on by B in A's name, the court has au'- thority to allow an amendment suKstituting the name of the executor and stating that the action is brought fur B's benefit. Lewis V. Austin, 144 383. 2. The court, in the exercise of its discretion, may permit an amendment of the denial of the genuineness of the signature to a written in- strument. Ham V. Kerwin, 146 378. 3. A declaration of one court wherein there is an intention to rely on two causes of action, is amendable by the substitution of two counts. Daley »". Boston & Albany Railroad, 147 101. 4. An amendment may be allowed, after the finding of the judge who tries the case without a jury, for the purpose of curing an omission in the pleadings; with the allowance of the amendment an objection to evidence admissi- ble thereunder becomes immaterial. Aldrich «. Aldrich, 143 45. 5. An amendment after verdict, consisting of a count in tort for a conversion, will not support the verdict, where the trial was had on pleadings setting up a case in contract, and the evidence failed to show a right of recovery on contract. Folsom V. Cornell, ISO 115. 6. If counts in contract and in tort are not averred to be for the same cause of ac- tion, and, therefore, a demurrer, to the decla- ration is sustained and, by amendment, a new count in tort is substituted for the origi- nal count, the necessaey averment being made and being in accord with the fact, the sureties on the attachment bond are not discharged, though they were not notified of the amend- ment, which merely cures a formal defect. Kellogg V. Kimball, 142 124. 7. A declaration, counting on an act of neg- ligence causing injury to property, may be amended by counting on injuries to the person as well, without affecting the liability of the sureties on the attachment bond. Doran v. Cohen, 147 342. 8. So, where the declaration in a single count counted on " a draft," and four drafts were an- nexed, and it was apparent that these were meant, it was held that an amendment, substi- tuting four counts and accurately describing the drafts, did not discharge the surety. Townsend Nat. Bank v. Jones, 151 454. Nor an amendment increasing the qd dam- num. Townsend Nat. Bank v. Jones, 151 454. 9. Where an original declaration was in form against two as joint makers of a note, an amendment, declaring against one as maker and the other as indorser before delivery, does not discharge a bond given in the proceedings to vacate the judgment. Lanahan«. Porter, 148 596. Animal. 1. One whose dog injures another cannot escape liability on the ground that the dog had no vicious intent. Hathaway «. Tinkham, 148 85. ANIMAL— APPEAL, I, II, III 3. To let loose a fox to be hunted by dogs, is cruelty to an animal within Pub. St., ch. 307, §53. Comm. ■». Turner, 145 396. 3. To leave a horse harnessed in the woods all night, uncared for, the horse having neither food nor drink for more than twenty-four hours, except what it can gather there, justfles a conviction under Pub. St., ch. 307, § 52, re- lating to cruelty to animals. Comm. V. Curry, 150 609. Annuity. [See Contract, 18; Devise and Bequest; Trus- tee AND Cestui que trust, 20.] AppeaL I. Appeal to tub Supreme Judicial COUKT. n. Appeal to the Supeeior Court. III. Security upon Appeal. IV. Practice and Pboceedingb. V. Appeal in a Criminal Case. [See, also, the titles of the different actions, ofCences, and proceedings; and for particular cases involving questions of appeal, see Exception, 1, 2; Judgment, 17; Will, 9.] I. Appeal to the Supreme Judicial Court. 1. A foreign administrator may appeal from the decree appointing an administrator in this commonwealth. Martin v. Gage, 147 204. 3. Where an executor's account is allowed, the administrator de bonis non assenting, one entitled to a share of the reversion in a trust fund to be accouuted for has a right of appeal as a "person aggrieved," within Pub. St., ch. 156, § 6. Pierce v. Gould, 143 234. 3. A testator's widow may have a right of appeal, as a person aggrieved, within Pub. St., ch. 156, § 6, by the allowance of her husband's will by the probate court. Dexter v. Codmau, 148 431. 4. One who, through accident and mistake, omits to enter seasonably in the supreme ju- dicial court, his appeal from a decree of the probate court is not entitled, under Pub. St. , ch. 156, §■; 9, 10, to maintain a petition to the Supreme Judicial court for leave to enter an appeal more than a year after the rendition of the Probate Court decree. Briggs V. Barker, 145 287. 5. The supreme judicial court, on an ap- peal from the decree of the probate court licensing an administrator to sell land, will not pass upon the que.stion of the title to the land. "Walker i>. Puller, 147 489. 6. Where an appeal from a decree of the probate_ court results in an atHrmatiou by a single justice of the supreme judicial court, and an appeal taken to the full court is waived subsequently by the appellant, the full court will affirm the decree of the single justice. Gray i>. Gray, 150 56. 7. An appeal lies from the refusal to order an issue framed for a jury in a suit in equity. Merchants' Nat. Bank «. Moulton, 143 543. 8. No appeal lies from an order of the superior court overruling a motion for a new trial. Holdsworth ». Tucker, 147 573. 9. Under Pub. St., ch. 153, § 10, providing that "a party aggrieved by a judgment founded upon matter of law, apparent on the record, * * * except a judgment upon an answer or plea in abatement or motion to dis- miss for defect of form of process," may ap- peal the words "for defect of form of process" qualify the words "motion to dismiss" only. An appeal does not lie from a judgment on an answer or plea in abatement in any case. Young V. Providence & S. S. Co. 150 550. 10. But whether an answer is in abatement, within this rule, depends on its substance, not on its form. If it sets up matter which goes to show that the court has no jurisdiction of the subject matter of the action it is not an answer in abatement, though in form such. AUiu v. Connecticut B. Lumber Co., 150 560. II. Appeal to the Superiok Court. 11. Under Pub. St., ch. 155, §§ 38, 39, providing that an appeal from the judgment of a trial justice must be perfected within twenty-four hours, unless the justice extends the time, an indefinite extension without oppor- tunity to the appellee to be heard on the ques- tion of the sufficiency of the sureties invali- dates the appeal. Parker ®. Snow, 143 423. 12. An appellant from the judgment of a trial justice cannot, on a petition to the super- ior court for leave to enter the" appeal, show, by parol, that he offered to recognize apd that the justice would not let him' His remedy, in such case is by proceedings in review, not by treating the appeal as perfected. Tibbetts e. Handy, 145 537. 13. Where, after a finding for the plaintiff, a suit was continued for judgment to await the disposition of another action, and, after the disposition of such other action, the defendant consented to the allowance of the motion f r judgment on the finding, it was held that this was not a consent to the judgment such as to deprive the defendant of his right of appeal. Emery v. Seavey, 144 403. III. Security upon Appeal. 14. The appeal bond given, in the usual form prescribed by U. S. Rev. St., 8 1000, to cany a suit in equity to recover land from the cir- 6 APPEAL, III, IV, V— AEBITEATIOIT. cuit court to the supreme court of the United States, does not cover damages for rents and profits and for the use and detention of the land pending the appeal, unless recovered in the suit. Burgess v. Doble, 149 256. 15. An appeal bond given by the defendant in an action to recover tlie possession of prem- ises may support an action as a common law bond, though it does not follow the statute. Pray ii. Wasdell, 146 324. 16. If the record imports that an appeal bond was given in time it may not be shown by the bond that it was given too late; the pre- sumption is in favor of the record or that the time was extended. Miller v. Shea, 150 283. 17. Where the record of the district court states that the sureties were sufficient, but that the bond was not approved or disapproved by the court, no notice being made by either party requesting approval or disapproval; it must be presumed that the sureties were deemed suffi- cient, and tlie jurisdiction of the Superior Court attaches. Eawson v. Dofner, 143 76. 18. In an action on an appeal bond, brought after final judgment in the suit wherein the bond was given, it is too late to object that a recognizance, instead of a bond, should have been given, the liability of the obligors being no greater on the one than ou the other. Granger v. Parker, 142 186. IV. PkACTIOB and PEOCBBDrKGS. V. Appeal in a Ckiminal CAtrsB. 19. That the hearing in the district court on a criminal complaint was not sufficient to jus- tify the conviction cannot be availed of in the superior court on the appeal, where the whole case is reopened so that errors and irregulari- ties below become immaterial. Comm. V. Whalen, 147 876. 30. It is not ground for arresting judgment in a criminal case that the appeal was taken to a term of the superior court to be held at an earlier day, that the term provided for by the statute in force when the appeal was taken, the statute providing for the new term becom- ing operative afterward, and this being the omy term to which an appeal could be taken. Comm. «. Stevens, 142 457. 21. Where the record transmitted to the su- perior court by the trial justice in a criminal case shows that the defendant appealed and was ordered to recognize, and the recogniz- ance Is transmitted with the record, it suffi- ciently appeared that the defendant recognized. Comm. ■». Bisch, 145 875. 22. An objection to the form of a warrant issued from the distiict court for an offence within its jurisdiction must be taken there and not for the first time in the superior court on the appeal. Comm. V. Brusie, 145 117. 28. The certified copies of proceedings to be sent up to the Superior Court, under Pub. St., ch. 154, § 39, and ch. 155, § 60, may be pro- duced there at any time durmg the next term and before the defendant is called upon to plead; the statute prescribes no time. Comm. ■». McPherson, 147 578. Application of payments. LSee Payment] Apportionment. [See Income; Trust.] Aqueduct. [See Wateroouksk. Arbitration. 1. That the report of a referee under a rule of court stales, somewhat in detail, the evi- dence and tlie grounds of the decision on the law and facts, is not a reason for construing the award as other than final and as showing an intention to submit questions to the court. Rogers e. Mayer, 151 279. 2. Where a case pending in court is sent to an auditor, and the parlies and a third person agree that the auditor shall be a referee and report to the court, and that judgment shall be entered on the report, but no rule of reference is issued by the court, there is not an agree- ment in pais such as works a discontinuance of the action; nor could a rule issue to affect the rights of such third person. McCarthy «. Swan, 145 471. 3. Where two only of three arbitrators, ap- pointed in a reference under a rule of court, are present at the meeting, owing to the fail- ure of the third to recejve notice of the meet- ing, the award is invalid, though the submis- sion provides that the award of the majority shall be final. Doherty v. Doherty, 148 367. 4. For a mistake of fact on the part of the arbitrator the award may be im- peached at law, as, for Instance, where, through inadvertence and mistake, he supposes a certain item to be chargeable. Barrows «. Sweet, 143 316. 5. An award, under an agreement of sub- mission signed and acknowledged before a jus- tice, is invalid if not returned within the time limited in I he submission but under an agree- ment for extension which, though signed by the parties, was not acknowledged before a justice; under Pub. St., ch. 188, §§2, 5, 9, this conclusion necessarily follows. Bent «. Erie Telegraph & T. Co., 144 165. 6. Where, in the case of an arbitration under a rule of court, the defendant pays the whole AEBITEATION— ASSAULT AND BATTEEY, L of the arbitrators' fees, one-half of which should have been paid by the plaintiff, an action lies to recover of the plaintiff the half which he should have paid. Russell V. Page, 147- 382. Arrest and false imprisonment. I..ARBB8T IN A CIVIL CASE. II. AbEBST IK A CEIMINAL CASE. III. Action fob false impeisonment. [See, also, Damages, 6; and Foob Bebtob.] I. Aeekst in a civil case. 1. The liability of the indorser of a note is a " debt," within Pub. St., ch. 162, g 17, cl. 5, for which one may be arrested on execution on the ground that he contracted the debt with an intention not to pay it. May V. Hammond, 146 439. II. AsiiEST in a Ceiminal Case. 3. Under the charter and ordinances of "Wor- cester, the mayor and aldermen may appoint a special policeman, who, in the absence of a limitation on his powers, may arrest, without warrant, one who, while intoxicated, is com- mitting a breach of the peace. Joyce ». Parlihurst, 150 343. III. Action fob False Impeisonment. 3. An action for false imprisonment will lie for the misuse or abuse of legal process after it has issued, beyond the mere fact of arrest or detention. "Wood V. Graves, 144 365. 4. One who merely makes a complaint, the magistrate and the oiEcers of the law doing the rest, is not liable for an assault and false im- prisonment growing out of the arrest, even though the complaint is defective. Langford v. Boston & Albany Railroad, 144 481. 5. One who, when sued for false imprison- ment, would justify as a police ofBcer, must show that he was an oflBcer; that he said that he was an officer and appeared to be an officer de facto is not enough. Short V. Symmes, 150 398. 6. One arrested wrongfully by two police officers, lalsea by them to the lockup, sent by the marshal and assistant marshal from the lockup to the railroad station in the custody of another officer, and released only when on a starting train, has a right of action for false imprisonment against the five officers jointly for the imprisonment between the lockup and train. Bath ». Metcalf, 145 374. 7. "Where a police officer makes an arrest of one who, while intoxicated, is committing a breach of the peace, and does not take him be- fore the court, because asked not to do so, for he wants to go home and take care of liis fam- ily, the officer is not liable in damages for a failure to make complaint; the person arrested waives his rights. Joyce ». Parkhurst, 150 343. 8. One who, having been arrested without a warrant for intoxication, consents to a dis- charge from custody witliout a complaint, in- tending thereby to release damages, cannot maintain an action against the arresting officer for an assault and false imprisonment the agree- ment having been fairly and intelligently made. Caffrey v. Drugan, 144 294. 9. For instructions properly given and re- fused in a case wjiere the defendant in an ac- tion for an assault and false imprisonment un- successfully attempted to justify on the ground that he thought that the plaintiff, put in the defendant's house as a keeper, had stolen money there, see Morley v. Chase, 143 396. Arson and other criminal burning. 1. An indictment, on Pub. St., ch. 303, § 1, charging the burning of the dwelling house of T, will not support a conviction under section 4, of burning a building, other than a dwell- ing house, belonging to T. Comm. 1). Hayden, 150 833. 3. So an indictment charging the burning of "a certain building, to wit, a house," etc., charges the crime of burning a building, under section 4, and not arson, under sec'io.'i 1. Comm. V. Smith, 151 491. 8. On the question whether the defendant burned a certain building, evidence offered by him that there were two other fires at about the same time, and that the three fires appeared to have been set by the same person, and by one other than himself, is immaterial. Comm. V. Gavin, 143 184. 4. On the trial of sn iidictment for burning A's barn it may be shown that the accused, on learning, three years before, that he was sus- pected by A of a robbery, threatened that he would make A " sweat for it." Comm. 1). Quinn, 150 401. Assault and battery. I. Ceiminal Peooebdings. II. Action foe Damages. [As to an indictment, see Indictment, 8; as to as- sault -with intent to ravish, or to abuse female child, see Rape; see. also. Conviction and Senibnob, 3: Police Coukt, 1] I. Ceiminal Peocbbdings. 1. One indicted for an assault with a billy and who testifies that he has carried the billy 8 ASSAULT AND BATTERY, I, II— ASSIGNMENT, I, II, III, IV. for twenty years and did not carry it for the purpose of making the assault in question may not be asked why he did caiTy it; this is im- material. Comm V. Drury, 149 64. 2. For evidence sufficient to warrant the inference that the accused knew that the per- son assaulted by them was an officer in the lawful execution of the duties of his office, see Comm. 1). Sawyer, 142 530. 3. If A and B have a dispute as to the amount due for an article bought by A from B, and if A lays down the article and a sum of money less in amount than that claimed by B, and tells B that he can take either, and if B takes the money and then says that A still owes the balance claimed at first, A has the right to regain the money by the use of reasonable force. Comm. ■». Donahue, 148 539. II. Action roK Damages. 4. On the trial of an action for an assault growing out a controversy concerning a right of way and the removul of a division fence it may not be shown, on the question of the de- fendant's malice, that, on another occasion he dug a trench and that the plaintiff fell into it. Quigley v. Turner, 150 108. 5. The defendant, in an action for an assault, cannot show that, two or three days before, he was assaulted by the plaintiff. Bonino «. Caledonio, 144 299. 6. Nor can he show that, several hours be- fore, his wife was insulted by the plaintiff and that the fact had just come to his knowledge. Dupee V. Lentine, 147 580. Assessment. [See Highway; Taxation; Tomn and City.] Assessor of taxes. [See Taxation. Assignment. I. What operates as an Assignment. n. What is ok is not Assignable. III. Validity and Effect. IV. Actions and Defences pounded ■dpon assigned demands. V. Assignment foe benefit of cbbditobs. [See, also. Order.] I. What opebates as an Assignment. , 1. An order on a town, drawn against no special fund and for an amount less than is due the drawer for labor and materials furnished, and not accepted but merely retained by the selectmen, is not such an assignment, legal or equitable, as can withstand a trustee process which ignores the order. Holbrook v. Payne, 151 383. 3. Where the consignor of goods for sale on commission directs the consignee to hand the proceeds to a certain creditor o£ the consignor, and, at the same time, notifies the creditor of the direction given, there is not an equitable assignment of the proceeds on which the credi- tor may found a right of action against' the consignee who otherwise disposes of the pro- ceeds under a later order of the consignor. Lazarus v. Swan, 147 330. 3. Where, under a will, the child of a testa- tor will be entitled, when the youngest child attains his majonty. to a share of the estate, an assignment, by a sealed and acknowledged in- strument, of all the assignor's right, title, inter- est, and share in and to the testator's estate is sufficient to transfer the interest. That the realty is not described in detail is immaterial. The words "sell and assign" are sufficient words of grant. Wainright v. Sawyer, 150 168. II. What is or is not Assignable. 4. An assignment of part of a debt, though made without the debtor's assent, is enforce- able in equity. James «. Newton, 142 366. III. Validity and Effect. 5. An assignment of part of a claim against a city under a contract was held to extend to money gratuitously paid by the city after it was adjudged that the contract was invalid. Kingsbury ®. Burrill, 151 199. 6. A sale of a business and good-will may carry a trade-mark; and though the seller may, nothwithstanding the sale, engage in a similar business at another place, he may be enjoined against representing himself as successor to the business which he has sold or as having a right to use the trade-mark. Hoxie ». Chaney, 143 593. 7. For an examination of a certain assign- ment and its construction, see Segee v. Downes, 143 340. rv. Actions and Defences founded upon Assigned Demand. 8. If a chose in action is assigned and suit is brought by the assignor a reassignment pendente lite authorizes the prosecution by the assignor for his own benefit. Moore v. Spiegel, 143 413. 9. So if the assignee appears in court and states that he does not, through his assignment, desire to prevent a recovery, the prosecution of the suit by the assignor, for his own benefit, may go on. Coulter V. Haynes, 146 458. ASSMNMENT, V— ATTACHMENT. v. Assignment for Benefit of Cbkditobs. 10. An assignment by an insolvent debtor to a trustee for the benefit" of cred tors and which contains no covenant by them, nor agreement, express or implied, to release or discharge their claims or to receive anything in satisfaction thereof, though signed by them, does not bar an action by one of them to recover the amount of his claim over and above a dividend received by him from the trustee. Hammond «. Pinkham, 149 356. 11. A conveyance by a debtor under an agree- ment that the grantee shall sell the property and settle with the grantor's creditors, but which confers on the grantee unlimited discre- tion as to the time and manner of sale and does not require a settlement on a ratable basis, but leaves everything to the grantee's discretion, does not afford a foundation for a suit in equity by a creditor to enforce the trust. National Exchange Bank ®. Sutton, 147 131. 18. In the case of an assignment for creditors one creditor cannot recover more than his share from the assignee, even though there has been neglect on the part of the latter. Bouve V. Cottle, 143 310. 13. An assignment by a corporation, by a pa- per signed by creditors, which recites inability to pay debts, and directs that, with legal priorities, the property shall be distributed ratably among creditors; that existing attachments by credi- tors signing it, shall be dissolved, and that no creditor shall attach or levy on the property; but that no debt shall thereby be discharged and no remedy of a creditor be destroyed, does not dis- charge any debt, and not bar a suit by a credi- tor, during the administration of the trust, to enforce the statutory liability of stockholders and directors. Nonantum "Worsted Co. ■». HoUiston Mills, 149 359. 14. Where an assignment to a trustee for creditors is avoided by an assignee in insol- vency appointed afterward, the trustee may retain enough to reimburse himself for reason- able and necessary expenditures made by him in good faith in carrying out the purposes of the assignment to him. White B. Hill, 148 396. 15. An assignment, executed by a debtor domiciled in another state, and valid under the law of that state, but invalid under the law of ( Ills eommonwealth, because not assented to by creditors, will not be upheld as against an attachment by a firm composed of citizens and residents of such other state, and of citizens and residents of this commonwealth, wherein the firm has a usual place of business. Faulkner v. Hyman, 142 53. Association. ISee Benevolent Association; Loan and Fund Association; Religious Association.] Assumpsit. [Use and occupation, seo Landloed and Ten- ant.] Vol. ni— 2 1. An action of contract cannot be main- tained to recover the damages sustained by a tortious conversion. Newmarket JVIanuf. Co. v. Coon, 160 566. 3. If a debtor, who is settling with his credi- tors at fifty per cent, pays one creditor one hundred per cent under the mistaken supppsi- tion that the debt twice was what it really was, the creditor knowing the fact, an action lies to recover money paid by mistake. Trecy ». Jefts, 149 211 3. One who buys goods for himself in the name of a corporation which has no existence, but which he believes to be a valid corporation and who gives for the goods a note in the name of the corporation, may be sued for goods sold and delivered and the note treated by the seller as void. jyiontgomery v. Forbes, 148 249. Attachmeut. ISee, also. Chattel Mortgage; Execution; Trustee Process. As to effect of amendment or declaration, see Amendment, 6, 7, 8.] 1. An amendment, allowed to an officer's re- turn of an attachment, and in accordance with what the court finds to be the fact, becomes a part of the record, and may be relied on to show a valid attachment. Downs «. Flanders, 150 93. 3. A widow's right to have dower assigned to her caimot be attached or taken on execu- tion in an action at law; the remedy is in equity. McMahon v. Gray, 150 289. 3. Hay in a barn on a farm can be attached in an action against the owner of the hay. Plaisted D. Hair, 150 375. 4. The demand made by a mortgagee of chattels on an attaching officer, under Pub. St., ch. 161, § 75, is not vitiated by the fact that it refers to a note originally given, while the note actually due is a renewal note; nor by the fact that the it imports the liability of the mortgagor to be to pay the note, the actual ob- ligation being to indemnify the mortgagee for indorsing the note. Bigelow i>. Capen, 145 370. 5. Nor by the fact that the amount of pro- test fees is included in the demand, at least, if the amount of the note alone exceeds the value of the security. Bigelow v. Capen, 145 370. 6. Nor by an omission to state a small amount of interest due. Ashcroft «. Simmons, 15 1 497. _ 7. Nor by an omission to state that the con- sideration of the mortgage note consisted in part of notes given by the mortgagee. Ashcroft V. Simmons, 15^1 497. 8. The mortgagee's demand is insufficient if neither it nor the record, to which it refers, states when the mortgage note will become due or what rate of interest it bears, and if the facts are not such as would be presumed readily from the demand or record. Wilson V. Crooker, 145 571. 10 ATTACHMENT— AW AED. 9. Where chattels are attached as those of a mortgagor, aud the mortgagee, summoned as trustee, disclaims and shows that th^re is no mortgage and no debt, his discharge as trustee does not dissolve the attachment. Simmons v. "Woods, 144 385. 10. A receiptor for attached property, who permits it to go back into .the debtor's hands, whence it comes to his assignee in insolvency, who applies its proceeds for the benefit of the creditors, is not liable to an action on the re- ceipt. "Wright 1). Dawson, 147 384. 11. Nor does the fact that the judgment in the attachment suit was rendered two days be- fore, and that execution issued one day before, the first publication of notice in the insolvency proceedings affect the case. "Wright s. Morley, 150 513. 12. A discontinuance as to one of several de- fendants does not discharge a bond given by the defendants jointly to dissolve an attach ment. Dalton «. Barnard, 150 473. 13. A late entry of an action, permitted by a rule of court and consented to by the defend- ant's attorney, does not discharge the surety on the bond given to dissolve the attachment. Lee «. James, 150 475. Attempt to commit a crime. [See Hii/ii AND Miiiii Bam, 1."] Attestation. ISee Deed ; Will, and the titles of variousinstru- ments.] Attorney at law. [See Champerty, 1; Contract, 1; Court of Com- missioners OP Alabama Claims, 1; Pension, 1; Writ, 3.] 1 . An attorney at law has authority, by virtue of his employment, to cause the debtor's ar- rest on the execution. And, if the arrest is illegal because made in the wrong county, the client may be liable to the debtor though the attorney's clerk, without special authority, caused the arrest. In such a case evidence that the client was present at hearings on the deb- tor's application for the poor debtor's oath is admissible as tending to show authority. Shattuck «. Bill, 142 56. 2. "Where an attorney employed by the attor- ney of a petitioner for a jury to assess damages recognized in the name of the petitioner it was held that he was bound so that he could not demand another jury. Mahoney «. Middlesex County Com'rs, 144 459. 3. A statemeni made by an attorney cannot be treated as an admission of his client,, though made in a conversation relating to a fact in con- troversy, if it did not fall within the attorney's employment as such, not being an agreement relating to the action or an admission intended to influence its procedure. Pickert ». Hair, 146 1. Anetlon and auctioneer. 1. An auctioneer who sells mortgaged chat- tels for the mortgagee after demand made by the messenger in proceedings wherein the mort- gagor has been adjudged insolvent is liable to the assignee in insolvency as for a conversion, if the mortgage was fraudulent and void within the insolvent law Milliken v. Hathaway, 148 69. Auditor. 1. An auditor may be appointed in a real ac- tion. The language of the statutes is broad enough to require such construction. Holmes «. Turner's Falls Co., 150 535. 2. A rule to an auditor in a real action, "to examine the claims and vouchers, and hear the parties thereon, and make a report thereof to the court," includes the matter of a division line or disputed boundary. Holmes ■». Turner's Falls Co., 150 535. 3. An auditor may testify that at the hearing before him a witness testified otherwise than at the trial, if the testimony was not set out in the rejDort. Tobin ». Jones, 143 448. 4. If an auditor, while reporting general find- ings in the plaintiff's favor, also reports the facts and evidence, the defendant has the right to go the jury upon the report; it is error to direct a verdict for the plaintiff. Peaslee ®. Eoss, 143 275. Autrefois acquit; autrefois con- Tict. [See Former Adjudication.} A"ward. [See Arbitration.] BAIL— BANKRUPTCY. 11 B. Bail. [See alao Bbcognizauce.1 1. Under Pub. St., ch. 213, § 48, providing that bail may be taken by; a commissioner only when the "court is not in session," an actual session is meant; the commissioner may act if the court is adjourned temporarily to another day. Comm. i>. Gove, 151 393. 3. The omission of the commissioner to re- quire proof of service on the district attorney, as required by § 48, is not a defence to an ac- tion on a recognizance taken. Comm. V. Gove, 151 393. 8. Seire facias against bail lies, under Pub. St., ch. 163, § 7, immediately upon a return of non est inventus on the notice issuable on an application for an arre';t on execution; it is not necessary to wait for the return day of the exe- cution. "Wehrle v. Gurney, 146 331. Bailment. [See Agistment; Iitfakt, 8.1 1 . One who agrees to store fruit at a temper- ature below a certain height is liable for dam- age caused by the temperature being allowed to reach a greater height. Hyde «. Mechanical Refrigerating Co. 144 433. 3. In an action of contract against a ware- houseman for not keeping goods safely, if it appears that the damage was caused by tlie fall of the warehouse the plaintiff has the bur- den of proving negligence. Willett«. Rich, 142 356. 3. A. warehouseman does not become liable for the conversion of goods by unlocking a door on the demand of an officer who tlien levies an unauthorized attachment on the goods. Clegg V. Boston Storage Warehouse, 149 454. Bank and banking. I. National Banks. II. Collections. III. Officers and Sbkvants. 18; Savings Bank; [See niLL OP Exchange, Trustee Process, 4. | I. National Banks. 1. Though a national bank, in contraven- tion of U. S. Rev. St., §530:>, lends to one per- son a sura exceeding ten per cent, of the capital stock of the bank, the excess is recoverable by actio Q. Corcoran » Batchelder, 147 541. 2. Where the directors of a national bank voted to double the capital stock, and A, who hold shares, paid money " on account of sub- scription to new stock," and then the directors voted to reduce the stock, it was held that A could recover his money back, and that it was immaterial that the comptroller of the cur- rency had certified to the increase, up to the amount paid in, A's payment included, A not having been notified of and not having assented to the proposed change. Eaton v. Pacific Nat. Bank, 144 360. 3. Where the directors of a national hank proceed to wind up its affairs at the end of its twenty years term of existence and without ob- jection submit to arbitration a claim against the bank, a board of directors elected afterward and a majority of whom were not stockholders at the time the liquidation began, are without power to revoke the submission; the election of the new board is illegal. Richards v. Attleborough Nat. Bank, 148 187. II. Collections. 4. A bank which agrees to make collections for another bank and remit weekly, is, as to checks sent for collection, an agent merely, and has no title to the proceeds of a check col- lected through a sub-agent. Manufacturers' Nat. Bank ■». Continen- tal Bank 148 553. 5. And where, 'in the case of a draft sent for collection through several banks, the in- dorsements are restrictive and afford notice that the draft is forwarded for collection, one of the banks cannot, by cashing a check drawn on it by a bank through whose hands the draft has" passed, charge such amount against the original owner. Freeman's Nat. Bank v. National Tube Works Co., 151 413. III. Officers and Servants. 6. A bank is not necessarily chargeable with its president's knowledge of facts tending to show the invalidity of notes discounted by the bank, where the president acts in his own in- terest and not in the interest of the bank. Corcoran v. Snow Cattle Co. 151 74. Bankruptcy. [See, also, Insolvency; Limitation of Ac- tion, 5.1 1. Money paid by the United States, from the Geneva Award, under U. S. act, June 5, 1883, for the reimbursement of war premiums, 12 BANKRUPTCY— BENEVOLENT ASSOCIAI ION. is a gift, and does not belong to an assignee ap- pointed in bankruptcy proceedings antedating the enactment. [Field and W. Allen, JJ., dissenting.] Heard ». Sturgis, 146 545. 2. The validity of a discharge in bankruptcy cannot be attacked in a state court, though the name of the creditor who disregards the dis- charge and sues was willfully and fraudulently omitted from the schedules, and though he had no notice of the bankruptcy proceedings until the two years had passed within which the dis- charge must be attacked in the bankruptcy court. Puller V. Pease, 144 390. 3. Where an assignee in bankruptcy obtained leave of court to sell and convey land to the bankrupt, and where, at the request of the bankrupt, the conveyance was made to his wife, it was held that the bankrupt had not a right of action for a trespass justified by the de- fendants as devisees of the wife. Wilson V. Winslow, 145 839 Bastard and bastardy process. I. Complaint; AccrsATiON; Examination. II. Pbocbedings in the Stjpbbior Court BEFOBE TBIAL. III. Tbial; Etldencb. I. Complaint; Accusation; Examination. 1. From the fact that the certificate of the oath to a complaint under the bastardy act is made by the clerk and recites that the com- plaint was sworn to before said court, a pre- sumption arises that this was done in court. 'Tracey v. Noyes, 143 449. 3. Where a complaint, under the bastardy act, contains all necessary averments, but is not made until after the birth of the child, it can- not be objected for the first time after verdict that there was no supplemental complaint. Lenahen b. Desmond, 150 292. 8. After the filing of a supplementary com- plaint in the superior court and an appearance there it is too late to object that the police court had no jurisdiction of the original com- plaint because the statute did not authorize a justice of the peace to receive such a com- plaint. Davis «. McEnany, 150 451. 4. An accusation against a man made by the mother after the child is delivered, but before the umbilical cord is cut, is made "in the time of her travail," within Pub. St., ch. 85, § 16. Tracey v. Noyes, 143 449. 5. Under Pub. St., ch. 85, § 1, the accusa- tion of the female during travail as to the father of the child is competent evidence to corroborate her testimony, though no com- plaint was instituted or examination had before the child was born; the words "Being put upon discovery of the truth respecting such accusation " do not imply the contrary. Leonard -B. Bolton, 148 66. 6. Under Pub. St., ch. 85, § 16, a complaint for bastardy need not allege an accusation of paternity during travail, and that the com- plaint continued constant in such accusation; therefore this may be proved though not alleged. Bowers ®. Wood, 143 183. II. Proceedings in the Superior Court Bepobb Tbial. 7. In a bastardy case, the court, during the term, may vacate a judginent entered on a de- fault of the respondent in failing to appear when the case was called for trial, it appearing that he did not intend to make default, and his absence being reasonably explained. Keith 1). McCafEray, 145 18. III. Tbial; Evidence. 8. Where, in a bastardy proceeding, the orig- inal complaint and warrant are transmitted to the superior court and lost from the files, sec- ondary evidence of their contents is competent on the trial in that court. Easdale «. Eeynolds, 143 126. 9. The complainant in a bastardy proceeding may not be questioned as to a single act of illicit intercourse with another man than the respond- ent from three to six months before the child was begotten. Easdale «. Eeynolds, 143 126. 10. In a bastardy proceeding it need not be proved the child was begotten on the exact day alleged in the complaint. Francis «. Rosa, 151 532. 11. For an examination of evidence and in- structions in bastardy proceeding, see Francis «. Eosa, 151 582. 13. Where the respondent introduces evidence tending to show that, about the time the child was begotten, the woman had sexual inter- course with another man, he may go further and show that the previous relations between the woman and this man were stispicious. Odewald v. Woodsum, 143 512 18. Letters from the man to the woman con- taining expressions tending to show sexual in- tercourse between them are competent evidence. Sullivan v. Hurley, 147 a87. Bawdy-house and prostitution. [See Indictment, 3.] Beacli. [See Flats.! BeneTolent association ; benefici- ary association. [See, also. Charity; Loan and Fund Associa- tion; Eeligious Association. See, also, Ebtop- >EL, 2.] BENEVOLENT ASSOCIATION. 13 1. A member of a Ibeneficiary association, or- ganized under Pub. St., ch. 115, wlio iias desig- nated his wife as hia beneficiary, cannot revoke tbe designation in favor of his mother, who is not dependent on him and who lives with her husband. Neither the statute nor a by-law which speaks of " heirs" and members of tlie "family," in describing those who may be ben- eficiaries, so contemplates. Elsey V. Odd Fellows' M. K. Ass'n, 142 224. 2. Nor can he designate his " estate " as his beneficiary. Daniels v. Pratt, 143 216. 3. And, where he does, and the executor re- ceives the amount of the benefit from the asso- ciation, he takes it in tnist to distribute, not as assets of the member's estate, but among those entitled to it, who, if not otherwise ascertained, are those who would be entitled under the stat- utes of distribution. Daniels i>. Pratt, 143 216. 4. But, in the case of a benefit received by the executor from a foreign beneficiary associ- ation, under similar eircumstances, distribution should be made according to the will, the for- eign law not being sliown. Daniels v. Pratt, 143 216. 5. If a by-law provides that no designation shall be valid without the consent of the direc- tors, the will of the member, not approved during his lifetime by the directors, cannot operate as a designation. Daniels «. Pratt, 143 216. 6. A wife, obtaining a divorce, ceases to be a member of ber husband's family, and is nei ther his " widow," or "heir," and so loses her right as a beneficiary in an association organized under Pub. St., ch. 115, §§ 2, 8, the husband having changed the designation since the di- vorce. Tyler v. Odd Fellows' M. E. Assoc. 145 134. 7. "Where a member of a beneficiary associa- tion, formed under St. 1877, ch. 204, which, as well as the charter, limited the persons who could be designated as beneficiaries to his widow, orphans and other persons dependent on him, when aslied to whom he wanted tlie benefit paid, answered "to my heirs," and, to a second question, "wife or daugliters," it was held, his wife and a daughter having survived him and the by-laws having directed payment to the widow in case of no designation, that whether tliere was or was not a valid designa- tion, the widow was entitled to the benefit. Addison v. New England C. T. Assoc, 144 591. 8. A creditor of a member of a beneficiary association organized under Pub. St., ch. 115, cannot be a beneficiary. Skillings ». Massachusetts Benefit Assoc. , 146 217. 9. The amount due to a beneficiary on the death of a member of a beneficiary association, which, under Pub. St., ch. 115, § 8, is exempt from attachment in the hands of the association by a creditor of the beneficiary, may not be reached by showing that the deceased was not in fact a member, or that the funds of the as- sociation were not obtained m compliance with the law regulating such associations. Saunders i). Kobinson, 144 806. 10. Though a designation of "friends" as beneficiaries is invalid, a designation of "legal heirs," in case none of the original beneficiaries survive the member, will be given effect. Eindge «. New England Mut. Aid Soc, 146 286. 11. Under St. 1883, ch. 195, enlarging the powers of beneficiary associations incorporated under Pub. St., ch. 115, § 8, by adding to the persons designated, "or other relatives of de- ceased members," a member who, before the passage of the later act, had made his wife his beneficiary, may change the designation to his mother. Marsh «. American Legion of Honor, 149 512. 12. Under St. 1883, ch. 195, | 2, if a member designates his mother as his beneficiary, the des- ignation is not revoked by his subsequent mar- riage, even though the constitution of the asso- ciation states its object to be to make " suitable provision for the widow and orphan." Massachu.setts Catholic Order v. Calla- han, 146 391. 13. Where a statute, in defining the right of membership in a corporation chartered for mu- tual benefit, provides that the membership "may" be extended to a certain class, and a by-law extends the membership to a designated part of that class, one belonging to the class, but not to the part thereof designated by the by-law, is not a member. Burbank «i. Boston Police Eelief Assoc, 144 434. 14. Under a certificate for the benefit of the widow and children of the member, the widow and each child are entitled to equal shares; and a child who has married and left home shares with the others. Jackmau ». Nelson, 147 300. 15. Where the attempt of a metaiber of a ben- eficiary association to change the beneficiary originally designated by the member would have been consummated but for the fraudulent acts of the original beneficiary and an ofiicer of the association, the death of the member will not be permitted to defeat his intention ; the substitution will be treated as though completed before the death. Marsh ». American Legion of Honor, 149 513. 16. Under St. 1885, ch. 183, a beneficiary asso- ciation may insure amember for his ownbenefit; and where he declares the contract to be made for himself, and the certificate recites that the money will be paid to his executors or admin- istrators, in trust for his heirs-at-law, it belongs to his executor, to be disposed of under the will, and not to his heirs as individual beneficiaries. Harding ■v. Littlehale, 150 100. 17. Where the applicant declares that he does "hereby warrant each of the foregoing state- ments [of the application] to be true, to the best of my knowledge and belief," and that he has not concealed any material information, and agrees that any "untrue or fraudulent statements " shall forfeit his rights, he means 14 BENEVOLENT ASSOCIATION— BILL OF EXCHANGE. that the statements are true, to the best of his knowledge and belief. Clapp V. Massachusetts Benefit Assoc, 146 519. 18. Under St. 1880, ch. 196, g 8, providing that any beneficiary association may hold, as a death fund, an amount not exceeding one as- sessment, and that nothing in the section shall be held to restrict such death fund to less than $10,000, an associatibn, when a loss occurs, is not obliged to pay it out of the fund, but may make an assessment therefor; and the fact that it designates such fund as a reserve fund is im- material. Grossman v. Massachusetts Benefit As- soc, 143 435. 19. That an association has waived, in sev- eral instances, a forfeiture which it might have insisted on because of delay in paying assess- ments, does not preclude it from insisting on a forfeiture for a subsequent default. Grossman «. Massachusetts Benefit As- soc, 143 435. 20. If an association levies assessments and accepts the amounts after the conditional ac- ceptance of an over-due payment there is a waiver of the right to avoid the certificate. Rice V. New England Mutual Aid Soc, 146 248; Rindge v. New England Mu- tual Aid Soc, 146 286. 21. As, under St. 1888, ch. 429, the approval, by the insurajice commissioner, of the name adopted by a fraternal beneficiary association, is conclusive, the courts cannot interfere though the name is very similar to that of a complain- ing association. American .Order B. Merrill, 151 558. 22. The members of an unincorporated bene- ficiary association, organized by charter from a state council, which is subordinate to a national council, cannot maintain a bill in equity against the officers of the state council, after the char- ter of the association has been declared forfeited by the state council, to recover possession of property formerly belonging to the association, upon the ground that the charter was illegally declared forfeited, until they have exhausted the remedies prescribed in the constitution and laws of the national council, which give a right of appeal from the action of a state council. Oliver o. Hopkins, 144 175. 23. "Where a charitable association is a divi- sion of a national society, which prescribes its constitution and has sole power to change it, a majority of the association cannot carry it over into another national society of the same nature; and where the minority, forming a quorum, proceed to elect officers and do business as the old society, they constitute the regu.ar associa- tion and are entitled to the property. McFadden v. Murphy, 149 841. 24. On the dissolution of a beneficiary asso- ciation a safety fund, so called, should be di- vided among certificate holders, as provided for originally by the contract; claimants for death losses are not entitled to share therein, in contravention of the terms of the contract. Burdea v. Massachusetts Safety Pund Assoc, 147 860. BeneTolent trust. [See Chabity: Devise and Bequest; Trust; Trustee.! Bequest. [See Devise and Bequest.] Betterments. [See Hiohwat; Town and City.] Betting; wagering; gaming. ~ [See Akatement, 1; Indictment, 9, 10.] 1. A bet upon a foot race is gaming, within Pub. St.,ch. 99, §1. Jones i>. Gavanaugh, 149 124 2. For A to play billiards with the keeper of a saloon on the terms that A, in case of loss, shall pay for the use of the tablt;, and otherwise nothing, is gaming, within Public St., ch. 99, §9. A note given by A for the price of the use of the table is void. Murphy ®. Rogers, 161 118. 3. For an examination of evidence and in' structions on the trial of a complaint, under St. 1885, ch. 342. § 1, for registering bets and buying and selling pools, see Gomm. v. Ferry, 146 208 4. For an examination of instructions to a jury on the trial of an action by a commission merchant against his principal, where the de- fence was that the sales and purchases were gaming transactions in grain, see Fainum B. Pitcher, 151 470. 5. A demand is a necessary prerequisite to an action to recover from a stakeholder money placed in his hands on a bet. Jones V. Gavanaugh, 149 124. Bill of exchange and promissory note. I. Natukb, Requisites, and Genebal Validity. II. Indobsbment. III. Presentation, Demand, and Notice. IV. Check. V. Action. ["ee, also, Alteration of Instrument, 2; Con- stitutional Law, 2; Husband and Wife, B; Limi- tation, 12; Order.] I. Nattjke, requisites, and gbnekal val- IDITT. 1. A promissory note, payable to A's estate or order, is sufficiently definite as to the payee to be a valid promissory note. Shaw V. Smith, 150 196. 2. An instrument in form thus: "I OTJ, B. A. Gay, the sum of seventeen dollars, for BILL OP EXCHANGE AND PEOMISSORY NOTE, I-IY. 15 value received," etc , is an acknowledgment of debt and not a promissory note; and interest runs, in the absence of a demand, only from the time of action brought. Gay ». Rooke, 151 115. 3. Where the body of the note recited that '"we promise to pay" was signed by one who appended the word "treasurer" to his name, and was followed by a corporate seal, it was held that the note was the note of the cor- poration and not of the signer. Miller ®. Roach, 150 140. 4. Where the negotiable note of a corpora- tion, signed in its name by its treasurer, and indorsed by him for the maker's accommoda- tion, has written upon its back: " We hereby guaranty the payment of the within note," the contract of the signers of the guaranty is not with the payee, but with the first holder for value taking the note with the guaranty upon it. Jones ». Dow, 143 130. 5. A payment, mide on a note by the guar- antor, does not, pro tanto, discharge the maker, if made upon an agreement with the payee that he shall still hold the note as security for the whole amount. Granite Nat. Bank v. Fitch, 145 567. 6. The surrender of a note, payment of which could not be enforced at law, may be a suffi- cient consideration for a new note. Whitney v. Clary, 145 156. 7. A note given by a widow in payment of a debt of her deceased husband, and received as payment by the creditor, who receipts his bill against the estate, on which no administration has been granted, is given upon a sufficient con- sideration. Carpenter ». Page, 144 315. 8. A note, given in paj;ment of a domestic judgment on which an action is pending in an- other state, and in pursuance of an agreement to enter "neither party," and that one sum- moned as trustee ma^ pay to a claimant of the money attached, is given upon a sufficient con- sideration, irrespective of the validity of the judgment. Brown v. Ladd, 144 310. 9. Where one takes an assignment of a mort- gage which haii been paid, though the assignor represents otherwise, and gives a note for the amount, such note is without consideration; and, in an action thereon, evidence that the maker received the amount from the mortgagor is irrelevant, this not being available to the plaintiff. Brigham v. Holden, 146 359. II. Indorsement. 10. Where a pledgee of shares of stock, de- mandmg more security, receives in good faith, before maturity, the pledgor's note, indorsed by a third person, the pledgee having no knowl- edge that the indorsement was obtained by fraudulent concealment of the truth regarding the certificate of stock, his failure to make in- quiries will not defeat his recovery against the indorser. Lee V. Whitney, 149 447. III. Pbbsbntation, Demand, and Notice. 11. Notice sent to an indorser at his tempo- rary residence may be sufficient, this being the place where the indorser receives his letters and he having no permanent place of residence in the country. Wachusett Nat. Bank «. Fairbrother, 148 181. 13. Where the indorser of a note absconded before its maturity, still retaining a domicil in a town other than that wherein he did business, and the notice was sent to his former place of business and was not received by him because he had directed his confidential agent not to send such notices to him, and the payee did not know that he had ceased to do business, though having knowledge of his insolvency and as- signment, it was held that the notice was suffi- cient. Bank of America v. Shaw, 142 390; Importers' and Traders' Nat. Bank v. Shaw, 144 431. 13. If the notice is left at the iudorser's office, and in a conspicuous place therein, no one being there, it is enough, though the precise place in the office is not fixed with certainty. Hobbs c. Strain, 149 313. 14. And, if it appears that the iudorser's mail is left at the office, and that his name is on the door and at the entrance to the building, - and that he is occasionally seen about there, and has rented the office, a notice left there may be found to have been left at his place of business. Lamkin o. Edgerly, 151 343. 15. A notice mailed to the indorser at the town merely may be sufficient, under Pub. St., ch. 77, § 16, if there is no carrier's deliv- ery, if the houses on the street on which he lives are not numbered, and if he is accus- tomed to get his letters at the post office. Morses. Chamberlain, 144 406. 16. If an indorser, knowing that he might defeat his liability by showing that .he did not receive notice, promises to pay the note, he may be holden. Hobbs «. Strain, 149 313. rv. Check. 17. If a bank in which a check is deposited by the payee becomes, not an agent for collec- tion, but,, under the statute and custom, the owner of the check, with the right to charge it back if returned unpaid, and suspends business on the same day, the receiver of the bank may maintain an action against the maker of the check; and this, although, on the suspension, the payee stopped payment of the check. Brooks ». Bigelow, 142 6. 18. Where a forged check, purporting to be payable to the payee or bearer, was paid by a bank other than that on which the check was drawn to an unknown person from whom proof of identity was not required, it was held that such bank, as between the two banks should bear the loss, though the bank on which the chjick was drawn negligently failed, for a month or two, to discover the forgery, the 16 BILL OF EXCHANGE, IV, V— BOAED OF HEALTH. bank wliioh cashed the check not being preju- diced by the delay. Danvers Nat. Bank i>. Salem Nat. Bank, 151 280. V. Action. 19. In an action on a note, alleged to have been given in consideration of a loan of money, ■where the answer made a general denial and a special denial of the signature, and averred a want of consideration in that the plaintiff re- ceived the note "in part payment of certain stock delivered by him to the defendant, which stock was worthless, and known by the plaint- iff to be worthless," it was held that the de- fence that the plaintiff took advantage of his confidential relations with the defendant, and of his broken condition, physical and mental, and obtained the note fraudulently in return for stock known by the plaintiff to be worthless, the loan of the money being only a pretence, was not open. Hunting J). Downer, 151 375. 20. Where, in an action on a note signed by the defendant and payable to the plaintiff, the defendant offers evidence tending to show that the note was given as a memorandum merely, the burden of showing a consideration is on the plaintiff. He must show this by a prepon- derance of the whole evidence. Perley v. Perley, 144 104. 21. Under the plea of payment of the note in suit it may not be shown that goods were delivered to and accepted by the plaintiff as payments. Ulsch ii. Muller, 143 379. 23. Failure of a consideration is a defense to an action on non-negotiable promissory notes. Shoe & Leather Nat. Bank v. Wood, 142 563. 23. In the case of a note made by a husband and wife, it is not a defence to an action by the payee that the wife was induced to sign the note by her husband's threats, if the payee took the note in ignorance thereof. Fairbanks!). Snow, 145 153. 34. A son, sued on his note, cannot set up as a defence, that his father paid a sum of money to the holder of the note in consideration of the holder's promise not to sue the son for the balance. Marstou v. Bigelow, 150 45. 25. From the fact that A requested B to sign a note for C's accommodation, it cannot be in- ferred that A promised to indemnify B. Lockwood V. Twitchell, 146 623. 36. In the case of a note calling for an un^ conscionable rate of interest after maturity, the maker cannot escape liability by showing that he could and would have paid the note, could he have obtained a statement from the payee, but that he was told that not much was 'due and that he was not to worry, ho being an ignorant man and unable to read or write. Lamprey v. Mason, 148 331. 27. The maker of a note, sued by the payee, may show that it was given without considera- tion and as a voucher for or memorandum of payments made to the maker by the payee on a note due from the latter to the former. Rice D. Howland, 147 407. 28. A state statute giving to the maker of a negotiable promissory note the same defence against an indorsee that he has against the payee, is not in contravention of the constitu- tion of the United States as applied to a note made in that state and payable there. Shoe & L. Nat. Bank «. Wood, 142 563. 29. For facts authorizing, in an action on a note, a direction of a verdict for the plaintiff, there being nothing in the suggestion that the plaintiff was not the equitable, as well as the legal, owner of the note, and the evidence re- lied on to show payment being insufficient, see Northborough v. Wood, 142 531. 30. For evidence sufficient to show that a note was signed and attested with the knov;l- edge of the signer, and as a part of the trans- action, see Whitney v. Clary, 145 156. Bill of exceptions. [See Exception.] Bill of lading. [See, also, Cabhler, 3; CoLiiATERAL Secukitt, 2.] 1. Where the bill of lading contains a stipu- lation that the goods are shipped at an agreed valuation, and the charge for transportation is based upon such valuation, the shipper cannot recover from the carrier, in case of loss, any greater sum. Hill V. Boston, Hoosac Tunnel, etc.. Railroad, 144 384. Board of health. [See, also, Nuisajjce.1 1. A requirement that all rags arriving at a certain port shall be disinfected, and that the expense shall constitute a lien on the rags, does not infringe on the power of Congress to regu- late commerce, and is valid. The owner of the rags may not show that disinfection was un necessary. And the board of health may dele- gate the duty of disinfecting to a third person, who is entitled to the lien. Train v. Boston Disinfecting Co., 144 353. 2. The notice, under Pub. St., ch. 80, §21, to remove a nuisance, may be good though served by a constable who is a member of the board. Comm. 1). Alden, 143 113. 3. If the order and notice require the abate- ment of the nuisance, it is immaterial that they go further and direct the removal of the hogs constituting the nuisance beyond the village limits. Comm. «. Alden, 143 113. 4. As, under Pub. St., ch. 80, § 84, a town board of health may forbid the exercise of the BOARD OF HEALTH-BOUNDARY LINE. 17 employment of keeping swine in the town, an order to that effect is not invalid, because the prohibition contained therein is qualified by the words, " Without a peimit n writing first obtained frmn the board of health." Quincy «. Kennard, 151 563. 5. "Where agents of a town board of health were sued in tort for their acts in abating a nuisance, by laying a drain and filling up the land so as to change the surface and grade, there being evidence tending to show that they entered and injured the house, removed and tore down structures upon the land, delayed the completion of the drain, and used threats and intimidation to prevent the owner from in- terfering, it was held that whether they acted in good faith was a question properly submit- ted to the jury. Conway «. Kussell, 161 581. Bond. [As to bonds in legal proceeaings, see the titles of the different proceedings, viz.: Appeal; Attach- ment; Bail; Bastardy; Injukction; Poob Debtor; Keplevin. Asto probate bonds, see Ex- ecutor AND Administrator; Guardian; Trus- tee.] 1. Where a bond, given to procure the dis- charge of the principal from arrest on mesne process, was invalid as a bail bond because run- ning directly to the plaintiff, and the obligee repudiated it as soon as he learned of it, and at a time when the sureties could have sur- rendered the principal, vitality cannot be given to it afterward by its assignment to the sheriff on his payment of the judgment. Bell V. Pierce, 146 58. 2. A declaration in an action against a surety on a several bond, is not demurrable on the ground that it does not appear that the princi- pal signed the bond. Goodyear Dental Vulcanite Co. v. Bacon, 148 543. 3. But, if it appears that the surety did not consent that the bond should be delivered without being signed by the piincipal nor un- derstand that he should be bound unless the principal signed, a finding in favor of the surety is warranted. Goodyear Dental Vulcanite Co. «. Bacon, 151 460. 4. A. surety on a joint and several bond to a husband by his wife, cannot defend on the ground that the wife was legally incapable of contracting with her husband. Winn «. Sanford, 145 303. 5. An indemnifying bond given to an attach- ing officer to cover "all suits, damages, and costs whatsoever," etc., covers reasonable coun- sel fees. Lindsey i>. Parker, 142 583. 6. Where, considering the surrounding cir- cumstances in connection with the language of a bond for support, it appears that the bond points out a certain house as the place where the support was to be furnished, the obligee is not entitled to demand that it be furnished else- where. Dwelley -o. Dwelley, 143 509, YOL. Ill— 3 7. The purchaser of municipal bonds, which, on tneir face, purport to be payable at a certain time with semi-annual interest until then, is not chargeable with notice of a collateral agree- ment made between the city treasurer," under authority conferred by the finance committee of the council, with the banliers who negoti- ated the bonds, that a certain number of them, to be ascertained by lot, may be called in annu- ally for redemption, even though Ihe agree- ment is entered on the records of the finance commiitce, the city record to which a pur- chaser would naturally refer importing full authority to the treasurer to issue the bonds in the form in which they were issued. And whether a purchaser from such purchaser had or had not constructive notice of the collateral agreement is immaterial on the question of his right against the city to stand upon the letter of the bonds. Suffolk Savings Bank v. Boston, 149 364. Books, [As evidence, see Evidence- \ Boston. [See, also. Town and City. As to the municipal court of Boston, see Police Court] 1. The city of Boston is not liable in an ac- tion of tort to an inmate of its workhouse Or house of industry sentenced to imprisonment there for an offence and who, while employed in an occupation from which, incidentally, the city derives some profit, is injured through the negligence of officers and servants employed by the board of directors of public institutions to manage the affairs of the house. Curran I). Boston, 151 505. 2. One whose horse takes fright from the firing of cannon permit: ed by the city on the common has no right of action against the city. Lincoln v. Boston, 148 578. 3. Under St. 1885, ch. 377, in relation to tak- ing laud in Boston for a new court-house, and providing that damages should be assessed as " in case of the laying out, altering, or discon- tinuing of ways within the city of Boston," damages are assessable by the street commis- sioners and not by the court-house commission- ers. Patch 11. Boston, 146 53 Boundary line. l?ee, also. Deed; Easement.] 1. Where the owner of a tract of land divides It into lots, makes a plan and lays out streets and passage-ways, and, in his conveyances of the lots, bounds them on the streets and pass- ageways, describes them by measurements which exclude the streets and passage-ways, and refers, in the conveyances, to the plan| and conveys to each grantee, as appurtenant to his lot, the right to use the passage-ways in common with the grantor of his assigns, each grantee acquires the fee to the centre of the street or passage-way on which his lot abuts. Such must be deemed tlie grantor's intention Gould V, Eastern Railroad, 142 85" 18 BOUNDARY LINE— CAERIER, L 3. A deed, describing the boundary as begin- ning at a certain point, tlience running across a road, and thence by the side of the road, does not pass title to the centre of the road, nothing further appearing. Holmes v. Turner's Falls Co., 142 590. 3. Where a deed describes the boundary line as "beginning at a stake and stones on the county road," thence by various courses and distances bacls to the county road, thence to the first bound and bounding on said county road, if the stake and stones are on the side line of the road, title does not pass to the cen- tre of the road; otherwise, if it cannot be found where the stake and stones are. Chadwick «. Davis, 143 7. 4. For facts showing an intention that a grant of land bounding on a way should not extend to the centre of the way, seo Gaylord v. King, 142 49d. Bridge. [See, also, Hiqbwat; Eailroad.] 1. A city, which has supplied a sufficient draw and suitable gates, and has employed competent persons to manage them, is not lia- ble to a traveller for an accidi nt chargeable to the momentary negligence of the gateman or drawtender. Butterfield «. Boston, 148 544. 2. It cannot be ruled, as matter of law, that a child of seven who, with its father, is cross- ing a bridge, and who, with the father's know- ledge, turns aside for an instant, to clasp a post and falls through a hole eleven inches square, is not, with its father, in the exercise of due care. GuUine v. Lowell, 144 491. Broker. [See AasNCT, 5.] Burden of proof. ' [See EVTDENCK.] Burial; cemetery. [See TowK and Cett, «.] 1 . A cemetery corporation may be liable to the proprietor of a grave for interring a body there without authority; if the corporation has power to sell its land it cannot be deemed a charita- ble corporation and as such exempt from lia- bility. Donnelly ■!>. Boston Catholic Cemetery, 146 163. Burning a building. [See Arson.] Butter. [For a ruling upon a complaint under St., 1888, ch. 317, § 1, see Indictment, 11.1 1. One who exposes oleomargaiine for sale in the original jjackage, viz. : a tub, and who has complied with the letter of St., 1886, ch. 317, § 1, by having the cover of the tub marked, does not violate the law by removing the cover, thus showing the surface of the con- tents of the tub without a mark. Comm. ■!). Bean, 148 173. 3. On the trial of a complaint on St., 1886, ch. 317, § 1, for selling imitation butter at re- tail without a descriptive vyrapper, it is not ground of defence that the failure of the agent of the accused to use the wrappers provided by the accused was the result of inadvertence on the agent's part and was not intentional; proof of guilty intent is not necessary in this class of cases. Comm. V. Gray, 150 337 c. Capital and income. [See Income.] Carrier. I. Cabkiee of Pkopekty. II. Carkibb op Persons. III. Homicide by Negligence. [As to injuries by carriers' negligence, see Mas- ter AND s'ervant; Neqlioenoe; Bailroad; Street Railway. On questions of damages, see Damages, 4, 5. See, also, Bill of Lading. I. Cabbieb of Pboperty. 1. If a shipper of apples makes a special contract for their carriage over connecting lines of railroad, with reference to temporary mild weather, aid, by reason of the negligent delay of the first company with which the con- tract was made, the apples are frozen on a con- necting line, the first company is liable. Pox V. Boston & Maine Eailroad, 148 320. 3. That a railroad company has always car- ried cattle in a certain way proves nothing in its defense when sued for injuries to cattle car- ried by it. If it is permitted to show that other companies do the same it has no cause for complaining of the exclusion of evidence of its own custom. Leonard v. Fitchburg Bailroad, 143 307. 3. A carrier, -who receives goods under a bill of lading requiring their delivery to the order of the consignor, and sends them on beyond the CARRIEE, I, II. 19 end of its route witliout such instructions, whereby they are delivered to the consignee without the production of the hill of lading, is liable to the cosnignor for the value of the goods thus lost. North V. Merchants' etc., Transp. Co. 146 315. 4. Where a shipper of goods over connect- ing lines of railroad supposes that he is paying the freight through, when in fact he is not pay- ing the full and usual amount over the last road, and where the agent of the first road, who receives the money, is not the agent of the last road, the goods may be held by the last rOad for the balance due that road. Grossman D. New York& N. E. Railroad, 149 196. 5. A teamster, who removes goods on A's order from a room in A's dwelling house, is not liable to B for the conversion of the goods, though they belong to B and are taken from a room hired by B from A. Gurley v. Armstead. 148 267. II. Carrier of persons. 6. A passenger who, in attempting to leave a steamboat at a way landing, for the purpose of getting a meal which he could have procured on the boat, is entitled, while leaving the boat, to all the rights of a passenger; if he meets with an accident due to the carelessness of the steamboat hands in managing a gang plank, he has a right of action against the steamboat company. Dodge V. Boston & Bangor Steamship Co., 148 207. 7. If, however, he attempts to land from the main deck instead of from the saloon deck, as ordered, and meets with an accident, which would have been avoided had he obeyed orders, he has no right of action against the steamboat company. Dodge ». Boston & Bangor Steamship Co., 148 .207. 8. One to whom is given, at his own solici- tation and as a gratuity, a free railroad pas- stipulating that he assumes all risk of ac- cident, cannot maintain an action for personal injuries received, while traveling on the pass, through the negligence of servants of the rail- road company. ]Nor is it material that he did not sign the stipulation, as gonlemplated by it. Quimby b. Boston & Maine Railroad, 150 365. 9. Where, for convenience in transacting his business, an express messenger rides in the baggage'car in contravention of a general rule, and under a stipulation that he rides there at his own risk, he cannot hold the company liable for an accident due to his being there: The stipulation is not against public policy. Bates V. Old Colony Railroad, 147 255. 10. One who. by invitation of the conductor of a freight train upon a railroad used wholly for the transportation of freight, attempts to board the engine for the purpose of riding in the cab, and is injured by the starting of the engine before he has got on, has no right of action against the company; nor does it matter that he has been allowed to ride there before and that he knows that others have ridden there. Piles V. Boston & Albany Railroad, 149 204. 11. A condition on a railroad coupon ticket that the coupons are to be "detached by or in the presence of the conductor, and will be accepted for passage only when accompanied by this ticket," is reasonable and valid. Boston & Maine Railroad v. Chipman, 146 107. 12. A passenger on a train may be removed to the baggage car if he is drunk and disor- derly; and this common law right of the com- pany is not limited by Pub. St., ch. 103, § 18, giving the right of arrest in such cases. Sullivan v. Old Colony Railroad, 148 119. 13. Under Pub. St., ch. 112, § 119, one who does not pay his fare on a train may be re- moved without being arrested. Beckwith v. Cheshire Railroad, 143 68. 14. A child travelling in the custody of its parent may be put off, as an adult might, if fare is not paid for it. Beckwith «. Cheshire Railroad, 143 68. 15. It is not necessary, to justify a removal, that there shall be a fraudulent attempt to evade payment. Marshall v. Boston & Albany RaUroad, 145 164. 16. A passenger, whose stop over check, re- ceived by him in exchange for his ticket, pur- chased in Maine, is not recognized, after ten days from the time of its issue, by the railroad in Massachusetts, has no right of action under a Maine statute which the court of last resort of that state has declared to apply solely to trans- portation within the limits of that state. Boston & M. Railroad v. Trafton, 151 329. 17. A passenger removed from a palace car to another car, under a rule of the railroad com- pany and by the conductor of the train, for the reason that he had not a through ticket, has no right of action against the palace car company. His complaint, if any he has, is against the rail- road company. Lawrence v. Pullman's Palace Car Co.. 144 1. 18. One who leaves a palace car for ten min- utes, cannot charge the company for the loss of a satchel left where it could be reached from the outside of the window. Whitney «. Pullman's Palace Car Co., 143 243. 19. Where, on the trial of an action against a sleeping-car company by one whose money was stolen from under his pillow while he slept, there is evidence tendihg to show that the porter was asleep and that he was required to be on duty thirty-six hours continuously, a case for the jury is presented. Lewis V. New York Sleeping Car Co.. 143 267. 20 CAERIER, ni— CHARITY AND CHARITABLE TRUST. III. Homicide by Negligence. 20. Where, on the trial of an action against a railroad company to recover for the death of an employee while unloading a car which was struck violently by other cars, it appeared that just before the accident, the deceased had dis- appeared with a broom, with the purpose, pro- bably, of sweeping up grain on and near the track, and was found dead near the track with his broom, it was held error to order a verdict for the company on the ground that there was no evidence that he was in the exercise of due care, the question being for the jury. Maguire v. Pitchburgh Railroad, 146 379. 31. Where, in an action, under Pub. St., ch. 113, § 813, by an administrator, to recover for the death of a person killed on a train, it ap- pears that the road was run by the defendant corporation under an agreement with the com- monwealth, which owned the road, and which bound the commonwealth to maintain the road- bed and track in good condition, and that the accident was due to the defective condition of the road, the defendant is entitled to an instruc- tion that it is liable only in case it had or should have had notice thereof. The action under the statute is not like the ordinary action brought by a passenger, but is a substitute for an indictment, and it is enacted that damages shall be assessed with reference to the -degree of culpability. Littlejohn v. Pitchburgh Railroad, 148 478. 33. A street car driver, who, on leaving his car to go to a meal, jumps off so carelessly as to knock down a passenger, who is run over and killed, is engagea in the business of the corporation, so that an indictment, under Pub. St., ch. 112, § 313, will be against it. Comm. V. Brockton Street Railway, 143 501. 33. Prior to the enactment of St. 1886, ch. 140, a street railway company was not liable to an action of tort for a loss of life through its negligence or the negligence of its servants. Such a liability cannot be founded on earlier statutes. Holland ■». Lynn & Boston Railroad, 144 425. Case stated. 1. A case stated, which is imperfect and in- conclusive initself, will be discharged, though the parties agree that if, upon any facts, the plaintiff's case can be maintained, the case may be referred to a master or assessor to determine whether the vital facts exist. Phelps «. Phelps, 145 416. Cause of action. [See Action.] Certiorari. [See, also, Highway; Town and City.] 1. Certiorari does not lie to review the pro- ceedings of the municipal authorities in appoint- ing a police officer; the authorities, in such case, act ministerially, not judicially. Attorney General®. Northampton, 143 589. 3. The remedy of a railroad company, where a city lays out a way crossing the railroad at grade forty feet wide instead of fifty, as ordered by the county commissioners, is not by bill in equity for an injunction, but by certiorari. Old Colony Railroad v. Fall River, 147 455. 3. On certiorari to quash a municipal assess- ment, the answer of the board of aldermen is to be taken as true, although the membership of the board was changed before the hearing. Collins V. Holyoke, 146 298. Champerty and maintenance. 1. An agreement, whereunder an attorney renders services for a poor woman in recover- ing by suit her distributive share of an estate, is not necessarily void for champerty in stipu- lating for "very large and liberal fees," not to exceed fifty per cent., in case of recoveiy. Blaisdell v. Ahem, 144 893. 3. An agreement to pay one-half the amount collected to the collector, who is to make no charge for his services and expenses, and which contemplates legal proceedings in the insolvency court, is champertous. Lancy «. Havender, 146 615. 3. The rule which might make champertous an agreement to prosecute a suit in a, court for "an amount of money equal to nine per cent- um of any sum " that should be awarded will not be applied where the matter in question is the prosecution of a claim before the Court of Commissioners of Alabama Claims. Manning ®. Sprague. 148 371. Cliancery. [See EQtrr AND Pbaoti Charge. [See Equity Jurisdiction; Eqctity PtsADiNa AND Pbactice. [See Exception; Tbial.] Cemetery. [See BtTRiAL, etc.] Charitable association. [See BENEvoiiENT Association.] Charity and charitable trust. [See, also, Devise and Bequest; PebpetuttYiZ; Trust. As to exemption from taxation, see Taxa- tion, 11.] 1. A conveyance of land, " in trust for the uses of a Sabbath school, and for the diffusion of Christian principles as taught and practiced CHAEITY, ETC.- CHATTEL MOETGAGE. 21 by Christian evangelical denominations, with power to erect, repair, and renew from time all buildings necessary to carry out the object and purposes of the trust," constitutes a pub- lic charity. Morville v. Fowle, 144 109. 2. A testamentary provision for a fund, the income to be applied by the sisters of the testator to the " relief and comfort of the. poor and un- fortunate whom we have aidod in past years, and also to others as their judgment may dic- tate," is a gift for a public charity, though the testator spealis of it as a private charity; and is to be administered by private almsgiving for the poor and unfortunate. BuUard ». Chaudler, 149 532. 3. A fund raised by the contributions of the members of certain mills for the aid of sick- and injured members is not a gift to a pubic charity. On the dissolution of the mill cor- poration the fund reverts to the contributors by way of a resulting trust. Coe V. "Washington Mills, 149 543. 4. A devise to the executor, "to be dis- posed of by him for such charitable purposes as he may think proper," creates a valid trust for charitable purposes, to be administered under a scheme framed by the court. Minot V. Baker, 147 348. 5. A bequest for a medical school which is a private pecuniary enterprise is not a bequest to a public charity within the rule of cy pres. Stratton v. Physio-Medical CoUeKc, 149 505. 6. In the case of a testamentary gift of land and money for a hospital, if the land is not suitable, and other land which is suitable is given by others', a sale of the devised land may be authorized for the purpose of investing the proceeds for the hospital. Weeks i>. Hobsou, 150 377. 7. Where land is conveyed to three trustees to administer a public charity, two of them, the otlier not consenting, cannot convey the land, discharged of the trust, to a religious corporation to do that which the trustees should do. And, in such case, equity will compel a reconveyance. ' Morville ii. Fowle, 144 109. 8. The legislature, in attempting to change the administration of a public charity by re- quiring that those administering It under the direction of the donors shall transfer it to others to be administered by them, impairs the obligation of a contract. Gary Library ». Bliss, 151 364. Chattel mortgage. viNTt'sALB.ioT'^^™''''''' ^' ''• *' ^^aud; Insol- _ 1. A chattel mortgage, given by one whose interest m the property is subject to a life estate. If containing the usual covenants, may operate as an equitable assignment of the mortgagor's interest, enforceable by the mortgagee after the death of the life tenant. Swett V. Thompson, 149 302. 3. Though St. 1883, ch. 73, requires that a chattel mortgage " shall be recorded within fif- teen days from the date written in such mort- gage," a record before the date written iu the mortgage is valid. Amerige D. Hussey, 151 300. 3. If A. gives to B. two mortgages, each de- scribed as subject to a mortgage to C., a third mortgage from A. to B., which makes no men- tion of the mortgage to C, is also subject there- to, though C.'s mortgage is not recorded. Eaton «. Tuson, 145 218. 4. The interest of a mortgagee in chattels is not subject to attachment; nor can such inter- est be made attachable, by joining mortgagor and mortgagee as defendants in an action upon a joint debt. Murphy v. Galloupe, 143 123. 5. One who attaches mortgaged chattels can- not, on tendering to the mortgagor the amount due him, compel an assignment of the mort- gage. The statute does not so jirovide, but contemplates the discharge of the mortgage, not its survival. Cochrane v. Rich, 142 15. 6. Where, in replevin by the mortgagee of chattels against an ofHcer attaching them on a writ against the mortgagor, it appears that the mortgage was not recorded and does not appear that the chattels were " delivered to and re- tained by" the mortgagee, as the statute re- quires, a judgment for the defendant should stand. Citizen's Nat. Bank v. Old&am, 142 379. 7. The mortgagor of horses cannot, as against the mortgagee, and without his consent, express or implied, board them out so as to give a lien on them to the person who boards them. Howes v. Newcomb, 146 76. 8. One who attaches mortgaged chattels, pays the mortgagee, and takes au assignment of all his right, title, and interest in the mortgage, cannot recover back the amount on its turning out that the chattels were iu the possession of the mortgagor under a conditional sale, the terms of which had not been complied with. Sears v. Leland, 145 277. 9. Possession of after-acquired personal prop- erty, rightfully taken and maintained by a mort- gagee, under a mortgage purporting to cover it, gives him a title good not only against the mort- gagor, but . even against an assignee in insol- vency or an attaching creditor. Bennett ». Bailey, 150 257. 10. An attachment of mortgaged chattels in the possession of the mortgagor, with his con- sent and by his procurement, is a breach of a condition in the mortgage that he shall not suf- fer an attachment, even though the attachment is void and he has no attachable interest in the chattels. Crocker v. Atwood, 144 588. 11. If mortgaged chattels are taken from the second mortgagee by the first mortgagee on a reple"n writ, the remedy of the second mort- gagee, if he would avail himself of equities that have arisen since the action was brought, is not by asserting such equities in the reple- vin suit, but by bringing a suit to redeem. Roberts v. Wlilte, 146 256. 22 CHATTEL MOETGAGE— COMMOK COUNCIL 12. If tlie mortgagee of chattels is summoned as the trustee of the mortgagor, the chattels being in the mortgagors possession, and at- tached while in such possession, an action brought by the mortgagee, before his discharge, against the attaching officer, for a refusal to deliver up the chattels on demand, is prema- turely brought. Emery o. Seavey, 148 5G6. 13. If a mortgagee of chattels seizes and sells property belonging to the mortgagor's wife, the mortgage notes are not paid by the proceeds of the sale; nor does the interest stipu- lated for, at however exorbitant a rate, cease to run until the time of the recovery of a judg- ment against the mortgagee by the wife. Handy «. Tracy, 150 524. Cheat. [See Fame Pbbtenoes; FbauB.] o Check. [ See BiLi, OP EiCHANOE and Pbomissort Note.] Child. LAbuae of female chUd, see Bape. Generally, see Bastabd; Inpant; Negligence; Parent and Child.] Church, [See Eelioious Association. ] City. [See Town and City.] o Cloud upon title. [See Quieting Title; SpecipiO Perpokmance; Vendor and Vendee.] Co-operative saving fund and loan association. [See Bbnbtolknt Association; Loan and TuMD Association. Collateral security. [See, also. Bank-, Chattel MORTOAaE;CoNPLiCT OP Laws, 7; Insolvent; Mortgage; Pledge. 1. The right to require, on demand, collat- eral security for a debt, expires with the lapse of the time within which, under the statute of limitations, an action may be brought for the recovery of the debt. Shaw «. Silloway, 145 503. ,_, 2. One who takes bills of parcels or indorse- ments of bills of lading to secure himself f or advances made on the hides represented thereby does not, as against the assignee for the benefit' of the pledgor's creditors, lose title to the goods by having indorsed the bills to the pledgor in order that he might get the hides from the carriers, the pledgor having agreed to hold them as the pledgee's agent and to redeliver the identical hides when tanned. jyioors «. Wyman, 146 60. 3. A cause of action in tort is not Stated by a declaration alleging a pledge of stock by plaintiff to defendant, the inability of the latter to find the stock on the maturity Of the debt, and the consequent loss of an opportunity for selling the stock, there being no allegation of a conversion or of tendet or payment of the amount of the debt before the stock was finally found and the debt paid. Cumnock v. Newburyport Savings Inst., 142 343. 4. Collaterals may be held by the pledgee to secure a general indebtedness as well as the specific debt, if so agreed. Moors V. Washburn, 147 344. 5. And if, by reason of complications and litigation, damages in an action are substituted for the property pledged, such damages may be applied by the pledgee as the property could have been applied. Moors V. Washburn, 147 344. 6. For facts justifying a bank in holding collaterals, transferred by the owner to secure A's note, for renewal notes, although renewals were made after the death of the owner of the collaterals, see Cotton «. Atlas Nat. Bank, 145 43. 7. In trover for a note claimed by defendant to have been pledged to him by a third person as collateral for the note of such person, plaintiff may show by the testimony of such person that nothing was said about the note in suit, and that such person did not know that it was mentioned as collateral, though this tes- timony tends to contradict a memorandum which, as between defendant and the pledgor, would be conclusive. Kellogg 1). Tompsoh, 143 '76. 8. For instructions properly given and re- fused in trover for a note claimed by defend- ant to have been pledged to him by a third person as collateral for a loan to such third person, see Kellogg «. Tompson, 143 76 9. Seven years after the sale of collaterals, it is too late for the pledgor first to object to the notice given of the sale. Downer «. Whittier, 144 448. Collector. [See Taxation.] Common Carrier. [See Carrier.] Common Council. [See Toww and Citt.] COMMON LANDS— CONFLICT OP LAWS. 23 Common lands ; general fields. 1. Notifications of the meetings of proprie- tors of common and undivided lands should be liberally construed as to the statement of the business to be brought up; a notification that the purpose of a meeting is to act upon A's petition for land to be set off to him near Sias- conset, is sufficient to support a vote to set off land to A in and near Siasconset. Coffin V. Lawrence, 143 110. Commonwealth. 1. The jurisdiction given to the superior court by Pub. St., ch. 195, § 1, "of all claims against the Commonwealth which are founded on contract for the payment of money," does not extend to a claim for damages for a breach of contract. Wesson v. Comm., 144 60. 2. Nor to a claim for reimbursement to a town of the expense incurred in the support of a state pauper, though Pub. Stat., ch. 83, § 26, imposes upon the Commonwealth the ob- ligation to reimburse. Milford i>. Comm., 144 64 3. The provision of St. 1883, ch. 148, § 1, for the payment by the Commonwealth for the support of a "state prison convict" committed to a state lunatic hospital " until the expiration of his term of sentence to the state prison," does not embrace the case of a female convict sent to the hospi!al from the reformatory prison for women. Beard D. Boston, 151 96. Complaint. [See Indictment and Complaint.! Composition with creditors. [See, also. Assignment, V; Bankruptcy; Insol- vent. And see Assumpsit, S; Contkact, 3.1 1. Though a note is valid, because given to a creditor by his debtor to induce the creditor's signature to an agreement of compromise signed by other creditors in ignorance thereof, an action lies upon the original debt. Walker v. Mayo, 143 42. Compntation of time. [See Time.] Condition. [See, also, Covenant; Deed.] 1. A condition in a deed that the front line of the building to be erected shall be placed ten feet back from the street and parallel thereto, is a valid restriction, enforceable by the owner of another lot under a deed from the same grantor. Hamlen v. Werner, 144 396. Conflict of laws. [See, also, Devise, 16; Dower, 1 ; Judgment, 6.] 1. Where notes are made, and signed in an- other state by residents of that state, are made payable in that state, and are sent by mail to the payees in ihia Commonwealth, the contract is governed by the law of such oiher state. Shoe and Leather Nat. Bank v. Wood, 142 503. 2. The Massachusetts courts will not take ju- risdiction of a suit by a corporation of another state against Massachusetts stockholders to en- force a liability arising from paying for shares in property at an over valuation. The suit should be brought in the courts of such other state. New Haven Horse Nail Co. v. Linden Spring Co., 142 349. 3. An assignment, executed by a debtor dom iciled in another state, and valid under the law of that state, but invalid under the law of this Commonwealth because not assented to by cred- itors, will not be upheld as against an attach- ment by a firm composed of citizens of such other state and of citizens and residents of this Commonwealth, wherein the firm has a usual l^lace of business. Faulkner v. Hyman, 142 58. 4. If a citizen of this Commonwealth makes here, to a citizen of another state, a promissory note payable here, a discharge in insolvency, under Pub. St., ch. 157, does not bar an action here upon the note, not proved as a claim in the insolvency proceedings. Phoenix Nat. Bank v. Batcheller, 151 589. 5. Where A., living in another state, em- ployed an agent to borrow money from B., and, on B.'s refusal to lend, B.'s wife delivered tlie money to the agent with a blank receipt for A.'s signature, it washeld that, notwithstanding the fact that the receipt was signed out of the state, the contract was made and was tj be per- formed in Massachusetts. Hill V. Chase, 143 129. 6. The courts of this Commonwealth will not recognize the decree of a court of another state annulling a Massachusetts marriage between its citizens, the decree being founded on the wife's insanity before marriage and her fraudu- lent concealment of the fact, she having been sane at the t'me of the marriage, service having been made on her in an insane asylum in Mas- sachusetts, and this not being ground, under the Massachusetts law, for the dissolution of a marriage. Cummington B. Belchertown, 149 333. 7._A Massachusetts pledgee of bonds of a foreign corporation, the pledgor, will not be en- joined, at tlie instance of the corporation, which has become insolvent, receivers having been appointed within the foreign jurisdiction to dissolve the corporation and wind up its affairs, from selling the bonds in the manner usual in case of default in the payment of a debt secured by collateral. Union Cattle Co. ■». International Trust Co., 149 493. 8. An injunction lies to prevent a resident of this Commonwealth from prosecuting to judg- 24 CONFLICT OF LAWS— CONTEACT. ment in another-state, aa action against another resident, in wliioli action lie lias obtained an attachment to prevent the operation of a dis- charge in insolvency proceedings here. Cunningham v. Butler, 143 47. 9. The fact that the decision of the court of another state having undoubted jurisdiction of a suit between citizens of this Commonwealth probably will be at variance with a decision 'of the supreme court of the United Stales affords no ground for the issue of an injunction by a court of this Commonwealth. Carson v. Dunham, 149 53. 10. A cause of action accruing in another state, through the negligence of a railroad cor- poration operating its road there and in this Commonwealth, and which, under the law of such other state, does .not survive, does not survive in this Commonwealth. Davis i>. New York & N. E. Railroad, 143 301. o Consideration. [See BiLi, OF Exchange, Contract.] Conspiracy. [See, also. False Pketences.] 1. It is not indictable conspiracy to combine for the purpose of procuring a criminal prose- cution against one of the conspirators with a view to obtaining an adjudication of his inno- cence, there being another pending complaint against him for the same offense. Comm. V. McFarland, 148 127. 2. For evidence warranting a direction to find for the defendants on a count in tort for fraudulent conspiracy in seeking, through a mortgage, to defeat a mechanic's lien, it ap- pearing that the plaintiff had knowledge of the mortgage and the foreclosure and there being nothing to justify an inference of fraud, see Kilburn ». Eice, 151 442. 3. In an action by a city against a f oimer chairman of its water board and A, a declara- tion alleging in substance that the board was authorized to buy land for the city for a reser- voir; that the chairman, of whose position, knowledge and authority A had knowledge, shared in delermining the action of the board; that the defendants fraudulently conspired that the chairman should impart to A knowledge of the site deemed suitable by the board; that A should buy such site; that the board should purchase it of A at tm advance; that the chair- man and A should divide the profits of the transactions; and that all this was done in pur- suance of the agreement^states a cause of ac- tion against both defendants. Boston v. Simmons, 150 461. 4. Where, upon the trial of an indictment, there is evidence of a conspiracy between A, B, and the defendant, conversations between A and B made during the pendency of the crimi- nal enterprise, in relation thereto, and in con- nection therewith, though after the burning for which the indictment was found, are compe- tent evidence against the defendant, such con- versations not being recitals of past occur- rences. Comm. V. Smith, 151 491. Constitutional law. [See, also. Board of Heal/th, 1; Corporation Zi; Equity Jf leading akd Practice, 7; Elections. 1; Highway, »; Indictment, ij Notary Public, 1; Nuisance, 42; Pokd, 2; Supreme Judicial Court, i; Trial, 2; Town and COURSE, 7; WOMAJf, 1.] ) and city, 2, U, 16; Water- 1. The legislature, in attempting to change the administration of a public charity by re- quiring that those administering it under the direction of the donors shall transfer it to others to be administered by them, impairs the obliga- tion of a contract; nor can it sustain its action under the power of eminent domain . Cary Library v. Bliss, 151 864. 2. A state statute, giving to the maker of a negotiable promissory note the same defences against an indorsee that he has against the payee, is not in contravention of the constitu- tion of the United States, as applied to a note made in that state and payable there. Shoe & L. Nat. Bank ». Wood, 142 563. 3. The provisions of St. 1885, ch. 338, g 2, purporting to authorize the board of railroad commissioners to fix maximum rates of freight charges between points within and points with- out the state, are unconstitutional, as infring- ing on the exclusive power of Congress to reg- ullte inter-state commerce. Comm. V. Housatonic Railroad, 143 364. 4. Though St. 1884, ch. 290, authorizing the taking by the Commonwealth of certain lands and flats for the improvement of Boston harbor and for furnishing better accommodations for the commercial and railroad interests of the city, and providing for compensation where land was taken, contemplated an incidental advan- tage to the Commonwealth from the sale of lands of the Commonwealth benefited by the improvement, the taking was held to be for a public use and the statute eonstitutional. Moore «. Sanford, 151 286. 5. Under the twenty-second amendment to the Constitution, requiring a division of the Commonwealth into senatorial districts eveiy ten years, the apportionment and division is to be founded on the boundaries of towns and wards, as they existed at the time of taking the census on the preceding first day of May, irrespective of subsequent changes. And this construction cannot be controlled by the fact that legislative enactments have proceeded upon a different construction. Opinion of the Justices, 142 601. 6. Under the twenty-first amendment, relating to the division of the assignments of represen- tatives, the rule is the same. Opinion of the Justices, 142 601. Contingent remainder. [See Devise.] Contract. I. Gekbkal utiles. II. CONSIDBBATION. CONTEAOT, I, n, m, IV. 25 III. Validity. IV. Inteiipkbtation . V. Pbkfokmancb. VI. Modification; Extinguishmbnt. 1 As to specific performance of a contract, see Spe- ciFio Pebfobmance. See, also, Aqency, 6; Set- ting, 4; Bills op Exchange, 9i, J.'6; Fobmeb Ad- judication, 11 ; Husband and Wife, 13; Patent, 6; Sale, lu. As to the partioular kinds of contracts, see tlioir various titles.] I. Genekal bules. 1. One -who builds a house for A on land in •svWcli A has a life-estate only cannot hold the remaindermen (A's daughters) as upon an im- plied contract to pay for the house, where all concerned supposed A to own the fee and the daughters expressed themselves as pleased that their mother was to have a house, and made suggestions as to the building. O'Conner e. Hurley, 147 145. S. Though a woman first learns, after the death of the man whom she married and with wjiom she has lived, that she never was his wife, because of his previous marriage, she cannot recover, as upon an implied contract, for services rendered as his housekeeper. Cooper ». Cooper, 147 370. 3. "Where a composition agreement is not binding because not signed by all the creditors, and the proof of an oral agreement between the debtor and the creditor who did sign the agreement fails, a contract to give time cannot be inferred, there being nothing further in the case. Day V. Jones, 150 331. 4. The fact that one to whom a bill is sent gives a note for the amount, is not, as a matter of law, a ratification of the transaction on which the charge was founded. Patton V. Taft, 143 140. 5. A written contract under seal between two persons, for work to be done, not made by or on behalf of a third person, cannot be enforced against him after the work is done, on the ground of his ratification of it. The fact that he becomes equitably interested in the contract is immaterial. Kew England Dredging Co. e. Eockport Granite Co., 149 381. II. CONSroERATION. 6. A secret agreement between the promoter of a scheme contemplating the purchase of property and one of. the subscribers for the purchase money, whereby the subscriber is to have shares free of cost in consideration of his subscription and its influence in inducing other subscriptions, is void because in fraud of the other subscribers, and, therefore, will not sup- port an action against the promoter for breach of the agreement to deliver the shares. ISlickerson «. English, 142 267. 7. It cannot be said as matter of law, that an agreement to pay a fixed sum to an attarney, who is also chairman of the democratic city committee, for services before the board of YOL. III-^ street commissioners in advocating the laying out of a street through land owned by the other party to the agreement, and to present his claim for damages, is unlawful as against public policy. Barry ». Capen, 151 99. III. Validity. 8. An agreement to withdraw from a cer- tain line of business in a certain town is not necessarily illegal. The limitation of space saves it. Handforth v. Jackson, 150 149. 9. An agreement between three manufac- turers of a certain fixture to sell at a uniform price for three years is not invalid. Central ahade Roller Co. v. Cushman, 143 353. 10. A general agreement by a seller without any limitation of space, not to carry on for five years the business of manufacturing or dealing in bed quilts or comfortables is void as in re- straint of trade; and the seller cannot maintain an action against the purchaser for the price i to be paid in consideration of such illegal agree- ment and of other things not severable from it in apportioning the consideration. Bishop i>. Palmer, 146 469. 11. An agreement with an equitable owner of shares of stock to secure for him a bid of a certain amount within a certain time or to take the stock from him at his option at the end of the time for a certain sum does not fall within the letter or the spirit of Pub. St., ch. 78, S 6, the purpose of which is to prevent gambling in stocks. Duchemin«. Kendall, 149 171. 13. For a broker to agree with his principal to make valid purchases and sales on the board of trade for future delivery, and further to agree that these purchases and sales should be set off against one another and that the princi- pal should not receive or deliver the goods but only the differences in money, the principal to furnish a margin to the broker and pay him commissions, is illegal under the common law of Massachusetts; such an agreement will not support the broker's action for losses or com- missions. Harvey v. Merrill, 150 1. IV. Intbrprbtation. 13. A covenant to transfer to A. the money deposited in her name in a certain bank, " amounting to about $284," was held to re- quire the transfer of a larger sum deposited in her name. Birch 1). Hutchings, 144 531. 14. Under a subscription for a copy of a book to be issued in ten parts at so much a part, if the subscriber accepts and pays for the first two parts and does not offer to return them, he cannot, when sued for the price of the remaining parts, which he refuses to take and pay for, show that his signature to the con- 26 CONTEACT, IV, Y. tract was obtained by false and fraudulent representations. The case is one of an entire contract to be rescinded in toto or not at all. Barrie ®. Earle, 143 1. 15. A promise by the assignee of a mortgage to pay to the assignor "one-half of the amount collected on said mortgage over and above " or "in excess" of a certain amount refers to the gross amount collected, without deduction of expenses or disbursements. Logan V. Dockray, 146 396. 16. An oral promise to leave money by a will in consideration of valuable services rendered and to be rendered by the promisee may sup- port an action against the promisor's adminis- trator. Wellington v. Apthorp, 145 69. 17. Where A leases his interest in a news- paper business to B and C as partners, and agrees to renew the lease to the partner suc- ceeding to the business, in case of a termina- tion of a partnership, specific performance may be decree where there was a dissolution and a renewal, whereunder one of the partners con- ducts the business, the other retaining only a normal interest in it. Floyd «. Storrs, 144 56. 18. For an instrument importing a promise, in consideration of services rendered and to be rendered, to pay an annuity during the life of the promisee, see Cox «. Maxwell, 151 336. 19. For an examination of contracts, evidence and findings on which depended a controversy between a contractor and a sub-contractor as to the apportionment of certain money recovered by the former for the benefit of both, see Tarbell «. Linehan, 151 448. 20. For an examination of specifications of a building contract on which an action of dam- ages for a defective roof was founded, see White ». McLaren, 151 553. V. Pbkformancb. 31. Where one having an optional right to return shares of stock within twelve months gives notice by letter, the day before the expi- ration of the time, of his intention to exercise his option, and the letter is received the next day and not replied to, the other party cannot insist that a common law tender should have been made and that a tender of the stock and demand for the money five days afterward, followed by a general refusal not put upon the ground that the tender was too late and that Injury had been caused by the delay, did not afford a sufficient foundation for an action for breach of contract. Duchemin «. Kendall, 149 171. 38. Where one, "solely from a feeling of friendship," offers to purchase certain shares of stock at any time after a certain date " if, at that time," the other party should wish, an ac- ceptance of the offer six months after the time comes too late. Park «. Whitney, 148 378. 33. Where A agrees to heat B's mills and the agreement provides for certain tests and re- quirements, and that payment shall be made upon " satisfactory completion," and after " ac- knowledgment " made by B or the " work demonstrated," B's obligation to pay depends, not on his private taste or liking, but on the judgment of a reasonable man in connection with the requirement of the contract. Hawkins «. Graham, 149 284. 24. Where a printing contract is made sub- ject to the acceptance of a "finished proof," and the printing conforms to the proof, the printer is entitled to be compensated though there is a material misprint which both were negligent in failing to discover in the proof. Giles Lithographic & Liberty Printing Co. ». Chase, 149 459. 35. If one agrees to place machinery in a building, the owner of which is to cause cer- tain preparatory work to be done, Ihe destruc- tion of the building at a time when the owner was in default does not deprive the other party of his right to compensation for work done and materials furnished, though the contract called for a specific sum. Gilbert & Barker Manuf . Co. v. Butler, 146 83. 36. In an action for breach of a written con- tract assigned by the plaintiff to the defendant it is not a defence that the defendant fraudu- lently promised orally to procure the making of certain changes in the contract. Knowlton «. Keenan, 146 86. 37. Where goods of the same debtor were at- tached, first by 3., then by A., and, on A.'s threat to institute insolvency proceedings against the debtor, B. agreed to divide the money real- ized, but, by way of compromising a suit insti- tuted by an assignee subsequently appointed in proceedings not instituted by A., turned over the money realized by a sale under the levy to the assignee, it was held that A.'s suit against B. must fail. Steele ii. Nash, 145 198. 38. A contract whereby a telegraph company was to provide A. with an ofBce for a term of years, furnish it, provide him with operators, allow him a part of the receipts, and not open another office in the place during the term, was held broken by a lease of the lines to another company, which moved the wires and instru- ments from the office and took the business away from it. Tufts V. Atlantic Telegraph Co., 151 269. 39. Where the owner of a building charged the tenant with willfully burning it and a jury found against the owner's contention and that the tenant was negligent only, and where the owner then agreed to settle with the tenant on his promise to prosecute the collection of the insurance and to pay over part of it to the owner, who, on his part, agreed not to ' ' ob- struct the collection of such claims," and where the owner then voluntarily appeared before a legislative committee and stated, in reference to contemplated legislation asked for by him to make tenants at will liable for damages from fire caused by their carelessness, that his tenant had willfully burned his building, or that he thought he had, though he could not prove it, and where the tenant then settled with the in- surance companies for less, as he claimed, thaa CONTHACT, V, YI— COHPOHATIOH. 27 he would have taken hut for the owner's state- ments hefore the committee, and where it ap- peared that the companies know of the original charge but not probably of the statement before the committee, it was held that such statement was not an obstruction of the collection of the claims in such a sense as to constitute a breach of the owner's agreement with his tenant. "Wright V. Lothrop, 149 385. VI. Modification; Extinguishment. 30. Where bonds were delivered by A. to B. on two distinct considerations, one of which B. performed, but the other of which he never in- tended to perform, it was held that A. could not rescind and sue for a conversion without return- ing the benefit received from B.'s performance of the first consideration, even though circum- stances were such that it was impossible for A. to return such benefit. Snow V. Alley, 144 546. 31. "Where, under an agreement for the sale of certain ice-houses, it was clear that both par- ties understood that they should be and remain personal property, and a subsequent purchaser of the land on which they stood knew this, and the buyer of the ice-houses received that which he was unable to restore, and it did not appear that, otherwise, the seller was in default, it was held that he had no light of action founded vpon his attempted rescission of the transac- tion. Handforth v. Jackson, 150 149. 33. Though a building contract provides that extra work and materials shall not be charged for unless ordered in writing, the fact of a waiver may be found on evidence of an oral request. Bartlett «. Stanchfield, 148 394. Contribution. [See Joint Liability.] Controversy, Submission of. LSee Case Stated.] Conversion (Action for.) [See Trover.] Conversion (Equitable.) [See Equitable Conversion.] Conveyance. [See Deed; Fraud; Mortgage.] Convict. [See State Prison.] Conviction and sentence. [See, also, Former Adjudication; Indictment; Practice; Trial. See, also, State Prison, ].] 1. "Where the charge in a criminal complaint is several as well as joint, one of the defendants may be convicted and the other acquitted. Coram. V. Gavin, 148 ,449. 2. On an indictment charging in the same count a breaking and entering and a larceny, the jury may return a general verdict, or a ver- dict of guilty of the larceny only. Comm. V. Lowery, 149 67. 3. TJnder an indictment charging in one count a riot and an assault commitled riotously, a conviction may be had of a simple assault. Comm. 1). Hall, 142 454. 4. "Under St. 1877, ch. 392, providing that "the conviction" of one licensed to sell liquor for a violation of any of the provisions of Pub. St., ch. 100, and the several acts in amendment thereof, shall of itself make the license void, nothing less than a final judgment will satisfy the meaning of the word " conviction," where, after the argument of exceptions duly taken, a re- script was set down, but no further action had before the time of the sale in question, the ac- cused has not been "convicted." Comm. V. Kiley, 150 325. 5. The record of a police court, which recites that the defendant ' ' pleads nolo contendere, but, after hearing divers witnesses duly sworn to tes- tify the whole truth, and fully understanding the defence of the said defendant, it is ad- judged by the said court that said defendant is guilty of said ofllence," and that the defendant was sentenced and appealed, does not suifl- ciently show that the plea was accepted by the court and sentence passed thereon. Comm. ■!). IngersoU, 145 381. Corporation. I. Incobporation and oeganization. II. Stock; stockholdbkb; membeks. III. Officbes ; powers ; gbnebai lia- bilities. iv. llabilitt of officers and members FOB corporation DEBTS. V. Powers and liabilities of corpora- tions. VI. Foreign corporations. VII. Actions and suits in equity against corporations. VIII. Insolvency. IX. Miscellaneous ruling relating to particular corporations. [Sec, also, Bank; Carrier; Benevolent Asso- ciation; Insurance Compaio-; Keliqious Asso- oiation; Savings Bank; Town. For particular cases relating to corporations, see Assignment, 13- Bills or Exchange, 3; Equity JuRispRironNri 18; Evidence, 40,42; *oW,^B;TbustS PR^^lsfsj 28 CORPOEATION, i, II, IIL I. COBPOKATION AND OBGANIZATION. 1. Where a company is incorporated under Mass. St. 1870, ch. 334, its certificate lias, under § 11, the force and effect of a special charter, and is conclusive of the right to the coporate name, so far as private persons are concerned. The fact that an existing corporation already uses, as a trade name merely, a name adopted by an association seeking incorporation, is im- material. Boston Rubber Shoe Co. ■». Boston Rub- ber Co., 149 436. II. Stock; stockholders; members. 3, Where the promoter of a corporation, by fraudulent representations, induces a sub- scription, the subscriber cannot, by rescind- ing, maintain an action for money had and re- ceived against the other shareholders, even if the incorporation is valid so that they are partners. Perry ®. Hale, 143 540. 3. Corporate shares are not necessarily extin- guished by their transfer to the corporation, so that they cannot be reissued. Nor does St. 1883, ch. 131, § 1, providing for the assign- ment to the Boston and Albany Railroad Com- pany of the shares owned by the Common- wealth, in exchange for bonds, and that there- upon the company " shall hold and dispose of the shares of stock so assigned to.it as its abso- property," imply the contrary or preclude the corporation from dividing such shares among its stockholders. Comm. ■». Boston and Albany Railroad, 142 146. 4. A purchaser of corporate stock does not lose his right of action against the corporation for refusing to recognize his rights because he fails to see that the seller surrenders his certifi- cate and transfers it on the books, but trusts to the seller to do this. If, in fact, the certificate is fictitious and the transaction is conceived and carried through by the treasurer, with whom blank certificates, signed by the president, have been left, the corporation, not the purchaser, must bear the loss, the latter having parted with his money and acted in good faith. Allen D. South Boston Railroad, 150 300. 5. Nor, in such case, can the corporation in vqke against the purchaser the rule that notice to an agent is notice to the principal, the pri- mary object of the treasurer being, not to act as the purchaser's agent, but to perpetrate a fraud for his own benefit. Allen 1). South Boston Railroad Co. ISO, 300. 6. But, where the treasurer turns over such a fictitious certificate to his own creditor as se- curity for the debt, the creditor, not the cor- poration, must bear the loss, it not appearing that the creditor made any investigations as to the facts. Farrington «. South Boston Railroad, ISO 406. 7. The right of election by a stockholder to take preferred stock on certain terms offered by the corporation cannot be exercised after nearly forty years. Holland «. Cheshire Railroad, 151 231. 8. Where the time within which corporate bonds are convertible into stock expires on Sunday a demand made on the Monday fol- lowing is too late. Chaffee i>. Middlesex Railroad, 146 324. 9. A demand made at a few minutes past three o'clock on the preceding Saturday is ^ot too late, though the corporation is in the habit of closing its office for business at three o'clock. Chaffee v. Middlesex Railroad, 146 234. III. Oppicers; Powers; General Liabili- ties. 10. The treasurer of a horse railroad cor- poration has not, by virtue of his ofiice, implied authority to borrow money for the corporation and give its notes therefor. Where such notes are signed by the treasurer but are not counter- signed by the president, as the by-laws require, they cannot be enforced against the corpora- tion. Nor does it matter that the treasurer, an embezzler to a large amount, may have used money obtained on the notes in paying debts of the corporation, his primary purpose in so using the money being rather to escape detection and benefit himself than to benefit the corporation. Craft V. South Boston Railroad, 150 207. 11. Directors are not necessarily, as matter of law, chargeable with knowledge of that which they might have learned by the exercise of diligence. The question, ordinarily, is one of fact. Murray «. Nelson Lumber Co., 143 350. 13. It the treasurer of a corporation missap- propriates its funds, and, without authority, lends them to a third person, an action of con- tract by the corporation against such person is not a ratification of the treasurer's acts, and does ngt discharge him from liability to liie corporation; nor is he discharged from liability by the fact that the corporation settled its claim against such third person for forty per cent of its amount, there being good reason to believe that no more could be realized, owing to the insolvency of such third person, and the treasurer having been called upon and haying declined to pay the claim and take an assim- ment of the cause of action against such third person. Goodyear Dental Vulcanite Co. v. Caduc, 144 85. 13. For evidence warranting a finding of an implied contract between a corporation and its president that he should be paid for valuable services extending over a term of years, see Bartlett «. Mystic River Co., 151 483. CORPORATION, lY, V, VI 29 rV. LlABILITT OP OFPICBBS AUD MEMBERS FOR COKPOBATION DEBTS. 14. Under Pub. St., ch. 106, § 60, providing that officers of a corporation wlio sign a certifi- cate "knowing it to be false, shall be jointly and severally liable for its debts and contracts," a tax is a debt. Felker «. Standard Yarn Co., 14:» 226. 15. The liability is for debts then existing as well as for those created subsequently. Felker v. Standard Yarn Co., 148 226. 16. To create the liability, however, the cer- tificate must be willfully false. It is not enough that the facts were known but forgot- ten, there being no intention to deceive. Felker -o. Standard Yarn Co., 149 264. 17. Where A sued a corporation, and a bond was given to dissolve the attachment, and afterward a verdict was obtained in A's favor, it was held that the sureties could not, by suit in equity, enjoin judgment and also enjoin A from suing on the bond on the ground that he, as treasurer, was liable for the debts of the cor- poration, by reason of having given a false cer- tificate that the capital stock was all paid in, and that the corporation was insolvent, A's statutory liability being to creditors collec- tively and not individually. George Woods Co. v. Storer, 144 399. 18. An executory agreement under seal, be- tween a railroad company and certain of its first mortgage bondholders, whereby, in con- sideration of the issue to them of debenture bonds of the company, each subscribes money to pay its floating debts and put its road in running condition, does not establish a trust in favor of a creditor of the company such as may enforced by suit in equity under Pub. St., ch. 151, § 2, cl. 11, and St., 1884, ch. 285, to reach and apply a subscription in payment of a debt from the company to the creditor. Pettibone v. Toledo, Cincinnati & St. Louis Railroad, 148 411. 19. A corporation intending in good faith to go on, may pay its directors money borrowed from them in the ordinary course of business without rendering them liable to creditors of the corporation. Holt V. Bennett, 146 437. V. Powers akd Liabilities op Corpora- tions. 20. Though an incorporation is for the pur- pose of manufacturing woollens, the corpora- tion may sue for the value of groceries, dry goods, etc., sold for it from a store kept by one who was its undisclosed agent. Slater Woollen Co. v. Lamb, 143 430. 31. If the treasurer of a corporation is a de- faulter, and If, while his defalcation is as yet unknown and unsuspected, he steals money from a third person and places It with the funds of the corporation to conceal and make good his defalcation, and if the corporation uses the money as its own, no other officer knowing any of the facts, tlie corporation can- not hold the money as against the true owner. Atlantic Cotton Mills v. Indian Orchard Mills, 147 268. 22. A bill, filed by a stockholder in a long established corporation, which alleges that a corporation several years old, of which the plaintiff was, also, a stOL-kholder, and having for a corporate name the same name as a trade name, has, contrary to the representations made by its manager and treasurer to the plaintiff when he induced him to purchase stock, deter- mined to engage in same business as the older corporation; that the trade name of the latter would be infringed thereby; that the younger company would be at great expense in defend- ing infringment suits by the other company; and that the plaintiff's stock in both corporations • would, therefore, decrease in value, cannot be maintained; either against the younger com- pany, to enjoin its embarkation in the new business; or against its treasurer and manager, to prevent his voting therfore, or for general re- lief. Converse u. Hood, 149 471. 23. The purchase by a corporation of the property and most of the capital stock of an- other corporation does not authorize the pur- chasing corporation to do that prohibited by the general law and permitted to the selling corporation by a special law. French v. Connecticut River Lumber Co., 145 261. VI. Foreign Corporations. 24. A foreign corporation, after appearing and answering to tlie merits, cannot, on the hearing, first object to the Jurisdiction. Pierce «. Equitable Life Assurance Co., 145 56. 25. A judgment by a territorial court against an insurance company, founded on service on one of the persons designated by the company as its agents for the purpose, will be treated as valid by the courts of this Commonwealth, though, at the time of the service, the person on whom it was made had left the firm designated as agents, but continued notwithstanding to do business under the same name. Gibson o. Manufacturers' Fire & Marine Ins. Co., 144 81. 26. The courts of this Commonwealth will recognize the validity of a mortgage of corpo- rate land here, where the corporation Is a for- eign one, and, under the laws of the state of its incorporation, has general powers to make con- tracts and purchase and convey real estate. Nor is it a reason for declaring the mortgage Invalid that, though authorized at a directors' meeting in this Commonwealth, it was not au- thorized by a stockholder's vote at a specially called meeting, Pub, St., ch. 106, § 33, not ap- plying to foreign corporations. Saltmarsh ». Spaulding, 147 334. 27. A foreign corporation may maintain a bill of discovery in this Commonwealth to ob- 30 CORPOEATION, VI, Yli, VIII, IX— COVENANT, L tain the names of the stockholders in another foreign corporation agiiinst which a foreign judgment has been obtained, such discovery beiug necessary to the enforcement of their per- sonal liability under the foreign law, and the corporate books and officers beiug here. Post «. Toledo, Cincinnati, etc.. Rail- road, 144 341. VII. Actions and Suits in Equity against CORPOKATIONS. 28. A stockholder cannot maintain a suit in equity against the corporation and certain of its officers to seek redress against mismanagement, where he fails to show an attempt made within the corporation, or that an attempt, if made, would have been futile, and where, moreover, years have passed since some of the acts com- plained of were done. Dunphy v. Traveller Newspaper Associ- ation, 146 495. _ 29. Under Pub. St., ch. 151, § 3, giving ju- risdiction in equity to reach property of a debtor conveyed by him with intent to defraud his creditors, a single creditor of a corporation may attack an assignment made to a creditor, not to secure him, but to keep the property from at- tachment and secure its continued use in the business. Bernards. Barney Myroleune Co., 147 356. VIII. Insolvency. 80. "Where a corporation mortgages property to a trustee to secure the payment of bonds, and then becomes insolvent, holders of corpor- ate notes secured by certain of the bonds as col- lateral cannot enforce their rights in the insol- vency court; therefore they may maintain a suit in equity. Merchants' Nat. Bank e. Greene, 150 317. IX. Miscellaneous Rulings Relating to Particulak Coepokations. 31. Where the Nashua & Rochester Railroad Company, whose road was leased to the Wor- cester & Nashua Railroad Company, issued bonds, guaranteed by the latter company, and convertible, at the holder's option, into stock of the farmer company, and where there was a subsequent consolidation under special legisla- tion which, in strong language, purported to make the new company subject to all the obli- gations of both of the old ones, and where It was apparent, from the statute, that equality was contemplated, it was held, that a holder of such bonds was entitled to stock in the new company. John Hancock Mut. Life Ins. Co. » Wor- cester, Nashua, etc., Railroad, 149 314- Day t). Worcester, Nashua, etc.. Railroad' 151 303. 33. The manager of the Troy & Greenfield Railroad may not, under the power conferred on him by bt. 1881, ch. 230, § 1, to mBke and enforce all needful rules for its operation, make an order which, while saving expense to the commonwealth, impairs the obligation of a contract previously entered into, under an ear- lier statute, between the manager and a railroad corporation — a contract, for example, under which the corporation may charge for the run- ning of switching engines. Attorney-General t. Fitchburg Raikoad. 142 40. Costs. 1. Where three actions of slander, brought by the same plaintiff against different defend- ants for similar language, were heard together by the same refei'ee, and the same witnesses for the defendants attended at the same time, and traveled the same distance, it was held that fees for attendance should be taxed in each case, and fees for travel only in the case in which the witnesses were summoned. Barber v. 1 arsons, 145 203. 2. One who, pending an appeal from the tax- ation of costs, takes out an execution for the damages only and collects them waives the costs. Davis v. Ferguson, 148 603. Counsellor. [See Attornby-at-Law.] Cownty commissioners. [See Jail.] Court of Commissioners of Alabama Claims. 1. The Court of Commissioners of Alabama Claims, under the power conferred by U. 8. act June 23, 1874, to make all needful rules and regulations, to conform, as far as practicable, to those of the circuit courts, may disbar an at- torney after notice and hearing, without one of its judges incurring a personal liability to the attorney. Manning v. French, 149 391. Covenant. I. Waebantt; Quiet Enjoyment. II. Against Incumbrances. [See Contract; Easement; Landlord and Ten- ant. See, also, Equity J ubisprudencb, 26; Evi- dence, 62.] I. Warranty; Quiet Enjoyment. 1. The covenant of warranty in a deed which describes a boundary as "land and building" of one A., "on a line through the centre of the partition wall," is broken if A. owns the land on which stands the whole of the wall. Cecconi v. Rodden, 147 164. COVENANT, I, II— DAMAGES, L 31 3. One who, relying upon his warranty deed, proceeds, in good faitli, witli liis improvements after he is notified of a paramount title, may recover their value in his action on the cove- nant of warranty. Cecconi «. Rodden, 147 164. 8. "Where a deed recites the grantor's seizin in fee of the granted premises, and that they are free from all incumbrances except two mortgages, which the grantee assumes and agrees to pay, a covena it, in the usual form, "to warrant and defend the same," applies to the grantees equity of redemption only; the grantor, upon non-payment and foreclosure of one of the mortgages, does not become liable for a breach of the covenant of warranty. Lively v. Rice, 160 171. II. Against incumbranceb. 4. A grantee cannot found an action on a covenant against incumbrances on the exist- ence of outstanding or invalid tax deeds, un- less he has actually incurred expense in remov- ingthese apparent incumbrances. Tibbetts v. Leeson, 148 103. 5. And a payment made after action brought cannot relate bacli. Tibbetts v. Leeson, 148 102. 6. If land is mortgaged to A, and then by a second mortgage to B, the second mortgage excepting from the covenant of warranty any claims under the first mortgage, and after a sale under the power in the first mortgage, the laud is conveyed by the purchaser to the first mortgagee, by him to the mortgagor, and, through mesne conveyances, to C, a writ of en- try by B against C is not maintainable. Huzzey v. Hefleernan, 143 333. 7. A grantor, who has covenanted against incumbrances, and who has paid, when re- quested, an outstanding mortgage within the covenant, is not liable for such charges as the grantee's car fares, loss of time, etc. Bradshaw v. Crosby, 151 337 8. He is chargeable with the expense of draw- ing and recording the discharge of the mort- gage. Bradshaw v. Crosby, 151 387 9. For facts relied on to constitute a breach of the warranty against incumbrances in a deed, the incumbrance cliarged consisting of an alleged right to maintain pipes under ground for the purpose of drawing water from a well or spring, see Johnson v. Knapp, 146 70. Johnson v. Knapp, 150 367. Creditor and debtor. [See Assignment; Attachment; Bankruptot; Chattel Moetgage; Composition; Equity ,W risdiction; Fraud; Insolvent; Mortgage;- Payment; Pledge.] Creditor's Mil. [See Eqity Jurisdiction.] Criminal law. [See the titles of the different crimes and ofCenoes; also. Accessory; Appeal; Arrest; Bail; Con- viotioh and Sentence; Evidence; Exception; Former Adjudication; Grand Jury; Indict- ment; Jury; Lord's Day; Eeoord; Wtness ] Criminal pleading. [See Indictment ] Criminal procedure. [See Conviction and Sentence; Practice ; Trial.] Cruelty. [To animals, see Animal.] Custom and usage. [See Usage.] Cy-pres. [See Charity.] D. Dam. [See Mild and Mill Dam; see, also, Indictment, 12.] Damages. I. In actions of contract. II. In actions op tort. III. Recoupment of damages. [See, also, Highway; Eailroad; Town and City ] I. In actions of contkact. 1. Under a contract to sell "six tons car boxes free of Babbitt * * * a good lot " if a part is not free of Babbitt metal, and there- fore not a "good lot," the buyer is entitled to the difference between the full price paid by him and the market value of the whole lot. Deutsch 11. Pratt, 149 415. 3. In an action founded on the defendant's breach of contract to furnish certain machinery to the projectors of a corporation for use by the 32 DAMAGES, I, II, ni— DEED, I, U, III coiporation, such intended use may be shown as the element of damage. Abbott V. Hapgood, 150 248. 3. For instructions held properly given and refused on the question of damages for the breach of a contract to maintain a telegraph ofiBce, etc., see Tufts ». Atlantic Telegraph Co., 151 269. II. In actions op Tobt. 4. Where a carrier by vessel stipulates that its liability shall not exceed the invoice value of the goods, and the damage on which a claim of liability is founded affects the market value but is less than the invoice value the carrier is liable for the actual damage Brown v. Cunard Steamship Co., 147 58. 5. In an action against a common carrier for the conversion of goods delivered to a person unauthorized to receive them and who pays the freight upon them, the measure of damages is the market value of the goods, less the freight. Massachusetts Loaii & Trust Co. v. Fitchburg Railroad, 143 318. 6. One arrested without authority is entitled to compensation for loss of time and for the indignity suffered. Morgan «. Curley, 142 107. 7. In trover for a note, the defendant, on the question of damages, may not show the finan- cial condition of the maker of the note several months after the conversion. Kellogg V. Tompson, 142 76. III. Recoupment of damages. 8. Where the master of a vessel sues the owner, and it appears that the master broke his contract by leaving the vessel, and that the mate, who had a distinct contract with the owners, left the vessel because the master did, the defendant cannot recoup damages sustained by the conduct of the mate; such damages are too remote. Smith V. Osborn, 143 185. Death. [Action for causing death, see Oarbiek. Pre- sumption of death, see Evidence, 29.] Debtor and creditor. [See Assignment; Attachment; Bankruptcy- Chattel Mortgage; Composition; Fraud; In- solvent; Mortgage; Pledge. Deceit. [See Fraud.] Declarations^ admissions^ etc, [See Evidence. Dedication. [See, also, Easement; Highway. 1. In the case of land dedicated for a town park, proof of iiublic use for many years will suffice to show acceptance, without either a statute or the vote of the town. Abbott ». Cottage City, 143 521. Deed. I. Parties; Delivery; Escrow. II. Recording; Notice. III. Interpretation. [See, also. Boundary Line; Covenant; Condi- tion ; Basement; Power; Taxation. Declaration. [See Pleading.] I. Parties; Delivery; Escrow. 1. Where a married woman, the sole owner of land, signes a mortgage thereof with her husband to secure his note, habendum to the grantee, "his heirs and assigns," and is men- tioned for the first time in a clause near the end, where it is recited that she relinquishes her right, title, and interest to the grantee, and releases all right of dower and homestead to the grantee and his heirs and assigns, the grantee under the power of sale in the mortgage takes an estate for the woman's life only. AUendorff v. Gaugengigl, 146 542. 2. Where a deed is delivered in escrow merely, and the conditions on which was to be delivered to the grantee are not performed, its subsequent delivery to the grantee does not vest title ia him. Daggett V. Daggett, 143 516. 3. The defendant in a real action may testify that the instrument relied on as a deed from him was never parted with by him with the in- tent that it should take efiEect as a deed. Stevens «. Stevens, 150 557. II. RBcoBDrNG; Notice. 4. Though James N. Howes executes a deed by the name of James Howes, by which name he is equally well known, the record affords constructive notice. Gillespie v. Rogers, 146 610. III. Interpretation. 5. A deed describing, by metes and bounds, a lot adjoining that intended to be described, and reciting that it conveys the same land as is conveyed by a certain deed described, which deed in fact conveys the land intended to be conveyed, gives no title. Cacsidy*. Charlestown Five-cent Savings Bank, 149 325. DEED, III— DESCENT. 88 6. The effect of a deed of "all my interest In land is the same as a deed of the land, and registration of such a deed similarly imports notice; ■ and especially is this so where there is a specific description of the land and where the usual covenants of warranty are used. DowB. Whitney, 147 1. 7. A conveyance of land in trust "for the benefit of A. for a homestead for his life, and for B. after the said A.'s decease, his heirs and assigns," gives B. a vested remainder in fee, alienable by him during A.'s lifetime. O'Donnell v. Smith, 143 505. 8. For an examination of questions of con- flicting rights in the water of a stream, as claimed by various parlies under and against deeds, see Whitney «. "Wheeler Cotton Mills, 151 396. 9. "Where the terms of a reservation of the right to draw water from a pond, in referring to breast-wheels, appear to have been intended merely to describe the quantity of water the use of which is reserved, the breast-wheels may be removed and turbine wheels substituted. CoburnB. Middlesex Co., 142 364. 10. It may be shown that by the words " the spring of water on said premises " in the reser- vation in a deed a stream was meant. Peck V. Clark, 142 436. 11. For an ambiguous and obscure descrip- tion in a mortgage, which was held not to pass certain land, see Fitzgerald ». Libby, 142 235. 12. Under a stipulation in a deed that steps, windows, porticos, and other usual projections may be erected within five feet of a reserved space of twenty feet from the street, but that bay-windows or circular or octagon fronts may not, a porch may be erected. Attorney-General v. Ayer, 148 584. 18. A deed " reserving to the owner of the estate and those adjoining on the south a right of passage-T.ay over the within-granted prem- ises," creates an exception, not a reservation. "Wood 1). Boyd, 145 176. Defamation. [See Libel, and Slandeb ] Defence. [See Pleading; Tkial.] Defrauding. [See Conspiracy; False Pketences; Fraud.] Delivery. [See Deed; Gift; Sale; Savings Bank; Statute or Frauds. Demurrer. [See Equity Pleading; Pleading.] Deposit. [See Savings Bank.] ■ Vol. m— 5 Deposition. 1. No exception lies to the exercise of the discretion of a judge of the superior court in permitting a deposition to be filed after the time limited by the rule. Corcoran v. Batchelder, 147 541. 2. One who has specially objected to certain interrogatories cannot be heard to object that they were not answered. Dole B. "Wooldredge, 142 161. 3. The failure to object to a deposition be- cause of a discrepancy between the initial letter of the middle name of the deponent and the initial letter of the name of the person to whom the interrogatories pur^Dort to be addressed is a waiver of the right to raise the objection and subsequent trial, although the discrepancy was not noticed in the first place. Parker ». Parker, 146 320. 4. "Where what purports to be the deposi- tion of E. T. S., taken upon interrogatories ad- dressed to E. S, S. , is offered in evidence, the tes- timony of the writer of the interrogatories that he intended the S for T, is incompetent on the question whether the adverse party was misled. Parker d. Parker, 146 320. Descent and distribution. [See. also, Devise, 16, 63.] Descent. 1. Under Pub. St., ch. 125, § 1, relating to the descent of the real estate of an intestate, in default of children or surviving brothers or sisters, to his lineal descendants, or to the issue of such deceased brothers and sisters, and pro- viding that if all such descendants " are in the same degree of kindred to the intestate they shall share the estate equally; otherwise, they shall take according to the right of representa- tion," — the nearest descendants or issue in equal degree of kindred to the intestate take per capita, and those in more remote degree per stirpes. Balch V. Stone, 149 39. 2. Under a provision for "next to kin," the nearest blood relations take, and not those re- lations who would take under the statute of distributions, nothing in the will importing the contrary, as for example, a brother takes to the exclusion of nephews, sons of a deceased brother. Swasey «. Jaques, 144 135. 3. The " real estate in fee to an amount not exceeding four thousand dollars in value " which, under Pub. St., ch. 124, § 3, a widow takes in the lands of her intestate husband who dies without issue, may not be claimed in land wherein his estate was a vested remainder only, and which is in the possession of the life tenant. Watson V. Watson, 150 84. 4. Under Pub. St., ch. 124, § 1, declaring that a husband who is not a tenant by the cur- tesy shall hold one-half of his wife's lands for his life if "she does not provide otherwise by her will," it is not necessary, to deprive him of his 84 DESCENT— DEVISE AND BEQUEST, I, n, (1), (2), (3). right, that she should provide otherwise for him, so long as she provides otherwise in any ■way, as for example, by devising her land to others. Burke «. Colbert, 144 160. 5. An adopted son, who is also the grandson of the adopting parent, cannot, under Pub. St., ch. 148, § 7, inherit as son and also as grandson. Delano «. Bruerton, 148 619. 6. Though Pub. St., ch. 135, § 3, provides that personal estate of an intestate shall be dis- tributed among those who would be entitled to the real estate by ch. 125, distribution should be made under St., 1883, ch. 133, which amende;! ch. 135. Therefore the personal es- tate of an illegitimate person dying intestate and leaving neither wife, issue, nor mother, goes to a brother and sister of his mother, to the ex- clusion of deceased brothers and sisters of the mother. Parkman «. McCarthy, 149 503. Beyise and bequest. I. SUPFICIBNCT IN GENEKAL. II. Inteepbetation and Effect, in gbn- BKAL. (1 .) Description of the property; (3.) When specific, general, or demon- strative. (3.) Designation of the devisee or legatee. (4.) Residue, and residuary clauses. (5.) Per stirpes or per capita. III. Intebpbetation and Effect, as to the Estate ob Inteeest given. (1.) Life estate; legacy for wife; income. (3.) Annuity. (3.) Estate tail. (4.) Estate in fee simple; absolute legacy. (5.) Shares; tenancy, joint, in common, or several. (6.) Remainders. (7.) Conditions; charges; gifts for support. IV. Inteeest. [See, also, Chakitt; Executor and Adminis- tbator; Heirs; IncomS:; Perpetuity; Power; Trust ; Will. For particular oases relating to de- vises and bequests, see Descent, 2; Equity Juris- prudence, 16; Parent and Child, 3; Power, 2; TRirST, i, 5, 6, 9.] I. StTFFICLEKCY IN GENEEAL. II. Intebpbetation and Effect in gen- EEAL. (1.) Description of the property. 1. A bequest of the testator's " bank stock'' is to be construed as describing deposits in sav- ings banks, if he owns no bank stock. Tomlinson v. Bury, 145 346, 2. A specific legacy of a coupon bond carries with it an overdue negotiable coupon attached to it at the time of the testator's death. Ogden «. Pattee, 149 83. (2.> 'When specific, general, or demon- strative. 3. A bequest of ten shares of stock was held to be specific and adeemed by the sale thereof where the testator had but twenty shares, made another bequest of ten, and afterward sold the twenty shares. Harvard Unitarian Soc. ■». Tufts, 151 76. 4. Where a testator directed that two funds should be set apart in trust, made a specific de- vise, and conferred on the tmstee power to sell the residue and apply the proceeds to the payment of three legacies of equal sums, and there was a deficiency in the proceeds of the realty and a smaller deficiency in the person- alty, it was held that the three legacies were specific and not entitled to contribution from the personalty. Boston Safe Deposit & Trust Co. v. Plummer, 142 257. 5. Where two legacies are given in terms which, ordinarily, apply to general legacies, the facts that one is payable iiresently, on the death of the testator's widow, and is for the benefit of a relation, while the other is not payable until the happening of an event which may be in the future and is for a charity, are insufiicieut to show an intention that the former shall be pre- ferred to the latter. In case of a deficiency both must abate proportionally. Boston Safe Deposit & Trust Co. ■». Plummer, 142 257. 6. A bequest of " all the mill stock and bank stock remaining in my name after the decease of my said wiffe," is specific and not general. Tomlinson v. Bury, 145 346. 7. A legacy to a trustee for the faithful per- formance of a tnist created by the will fails if, owing to the death of the beneficiary, the trust fails at the time of tlie testator's death. Ex p. Batchelder, 147 465. (3.) Designation of the devisee or leg- atee, 8. A bequest for " nephews and nieces" does not include the wives ot the nephews. Goddard i). Amory, 147 71. 9. Under a devise to the testator's widow for life, and on her death to the testa; or's surviving children, the children surviving, not on his de- cease, but on hers, are those meant. Coveny ». McLaughlin, 148 576. 10. Where a testatrix created a trust for the primary purpose of securing to her father a support until his death or lemarriage, and gave the residue, part lo her husband's next of kin and part to her own next of kin, the distribu- tion being postponed until the death or remar- riage of the father, it was held that the next of kin were to be ascertained as of the time of the DEVISE AND BEQUEST, 11, (3), (4), (5); III, (1). 35 deatli of the father and not as of tho time of the death of the testatrix, such construction ap- pearino- to further tlie intention of the testatrix. Wgo«. Miller, 150 335. 11. A devise of remainders to the children of the life tenants, "if a ly children they should leave, and, if not, then equally to all my grand- children that may he living," construed to mean the grandchildren living at the death of the life tenants. Morrill v. Phillips, 142 240. 13. Where a vpill gave property for children in equal shares, one share being put in trust, and provided that, in case of the death of either child, leaving issue, before receiving a share, "such issue shall represent and take the par- ent's share," and, in case of the trust share, said that, on his decease,'it was to go to his "issue," it was held that his children took, to the exclu- sion of their children and grandchildren. Dexter v. Inches, 147 334. 13. Under a devise to gi-andchildren, and, on their decease, to their respective ' ' heirs, execu- tors, administrators, and assigns," it was held that the husband of one of the deceased grand- children took, as her "heir," under Pub. St., ch. 134, § 1. Lavery ■». Egau, 143 389. 14. For an examination of a will wherein a provision for the " heirs-at-law" of a beneficiary was construed to mean his next of kin, see "White V. Stanfield, 146 434. 15. An ultimate limitation of a fund to the testator's heirs-at-law means, ordinarily, those who answer the description at the time of the testator's death. Whall v. Converse, 146 345. 16. For a case not within this rule and where the devise was held to be to those who were the testator's heirs at the time of the death of his wife, who survived him, see Wood 2). BuUard, 151 334. 17. Where a testator, domiciled in this Com- monwealth at the time he made his will and until he died, gave a part of the residue, con- sisting of personalty in this Commonwealth and of laud in the state of which he had lived for- merly, to his brother's wife, who lived in this Commonwealth with her husband, "To have and to hold to her during her life, and at her decease to her heirs-at-law and their heirs and assigns forever," it was held, as to the person- alty remaining at her death, that it belonged to her heirs-at-law as determined by the statute of distributions in force in this Commonwealth at the time of her decease; and that, the amount not exceeding five thousand dollars in value, it, therefore, belonged to her husband. Lincoln «. Perry, 149 368. 18. Where, under a will, the legatees were entitled pro rata to the surplus, it was held that a cemetery corporation for which a fund was created was not a legatee in the sense entitling it to share in such surplus. Bartlett ■o. Houdlett, 147 35. 19. A bequest for a "Physio-Medical Col- lege," which has ceased to exist at the time of the testator's death, cannot be claimed by a "Physio-Medical Institute " not shown to have been the institution which the testator had in mind. , „ „ Stratton v. Physio-Medical College, 149 505. (4.) Resldne and residuary clauses. 20. Where a testator gives to his wife the use of a certam sum of money for life, with the right to spend the principal in her discretion, and then, after giving pecuniary legacies to others, says that, "In case the estate should exceed the sum named, j give to my wife fifty cents on the dollar, and to my father and brother the balance, equally divided," that part of the sum first given to the wife which she does not use during her life, is distributable as intestate estate, and does not pass under the clause of the will relating to the excess. Noyes «. Pritchard, 148 140. 31. Where a testator and his wife die to- gether, a legacy to her will pa,ss by the resid- ary clause if the will fairly permits such a con- struction, though technical arguments can be made to favor a contrary construction. Ex p. Batchelder, 147 465. (5.) Per stirpes or per capita. 33. A devise .to " all my grandchildren in equal shares," entitle, them to share per capita, not per stirpes. Morrill v. Phillips, 142 240. 33. A gift of a residue of realty and person- alty to two named, children, after the death of the life-tenant, and, at their decease, to theii children, was held to go the children's chil dren per capita. Dole V. Keyes, 143 237. 34. For an examination of an inartlficially drawn will where a direction that, on the deaih of a beneficiary, a fund should be divided ' ' equally between my blood relations of the degree which the law permits," was construed to vest the estate in those who were the testa- tor's heirs at the time of his death, and to give to the several classes per stirpes and not per capita, see Cummings v. Cummings. 146 501. III. InTBRPBBTATION AMD EFFECT AS TO THE ESTATE OB INTEKBST GrVEN. {1 ,) Life estate ; legacy for life ; Income. 25. Under a devise of the realty to the widow ' ' to have and to hold for and during the term of her natural life," she takes a life estate only. The obvious construction of this language can- not be controlled by the fact that elsewhere in the will she is spoken of as residuary legatee. Mixter v. Woodcock, 147 613. 26. Where a testator gives to his wife the use and income of all his property for her life, authorizes her to sell anything and expend the proceeds and confers power on her to convey 36 DEVISE AND BEQUEST, III, (1), (2), (8), (4). and transfer either to realize more money for herself or for investment or reinvestment, she take a life estate coupled with a power; and a limitation over of the residue remaining at her death is valid. "Vy'elsh V. "Woodbury, 144: 543. 37. For a case involving the construction of a vyill under which it was held that, in accord- ance with the general rule, the life-tenant of a trust estate was entitled to the net, not the gross, income, see Stone V Littlefield, 151 485. 28. A devise by a wife to her husband, in language which, standing alone, would convey a fee is not cut down to a life estate by the words, " In ihe event of my husband's death," which precede certain bequests. Moffat i>. Cook, 150 539. 29. A devise by a testator to his daughter as follows, to wit: T" o be enjoyed by her and her husband, should she marry, as long as she lives; become the property of her children, if any, at her decease; and, should she leave no is^ue, pass immediately at her decease to my hcirs-at-law, without any part, even tenancy by curtesy, remaining in her husband; and should all issue of her die without issue, their estate shall descend to my heirs-at-law, this provision comprising only what may come to them through their mother, my daughter," gives to the daughter an estate for life only. Wilson i>. O'Connell, 147 17. 30. Under a provision giving and bequeath- ing to A a certain sum, to revert, after his death, to a town on a certain condition, failing which, to the heirs of the testator, A takes a life estate only. Bullard v. Chandler, 149 532. 31. Under Pub. St., ch. 126, § 4, providing that " when lands are given by deed or will to a person for his life, and after his death to his heirs in fee, or bywords to that effect, the con- veyance shall be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs," a devise of land to A, " to have and to hold to him for life and to his lawful issue forever, if he shall die leaving any such issue; but in case he shall decease without leaving such issue, " then to others named, "to be equally divided between them, share and share alike, and to their heirs and assigns forever," vests an estate for life only in A. Trumbull t). Trumbull, 149 300. 38. For a consti-uction of the provisions of a will, as bearing upon the question of the right to the income of a trust fund, created by the will, see Flske e. Eddy, 147 151. (3.) Annuity. 38. A testamentary gift of " twelve hundred dollars in money, to be paid to her [the annui- tant], annually, in quarterly payments during her life," is payable out of income, not princi- pal, the net income of the estate amounting to six thousancj dollars. Cummings «. Cummings, 146 501. 34. Where a testator gave to his wife an an- nuity of $400, if the income of the estate should amount to that sum, and gave to her also, the use of a house, it was held that re- pairs, taxes, water-rates, insurance, and interest on a mortgage on the house were chargeable to the income applicable to the payment of the annuity; but that general expenses of adminis- tration were chargeable to the corpus of the Bridge «. Bridge, 146 373. 85. An annuity created by will for illegiti- mate daughters of the testator '• so long as both they and their mother shall all live," cannot be perpetuated beyond the mother's death. Towle V. Delano, 144 95. (3.) Estate tail. C4.) Estate in fee simple; absolute leg- acy. 36. Where a testator, in the first clause of the will, said that he gave to his wife his dwelling house, together with all the land aud furniture, and in a subsequent clause said that he gave to her " all the rest, residue, and remainder of my personal and real estate * * * during her life only," and, after his signature, said "be- fore signed, during her life only, my will and desire," it was held that she took in fee the dwelling house and the land connected with it and a life estate only in the other realty. Barnes v. Boardman, 149 106. 87. Where a testator gives everything to his wife, " to be to her and her heirs and assigns forever; but upon the express condition that, if any portion of my said estate should remain in the possession of my said wife at the time of her decease, such remainder shall be divided as follows, namely," etc., she takes the realty in fee. Joslin 1). Ehoades, 150 301. 38. Where a testator gives to his wife during her life the income of all the estate, "to be for her, comfort and support," and expresses a wish that she provide for an unmarried daughter, and that a house and grounds be kept as a home for them, the wife, after the death of the daughter, has an absolute estate in the income which can be reached by her creditors. Maynard v. Cleaves, 149 307. 39. Where a testator, who had made unequal advancements to some of his children, gave his property to them absolutely and expressed a wish to do equally by all of them, and, a fevi days afterward, executed a codicil which said, "All sums of money given to my children in my said will, and all sums paid to them by my executors under said will, are given to tnem and are paid to them for the benefit of their heirs respectively, and are not to be in any way or manner liable for their debts, or taken by their respective creditors, if any, in any way or form," it was held that the codicil did not cut down the gifts given by the will. Potter «. Merrill, 143 189. 40. An absolute estate, given by clear and apt words, is not to be cut down to a less estate by subsequent inconsistent language. Sherburne v. Sischo, 1 43 439. DEVISE AND BEQUEST, III, (4), (6), (6), (7). 37 41. Under a devise of land to a daughter, " to bo kept and retained by lier as long as slie shall live, and to be disposed of as to her seems proper at her decease," with no devise over, she naay convey an estate in fee. Toddi). Savpyer, 147 570. C5.) Sliares; tenancy, joint, In commoui or several. 43. A direction that " If any of ray children die without issue, their shares are to be added to those of the other children," was held to en- title the children of a deceased child to take, it appearing from othtr parts of the will that the testator contemplated equality among his chil- dren or among their respective families. Bowker i). Bowker, 148 198. 43. Under a devise for life to certain grand- children and the survivor, and, "when they shall respectively decease, to their respective heirs, executors, administrators, and assigns," the grandchildren take life estates as tenants in common, with contingent remainders to their heirs. Lavery ». Egan, 143 389. 44. Where a will provides that when the youngest living child of the testator shall be- come of age one-half of the estate shall be divided equally among the children then living, one of such children, before the youngest be- comes of ago has an alienable interest. Wainwright v. Sawyer, 150 168. 45. Where a will gave to the widow every- thing except three funds of $100,000 each, which were to be set apart for the three chil- dren on their arrival at majority, and an intent that the children should share equally was ap- parent, it was held that the will should be so construed as to give to each child $100,000, though, on one construction, it would appear that the children were to be provided for out of a certain fund amounting to only $175,000. Bradford v. Brinley, 145 81. 46. Where a testator says, " I give to each of my nephews, one and all," a certain sum each, those to whom specific legacies are given by pre- vious clauses of the will share with the others. Bartlett «. Houdlette, 147 25. 47. Where a testator says, " Now if in set- tling up my estate there should not be money enough to pay the legatees what I have willed them, then pay one and all pro rata each, or if oiherwise, the same pro rata, the legatees are eatitled to share pro rata in a surplus." Bartlett b. Houdlette, 147 35. 48. For an examination of the language of a will construed to treat certain beneficiaries as a class, so that, in the event of the death of one of them, under circumstances not provided for, the survivors of the class were held entitled to have divided between them the income which the deceased would have received, if living, see Hood V. Boardman, 148 880. (6a) Remainders. 49. Where a testator bequeaths all his per- sonalty to his wife absolutely and then, by a codicil, revokes the absolute provision for her and directs that she hold the property during her life and that on her death it shall go to A. and B., the wife takes a life estate and A. and B. the estate in remainder. Warner «. Morse, 149 400. 50. The obvious meaning of a clause of a will which gives a remainder to children living at the testator's death, will not be controlled by an ambiguous use of language in another de- vise in the same will. Lombard v. Willis, 147 13. 51. Under a wUl giving to A. and his wife, for their lives, the income of a fund, and, on their decease, the fund to B. for his own use, and on B.'s decease, " If he dies without chil- dren, as he is unmarried," then over, if B., having children, survives A. and his wife, his right to the fund is absolute. Pope ». Farnsworth, 146 339. 53. An interest may be vested though subject to be defeated by a certain contingency. Lenz i). Prescott, 144 505. 53. Under a devise in trust for the sole use of a nephew's wife during her life, and at her death to permit the nephew to receive the in- come during his life, "and at his decease to transfer and convey the said trust estate to his children and their heirs," the estate in remainder of the nephew's children vests at the time of the testator's death. Loring v. Games, 148 223, 54. Where a remainder to a married woman is devested by her death before the death of the life-tenant, the husband of the married woman takes nothing as her representative or by the curtesy. Webster v. Ellsworth, 147 603. (T.) Conditions; charges; gifts for sup- port. 55. Where a testator gives a legacy to his housekeeper on condition that she brings no bill against his estate, her presentation of a note given to her by the testator three years before his death and purporting to be for extra work and care during his illness does not deprive her of her right to the legacy. Farnham v. Barker, 148 304. 56. Where a will directed the distribution of one share between a son and his children, and gave the son's brothers and sisters each a share, and directed that loans which had been made to the son should be " paid by a set-off betwixt the debt so due to my estate and the legacy given from my estate," it was held that the loans were to be setoff against the share and not against the son's part of the share. Price V. Douglass, 150 96. 57. Where a will, after devising to the widow a life estate in the entire estate, authorizes her to use and appropriate as much of the princi- pal as she may deem necessary for her comfort and support, and to sell the whole or any part of the estate at her discretion, she may sell the remainder, reserving a life-estate to herself. Hoxie V. Finney, 147 616. 38 DEVISE AND BEQUEST, III, (t); lY— DIVORCE, I, II, III 58. When a widow, under her husband's will is entitled to the income of the residue and also to as much of the principal as is necessary to give her ' 'A good and comfortable support, ' the fact that she owns a house in fee, pur- chased partly with her own money and partly with money belonging to the residue, does not preclude her from demanding a part of the principal before disposing of the house. McKenzie v. Ashley, 145 577. IV. Inteeest. 59. Interest on a pecuniary legacy begins to run in a year from the testator's death, irre- spective of when the will was proved. Ogden v. Pattee, 14=9 82. 60 "Where a testator gave the residue to his brothers and sisters and directed that the in- debtedness of each to the testator should be deducted, and said that, in case the indebted, ness should exceed the legacy, " I hereby dis- charge and release the surplus of such indebt- edness," it was held that interest on the indebt- edness was not chargeable after the testator's death. Taylor ». Taylor, 145 339. Discharge. [See Bankruptcy; Conflict of Laws; Insolv- ent; PoobBebtobjEelease.I Disseisin. [See Adverse Possession. ] Distribution. [See Descent AND Distribution.] District court. [See Police Court.] Dividend. [See Bankruptcy; Corporation; Insolvent.] Divorce. I. JumSDICTION. II. Causes fok Divobce. III. Decree, and Effect Theeeof. [See, also, Husband and WtPB, 15, 16.] I. Jurisdiction. 1. Jurisdiction, within Pub. St., ch. 146, § 4. requiring the parties to have " lived together as husband and wife," in this Commonwealth, does not attach if they have lived in the Com- monwealth, but arart from one another. Weston ». Weston, 143 374. 3. Under Pub. St., ch. 146, § 6, providing that, where the libellant has left the county in which the parties have lived together, the libel- lee still living therein, the libel must be heard and determined in that county, the county in which the parties last lived together is the county meant. Banister v. Banister, 150 280. II. Causes for Divorce. 3. The provision of Pub. St., ch. 146, §2, making a sentence to state prison for five years cause for divorce, cannot be construed to em- brace a sentence to imprisonment in another state. Leonard ». Leonard, 151 151. 4. Where a wife deserts her husband, and, within three years, he brings a suit for divorce on the ground of adultery, he cannot, after the expiration of the three years, proceed again on the ground of desertion; and especially where he says that, after he heard of her adultery, he was not willing to live with her. Ford «. Ford, 143 577. 5. To support a charge of adultery evidence tending to show sexual intercourse with the same person shortly before the marriage is com- petent. Brooks V. Brooks, 145 574. 6. One who, after seven years desertion by his wife, marries again without knowing whether she is alive or dead, is guilty of adul tery such as to preclude him from obtaining a divorce on the ground of her desertion. Whippen v. Whippen, 147 394. III. Decree, and Effect Thereof. 7. The dismissal of a husband's libel for di- vorce because of his connivance in the act of adultery charged does not necessarily bar a subsequent suit for a previous adultery with another person and not known to the husband when he brought his first suit. ]V[orrison v. Morrison, 142 361. 8. A decree which, on a wife's petition for separate maintenance, adjudges that she is liv- ing apart from her husband for justifiable cause, is a bar to the husband's suit for divorce on the ground of the wife's desertion. Miller v. Miller, ISO 111. 9. Under St. 1870, ch. 404, § 3, providing for making absolute a decree of tiivorce -nisi, a new service is not essential to give jurisdiction, though in practice and on judicial grounds it may be required. Peaslee v. Peaslee, 147 171. 10 The marriage of a woman after she has filed an application that a decree mst m her favor be made absolute, but the day before the entry of the decree absolute, is void under i-uD. St.. ch. 145, 5^ 4, 7; under § 11, the man is en- titled to have the marriage annulled, and the belief of the parties that the marriage was law- ful is immaterial, they having known that the decree absolute had not been entered. Cook ■B.Cook, 144 163. DIVOECE, III— EASEMENT, 39 11 The court has power to allow alimony to a wife after a decree nisi liaa teen rendered against her. _ . , ^ .„ i en Brigham v. Bngham, 14:7 159. 12. For evidence sufficient to support an order that "a father, from whom the mother had ob- tained an absolute divorce for desertion, should be permitted, once a week, to see the daughter, whose custody had been given to the mother, see Oliver v. Oliver, 151 349. Dog. Domicil. [See Animal.] [SeePooE; Taxation.] widow's acceptance of the provisions of the will did not deprive her of the right to claim one-third of the proceeds of the sale of land in Minnesota, in which state, as well as in Khode Island, such acceptance would not bar her right of dower, though under the law of this Com- monwealth (Pub. St., ch. lar § 30) it would the statute of the Commonwealth not applying to lands in other statLS. Staigg 11. Atkinson, 144: obi. Donatio mortis causa. [See Gift.] Dower. [See, also, Attachment, 2; Equity Jueispku- DENCE, 11; Limitation of action, 11.] 1. Where one domiciled in Rhode Island there made a will which did not declare a pro- vision for his wife to be in lieu of dower, and then changed his domicil to this Common- wealth, where he died, it was held that the Drain and drainage. [See Town and City.] Drunkenness. [See Intoxicating Liquors ] Duress. 1. In the case of a note made by a husband and wife, it is not a defence to an action by the payee that the wife was induced to sign the note by her husband's threats, if the payee took the note ingnor^nce thereof. Fairbanks i>. Snow, 145 153. Dwelling house. [See Abson.] E. Easement; servitude. I. Gbnbrai etjles; how created; intbb- PBETATION; EFFECT. II. Eights and liiABiLiTiES. [See, also, Covenant, 9; Deed, 13 ] I. General rules; how created; inter tation; effect. 1. On the question whether an easement granted was a foot-way or a carriage-way, evi- dence of the mode of use may be competent. Rowell J). Doggett, 143 483. 2. Where a deed says: " And said grantors agree that no building shall be erected on said lot next east of said granted premises nearer to the west line of said lot than four feet, being the east line of the premises hereby conveyed," the grantee has a right of action against a sub- sequent grantee of the other lot from the com- mon grantor who erects a building within the four feet; even though the deed of the latter made no mention of the incumbrance. Hogan V. Barry, 143 538. 3. But, in such case, the defendant is en- titled tc a request for the removal of the build- ing, before action brought Hogan V. Barry, 143 538. 4. A reservation in a deed cannot create an easement in a stranger to the deed. IMurphy v. Lee, 144 371. 5. Where, in a deed of land on the southerly tide of a road, a right of way on the easterly line was reserved from the road to the grantor's land, " situated southerly of the lot of land hereby coaveyed," it was held, that the right of way was not appurtenant to the grantor's land on the southeasterly side of the lot conveyed and fronting on the road, but only to land south and in the rear of the lot conveyed. Leach ?). Hastings, _ 147 515. 6. A way of necessity, by a grantee through the grantor's lands to a highway intersecting the land cannot, when the highway is set back, be extended over the grantor's land to the line of the new highway. lyiorse «. Benson, 151 440. 7. An entry upon and a continued occupa- tion of land, with the use of a way as appurte- nant thereto, under a warranty deed which purports to convey the land and the right of way as appurtenant to it, are some evidence of 40 EASEMENT, I, II— EMINENT DOMAIN. title to the land, and of a right to use the way, against one who shows no right to interfere with this use. Shapine v. Shaw, 150 263. 8. A private right of way across the loca- tion of a railroad may be acquired by prescrip- tion, notwithstanding the statutes imposing a penalty on persons walking or driving on a railroad. Turner v. Fitchburg Railroad, 145 433. 9. Evidence that a railroad company, from the time its road was built, in 1840, to 1850, maintained and planked a private crossing, agreed with the owner of the adjoining land, in 1849, to keep i he crossing in repair, and took from him in 1855 a deed of a right to build containing a provision that "any rights" of his in the crossing were not to be disturbed, accompanied by evidence that he used the crossing for foot purposes until 1887, justifies a finding of his right by prescription to use the crossing for foot purposes. Fitchburg Railroad «. Frost, 147 118. 10. A right of way by prescription across a railroad cannot be founded on a user by the land owner before payment of damages or security given therefor by the corporation, as, until then, the user is not adverse. Smith V. N. Y. & N. B. Railroad, 142 21. 11. A town may acquire by prescription a right of way as appurtenant to a burial ground owned by the town. Deerfield v. Connecticut River Railroad, 144 335. 13. For facts and instructions bearing on the question whether the railroad company against which the prescriptive right was asserted be- lieved the use to be permissive, see Deerfield v. Connecticut River Railroad, 144 335. II. Rights and Liabilities. 13. A gi-ant of a right and privilege in a passageway, accompanied by a reservation to the grantor of the right and privilege of using the passageway in common with the grantees, the passageway being described further as "a strip of land five feet wide," does Hot entitle the grantees to object to the building of bay windows from the passageway, such windows not interfering with passage on foot but inter- fering with light and air. Nor does it matter that the grantees have maintained, for over fifty years, windows opening on the passage- way. Burnham «. Nevins, 144 88. 14. The value of a right of access, for pur- poses of prospect, to a certain street shown by a plan and afterward closed by the owner was held not a sufficient ground for equitable re- lief sought by the purchaser of a lot from the same owner at a seaside resort, the lot in ques- tion not bounding on such street. Pearson v. Allen, 151 79. 15. "Where a deed conveys the fee to the centre of a private way, and grants a right of way in the whole of the way, reserving a like right to the grantor, the latter may not cut down the grade of the way eight or ten feet to the injury of the grantee's premises. Kelley v. Saltmarsh, 146 585. 16. For facts and circumsl ances bearing upon the question of the right of one having a right of way over a strip of land to maintam gates and a division fence, see Short ». Devine, 146 119. Ejectment. [SeeLANDLOBD AND Tenane.] Election. [Of remedies, see WArvEB.l Elections and electors. 1. The provision of St. 1885, ch. 345, § 7, that "No person hereafter naturalized in any court shall be entitled to be registered as a voter within thirty days of such naturalization," conflicts with the Constitution of the Common- wealth and is void. Kinneen v. Wells, 144 497. 2. The provision of Pub. St., ch. 7, § 57, that "whoever, at any national, state or mu- nicipal election, knowingly gives more than one ballot at one time of balloting at such elec- tion, shall be punished," etc., does not apply to a municipal election on the question of granting a liquor license. Comm. 1). Howe, 144 144. 3. On the trial of an indictment, under St. 1884, ch. 399, §43, for altering a ballot, second- ary evidence of the character of the destroyed ballot is admissible. Comm. ■». McGurty, 145 257. 4. A ballot cast for one not elected, is a "bal- lot cast for any officer." Comm. ®. McGurty, 145 357. 5. The ballot need not have been cancelled by a mechanical device. Comm. ■». McGurty, 145 257. 6. That the fraud was not successful is no defence. Comm. V. McGurty, 145 357. Embezzlement. [As to the form and sufficiency of the indictment, see IMDIOTMENT, 13.] Eminent domain. [See, also, Highway; EAiiiROAD. And for oases involving questions under the law of eminent do- main, see CONSTITUTIONAI. LAWt4; 'Wateboodbsb, 7] 1. If lot owners mutually covenant not to build above a certain height, and afterward the lots are taken by right of eminent domain, the EMINENT DOMAIN— EQUITY JUEISDICTION, I, IL 41 extinguishment of the easement is an element of damage. Ladd «. Boston, 151 585. 2. One whose land is taken under a claim of right by eminent domain does not, hy filing a petition for damages under the statute within the time limited therein waiver his right to bring a suit in equity to test the constitutionality of the statute. ; Moore '0. Sanford, 151 285. Equitable conversion. 1. A direction in a will "That my outlands not herein named shall be sold, and the pro- ceeds, together with my personal property, shall go to the payment of all my debts and legacies, and, if that should be insufficient, so much of the saw mill pasture shall be sold as shall be necessary," constitutes an equitable conversion of the " outlands " into personalty from the time of the testator's death. Perkins ». Coughlan, 148 30. Equity jurisdiction. I. Genbral Rules. II. Equitable AttachHent; Cbeditob's Bill. III. Particulab Heads. LSee, also, generally, Chabity; Equity Pleai>- INOAND Peactice; Mortqage; Nuisance; Part- nership; QuiETiNO Title; Spbcipio Pereorm- ance; Trust; Trustee; 'WiiiL, And for particu- lar oases Involving questions of equity Jurispru- dence, see Corporation, 18, 87, 29, 30; Heirs, 1; Insurance Company, 2, 3; Lunatic, Ij Quibtino Title, 3; Trustee, S3.] I. General Rules. 1. Equity has jurisdiction of a suit to com- pel one who, as the plaintiff's agent, has re- ceived a United States treasury draft payable to the plaintiff, to deliver it up. It is imma- terial that the original claim grew out of a maritime capture and that the plaintiff may be accountable to others for a part of the proceeds of the draft. Sopcr V. Manning; 147 136. 2. The title to office of the board of police of the city of Boston appointed by the governor under St. 1885, ch. 323, cannot be impeached coUarerally by a petition in equity under Pub. St., ch. 27, § 129, to prevent the raising or ap- propriating of money to pay the expenses of the board; the remedy is by an information in the nature of a qiio warranto. Prince v. Boston, 148 385. 3. Where the clerk of the couit, under the order of the court, holds money pending the determination, in a suit in equity therein, of the amount of the lien of the defendant on the draft of which the payee seeks a delivery, the credi- tor of the defendant, who is neither his assignor nor a lienor, cannot invoke the aid of the court to reach the fund in his own brhalf . Tuck «. Manning, 160 311. YoL. Ill— 6 4. Equity may not enjoin the publication, in the records and books of a mercantile agency, of false statements as to the character and stand- ing of a tradesman, no breach of trust or con- tract appearing. If there is a remedy it is by an action at law. Raymond i>. Russell, 143 395. 5. The court may dismiss a bill in equity or sustain a demurrer to an information by which it is sought to reach the same end (injunctive relief) on grounds not insisted on by the par- ties, the case not being one for equitable inter- ference. ' iCenney v. Consumers' Gas Co., 142 417. 6. The writ will not issue against a married woman against whom the petitioner holds an unsatisfied judgment, though the statutory rem- edy is inadequate. Moore «, Valda, 151 363. 7. Equity will relieve against a forfeiture of a lease for breach of a covenant to insure, there being no actual damage, the breach being due to accident or mistake, and the right to claim a forfeiture strictissimi juris. Maotier «. Osborn, 146 399. 8. For a case where a bill in equity asserting riglits under a will was held demurrable on the ground that the plaintiffs' case was founded on a mistaken construction of the will, which, on its face, showed a want of interest on their part, and on the further grounds that a forgery charged was remediable at law and that an in- terest to the value of twenty dollars was of too little value to justify the interposition of a court of equity, see Galei). Nickerson, 151 438. II. Eqititablb Attachment; Ceeditok's Bill. 9. A suit in equity is not maintainable, under Pub. St., ch. 151, § 3, cl. 11, and St. 1884, ch. 385, where the numerous debts due to the de- fendant, which the plaintiff seeks to have ap- plied by virtue of the defendant's indebtedness to him, and the persons owing such debts, are not described specifically. Amy «. Manning, 149 487. 10. One to whom a trustee, in the interest of the trust estate, has contracted a debt, may not maintain a creditor's bill to have the trust prop- erty sold and the proceeds applied in payment of the single debt. Mayo «. Moritz, 151 481. 11. An unassigned right of dower in land of which the widow is in occupation under Pub. St., ch. 134, 1 13, may be reached by her cred- itor by a suit in equity under Pub. St., ch. 151, § 3, cl. 11, as amended by St. 1884, ch. 385, re- lating to subjecting property which cannot be taken in an action at law. McMahon «. Gray, 150 289. 13. There is no jurisdiction in equity of a suit to reach a leasehold estate in realty for a debt not reduced to judgment. Nor does this jurisdiction attach though the debtor's wife and another are made co-defendants on the ground that they claim the debtor's goods 42 EQUITY JUEISDICTION, II, HI— EQUITY PLEADING, I. under a collusive transfer, or on the ground that tlie wife has attempted to perpetrate a fraud hy using her husband's name to do busi- ness in. Weil V. Kaymond, 142 206. 13. Where a woman left $8,000 to two un- married daughters, "subject to the condition that they support their father during his life," it was held that the father had not an interest in the fund that could be reached by his credi- tor by a creditor's bill, under Pub. St., ch. 151, § 1. cl. 11. Baker «. Brown, 146 369. 14. A United States treasury draft, issued upon the award of the Commissioners of Ala- bama claims, payable to a non-resident of the Commonwealth, unindorsed, and in the cus- tody of his agent in the Commonwealth, may be reached by a creditor of the payee by suit in equity, under Pub. St., ch. 151, § 3, cl. 11, as amended by St. 1884, ch, 285 ; and this though service can be made' on the agent only. [Field and W. Allen, J.I., dissenting.] McCann v. RandaU, 147 81. 15. A suit in equity lies, under Pub. St., ch- 151, § 2, cl. 11, and St. 1884, ch. 285, to reach the interest of one entitled, under a will, to a part of the proceeds of land which the will orders the executors to sell for the purposes of a division. Eicketson v. Merrill, 148 76. 16. Where, under a will, A is entitled to support out of a fund given to B, A has not an interest which can be reached by a creditor under Pub. St., ch. 151, § 1, cl. 11. It is to be inferred that the testator intended the interest to bu inalienable. Slattery v. Wason, 151 266. 17. A creditor cannot, by suit in equity, under Pub. St., chap. 151, §3, reach land fraudulently conveyed by his debtor, since de- ceased; his rights must be worked out through the administration. Putney v. Fletcher, 148 247. 18. A suit in equity lies, under Pub. St., ch. 151, § 2, cl. 11. and St. 1884, ch. 285, to reach letters patent belonging to a foreign corporation doing business in this Commonwealth and served here, the plaintiff being an inhabitant of the Commonwealth, and the debt the result of a contract made here and to be performed here. Wilson ». Martin-Wilson Automatic, etc., Co. 149 491. 19. A court of equity, under St: 1884, ch. 285, § 1, may order a master to convey the debtor's interest reached by the creditor's suit, where the debtor himself cannot be compelled to convey, and where a conveyance is neces- sary, as in the case of letters patent owned by a foreign corporation which has ceased, since the commencem nt of the suit, to do business in the Commonwealth or to have officers here. [Field and W. Allen, JJ., dissenting.] Wilson i). Martin- Wilson Fire Alarm Co. 151 515. 20. And an a.ssignment of the patent thus made is suflBcient to satisfy the federal statute and to transfer the title. [Field and W. Allen, JJ., dissenting.] Wilson V. Martin- Wilson, etc.. Fire Alarm Co., 151 515. III. Pabticular heads. 31. An executor asking for instructions, by petition in equity, may present, at his own ex- pense, by counsel other than those acting for him in his representative capacity, a question in which his interest is personal. Ex p. Batchelder, 147 465. 22. The court will not advise executors and trustees as to the disposition of a fund after the expiration of a life-estate which has not yet come to an end. Bullard v. Chandler, 149 583. 33. A bill is not objectionable for multifari- ousness -where each party has an interest in some of the matters set forth and is connected with the other matters and where the bill is necessary to avoid a multiplicity of suits and to adjust and settle the rights of all concerned. Lenz V. Prescott, 144 505. 24. A bill in equity by an administrator de bonis Tum, with the will annexed, against the former executor, alleging that the defendant, as executor, sold renlty under a power in the will, misappropriated the proceeds, and refuses to account, cannot be maintained as a bill for an account; the proper forum is the probate court Ammidown v. Kinsey, 144 587. 25. Where one, in order that he may attach land, advises an inexperienced woman who is buying a mortgage on it, to have the mortgage discharged instead of assigned, equity will re- lieve, and postpone the attachment to the mort- Short V. Currier, 150 372. 26. Where, on the trial of an action for a breach of covenant of warranty of title to land, the evidence tends to show, on the one hand, that the grantor's mistake was in regard to the contents of the deed, while the mistake of the grantee, who drew the deed, was in supposing that the grantor had agreed to sell a certain lot described in the deed but not owned by the grantor, the case is not one of mutual mistake, and, the issues submitted to the jury being whether the description was inserted by mutual mistake and whether the parties orally agreed that a sale only of what the grantor owned was contemplated and whether an attempt was made to embody that agreement in the deed, the grantee is entitled to an insti-uction that the issues must be answered in the negative if the grantee supposed that the deed conveyed the lot in question. Page V. Higgins, 150 27. Equity pleading and practice. I. Pleading. II. Practice. [See, also, Appeal; Equity Juusdiction, and the titles of the various equitable proceedings. See, also for particular cases, AppeaIj, 7; Equttt JubiS- diction, 5, 21 ; MOKTGAGE, 18; Kepobt, 1.] I. Pleading. 1. A bill joining distinct claims against different defendants is demurrable for multi- fariousness. Keith V. Keith, 143 263. EQUITY PLEADING AND PEACTICE, I, II— EVIDENCE. 43 2. Where the practice authorizes tlie inser- tion of a demurrer in an answer, and a de- murrer and an answer are filed separately on the same day, the answer last, it does not follow that the demurrer should, be held overruled by the answer. The court may per mit the answer to be withdrawn and then may sustain the demurrer. Fogg 11. Price, 145 513. II. Practice. 3. To a suit in equity to restrain the lessee of a covenantor from a breach of the covenant the covenantor may be joined with the lessej as a co-defendant. Commercial Wharf Co. v. Winsor, 146 559. 4. To a suit in equity to compel an assignee in insolvency to account for profits made out of the purchase and subsequent manage- ment, in behalf of himself and others, of prop- erty of the estate, such others are necessary parties. Northampton Kat. Banli v. Crafts, 145 444. 5. Where, after a decree pro confesso, the de- fendant's assignee in insolvency is let in to de- fend, his right to try the case on its merits does not depend on the formal vacation of the de- cree. Blanchard v. Cooke, 144 207. 6. A request for a trial by jury in an equity cause is properly refused when first made on the_ second hearing of the case and after the juries have been dismissed for the term. Blanchard «. Cooke, 147 215. 7. A defendant may waive his right to a trial by jury in a suit in equity by setting the cause down for a hearing before a justice; and it is immaterial that, afterwards, an amended bll is filed joining a co-defendant, but charging no new matter of substance against the original defendant. Dole v. Wooldredge, 142 161. 8. In a suit to set aside a compromise made by tlie defendant w;ith his creditors, on the ground that the plamtifE's assent was obtained by fraud, the defendant is entitled to have is- sues framed for a jury. Merchants' Nat. Bankn. Moulton, 143 543. 9. Where, notwithstanding the issue and ser- vice of an injunction, the defendant turns over to his co-defendant the draft held by the former for the latter, and to subject which for the debt of the latter the suit is brought, a decree for the amount of the creditor's claim may go against the former. McCann «. Randall, 147 81. Essex County. 1. UnderPub. St., ch. 87, §49, Essex county, like olher counties of the commonwealth, may recover, for the support of an insane person in its receptacle for the insane, of the city or town bound by law to maintain such person. Essex county is not confined to the rights given by § 47, making special provisions for it. Newburyport v. Creedon, 146 134. The testimoKy of the city treasurer that the amount paid for each pauper was a certain sum does not, as matter of law, show that the county commissioners directed the payment of such amounts. Newburyport «. Creedon, 148 158. Estate. [See Advbbsb Possession; Deed; Easement; Devise and Bequest; Exboutob and adminis- tuator; Heiks; Mortgage; Trust.] Estoppel. [See, also, Husband and Wle-b ; Waiver; Watebt- COURSE, 9.] 1. If A., having a claim on goods, stands by, without disclosing it, and permits B. to pay customs duties in the belief that the goods are his. A., all the while, intending to replevy them from B. , the duties thus paid constitute an equi- table lien in B.'s favor; and such lien is not waived or lost by B.'s refusal to surrender the goods without basing the refusal on the ground of lieu. Eowler ■». Parsons, 143 401. _ 3. Where a member of a beneficiaiy associa- tion died, leaving an infant son entitled to the death benefit, but it was supposed that, under the law, another person was entitled to part of it, whereupon the guardian of the infant took the rest, giving a receipt in full of all demands, and the association paid the other part to the person supposed to be entitled to it, it was held that the son was not precluded from maintain, ing an action against the association to recover the balance. Tylers. Odd Fellows' Mut. Relief Assoc, 145 134. 3. Where a wife remained silent when her husband mortgaged chattels on which she had a claim, and afterward the creditor surrendered the mor gage and took a larger one, and each mortgage was to secure money borrowed by the husband, it was held that, while the wife would have been estopped to claim against the first mortgage, she was not estopped to claim against the second. Tracy v. Lincoln, 145 357. 4. For facts held insufficient to create an estoppel by acts and conduct such as to pre- clude an attempt to enforce an agreement in relation to the testamentary disposition of a fund, see Wood «). BuUard, 151 324. Evidence. I. General Rtjles as to Competency. (1.) In general. (2.) Opinions; experts. (3.) Rebuttal of adverse testimony; fortify- ing testimony. II. Judicial Notice. 44 EVIDENCE, I, (1), (2). m. BuBDEN OF Proof. IV. Presumptions. V. Best and Secondary Evidencb. VI. Admissions; Declabations; Cohpes- SIONS. (1.) General principles. (2.) Admissions. (3.) Declarations. (4.) Confessions VII. Oral Testimony to Affect a Writ- ing. VIII. Documentary Evidence. IX. Evidence as to Particular Subjects (1.) Character; Reputation. (2.) Handwriting. (3.) Value. rsee, also, generally, Deposition; Exception; WITNESS. And for cases Involving questions of evi- dence, see A ccessoby AND Accomplice, 2; Agist- ment, 1; AssADLT, ]; Attokney, 3; Deed, 3, 10; Deposition, 4; Executob and Administrator, 16; Fish, 4; Insurance, 12, Intoxicating Liquors, 34, 41 ; Joint Liability, 3; Libel and Slander, 9 ; Negligence, 41, 44, 45; Parent and Child, 1; Sale, 8; Trust, 13; Will, 7, 8.] I. General Rules as to Competency. (1.) In general. 1. It may be shown, in an action for a leg- acy and for compensation for services, that it was agreed between the plaintiff and the testa- tor that the legacy should pay for the services. Frost «). Sumner, 14:9 98. 3. One may testify to the date of his birth. Comm. V. Stevenson, 142 466. 3. On the question whether a horse was sold at auction with a warranty, the advertisement of the sale is competent evidence. McGaughey i>. Richardson, 148 608. 4. Where, on the question of a marriage, denied by the man, insisted on by the woman, it is shown that on one occasion, when told by the sister of the man to come into the house, , the woman replied, " I will not, I have a right to do as I have a mind to," it is error to ex- clude evidence that her companion at the time was a lewd woman. Comm. v. Lee, 143 100. 5 A release to "the heirs " of C. , with whom those who seek to avail themselves of the re- lease do not connect themselves, is inadmissi- ble in evidence on their behalf. Gushing v. Nantasket Beach Railroad, 143 77. 6. If, on the question whether a certain gas burner was lighted at a certain time, witnesses testify that such was the practice, the adverse party may show that the burner was often un- lighted. Wentworth v. Eastern Railroad, 143 348. 7. Where one party puts part of a conversa- tion in evidence, the adverse party has the right to put in so much of the rest of the con- versation as relates to the same subject. Dolfe ». Wooldredge, 142 161. 8. In an action for personal injuries oc- casioned to the plaintiff while in the defend- ant's employ, through the alleged negligence of the defendant's foreman, evidence of specific acts of negligence on the part of the foreman while engaged on the same job and before the accident happened, is inadmissible. Hyatt V. Nay, 144 186. 9. An appraiser's estimate to an insurance company of the amount of damage to certain goods is not competent evidence in an action of the owAer of the goods against the carrier. Nor does Ihe fact that the appraiser is dead make the evidence competent. Bradford v. Cunard Steamship Co., 147 55. 10. A photograph offered in evidence to throw light on the surroundings of the place the condition of which is material to the under- standing of the cause of action, if not so com- prehensive as to be necessarily and practically instructive, may be excluded, in the discretion of the presiding judge. Verran v. Baird, 150 141. (2.) Opinions; experts. 11. On the question of how much sand the plaintiff sold to the defendant to be used in making mortar, the defendant may show by expert testimony how much sand is used with a cask of lime. MiUer v. Shay, 142 598. 12. Evidence that a servant " Was generally reported to be infirm in the senses of sight and hearing and in physical strength" is competent on the question of knowledge of the master, suedby afellowservant for injuries attributable to the infirm servant. Monahan v. Worcester, 150 439. 13. Whether it is proper construction, under the circumstances of a particular case, to leave the end of a drain in a cellar open and unpro tected against the Influx of sewage, is a ques- tion upon which expert testimony is competent, in an action for the damage caused by the overflow ,of the sewage through the drain over the cellar. Stead «. Worcester, 150 341. 14. On the trial of an action by an assignee in insolvency to recover the value of prQperty mortgaged by the debtor, witnesses may not be asked whether the giving of such a mortgage was in the usual and ordinary course of busi- ness; this is a question for the jury. Buffum «. Jones, 144 29. m. On a trial for incest experts may testify as to the normal and abnormal condition of we private parts of the girl (thirteen years old) with whom the offence is alleged to have been committed. Comm. V. Lynes, 142 577. EVIDENCE, I, (3); II, 111, tV, V. 45 (3.) Rebnttal of adverse tCBtlmony; for- tifying testimony. 16. If, ia an action for goods sold, the de- fendant rests his defense upon oral evidence that a transfer of stock, absolute on its face, from the defendant to the plaintiff, after the delivery of the goods, was intended as pay- ment, the plaintSf may contradict this by oral evidence that the stock was taken as collateral security for such payment Butman v. Howell, 144: 66. 17. Where one sued for malicious prosecu- tion attempts to shield himself behind informa- tion derived from A, it may be shown that he said that he had heard that A had been in jail. Mclntire v. Levering, 148 546. 18. Where, on the trial, of an action for slander, the issue is the purpose for which the plaintiff visited a house of ill fame, his conten- tion being that he went there to look after his neice, the defendant may not put in evidence a charge by the neice of improper conduct to- ward her by the plaintiff on another occasion, but denied by the plaintiff. Fitzgerald «. Williams, 148 462. 19. Where a police officer, on the trial of a complaint for keeping liquor with intent to sell unlawfully, admits on cross-examination that he has signed and sworn to a certain complaint to search, and has identified a copy of the com- plaint as a true copy, the contents of the copy are competent evidence to contradict him. Comm. V. Snee, 145 351. 20. One cannot, as of right, strengthen his direct testimony as to his belief, this being con- troverted, by testifying to other facts which would make it likely that he believed as he said. Marshall v. Boston & Albany Railroad, 145 164. 21. If A avers that he acted because of B's request in a conversation not stated in terms, evidence of another conversation had at the same time between B and C is admissible to dis- prove A's averment. Hoar V. Abbott, 146 290. 22. On the trial of an action to recover for fraudulent representations as to the value of a compound to relieve pain in filling teeth, if the plaintiff attempts to show the worthlessness of the compound, the defendant may show, by witnesses, that they were relieved by it. Reeve «. Dennett, 145 23. 33. On the question of how much sand the plaintiff sold to the defendant, where the plaint- iff relies on a tally of loads, the defendant may show, by the man who made the mortar, how much sand was used with each cask of lime, how many casks of lime were used in making the mortar, and that all the sand furnished was used for this purpose. Miller «. Shay, 142 598. 24. Where a wife sues for the coversion of a chattel, attached as the property of her hus- band, and_ the husband testifies that the chattel was not his, and on cross-examination, testifies that he included it in a mortgage, but through ignorance, and that he so told the mortgagee, the latter may be permitted to testify In cor- roboration of this. Hewitts, Corey, 150 445. 25. Where a town is sued for rentals for water, and defends on the ground that a full and ample supply was not fiu'nished and shows that the plaintiff, while furnishing the water, sought new sources of supply, the plaintiff, for the purpose of overcoming the effect of this evidence as an admission, may show, by its cor- porate records, that its purpose was only to im- prove the quality of the water furnished. Wiley «. Athol, 150 426. 26. To contradict testimony of a witness it may not be shown that another person said that the witness made a different statement out of court. Pickert v. Hair, 146 1. II. Judicial notice. 27. On a trial of an indictment for running a steamboat without a town license on the Con- necticut river above the dam at Holyoke, the court may take judicial notice that the river at this point is not within the maritime jurisdic- tion of the United States. Comm. V. King, 150 221. in. BUKDEN OF PbOOF. 28. On the trial of an action for goods sold and money lent, if the defence is that there was an executed consideration, the burden of proof does not shift but is on the plaintiff throughout. Starratt «. Mullen, 148 570. IV. Pkbsumptions. 29. Where one leaves his family to seek work, and, after three weeks, is never heard of again, though inquiry has been made by his wife, and though nine years have passed, there is a pre- sumption of his death. Ex p. Stockbridge, 145 517. 30. If one has changed his place of business, and has so informed the postofflce authorities, there is a presumption or inference, the weight of which is for the jury, that a letter directed to his old address has been received by him at his new one. Marston i). Bigelow, 150 45. V. Best and Sbcondakt Evidence. 31. A press copy of an assignment was held admissible, on proof of an unsuccessful search for the original and that an assignment since ina,de was on the files of the court whence it could not be removed. Smith B. Brown, 151 338. 32. So, on the trial of an indictment, where the defendant did not, on demand, produce a foreign policy of insurance, it was held that secondary evidence, other than the oiflce copy 46 EVrDEFCE, Y; VI, (1), (2), (3). of the policy at the home office, was compe- tent. Comm. V. Smith, 151 491. 33. Where the contents of an application for insurance become material on a collateral issue they may be proved by secondary evidence, such as a copy of the application, the original not being obtainable. Williamson «. Cambridge Railroad, 144 148. 34. A copy of a paper is a'dmissible in evi- dence on the failure of the ijarty to the action holding the origical, to produce it. Comm. «. Shurn, 145 150. 35. On the trial of a liquor nuisance case, an officer may testify that the tumbler seized by him contained liquor, without producing the liquor or accounting for its absence. Comm. v. Welch, 142 478. 36. One who testifies that he received a letter and sent it to a friend, and that all that he knew about it afterward was that the friend wrote that he had mislaid it and could not find it, may then testify to its contents. Stevens v. Miles, 142 571. VI. Admissions; Dbclakations; Confesionss. (1.) General principles, 37. Where, in an action for the conversion of a horse and carriage, both parties claim under bills of sale from A., and it appears that the property was in the defendant's stable, and that the plaintiff went there to take possession under his bill of sale, and that the property was de- livered to him by A., and that the plaintiff then took a receipt, sent by the foreman of the stable as agent of the defendant, reciting that the property was received of the plaintiff for board and storage, it was held that the receipt was competent evidence in the plaintiff's favor as explaining and as a part of the transaction. Fennessy i). Spofford, 144 33. 38. Bills of sale and receipts, though not in themselves competent evidence of payments of purchases, may be received in evidence on the question of the intention of the parties and as a part of the res gestae, there being independent evidence of the purchases and the payments. Brooks V. Duggan, 149 304. 39. On the question of the acceptance of an unsigned lease by the defendant, where a wit- ness testifies that he took the lease to the defen- dant for his signature, and that he read it, but did not sign it, the witness may be asked on cross-examination what was said to him by the defendant, " about accepting, or signing, or ex- ecuting, or refusing to accept, or sign, or exe- cute the lease." Stevens «. Miles, 142 571 40. Declarations made by the president and treasurer of a corporation, near to and in sight of land which, in behalf of the corporation, they are leasing, and relating to the boundary line thereof, are evidence against the corporation, and, after their decease, against its subsequent grantees. Holmes®. Turner's Palls Co., 150 535. (2.) Admissions. 41. An offer of testimony to prove a fact is not equivalent to an admission that the party offering the testimony knows the fact to be as assumed by the offer. Wood 1). Graves, 144 365. 43. An agreement to buy corporate shares is evidence of an admission that there was such a corporation. Mann v. Williams, 143 394. 43. One who testifies that A was not his agent may be contradicted by his lettors con- tainingstatements to the contrary. Hosmer v. Groat, 143 16. 44. The acceptance, by the defendant, of the order sued on, may be proved by the admis- sions of an answer filed by his attorney in his behalf in a previous case, even though the de- fendant himself had not seen the answer and did not know its contents. Johnson «. Russell, 1 44 409. 45. Evidence that the accused endeavored to avoid arrest or to escape therefrom is compe- tent. Comm. «. Brigham, 147 414. (3.) Declarations. 46. For a case where, not having all the evi- dence before it, the court refused to sustain exceptions to the admission of certain declara- tions in the declarant's favor, on the ground that they were not of the res gestase, see Pickering ■». Cambridge, 144 344. 47. Declarations of a deceased former owner of land, made during his ownership, and tend- ing to prove the existence of a right < f way over the land are competent evidence against a subsequent owner. Rowell II. Doggett, 143 483. 48. On the trial of an indictment for an as- sault, there being evidence tending to show that the defendant was beaten by the com- plainant and was confined to his bed for weeks, it may be shown further that he made com- plaint of pain and suffering; and his wife may testify to this. Comm. V. Jardine, 143 567. 49. For evidence held to make competent declarations of an aged donor made from one to four months after the gift, and bearing upon his state of mind at the time of the gift, undue influence being charged, see Lane «. Moore, 151 87. 50. After a conveyance of real estate, dec- larations of the grantor in disparagement of his grant made in the absence of the grantee, are not admissible in evidence against the latter. Chase u. Horton, 143 118. 51. Evidence that a grantor, since deceased, declared, when on the lot conveyed by him, that he intended to carry a stream off the lot, and called it a spring. Is incompetent. To admit such evidence would extend too far the exception to the general rule against hearsay. Peck C.Clark, 142 436. EVIDENCE, VI, (3), (4); VII, Vni; IX, (1), (2). 47 52. The declarations of one who has parted with his title are incompetent in disparage- ment thereof, though he is one of several hene- flclaries under his conveyance in trust. "Warren v. Carey, 145 78. (4.) Confessions. 53. On the trial of an indictment a plea of guilty before the magistrate before whom the accused was brought in the first instance is admissible in evidence as a confession. Comm. V. Brown, 150 330. VII. Oral Testimony to affect a Whiting. 54. An order for goods signed by the buyer only, and which does not contemplate the seller's signature, does not require the rejec- tion of evidence of a collateral oral undertak- ing by the seller to advertise the goods. Ayer v. Bell Manufacturing Co., 147 46. 55. The terms of a written agreement to give a " warranty deed " may not be affected by evidence of the maker's prior and subse- quent declarations as to the kind of title to be given. Adams v. Morgan, 150 143. 56. In a suit for the specific performance of an agreement reciting that it was understood that the plaintiffs were to have a warranty deed to certain property and that, for that reason, a certain note of the other party to the agreement was to be cancelled when the deed was delivered or put on record, evidence is competent of facts and circumstances tending to show that the "warranty deed" referred to was a deed already made, subject to mortgages. Such evidence does not contradict or vary the terms of the agreement but tends to interpret them. Adams v. Morgan, 150 143. 57. An oral agreement may be shown if it is distinct from a written agreement, and neither controls nor varies it. Snow «. Alley, 151 14. 58. Where the oi-iginal agreement was oral, and, in putting it in writing, nothing is said which is inconsistent with a promise to do a collateral thing agreed to orally, such agree- ment may be shown without a violation of the rule that the terms of a written contract cannot be added to or varied by parol evidence. GrafEam v. Pierce, 143 386. 59. An acceptance of an order "to be paid out of the last payment," being ambiguous, is open to an extrinsic explanation. Proctor 1). Hartigan, 143 462. 60. On the question of the construction of a bequest testimony that the testator did not wish the person to whom under the law the bequest belongs to receive anything is incompetent. Lincoln v. Perry, 149 368. 61. A receipt " in full for all demands for damages sustained on the highway," unambig- uous in its language, cannot be shown to have been understood to cover damages for injuries to property only and not to the person. Squires v. Amherst, 145 192. 62. The operation of a covenant against in- cumbrances in a deed ( annot be varied by oral evidence that, before the execution of the deed, it was agreed that, in consideration thereof, the grantee "would assume a liability for an assess- ment upon the land. Plynn i). Bourneuf, 143 277; Sima- novich V. Wood, 145 180. 63. The meaning of the word-i of a written contract, ascertained and declared by the Su- preme Judicial Court when the case was before it on exceptions, cannot be varied by showing, on the subsequent trial, that the parties, at the time of signing, made an oral agreement incon- sistent with such construction. Chemical Electric Light, etc., Co. «. Howard, 150 495. VIII. DoCtJMBNTABT BtIDENCE. 64. A map of the towns and counties of the Commonwealth, published by authority of the legislature, is admissible in evidence as tending to show the boundaries of a town. Comm. V. King, 150 221. 65. On the trial of a liquor nuisance case in the superior court on appeal, the date of t e trial in the district court, as shown by the rec- ord of that court, is Ijef ore the jury, though such record is not formally laid before them as a dis- tinct piece of evidence. Comm. 1). Lane, 151 356. 66. A book of original entries kept by one unable to write, and in which the only entries are mark.', is admissible in evidence, when sup- ported by his suppletory oath. Miller v. Shay, 145 162. 67. But not to prove to whom credit was given, where the fact is in issue. Kaiser «. Alexander, 144 71. 68. If goods are delivered by a servant, and his entries or marks are transferred (o the mas- ter's account book, the servant is a competent and necessary witness to support the charges and to prove the delivery. Miller v. Shay, 145 162. IX. Evidence as to paktictjlar subjects. (1.) Character; repntation. 69. On the question whether a sale was abso- lute and on credit or conditional, it may be shown that the buyer's reputation for financial ability was poor. Buswell Trimmer Co. ». Case, 144 350. (2.) Handwriting, 70. Where, on the question whether A signed a certain paper, a witness testifies that he 48 EVIDENCE, IX, (2), (3)- EXCEPTION, I, (1), (2); II. thinks the signature to be A's, but cannot swear that it is, and an admitted signature is sub- mitted as a standard of comparison, there is enough to go to the jury. Comm. V. Andrews, 143 23. (3.) Value. 71. On the question of the value of the real estate taken for a public improvement, evidence of sales of similar estates in the neighborhood is competent. Roberts «. Boston, 149 346. 73. But it may not be shown that the pur- chaser of one of such estates would have paid more or was oifered more. Roberts i>. Boston, 149 346. 78. Nor may he be asked, on re-examinatlon, his purpose and motive in making the pur- ' Roberts «. Boston, 149 346. Exception. I. Whekb and how maintainable. (1.) In general. (2.) Petition to establish its truth. II. Whebb it dobs not lib. III. Bill of excbptions. IV. Pmactice; phocbbdings; judgment. [See, ! iBo, Amendment, 4; Deposition, 1; Evi- dence; Trial.] I. Wheke and how maintainable. (1.) In general, 1. Under Pub. St., ch. 153, § 8, a ruling of the superior court, sustaining a demurrer to a declaration and ordering judgment for the de- fendant, may be revised by exceptions, not by appeal. McCallum v. Lambie, 145 234. 2. The refusal of a justice of the Supreme judicial court, on a probate appeal, to allow an amendment to an issue framed for a jury, cannot be revised by exceptions, but only by appeal. Ogden V. Greenleaf, 143 349. 3. Exceptions lie to a decree ordering an ex- ecution for the payment of alimony. Brigham i). Brigham, 147 159. 4. "Where, before argument, counsel requests certain rulings and states a wish to except if they are not given, and the court proceeds to charge the jury, saying to counsel that he can call attention afterward to the ruling to which he wishes to except, and nothing is said after- ward, no exceptions are properly saved. Boutelle v. Dean, 148 89. 5. Where, after a charge, counsel objects to certain qualifications, and the court expresses the opinion that the language used is not incon- sistent with that requested, and says that, in addition, the ruling orally requested Is given and in the language of counsel, and nothing further is said by counsel, an exception is not properly saved. McCart v. Squire, 150 484. (2.) Petition to establlsli Its trntb. 6. Under a rule of court requiring a petition to prove exceptions to be "verified by affi- davit," an affidavit purporting to be founded on knowledge, information and belief, is in- sufficient. Hadley v. Watson, 143 27. 7. After the filing of the report of a commis- sioner, to whom a petition to prove the truth of exceptions has been refarred, it is too late to object that the petition is not verified in accor- dance with the rule of court. Kaiser «. Alexander, 144 71. 8. On a petition proved to exceptions, the court may recommit the commissioner's report, in order that he may report the evidence, though the party moving did not request this at the hearing before the commissioner. Kaiser v. Alexander, 144 71. II. Where it does not lib. 9. Where it is apparent from the verdict that the defendant could not have been harmed by a certain answer of a witness on the question of damages, no ground for exception appears. Leonard v. Fitchburg Railroad, 143 307. 10. It being apparent, from the instructions, the findings, and the bill of exceptions, that the jury could not have been misled by a question put to them and not objected to at the time, no ground of exception appears. Corcoran v. Batchelder, 147 541. 11. A remark made by the court to counsel during argument, which, while stating the law inaccurately, could not, in view of the instruc- tions, taken as a whole, have misled the jury, affords no ground for exceptirn. Parker «. Springfield, 147 391. 12. It is not ground for exception that cor- rect and appropriate instructions are not given in the language requested. Deerfield v. Connecticut River Railroad, 144 325; Parker v. Springfield, 147 891. 18. Exceptions to a question to a witness can- not be considered if it does not appeared how the question was answered. Cecconi®. RoMen, 147 164; Comm. ■». Chancy, 148 6; Francis v. Rose, 151 532. 14. It is not ground of exception that the court refuses to rule upon the effect of a part of the evidence when isolated from the rest, Comm. V. Gavin, 148 449. 15. Unless the admission of incompetent evi- dence on a conceded point tends to prejudice its admission is not ground for exception. Hinckley », Somerset, 145 336. EXCEPTION, IL 49 16. The exclusion of a certain question on crosB-examination affords no ground of except- ion if, at a later stage of the trial, opportunity is afforded to cross-examine on ihe point. Oberlander v. Carstens, 151 18. 17. "Where an attempt, on the trial of an in- dictment, to follow up an inquiry to a witness regarding declarations of the accused becomes immaterial because not pursued to the neces- sary conclusion, and where there is nothing to show that the answers of .the witness were treated as evidence of admissions or even as evidence to discredit the witness, there is noth- ing on which to found exceptions. Comm. V. Brown, 150 330. 18. Where a lessor sued a lessee, who set up an eviction, and the court refused to strike from the auditor's report that relating to the eviction, and, against objection, admitted evi- dence on the issue and then ruled that the eviction did not affect the case, and where, notwithstanding, the auditor's report went to the jury without objection and without special attention being called to it, it was held that the lessor had no ground for exception, Anthony v. Travis, 148 53. 19. Where, on the trial of a liquor nuisance case the evidence of sales is direct, it is not ground for exception that the court, in the course of the charge, says that, if the testimony of these witnesses can be explained on any other theory, consistent with the innocence of the ac- cused, then that the witnesses have committed perjury, it is the duty of the jury to do so and that the question is left to them. Comm. V. Houle, 147 380. 20. Where, in a liquor nuisance case, there is evidence of a seizure and a subsequent re- turn, the ruling of the court, after the charge has been given, that the fact of the return is to • be disregarded, because the record is not in evidence, is prejudicial if the seizure is not alluded to. Comm. V. Whalen, 147 876. 31. Where the jury find that a codicil was induced by fraud or undue influence it is im- material that the court refused to charge that they might reject part of the codicil and estab- lish the rest. Ogden V. Greenleaf, 143 349. 22. Where, in an action for false representa- tions in a prospectus, the judge, trying the case without a jury, excludes evidence of the falsity of statements other than those specially referred to, the error, if error there is, is cured by a special finding that the plaintiff did not rely on the statements of fact contained in the prospec- tus, the f nding rendering the ruling immaterial. Gilfillan ». Mawhinney, 149 264. _ 23. Where, in an action for use and occupa- tion, the jury found that one of the defendants was not the plaintiff's debtor, either severally or jointly, it was held that the refusal of the court to give a certain instruction which, were the finding otherwise, might be material, was not ground of exception. Gardner «. Peaslee, 143 382. 34. No exception lies to the allowance of an amendment of the denial of the signature to a written instrument. Ham ». Kerwin, 146 378. Vol. in— 7 25. No exception lies to the exercise of the discretion of the superior court in granting a review of a judgment rendered by default on scire facias against one charged as trustee in a trustee process. New England Mut. Accident Assoc, v. Varian, 151 17. 26. Whether, on a criminal trial, counsel shall be refused leave to read to the jury pro- visions of the statutes other than those govern- ing the offense charged, and compelled to state them orally, if at all, is a matter within the descretion of the court, to the exercise of which no exception lies. Comm. 'V. Hill, 145 305. 27. If evidence is objected to and excluded, whereupon an exception is taken, and the ob- jection is then withdrawn and the evidence ad- mitted for this reason, the exception falls to the ground, though the exceptor refuses to put in the evidence. Roberts v. Boston, 149 346. 28. A general exception to the whole charge on one branch of the case cannot be sustained, no request for rulings having been made and there being no specifications of objections. Dwyer v. Puller, 144 420. 29. A general exception to a charge is irreg- ular and cannot be sustained. Hunting «. Downer, 151 275. 30. A general objection to evidence of a con- versation will not support an exception on the ground that a particular part of the conversa- tion should have been ruled out. Comm. V. Quinn, 150 401. , 31. If an objection to testimony was general, an exception to its admission on a technical ground not specified at the trial and which might have been removed, wiU not be sus- tained. New Hampshire Kre Ins. Co. v. HeaJev. 151 537. 32. An exception to part of a charge to a jury may be general without being bad if it is ap- parent that the judge and adverse counsel must have well understood what was meant. Adams ». Chicopee, 147 440. 33. It is not ground for exception that a judge, in assessing damages, declines to state specifically the facts considered by him, no re- quest for rulings on the subject being made at the trial. Chatham Furnace Co. v. Moffatt, 147 403. 34. Where, on a criminal trial, the accused, after the Commonwealth's evidence is in, con- sents to a verdict of guilty, he cannot sustain an exception founded on the action of the court in withdrawing from the jury evidence which, on reflection, the court deemed should not be considered. Comm. V. Ham, 150 122. 35. An exception cannot be founded on a re- fusal to iTile upon the effect of specific testi- mony when there is other evidence relevant to the same point, and the instructions given cover the whole subject. Morley «. Chase, 143 896. 86. Where, on a criminal trial, the defendant agrees that his motion to quajsh shall stand over 50 EXCEPTION", 11, III, IV— EXECUTOE AND ADMINISTEATOE, L to a later stage of the trial, and, after the gov- ernment's case is in, certain of the counts are quashed, but the court refuses to strike out the evidence introduced thereunder, the defendant has no ground of exception if the evidence was admissible under the remaining counts. Comm. V. White, 14=5 392. 37. Exceptions are not necessarily waived by filing and arguing a motion for a new trial on the same grounds. Anthony ®. Travis, 148 53. III. !^L OF Exceptions. 38. The question of law whether, under cer- tain circumstances, the court had aright to allow exceptions, may be presented by a separ- ate bill of exceptions. Purcell v. Boston, Halifax, etc.. Steam- ship Line, 151 158. 39. Where a question is ruled out an excep- tion should show what reply was expected or what was to be proved. Crowley «. Appleton, 14:8 98. IV.' Pkactiob; Peoobbdings; Judgment. 40. An extension of the time within which exceptions may be filed does not dispense with the necessity for notice to the adverse party of the filing. Purcell ■». Boston, Halifax, etc.. Steam- ship Line, 151 158. 41. Where findings of the judge trying the case without a jury cannot be supported by evi- dence appearing in the exceptions, the excep- tions must be sustained. Greeley v. Doran Wright Co., 148 116. 43. Where evidence is excluded on one ground it cannot be argued on the exception that it was competent on other grounds. Hathaway ». Tinkham, 148 85. 43. The superior court, not the supreme judicial court, is to be applied to for an affirm- ance of the decree in a divorce suit, where the exceptions allowed have not been entered. St. 1888, ch. 94, governs the case. Ingalls «!. Ingalls, 150 57. Execution. [See, also, Costs, 2; Fraud, 17; Injunction.] 1. Where one mortgage covers two parcels of land, and the mortgagor conveys each parcel afterward to difEerent persons, and one of these conveyances is nttacked by creditors as fraudu- lent, an execution may be levied on his interest in one parcel only; his separate conveyance constitutes a severance of his interest in the difEerent parcels. North V. Dearborn, 146 17. 2. Where a deputy sheriff has sold land under an execution, and where the deed has been given and recorded, the return may be completed by supplying the signature and re- turning it into court though the deputy sheriff has been dead seven years. St. 1885, ch. 125 § 1, supplies the requisite authority. " ' Firth V. Haskell, 148 501. 8. One attachment, in a wife's proceeding for separate maintenance, wiU support succes- sive executions. Downs V. Flanders, 150 92. 4. Under Pub. St., ch. 173, §46, notice to a judgment debtor of the time and place ap- pointed for the sale of land taken on execution against the debtor is properly served by leaving it at his last and usual place of abode. Croacher «. Oesting, 143 195. 6. Where, under an execution, land was sold and a part of the price paid, but, the purchaser being unable to pay the rest, the levy and sale were treated as a nullity, and ro return was made on the execution, and, after sixty days, the creditor's attorney indorsed upon the execu- tion a certificate that it had never been in the hands of the officer and was unsatisfied, an alias execution is valid. Slater d. Lamb, 150 289. 6. If the purchaser at an auction sale of land seized on execution refuses, after depositing the sum required by the terms of sale, to complete the sale by paying the balance due and accept- ing the deed tendered, the officer, after a new notice, may sell again, under Pub. St., chap. 173, § 4, without making and recording another seizure, if the rights of the third persons have not intervened. Croacher v. Oesting, 143 195. Executor and administrator. 1. GenBRAL EuLBS; DrPPBEBNT KrPTDS OF EXECUTOKS AND ADMINISTRATOBS. II. Appointment; bond; ebmoval. III. Invbntobt; Assets. IV. Real propbkty. V. Rights; liabilities, and bbmbdibs in ADMINISTBKING the ESTATE. VI. Accounting; compensation. [See, also, generally.ABATEMENT; Devise and Be- quest; Heies; Trust. For particular oases relating: to executors and administrators, see Appeal, 1,6; EQUITY Jurisdiction, 17, 21, 24 ; Limitation of Action, 6; Partnership, 4, 5, 6, 7 ; Power, ii Trustee Process, 6.] iJxecutor and administrator. I. General rules; difperbnt kinds of BXBCUTORS and ADMINISTRATORS. 1. After the expiration of the time for ap- pealing from a decree appointing an adminis- trator for the estate of an infant, it is too late to institute an original proceeding to declare the decree void and to vacate the proceedings on ground that the domicil of the infant was in another county. Cummings v. Hodgdon, 147 21. 2. Where a foreign administrator takes pos- session of a yacht which was within the foreip EXECUTOR AND ADMlNISTRATOE, I, 11, III, IV, Y, VL 51 jurisdiction at the time of the death of the in- testate there, and there are no other assets, there is nothing on which to found an administration in this Commonwealth. Martin v. Gage, 147 304. 3. Where an administrator sells real estate under a license, and the proceeds are paid to his counsel, who then is summoned as trustee in an action brought against the administrator on his private debt, and where, subsequently, the ad- ministrator is discharged and an administrator de bonis non appointed, the trustee is entitled to be discharged, and the administrator de bonis non is entitled to the fund. Marvel «. Babbitt, 143 336. 4 A decree of the Probate Court authorizing a distribution within two years is void as to a creditor prosecuting his claim against the estate within the two years; and this, whether the creditor had n':)tice of the decree or not. Brown «. Doolittle, 151 594. 5. If ancillary administration is taken out in this Commonweath and a claim not accruing within two years is presented seasonably, the creditor is entitled, under Pub. St., ch. 136, § 13, to an order for the retention of assets suifi- cient to satisfy the claim. Newell «. Peaslee, 151 601. II. Appointmbnt; bond; removal. 6. An action on an administrator's bond may be defeated by showing the exhaustion of the estate in paying expenses of the last sickness, the funeral, and the administration, though the administrator suffered a judgment before his account was settled. Fuller V. Connelly, 142 337. 7. An executor and residuary legatee, who gives a bond to pay debts and legacies, is liable for a debt if there were assets sufficient to pay all debts except one due to himself. Jenkins v. Wood, 144 388. III. Inventory; Assets. 8. Where a sole devisee is one of the execu- tors, and a farm is occupied by the executors, the devisee assenting, for the benefit of the estate, its products cannot, during such occu- pancy, be attached as the property of the devisee. Brighamt). ElwU, 145 520. rV. Bbal Property. 9. Equity will not, under Pub. St., ch. 142, § 22, confirm an executor's sale of land, made without authority of law, where the plaintiff may maintain an action against the executor on the covenants of the deed, where the legal title is in the widow and children of the testa- tor, and where the improvements made by the plaintifE on the land should not have been made. Francis v. Daley, 150 381. 10. Decree of probate court ordering sale re- versed where, by lapse of lime, the interest of the estate in the laud of which the sale was sought had determined. Caverly i). Eastman, 142 4. V. Rights, Liabilities and Remedies in Administering the Estate. 11. A tax assessed to an executor on the per- sonal estate of the testator may be sued on after two years. The debt is the debt of the executor, not of the testator. Dallinger ®. Davis, 149 62. 13. Wliero the heirs agree that one of their number shall be appointed administrator and manage and receive the rents of the realty, and a tenant at will pays to such administrator rent accruing before and after the death of the in- testate, but makes no contract for occupation, the administrator cannot, as administrator, maintain an action against such tenant for sub- sequent use and occupation; the administrator acts simply as agent for the heirs, who are the parties entitled to sue. Cummings v. Watson, 149 363. 13. Where a will creates a trust and no trus- tee is appointed, but the executor acts as such and makes an investment in corporate stock, he may change the investment five years after his appointment; and, for this purpose, may sell the stock. Jones 1). Atchison, Topeka & Santa Fe Railroad, 150 304. 14. Under Pub. St., ch. 197, § 13, A's ad- ministrator may sue B's administrator on a contract between A and B after two years from the grant of the plaintiff's letters, if the suit is brought within three years from the grant of the defendant's letters; the statute is to be constituted dist;ibutively. Converse v. Johnson, 146 30. 15. Where, though a defendant was des- cribed as administrator, the writ of summons and attachment were against him personally, and the debt was described as due from him to the plaintifE; it was held that the word "ad- ministrator " was descriptio personce only, and that, without an amendment, the action might be maintained against him. Manning i). Osgood, 151 148. 16. Where an administrator, in his represen- tative capacity, petitions for damages due to discontinuing a street, evidence of acts done by him en his own account during the lifetime of the intestate is not competent. Webster v. Lowell, 142 334. 17. On a judgment against an administrator, an execution for costs may go against him per- sonally. And an arrest may follow without special instructions. Gibbs ». Taylor, 143 187. VI. Accounting; Compensation. 18. For an examination of reasons of appeal from a decree of the Probate Court allowing 52 EXECUTOE AND ADMINISTEATOR, VI— FENCE. and disallowing certain items of an administra- tor's account, see Newell 1)- West, 149 530. 19. In the case of a testamentary gift to A. to be disposed of by liim for such, charitable purposes as he shall think proper, if authority is given by the will to the executor to sell the land, and A. is appointed executor, and sells the land, and does nothing further, so far as appears, in the execution of the charitable trust, the amount thus unaccounted for is provable against his estate, after his death, by the ad- ministrator de bonis non of the estate of the original testator; and the burden of proving that the proceeds of the land were expended in charity is on the administrator of A.'s estate. Minot V. Norcross, 143 336. 20. One-half of one per cent, is a suflBcient allowance to an executor for transferring per- sonalty to a special administrator, pending a contest concerning the will ; and no additional compensation should be allowed him for com- puting the amount due on a specific legacy of bonds. May V. Skinner, 149 375. Executory Beyise. [See Devise and Bequbst.] Exemption. [See Taxation.) Expert. [See Evidence.] Extortion. 1. On the trial for an indictment by threaten- ing to charge A with the crime of burning a building unless he should pajr money to the de- fendant it may not be shown in defense that A did burn the building. Neither on the ques- tion of malice is the evidence competent, the building not being owned by the defendant. Oomm. 1). Buckley, 148 37. P. False imprisonment. [See Akbest.] False pretences. [See, also, Conspikaot; Fraud.] 1. If A obtains goods from B by falsely rep- resenting himself to be the owner of certain chattels, which he mortgages to B as security for the price of the goods so obtained, when in fact A does not own the mortgaged chattels, an indictment lies against A for obtaining goods on false pretences. Nor does it matter that B had the means of ascertaining that the chattels mortgaged did not belong to A. Oomm. V. Lee, 149 179. 3. The offence of obtaining money by false pretences may be complete, so as to support an indictment in this Commonwealth, if the rep- resentations are made here and a cashier's draft for the money sent from here by mail or by the defendant's agent, though the money on the draft is received in another state. Comm. «. "Wood, 142 459. 3. One cannot be convicted for falsely repre- senting that certain corporate stock is worth a certain price. Comm. J. "Wood, 142 459. 4. Otherwise, for fal<)ely representing that it was selling at a certain price. Comm. V. "Wood, 142 459. False representations. [See False Pretences; Fraud.] Federal courts. [See Eemovai, of Cause.] Felony. [See Conviction and Sentence; Indictment; and the titles of the different felonies.] Female child; abuse of. [See Kape.] Fence; fence viewers. 1. The provisions of St. 1887, ch. 348, de- claring fences unnecessarily exceeding six feet in height and maintained maliciously, for the purpose of annoying neighbors, to be private nuisances, are constitutional, as applied to cases where the controlling motive is actual malice and the purpose to annoy; and apply both as to future and existing fences. Eideout «. Knox, 148 368; Smith v. Morse, 148 407. 3. Under section 2 of the act aforesaid, giv- ing a right of action to an " owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance," an °^Jfi though not an occupant, may have a right ot action if he shows an actionable mjury, such as diminution of rent or difficulty m getting tenants. Smith D. Morse, 148 407. 3. Though, after the bringing of an action, under the statute aforesaid, for maliciously maintaining a fence unnecessarily exceeding E'ENCB— FORCIBLE ENTRY AND DETAINER. 63 six feet In height, the defendant cuts the fence down from sixteen feet to seven and a half, the court, under its power to abate a private nuisance, where the plaintiff has prevailed, may order an abatement of so much of the fence as still exceeds six feet. Kice 1). Moorehouse, 150 482. Fire; Are district; Are department. 1. Though, under St. 1874, eh. 61, the Bos- ton Protective Department has the right of way in going to a fire, it may be liable for a col- lision chargeable to its negligence. Newcomb v. Boston Protective Depart- ment, 146 596. _ 2. Nor can it be contended that it is a pub- lic charity, and, for that reason, exempt from liability. Newcomb v. Boston Protective Depart- ment, 151 215. Fire insurance. [See Insukance.] Fish; fishing; fishery. [See, also, Flats, 13; Indictment, 14; Police Court, 5. 1. Under St. 1884, ch. 213, § 1, providing that whoever sells or has in his possession a lobster more than ten and one-half inches long, shall forfeit, etc., and that, in all prosecutions^ possession shall be prima facie evidence, a com plaint will lie for having in possession a lobster of less than that length. The statute should be so construed as to permit this. Comm. v. Bark«r, 143 560. 2. A complaint, on P. S., ch. 91, § 37, for unlawfully fishing in a certain pond, and which follows the language of the statute, is not bad and liable to be quashed for want of averments that the pond is a great pond con- taining more than twenty acres, or an artificial pond; or, that the accused were not lawfully engaged in cultivating or maintaining the fish. Comm. V. Eichardson, 142 71. 3. As to what constitutes evidence that the inhabitants of the town were the proprietors or lessees of the pond, see Comm. ■». Eichardson, 142 71. 4. An instrument, purporting to be a lease of the pond from the commissioners of inland fisheries to the inhabitants of the town, is not admissible in evidence without proof of the genuineness of the signatures of the commis- sioners; the certificate of the Secretary of State that the signers were commissioners at the time and that the signatures are genuine, is not such proof and does not aid the case. Comm. 11. Richardson, 142 71 and cement, does not become a part of the realty. Cooper V. Johnson, 143 109. 3. A baker's oven built of bricks and mortar, with an iron door and lining, and so united with the building as to be incapable of separ- ation without destroying the oven and injur- ing the building substantially, is not, as be- tween landlord and tenant, a removable trade fixture. Collamore «. Gillis, 149 578. 3. A brick engine-house and a boiler and steam-engine therein, placed on the leased premises by the tenant, were held removable by him at the end of the term, the engine- house not being an addition to a building already on the land. Smith V. Whitney, 147 479. 4. Where one who has mortgaged his land and factory attaches machinery to the factory and mortgages the machinery as personal prop- erty, a finding of an agreement that the machinery shall remain personalty is justified. Carpenter «. Allen, 150 281. 5. For facts bearing on the question whether, as between mortgagor and mortgagee, certain machinery in a calico printing factory and in a cotton mill was a part of the realty, see Southbridge Savings Bank ». Mason, 147 500; Hopewell Mills v. Taunton Savings Bank, 150 519. Flats. [See Flow AGE.] Flowage. [See Mill aitd Mill Dam; ■Watercourse.] 1. The colony ordinance of 1647, providing that owners of upland adjoining flats "shall have propriety to the low water mark " means extreme low water mark, not ordinary low water mark. Sewall & Day Cordage Co. «. Boston Water Power Co., 147 61. 2. One to whose land tide water had ebbed and flowed over flats not belonging to him and who has had his drainage thus carried oS, can- not found a right of action on the filling up of the flats. There is no invasion of any private right of his. Henry v. Newburyport, 149 583. 3. One may enter unenclosed flats from a boat between high and low water mark and within one hundred rods of the upland, for the purpose of fishing in the sea, and may walk on such fiats and fi?h from them without incurr- ing liability to their owner. Packard ». Ryder, 144 440. Fixture. 1. An iron boiler, placed by the tenant at will in the building on a foundation of bricks Foot way. [See Highway; Kailboad.] Forcible entry and detainer. [See Landlord and Tenant.] 64 FOEECLOSURB— FORMEIi ADJUDICATION, I, IL Foreclosure. ISee Chattel Mobioagb; Coi. Mofflatt, 147 403. 5. When the seller of carpeting laid in a house knowingly and falsely represents the quantity to be about nine hundred yards, when it is but six hundred, the buyer, induced by such false statement to purchase, may main- tain an action of tort for false and fraudulent representations. Lewis «). Jewell, 151 345. 6. Where, in a suit in equity, it appeared that the plaintiff lent money to a married woman on her husband's assurance that she would not mortgage her land, and where, not- withstanding, she conveyed it for the benefit of her husband's creditors, and to prevent the plaintiff from subjecting it in satisfaction of his claim, it was held that he was entitled to relief. Washburn «. Hammond, 151 132. 7. If A gets money from B, by falsely repre- senting himself to be the owner of a tract of land, it is not necessarily a defense to B's action for false and fraudulent representations, that A, after the representations were made, bought the land for two-fifths cash and the rest on mortgage. Reeve v. Dennett, 145 23. 8. In an action for breach of a written con- tract assigned by the plaintiff to the defendant, it is not a defense that the plaintiff fraudulently promised orally to procure the making of cer- tain changes in the contract. Knowlton v. Keenan, 146 86. 9. For a declaration in an action of tort for false representations which, though open to criticism, was held sufficiently to import an allegation of material representations and of the plaintiff's belief in them, to his damage, to wit)hstand a demurrer not pointing out a spe- cific defect, see Windram ®. French, 151 547. 10. In an action for deceit on the plaintiff's part in letting to the defendant a house in which there had been diphtheria, it was held, on an examination of the evidence, that there was enough to go to the jury on, and that the question of contributory negligence was also for the jury. Cutter V. Hamlen, 147 471. II. CONTBTANOE OB THANSPER TO CBFEATID. 11. Though a levy of an execution on land is known or believed by the debtor to be void, and though the judgment is satisfied of record, the debtor majr make a conveyance which will be set aside as in fraud of creditors. Plimpton v. Goodell, 143 365. 12. Whether a voluntary conveyance by a debtor for the benefit of his children is fraudu- 56 iliAUD, II, III— GUARANTY. lent and void as to existing creditors is a ques- tion of fact, not of law. Cook V. Holbrook, 146 66. 13. K a father makes a deed of real estate to his son in good faith, and without any intent to defraud creditors, it is not conclusive evi- dence of fraud, sufficient to avoid the deed, that the son permits the father to occupy the premises in any way to his benefit. Chase v. Horton, 143 118. 14. For an examination of instructions given and refused in an action where a judgment creditor of a husband sought by writ of entry, to search land conveyed by the husband to a third person and by the latter to the wife, fraud being charged, see Rawson D. Plaisted, 151 71. 15. Where, on the question whether an heir- at-law, an elderly woman, was of sufficient mental capacity to bind herself by an assign- ment under seal of her interest to the adminis- trator, and whether the assignment should be set aside, no active fraud appeared and no strictly written shortly before and after the assignment, fiduciary relationship, and where her letters, showed intelligence and an understanding of the transaction, it was held that a decree dismiss- ing her petition should be affirmed, though there was evidence tending to support her case. Hodgdon ». Cummings, 151 293. 16. For evidence requiring a submission to the jury of the question whether a conveyance was made with intent to defraud creditors, see Plimpton V. Goodell, 143 365. III. Remedies. 17. Under Pub. St., eh. 172, § 49, one pur- chasing land at an execution sale must not only bring an action against a fraudulent grantee in whose name the title stands within a year, but must prosecute the action with effect; an entry of " Neither party," cuts ofE his rights under the levy. CunnUGE «. Parker, 149 152. Frauds, statute of. [See Statctb of Fkauds.1 Fraudulent conveyance. [See Fbaud.J Fraudulent representations. [See Palsb Pretences; Fraiid.] G. Gaming. [;^ee BEiTiNa and Gaming; Indictment, 17.] Garnishment. [See Tbustbb PROCEsa] General court. [See CoNSTiTUTiONAi, Law, 5, 6.] Gift. [See, also, Devise and iHQS Bank, 3. Bequest, Fkaud; Sav- 1. "Where A deposited money in a savings bank in in his own name, but as " trustee for B," and spoke to B of the deposit that "I put in for you," and said " that money is yours," it was held that there was enough to support a finding of a perfected gift from to A 1o B. Alger V. North End Savings Bank, 146 418. 3. Where one, two days before his death, when asked what should be done in case of his death, says: "Do as you please with what I have," there is no gift catisa mortis, there being no further evidence of delivery. Fearing «. Jones, 149 12. Grand jury. 1. An indictment is not rendered invalid by the fact that the town had ordered the name of one of the grand jury stricken from the list, no other disqualification appearing. Comm V. Brown, 147 585. 2. Where a town and county are territorially the same, inhabitantants thereof are not neces- sarily disqualified to serve as grand jurors or traverse jurors in relation to an indictment for forging vouchers for payments by the town and county. Comm. ■». Brown, 147 585. 3. Fjvidence disclosing what took place be- fore the grand jury is not objectionable if the time when secrecy was important has New Hampshire Fire Ins. Co. ■». Healey, 151 537. Great pond. [See Fish; Pobd.] Guaranty; indemnity. [See, also, Bilm of Exchange; Bond; Collat- BRAi, SBoimiTy; Statute of Fbafds, 5; Subeit.] GUARANTY— HEIES. 57 1. For a correspondence constituting a con- tinuing guaranty, see Dover Stamping Co. v. Noyes, 151 343. 3. Where B offered to make a purchase of A for C's use, and the price could not be agreed upon, and afterward, in B's absence, C took the property on paying to A an excess on the price offered by B, it was held that B was not cliargeable with the amount of his offer, under a previous arrangement whereby he was to lend his credit to C. for a commission. Patton V. Taft, 143 140. 3. Where a religious society gave a first mort- gage and a second mortgage on its laud, and the interest was guaranteed by several persons, who declared the liability of each to be, not joint, but several, for one-sixth of the amount of the interest, and where, after the maturity of the notes and a breach of the condition of the first mortgage, the first mortgagee covenanted with the second mortgagee, in consideration of a cash payment by him and a guaranty for the payment of certain interest upon the first mort- gage note until a certain date, not to foreclose the first mortgage before that date without the written consent of the latter, and not to indorse any payment made upon that note so as to op- erate as a payment of principal or interest there- on, and to permit liim, at his sole expense, but in the name and for the benefit of the first mortgagee, to collect that note and to sell the first mortgage and note to him upon certain terms, with a proviso that, if such note was not paid or bought by the second mortgagee by that date, he was to forfeit all sums already paid by him to the first mortgagee, who, upon receiving from any source more than a certain sum, was to pay over the excess to such second mort- gagee, it was held, that the guarantors were not discharged by this arrangement, and that they were liable in separate actions. French «. Bates, 149 73. 4. A guaranty of payment for goods to be sold is revoked by the guarantor's death; and, if a mortgage is given to secure the guaranty, there may be a redemption on payment for that which is due up to the time of the guarantor's death. Hyland «. Habioh, 150 113. Guardian and ward. 1. A guardian's sale of laud under a license of the probate court, void by reason of a de- fective notice, may be confirmed by a proceed- ing in equity under Pub. St., ch. 143, § 33, though made before the enactment. Nott». Sampson Manuf. Co., 142 479. 3. Where the guardian of an insane person, authorized by the court to build a stable for his ward at an expense not exceeding a certain sum , goes beyond that sum, the excess may be allowed him in his account, if it was reasonable and useful to the ward. May V. akinner, 149 375. 3. Where the wife of a spendthrift under guardianship institutes a proceeding for separ- ate maintainance, a decree cannot be made by the probate court against the guardian, who is not a party to the proceedings, although he was notified of them and appeared. Kavanaugh v. Kavanaugh, 146 40. 4. Delay on the part of the mother and guar- dian of infants in attempting to avoid a trans- action whereby an executor has profited person- ally does not conclude the infants. Denholm ». McKay, 148 435. 5. A ward, after coming of age, is not entit- led to prove, against the estate in insolvency of his guardian, a claim for the property which come into the hands of the guardian, until the latter has settled his account in the probate court, or until a judgment has' been obtained upon his bond. Murray ■». Wood, 144 195. 6. To an action by an infant ward, after he becomes of age, to recover land sold by his guardian under a license of which proper notice was not given, it is an equitable defence that the sale was in good faith and for full value, that expensive improvements were made in good faith by the purchaser, that the guardian charged himself with the proceeds of the sale, and that the ward, after coming of age, prose- cuted an action on the guardian's bond. Nott v. Sampson Manufacturing Co., 142 479. 7. The assignment of a spendthrift is not in- valid though a guardian has been appointed for him by. the probate court and the decree has not been revoked, if the appointee did not accept the office; and certainly should not be held invalid nine years after the appointment and after the spendthrift's death. O'Donnell v. Smith, 142 505. 8. The appointment of a guardian for a spendthrift after he has entered into a binding contract for the purchase of goods, does not affect his liability for the price, though the goods were delivered after the appointment. Myeri). Tighe, 151 354. H. Habeas corpus. 1. A writ of habeas corpus cannot be made to perform the functions of a writ of error in procuring the release of one sentenced irregu- larly but in proceedings within the jurisdiction of the court. Sennott's Case, 146 489. YoL. ni— 8 Health. [See BoAnD or Heai/dh ; Nuisakob.] Heirs. [See, also, Descent VISE, 13 ] AND Distbibution; Db- 58 HEIES-HIGHWAY, I, II, IH, (1), (2), (3). 1. If a son, after executing to his parent a bond for support, dies, and liis administrator and tlie parents' administrator are the same person, and the condition of the bond has not been performed, the administrator may sue the bond, and maintain an action against the heir, under Pub. St., ch. 136, authorizing an action against an heir for a debt not recoverable from tlie administrator. Therefore a suit in equity is not necessary. Clark ». Holbrook, 146 366. Highway, I. Qenebal Eulbs. II. Highway by Dedication oe Peescbip- TION. III. Statutory peoceedihgs to lay out, ALTER, OR DISCONTINUE A "WAY. (1.) Laying out the way. (2.) Altering or relocating. (3.) Discontinuing. IV. Damages; Expenses; Benefits; Better MBNT8. V. Construction; Repairs; Obstructions. VI. Action agalnst a city or town eob AN injury FBOM DEFECT. (1.) Nature and cause of the defect. (3.) Notice of the injury required by statute. (3.) Proceedings; evidence; instructions. VII. PowEES, Duties, and Liabilities op a Sdrvbtor op Highways. [See, also, I,ani> Owneb, 8; Eailroad, 12; Tree, 1; Witness, 15, 16. As to private rights of way, see Easement; and see Town and City.] I. General Rules. II. Highway by Dedication or Prescrip- tion. 1. Since the enactment of St., 1846, ch. 203 § 1, (Pub. St., ch. 49, § 94), a public highway or townway cannot be created by dedication alone. There must be a laying out or estab- lishment as prescribed by law; and this rule may be invoked in a suit in equity to prevent the removal of a fence across the way. Guild ». Shedd, 150 355. III. Statutory proceedings to lay out, ALTER, or discontinue A WAY. (1.) liaylng out tlie -way, 3. Under Pub. St., ch. 49, § 71, it is not nec- essary that the report to the town of the laying out of a town way be filed seven days before the meeting of the selectmen; all that is required is that the laying out be filed in the town clerk's office within seven days. Carr V. Berkley, 145 539. 8. The laying out of a town way may be valid though one course is given as "4140 east " instead of "N. 41i° east," there being no ambiguity in the whole description. Carr «. Berkley, 145 539. (2.) Altering op relocating, 4. Though an order of the county comtnis- sioners, in a proceeding for the relocation of a way, does not in terms impose upon a city the duty of paying land damages, it may be so con- strued in the light of the surrounding circum' stances. Brigham v. Worcester County, 147 446. 5. The mere placing of stone bounds on the line of a county road as located, nothing further being done for two years, is not a taking of possession, within St. 1869, ch. 303, § 1, such as to prevent a recovery upon a subsequent re- location. Parker v. Norfolk County, 150 489. 6. It is not open to a petitioner for a jury to assess damages caused by the relocation of a way to object that proper notice of the reloca- tion was not given to him, the remedy being by an action of tort or by certiorari. Murray v. Norfolk County. 149 328. 7. Where the owner of a strip of land taken for the relocation of a highway is permitted by the commissioners to remove property from the strip within a certain time, and, after the expira- tion of such time, a hedge and trees are cut down and a fence and wall forming a single structure are removed, the owner, on a petition for the assessment of damages, is entitled to re- cover the value of the fence and wall, but not fo the hedge or trees, his right to the latter being relinquished, within Pub. St., ch. 49, §§ 9> 51. Murray D. Norfolk County, 149 338. And see White «. Poxborough, 151 28. 8. In the case of a town way he is entitled to notice. In the absence of a suificient notice he cannot be deemed to have relinquished his right. White ». Poxborough, 151 38. 9. If, without sufficient notice, his trees and wall are destroyed or used in making the im- provement, he is entitled to their value on a petition to assess damages. White «. Poxborough, 151 38. 10. For an examination of instructions given and refused in such a case, see White «. Poxborough, 151 38. 11. The legislature has power, by confirming a town vote, to cure a technical defect in the alteration of a way. Spaulding v. Nourse, 143 490. (3.) Discontinnlng, 13. The power of a town, under Pub. St„ ch. 49, § 66, to " discontinue any townway," does not include the power to change the line of an HtGilWAY, III, (3); IV, V. 59 existing way by discontinuing a portion along one side of it. Lincoln «. Warren, 160 309. 13. One over whose land a waj is located, under Pub. St., cb. 49, § 88, is entitled to full damages, though a portion of the way on his land is discontinued before construction. An entry on part of the land for purposes of con- struction of part of the way is equivalent to a taking possession of all the land included in the laying out under ths petition. "Wheeler v. Fitchburg, 150 350. 14. For an examination of evidence and in- structions on a petition for damages to an estate by the discontinuance of a portion of the -city street on which the estate abutted, see Webster «. Lowell, 142 336. 15. Where a petition prays for an alteration of a piece of road and nothing in the petition or adjudication suggests the contemplation of any- tliing further than the substitution of a new piece of road for an old one, an indictment will not lie for obstructing the old piece of the road; its discontinuance is sufficiently shown. Comm. !). Boston & Albany Railroad. 150 174. IV. Damages; Expenses; Benefits; Bet- terments. 16. The question whether a petition under Pub. St., ch. 49 for the assessmeut of damages for land taken for a highway should be under § 18 or I 20, et seq., cannot be raised by a mo- tion to diamiss a petition brought under sec- tion 18. Willard^. Boston, 149 176. 17. A petition, under Pub. St., ch. 53, § 15, to town selectmen for compensation for damages caused by a highway surveyor in repairing a way, though imperfect and informal, will be deemed to meet the requirements of the statute, if everything necessary appears by averment or implication and if the inaccuracies could not have misled. Allen «. Gardner, 147 453. 18. Asunder Pub. St., ch. 49, §§ 32, 105, the remedy of one aggrieved by having his land taken for a slreet is by the petition pro- vided for, and as the petition must be filed within a year, and as an action of tort against the city will not lie, it follows that, if an action of tort is brought, an amendment, changing the action into the statutory proceeding, may not be allowed after a year. Peterson v. Waltham, 150 564. 19. One seeking damages for laying out a street cannot recover, as a substantive and in- depedent ground of damages, one-half the cost of a sidewalk constructed after the bringing of his petition. Gushing v. Boston, 144 317. 20._ Damages, where land is taken for im- proving and widening a way, are based on the value of the land irrespective of the widening, and not on the enhanced value of the land due to the improvement. Benton D. Brookline, 151 250. 21. The expense of the removal of buildings may be an element of damage; and evidence of the actual and reasonable cost of removal may be competent. Benton t). Brookline, 151 350. 33. Though a special act authorizing a street extension contains no express reference to Pub. St. , ch. 49, the provisions of that chapter are applicable on the question of costs on a peti- tion for damages, where, by necessary implica- tion, they apply. Hamlin v. New Bedford, 143 193. 33. Where, on the question of damages from the widening of a town way, the town seeks to set off the benefit alleged to result from the taking of a strip of land on the opposite side of the way, the petitioner may show that the pub- lic had used such strip for twenty years and had acquired a prescriptive right. White 1). Foxborough, 151 28. 34. In an action to recover back a betterment tax paid under protest for street improvements, the orders of the city council cannot be im- iseached for defects in the notices preceding them; such defects should be reached by cer- tiorari. Foley «. Haverhill, 144 352. 35. For an examination of objections to the validity of the assessment, see Foley 1). Haverhill, 144 853. 26. Where damages for taking land for Vidd- cning a way are assessed under the betterment act (Pub. St., ch. 51), special benefits due to the widening may not be set off against dam- ages, but under section 1, are assessable separ- ately; and evidence of such benefits is incompe- tent. Benton ■!). Brookline, 151 350. V. CoNSTKtrcTioN; Eepairs; Obstructions. 37. Where a natural watercourse, having its source, body, and outlet in a highway, is di- verted by the surveyor of highways into a ditch opened by the surveyor along the side of the highway, the adjoining land-owner, though he owns the fee to the centre of the highway, can- not maintain a suit in equity as for the abate- ment of a nuisance and for damages; the rem- edy is by proceeding under Pub. St., ch. 53, §§ 15, 16, for compensation. Nealley v. Bradford, 145 560. 38. A town is not liable for damage done by the percolation of water through the soil into a cellar from a catch-basin within the highway limits to which it has been conducted in pursu- ance of a scheme for keeping the highways in repair. Kennison v. Beverly, 146 467. 29. A city is not liable for damage done by surface water which, after overflowing open gutters, reaches land separated from a street by intervening land, the streets and the land being at substantially the same grade. Collins «. Waltham, 151 196. 30. As, under Pub. St., ch. 50, § 33, the city of Boston has power to construct such side- walks " as the public convenience mayrequire," 60 HIGHWAY, V, Vi, (1> it has power to remove them; and this power may be exercised by the board of aldermen. Attorney-General ». Boston, 143 200. 31. An abutter on a passage way has not the right, without being required by the mayor and aldermen, to build a sidewalk. Another abutter whose use of the passage way is disturbed by such sidewalk may procure its removal by a suit in equity. Nute «. Boston Co-operative Building Co., 149 465. 33. A municipal order directing granite curb- ings to be laid on the side of a street is not an order for specific repairs, within Pub. St., ch. 49, § 6o, so far as lowering the grade of the street while doing the work is concerned; the remedy is not under ch. 49, but under ch. 52, §15. Sullivan v. Fall River, 144 579. 33. The requirement of Pub. St., ch. 49, § 79, that the application of one aggrieved by specific repairs on a way must be made within a year, is not affected by the provisions of § 89, which do not include the case of specific re- pairs. Keith V. Brockton, 147 618. 34. A license to place a gate on a public road does not confer authority to keep the gate locked and keep the key. Comm. v. Carr, 143 84. 85. On the trial of an indictment for obstruct- ing a pubUc way, direct evidence that the lay- ing out of the way was duly filed in the town clerk's office is unnecessary; this may be in- ferred from the action of the selectmen and the town. Comm. V. Carr, 143 84. 36. Neither the selectmen of a town nor its highway surveyors have power, without a vote of the town, to make a contract for the con- struction of a way ordered by the county com- missioners, and to pledge the credit of the town therefor; and a vote of the town appropriating a certain sum ' ' for highways " does not confer such authority. Bean v. Hyde Park, 143 245. VI. Action Against a Citt ok Town fok AN Injury pkom Defect. (1.) Natnre and cause of the defect, 37. A wall two feet high on the side of a hig;hway may constitute a defect if, by reason of its insufficient height, it does not serve as a barrier when a horse runs against it. Hinckley i). Somerset, 145 33B. 38. A derrick standing in a highway for use in repairing a culvert is not a defect in the highway, within Pub. St., ch. 52, § 18, for which the town may he made chargeable in case of accident. Pi-att ». Weymouth, 147 245. 39. Where a horse runs away, enters a city street at right angles to it, crosses the street, and goes down a bank, the fact that the bank is without a railing does not make the city liable. Higgins V. Boston, 148 484. 40. One who drives against a hitching-post on the sidewalk has not a right of action against the city. Arey v. Newton, 148 598. 41. Smooth ice may constitute a defect in a sidewalk for which the town will be liable if it forms upon a hollow or basin in the sidewalk. Adams v. Chicopee, 147 440. 42. A rotten plank in a sidewalk, several feet from a railroad track, but within the railroad location, is a defect for which the town may be chargeable to one injured thereby, if the town could have remedied the defect without inter- fering with the rights or duties of the railroad company. Noyes v. Gardner, 147 505. 43. If, on a dark night, a careful driver turns to the left to avoid a defect on the right of the highway, and thus comes into collision with an approaching team, he is not precluded from a recovery against the town. The defect may be deemed the sole cause of the accident. Flagg V. Hudson, 142 280. 44. A city, which has failed to erect a har- rier between a sidewalk and a piece of level ground lying between the sidewalk and a con- verging street, is not liable to one who, while crossing this piece of land, slips upon smooth ice covered wiih snow; this is not a defect such as the city is bound to guard against. Damon v. Boston, 149 147. 45. Where, in an action against a town, it cannot be determined whether the personal in- jury upon which the action is founded was at- tributable to the defect in the highway or to the defect in a hrace of the plaintiff's vehicle, from which he was thrown, he cannot recttver. Un- der Pub. St, , ch. 53, § 18, the injury must be due solely to the defect in the highway. Horrigan v. Clarksburg 150 218. 46. A coal hole cover so rounded underneath that it will tip if stepped upon constitutes a de- fect in a sidewalk for which the city may be charged at the suit of one injured by its tipping. McGafflgan ®. Boston, 149 389. 47. Prom the fact that, in a much used public square in a city, the cover of a sewer man-hole was open a little, so that, when a horse stepped upon it, an accident happened, a cause of action cannot arise. Whitney ». Lowell, 151 212. 48. Nor can notice to the city be presumed from the fact that, two or three days before, men were seen cleaning the sewer through the man-hole. Whitney «. Lowell, 151 212. 49. It cannot be said, as matter of law, that it is negligence on the part of the parents of a child two years old, to send it into the street for air and exercise in charge of its brother eight years old; pnd. in case of an injury to the younger child through a defect in the street, it is competent for the" jury to find that the chil- dren were travelers. Bliss «, South Hadley, 145 91. 50. It cannot be ruled, as matter of law, that one driving a blind horse on a dark night cannot maintain an action against a town for an injury occasioned by a defect in the highway. Brackenridge v. Fitchburg, 145 160. HIGHWAY, VI, (2), (3). 61 . Brown, 142 403. 2. Equity will entertain a suit to compel a life insurance company to account to the holder of a paid-up tontine policy. The intricacy of the account gives jurisdiction. Pierce v. Equitable Life Assurance Soc. 146 56. * 3. And, though the company is a foreign company, the suit may be entertained, the com- pany having appeared and answered and not objected to the jurisdiction until the hearing. Pierce «. Equitable Life Assurance Boc. 145 56. 4. To a suit in equity by the holder of a paid-up tontine policy to compel the company to account, other policy-holders need not be joined ; the status of the plaintifE is that of a creditor, lot a member, of the corporation. Pierce ». Equitable Life Assurance Soc. 145 56. 5. For a case where a decree dismissing the bill in equity of a policyholder in a mutual fire insurance company against the company for a part of the surplus assets was warranted under the pleadings, see Rankin v. Pitchburg Mut. Eire Ins. Co., 150 55. Interest. [See, also, Bell of Exchakgb, 2; Devise ahd Bequest; Mortgage, 17.1 1. One who wrongfully receives and fraudu- lently retains money may be charged, in an action for money had and received, with interest. Mnnufacturers' Nat. Bank v. Perry 144 313. Intoxicating liquors. I. The Statutes. n. Statutoky Peohibitions. III. License. rv. Civn, Action. V. Criminal Pbosecution. (1.) General principles. (2.) Evidence. ('.) Keeping with intent to sell; keeping tenement for unlawful sales. VI. Seabch; Forfeitukb; Seizuke. [A3 to the indictment or oomplalQt, see Indict- ment. For casrs analogous to those under thta title, see NtnSAHCE. For particular cases and rul- ings, see, also, (.'onvigtion and Sentence, 4; For- mer Adjudication, 3, i; Joint Liability, 4; Trial, 9.] I. The Statutes. II. Statutoky Prohibitions. 1. Though the sale to a minor is made for the use of an adult, and this is disclosed at the time, there is a violation of Pub. St., cli. 100, § 9, cl. 4. Comm. B. O'Leary, 143 95. 3. An unlawful sale of liquor to a minor by a bartender is not, prima facia, a sale by the employer of the bartender. Comm. J). Briant, 142 463; Comm. v. Stevenson, 142 466. 3. For evidence tending to show that, and instructions bearing on the question whether, sales of liquor were made to a minor with the consent of the master of the servant who made the sales, see Comm. V. Eooks, 150 59. 4. For instructions, relating to sales by a ser- vant, deemed objectionable as perhaps author- izing the jury to infer that it was for the de- fendant to show clearly that the sales were made without his knowledge and against his will, instead of leaving the question one of fact, with the burden of proof upon the government, see Comm. V. Hayes, 145 289. 5. It is immaterial, on the question of the guilt of one who sells liquor to an intoxicated person, whether the fact of the intoxication was known or not. Comm. V. Julius, 143 132. 6. Proof that the accused lent liquor on Sunday, on a promise to replace it the next day, will support a complaint for an unlawful sale. Comm. ®. Abrams, 150 393. 7. For evidence sufficient to warrant a con- viction of selling liquor unlawfully on the Lord's day, see Comm. «. Molter, 142 533. III. License. 8. Where one whose license authorizes him to sell only at his shop, permits his driver to deliver from a wagon to regular customers under orders then and there given to the dnver such sales are unlawful, and will not support an action for the price. Murphy «. McNulty, 145 464. 9. One cannot justify sales under a license dated before but issued after, the bond not hav- INTOXICATING LIQUORS, III, IV, V, (1). 73 ing been filed nor the fee paid until after the sales. Comm. V. Welch, 144 856. 10. Kor where the board of aldermen voted that no license should be granted except with the consent of six members, and four only voted to grant the license in question, which moreover, was refused on the tender of the bond and fee. Comm. V. Moran, 148 453. _ 11. Under St. 1888, ch. 340, proportioning liquor licenses to population, and providing that "any license granted contrary to or in excess of the provisions of this act shall be void," a license granted after the act became operative is void if the number of licenses issued before equals the number permitted by the act. Comm. V. Hayes, 149 32. 13. A license to "A and son," is not valid as to the son, Pub. St., ch. 100, § 5, requiring that the license " shall name the person li- censed." Comm. 9. Bearce, 150 389. 13. For facts showing a valid revocation of a license to sell liquor, see Comm. «. WaU, 145 316. 14. A victualler's license to sell liquor to be drunk on the premises, and which fails to specify the room or rooms in which liquor may be sold or kept, is defective, under Pub. St., ch. 100; § 9; and sales under such a license canot be justified by showing that the license does not conform to the vote of the selectmen under which it was granted. Comm. V. Cauley, 150 373. 15. Under a first class license, which, under Pub. St. ch. 100, must " specify the room or rooms in which such liquors shall be sold or kept;," and which specifies a front room, liquor cannot be kept lawfully in an unconnected rear room. Comm. V. "Welch, 147 374. 16. As, under St., 1888, cl. 139, §1, alicense to sell liquor not to be drunk on the premises may not be " granted to be exercised in any dwelling house," it follows that a license to sell "in a one and a-half story building" is void if the building is used partly as a dwell- ing house; and this, whether the shop in the building has or has not means of connection with the Test of the house. , Comm. V. McCormick, 150 370. 17. A license to an innholder to sell liquor to be drunk on the premises need not specify the room or rooms in which the liquor is to be sold or kept. Pub. St., ch. 100, §§ 9, 10, does not require this construction. Comm. «. Stratton, 150 188. 18. Under St., 1883, ch. 320, § 1, providing that no license shall be granted for the sale of hquors "in any building or place on the same street within four hundred feet" of a public school, the measurement is to be taken be- tween the nearest points of each building. Comm. 1). Jones, 142 573. 19. And the word "place" does not limit the word "building." Comm. V. Jones, 143 573. 30. Under Pub. St., ch. 100, ^ 13, as amended by St. 1883, ch. 359, njaintaiuing, upon licensed premises, a painted glass win- dow, which interferes with the view of the in- terior or of the bu.iiness, avoids the license, although such window existed when the license was granted. Comm. V. Sawtelle, 160 330. 31. To maintain curtains in the windows in such a way as to interfere with the view of the interior constitutes a violation of the license, irrespective of the purpose for which the cur- tains weie maintained. Comm. V. Moore, 145 344. 32. To cover one of the windows with a shutter in the evening, with the same result, forfeits the license, though a view can be had through the other windows. Comm. ». McDonough, 150 504. 23. If the bar-room is in a back room, acces- sible only through the front room, screens on the windows of the front room, so maintained as to interfere with the view into the door of the bar-aoom, invalidate the license. Comm. V. Kane, 143 93. rv. CrvTL Action. 24. An adult son, who is not dependent on his father, is a "child," within Pub. St., ch. 100, § 25, who may notify a liquor seller not to sellto the father and maintain an action if the notice is disregarded. Taylor v. Carroll, 145 95. 25. For a notice held sufiicient in such a case, see Taylor v. Carroll, 146 95. 26. The notice, under Pub. St., eh. 100, § 25, by a wife to a liquor seller, need not state that the husband has the habit of drinking to excess. Tate V. Donovan, 143 590. 27. The notice need not, necessarily, be in the language of the statute. Kennedy v. Saunders, 142 9. 38. There may be a recovery, under separate counts, of separate sums of money for success- ive sales and loiterings, though but one notice has been given; the notice is not exhausted by the recovery of one sum, nor does the stat- ute thus limit the right of action. Kennedy v. Saunders, 142 9. 39. The delivery of intoxicating liquor to a minor, in pursuance of a sale to his mother, and for her use, is not a sale to the minor, within Pub. St., ch. 100. § 34, providing for a forfeiture of one hundred dollars, to be re- covered by the parent or guardian of such minor in an action of tort. O'Connell ». O'Leary, 145 311. v. CEnniNAL Peobecutioh-. (1.) General principles. 30. The provision of Pub. St., ch. 100, § 18, that the mayor and aldermen shall prose. 74 INTOXICATING LIQUORS, V, (1), (2), (3). cute, is directory only. A citizen may enter a complaint for an unlawful sale of liquor. Comm. V. Murphy, 147 577. 31. The provision of St. 1887, ch. 414, that the posting of a United States tax receipt, run- ning to one as a liquor dealer, shall be prima facie evidence that he kept the premises and sold liquor there, is merely declaratory of the common law, and is valid. Comm. ®. Uhrig, 146 133. 8\ Where one complained of for selling liquor, defends on the ground that he was steward of a club, the bona fide existence of the club and of the ownership and delivery of the liquor afford the test of guilt or innocence. Comm. «. Ewig, 145 119. (2.) Evidence. 83. Under a complaint charging the keeping of liquor for sale on a certain day "and on divers days" and times between that day and a certain earlier day, evidence of such keeping prior to the earlier day named but within two years of the date of the complaint, is inadmis- sible. Comm. ■». Purdy, 146 188. 34. On the trial of a complaint for keeping liquor to sell unlawfully it may be shown that the defendant's wife said, in the defendant's presence, while speaking of a bottle of whiskey upon her person, "He will sell liquor in spite of all the officers," the defendant not being under arrest or duress at the time. Comm. V. Funal, 146 570. 35. On an issue whether one sold liquor to be drunk on the premises it may be shown that liquor was drunk there, there being evidence that liquor was sold there during the time alleged in the complaint, but on other occasions than those in question. Comm. V. Ghaney, 148 6. 86. On the trial of a complaint for keeping liquor for sale it may be shown that officers, upon enlering the kitchen of the accused, saw upon the table a bottle which appeared to con- tain whiskey, and a tumbler. Comm. ». McHugh, 147 401. 87. It may be shown, too, that a person pre- .sent threw the bottle out of the window, the accused saying nothing Comm. V. McHugh, 147 401. 38. After evidence tending to show that one charged with selling liquor unlawfully made a sale, he may show that the liquor belonged to a club to which he belonged and that he was not permitted to sell. Comm. V. Geary, 146 139. 39. One charged with an unlawful sale of liquor, viz., lager beer, may not show hs a defense that he supposed himself to be selling "tonic beer," which is not intoxicating. Comm. V. Daly, 148 428. 40. The admission of one charged with sell- ing liquor unlawfully that he was'proprietor of the place and had a license, and testimony that be kept the place, constitute evidence that sales made there were made by him or by his au- thority. Comm. ■». Chadwick, 142 595. 41. A promise not to sell any more liquor is not equivalent to an admission that the accused charged with maintaining a liquor nuisance' was selling during the subsequent time of his occupation of the premises. Comm. V. Purdy, 147 29, 43. The defendant may be asked on cross- examination if he keeps a bar, there being evi- dence tending to show this and he having des- cribed the structure which it is contended con- stituted a bar. Comm. V. Oakes, 151 59. 43. For evidence that certain beer analyzed was a part of that seized, see Comm. ■». Kendrick, 147 444. 44. For evidence justifying a submission to the jury of the question whether the allegation, in a complaint for an unlawful sale of intoxi- cating liquor, that the person to whom the sale was made was unknown to the complain- ant, was sustained by the evidence, see Comm. «. Pratt, 145 248. 45. For evidence competent as tending to show that the defendant brought liquor into a town having reasonable cause to believe that it was to be sold in violation of law, see Comm. V. Harper, 145 100. 46. For evidence competent, if material, on the trial of a complaint for bringing liquor into a city for sale, see Comm. V. Patten, 151 536. 47. Under a complaint charging the selling of "a quantity of intojcicating liquor, mixed liquor, a part of which is intoxicating," evi- dence of a sale of whiskey will support a con- viction. Comm. V. Morgan, 149 314. 48. For evidence suflBcient to warrant a con- viction of selling liquor unlawfully, see Comm. ■». Luddy, 143 563; Comm. V. Shurn, 145 150; Comm. «. Fowler, 145 398; Comm. ®. Lafayette, 148 180. 49. For instructions properly given, see Comm. V. Fowler, 145 398. (3.) Keeping wltb intent to sell; keep> Ing tenement for unlaivful sales, 50. Though the complainant, to authorize a warrant for the search of a dwelling house for liquor, must state, under Pub. St., ch. 100, § 31, that he believes that liquor has been sold there within a month, the government on the trial, is not required to prove this. After the service of the search warrant it is not an issue, the question being whether the liquor was kept to be sold in violation of law. Comm. «. Intoxicating Liquors, 142 470. 51. It may be shown that liquor was found in the defendant's hotel and in his barn con- nected with the hotel. Comm, V. Tenney, 148 452. INTOXICATING LIQUORS, V, (3); VI— JOINT LIABILITY. 75 52. It may be shown, on the trial of a com- plaint for keeping liquor witli intent to sell unlawfully, that, on searching a tenement oc- cupied by the accused and also by her tenants, bottles of liquor were found buried in the Viird, that bottles similarly marked were found m that part of the tenement occupied by her, and that no liquor was found in the rooms occupied by her tenants. Coram, v. Finnerty, 148 163. 53. It may be shown that within three weeks subsequent to the day of the complaint, and on which liquor was found on the premises, per- sons were seen going into and coming out of the premises. Comm. V. Finnerty, 148 163. 54. "Where, on the trial of a complaint for keeping liquor with intent to sell unlawfully, the defendant introduces evidence tending to show that the liquor contained less than three per cent of alcohol, the government may show that a man was seen to go into the place sober and come out intoxicated. Comm. ■». O'Donnell, 143 178. 55. The possession and disposition of liquor by the defendant a few days before may bo shown, as may the fact that men were seen, shortly before, to escape from the house on the approach of an officer, and that many men who did not live there wore seen there. Comm. «. Lynch, 151 358. 56. For evidence sufficient to submit to the jury the question of an unlawful keeping for sale by the accused, see Comm. ■». Murphy, 147 525. 57. For an instruction not open to exception as ambiguous or misleading, see Comm. V. Mandeville, 142 469. 58. The fact that one cannot lawfully keep certain implements for gain has no tendency to show that he did not unlawfully keep them to be used in the illegal sale of liquor. Comm. ». Intoxicating Liquors, 150 164. 59. It is no defense that one charged with keeping liquor with intent to sell it unlaw- fully, believed that the liquor in question (beeiO contained not more than three per cent, of alcohol. Comm. ■». Savery, 145 313. 60. On the trial of a complaint for keeping, at a certain town, liquor with intent to sell un- lawfully, if it appears that the premises are oa the town line, it may be shown, on the ques- tion of intent, that liquor was found in that part of the premises situated in the other town. Comm. V. Downey, 145 377. 61. For evidence sufficient to show the intent with which intoxicating liquor, found on the premises of the accused, was kept, see Comm. 1). Ham., 150 133. 62. The offense of keeping intoxicating liquors with intent to sell unlawfully is not local; so that proof that the offense was com- mitted in another town of the county than that alleged is hot a fatal variance. Comm. 1). Kern, 147 595. VI. Sbakch; Foefbiture; Seizure. 63. The place to be searched for liquor is described sufficiently in the warrant when de- scribed as a certain tenement situated on a cer- tain street, at a certain number, at a certain town, and occupied by one A as a place of common resort. Comm. 11. Intoxicating Liquors, 150 164. ■ 64. For a search warrant which was held sufficiently to describe the premises to be searched, see Comm. V. Intoxicating Liquors, 146 509. 65. A warrant to search for and seize intoxi- cating liquors, under Pub. St., ch. 100, may be executed in the night time. Comm. «. Hinds, 145 183. 66. The answer of a jury is to be taken in connection with the question submitted to them, and if so construed, it sufficiently shows that the liquors were kept for sale contrary to law, the motion for their return to a claimant is properly overruled, and his exceptions to the judgment of forfeiture should be likewise overruled. Comm. V. Intoxicating Liquors, 14S 134. 67. For a notice to one supposed to be inter- ested in liquor seized which, as well as the service, were held to be sufficient, see Comm. «. Intoxicating Liquors, 146 509. Jail; jailor. 1. Where the salary of an employee of a jail and house of correction is established by the county commissioners, under Pub. St., ch. 220. § 26, and increased by the superior court, under g 37, the county commissioners may re- duce the salary afterward, if, in their opinion, the facts require a change. Vose V. Essex County, 145 500. Joint liability; several liability. 1. "Where a constable, induced by A's repre- sentations that certain attached goods were his, let him have them, whereupon their owner sued the constable and recovered a judgment, which the constable satisfied, it was held that the constable and A were not in pern delicto so as to preclude an action by the constable against A, Simpson v. Mercer, 144 413. 76 JOINT LIABILITY-JUDGMENT, I, H, ILL 3. A railroad company, which is adjudged liable to a passenger injured by falling over mail bags left on the sidewalk through the neg- ligence of a mail contractor, is not, in its action over against the contractor, necessarily a joint wrong doer in such a sense as to defeat a re- covery. Old Colony EaUroad «. Slavens, 148 363. 3. A receipt under seal given by the obligee of a joint obligation to one of the joint oblig- ors ' 'in full satisfaction for his liability thereon," releases all; and may not be shown by parol to have been intended otherwise. Hale v. Spaulding, 145 482. 4. The rule that a release to one of several joint tortfeasors discharges all applies to a claim under Pub. St., ch. 100, § 21, giving a right of action, severally or jointly, against those causing one's intoxication, to his wife's damage. Aldric'a «. Parnell, 147 409. 5. If, before the completion of a contract, one of the joint contractors dies, his estate is entitled to share in the profit realized from the performance. If his death makes necessary the employment of extra help this is properly deducted. Jepson B. Killian, 151 593. Joint tenants; tenants in common. [See, also, Landlokd .iND Tenant, 3; Pabti- TION, 3.] 1. A lease of a parcel of land, executed by two of three tenants in common, confers title upon the lessee sufficient to enable him to maintain an action, under Pub. St., ch. 175, for possession, against a tenant at will of the lessors. Grundy v. Martin, 143 279. 2. A tenant in common of realty may re- cover of his co-tenant, under a count on an account annexed, his share of taxes paid. Kites «. Church, 142 586. 3. And for use and occupation under an oral agreement to pay; and, in such case, it does not matter that the claim is called "rent." Kites V. Church, 142 .^86. 4. An action of tort to recover the forfeiture provided for by Pub. St., ch. 179, § 6, in case of waste by a tenant in common, is not main- tainable where the acts are done in good faith, as, for example, under the mistaken belief that a child born dead was born alive, and so that there was a life estate by the curtesy. Jenkins v. Wood, 145 494. 5. One of the joint owners of a chattel can- not maintain replevin for it without joining the co-owners. Corcoran v. White, 146 839. 6. Where land is sold for taxes, a tenant in common, who redeems, in the exercise of his legal right, is entitled to have the tax lien kept alive for his benefit until his co-tenant pays his share. Hurley v. Hurley, 148 444. Judgment. I. Gbnbbal RuiBS. II. JtTDGMKNTS IN PaBTICULAR CASES. III. Aebbst op Judgment; Judgment ngn- Obstante Veredicto. rV. Action upon a Domestic Judgment. [See, also, Conflict op Laws; Fobmek Adjudi- cation.] I. General Rules. 1. A judgment in personam against a non- resident who has neitner appeared nor been served personally within the Commonwealth is invalid. And the right to a writ of error to re- verse such a judgment is not waived by an ap- pearance in an action on the judgment. Eliot V. McCormick, 144 10; Mar- tin V. Kittredge, 144 13. 2. The defendant, however, is not obliged to resort to a writ of error. He may show the invalidity of the judgment by plea and proof in an action on the judgment. Needhame. Thayer, 147 536. 3. A judgment for more than the ad dam- num is erroneous. SafEord u. Weare, 142 231. 4. One not a party or privy to a judgment which affects his rights collaterally may avoid it by proof as he cannot have it reversed on error. Safford ®. Weare, 142 231. 5. The summary method provided by Pub. Stat., ch. 187, §§ 17-19 for setting aside by petition a judgment where "the execution has not been satisfied in whole or in part," is unapplicable where the judgment is for the de- fendant's costs and the plaintiff's attorney has paid the amount without execution having been taken out. In such a case the remedy is by writ of review. Skillings v. Mass. Benefit Assoc, 151 131. 6. A foreign judgment on a joint note is not a bar to an action in this Commonwealth against a maker who lives here and was not served within the foreign jurisdiction, though the judgment was authorized by the law of that jurisdiction. Stone V. Wainwright, 147 201. 7. An adverse adjudication by a fol-eigii court on a plea of set-off is res adjudicata, it appearing that issue was joined on the plea and that evidence was offered in support of it. Green v. Sanborn, 150 454. II. Judgments in Particular Cases. III. Arrest of Judgment; Non Obstante Veredicto. 8. After a verdict for the petitioner in a pro- ceeding for the assessment of damages for tak- ing land for a park, a motion in arrest of judg- ment on the ground that the petition was not filed within the time prescribed by the statute JUDGMENT, III, IV— JUSTICE OF THE PEACE. 77 cannot be sustained if the record fails to show this. Sawyer «. Boston, 144 470. 9. It is not ground for a motion in arrest of judgment that the officer who served the war- rant made a mistake in the date of his return. Comm. V. Russell, 147 545. 10. Nor that the description of the offence in the recognizance differs from that in the com- plaint. Comm. «. Russell, 147 545. 11. That the complaint to a trial justice in a liquor nuisance case, covers a future period of time, affects the jurisdiction and is open after verdict. Comm. ■». Le Clair, 147 539. 13. It appearing probable, however, that there was a clerical error in the copy of the complaint transmitted to the superior court, the judgment , should not be arrested and the defendant discharged, but the verdict should be set aside and a new trial ordered, to enable the copy to be amended. Comm. V. Le Clair, 147 539. 18. On a motion in arrest of judgment in a criminal case, only matters of record are open; and the rule is the same where the pleading, though called by another name, is really noth- ing but a motion in arrest of judgment. Comm. V. Brown, 150 334. 14. It is no ground for an arrest of judg- ment in a criminal case, that the copy of the record transmitted to the superior court by the trial justice who tried the case is attested by him as " justice," only. Comm. V. McParland, 145 378. 15. The failure of the record of the district court to show that the defendants severally pleaded or were severally found guilty does not affect the jurisdiction of the superior court on the appeal, and cannot be made the foundation of a motion in arrest of judgment. Comm. V. Cakes, 151 394. 16. Nor can the failure to send up to the superior court a separate copy of the com- plaint, the copy set forth in the conviction hav- ing been given to the jury. Comm. V. Cakes, 151 394. 17. After a trial and verdict in the appellate court it is too late to ask for an arrest of judg- ment on the ground that a copy of the war- rant was not sent up. Comm. ». Cakes, 151 59. IV. Action tjpon a Domestic Judgment. 18. A satisfied judgment cannot be assigned so as to be made the foundation of an action by the assignee; it is extinguished. Simpson v. Mercer, 144 413. 19. Under St. 1883, ch. 223, § 14, authoriz- ing equitable defences in actions at law, an equitable defence is not alleged in an action on a judgment by default against the maker of a note, brought for the benefit of an assignee of the judgment, by an answer stating that, when the judgment was obtained, the note, upon which the assignee was a co-promisor or in- dorser, had been actually paid by such assignee, as the payee well knew and the maker learned thereafter; that the judgment had not 'been assigned by the payee to the assignee; that the note was given for a loan with which to buy stock; that the maker, upon buying it, at once transferred it to such assignee for transfer to the payee »s collateral security for the note; that the assignee had not transferred the stock, but had wrongfully converted it to his own use; and that therefore it would not be equita- ble or just that such assignee should retain the stock and still recover the amount of the judg- ment from the maker, there being no averment that the assignee was irresponsible, and no ten- der of what was due on the note. Barton D. Radcliffe, 149 375. Judicial sale. [See Execution; Taxation.] Jurisdiction. [See, also, Equity Jitbisdiotion ; Justice op THE Peace; Police Court; Poor Debtor. And see False Pretekces, 2.] 1. The courts of this commonwealth have jurisdiction of a petition, under Pub. St. , ch. 176, to try title to land in the Commonwealth, if the respondent, though a non-resident, is served here while commorant here. Thompson v. Cowell, 148 553. Jury; jurors. [See, also. Grand Jury; Highway; New Trial; Bailroabs; Trial; Town and City. 1. A member of a voluntary association for the enforcement of the liquor law in a certain city, and for the prosecution of offenders, is not competent to sit as a juror on the trial of a prosecution instituted by an agent imder the pay of the association. Comm. ■». Moore, 143 136. a. Under Pub. St., ch. 170, § 33, prescribing the mode of summoning a juror, it is not nec- essary that the town clerk or selectmen should indorse upon the venire the names of the per- sons who are drawn. Comm. ■!). Besse, 143 80. Justice of the peace; trial justice. [See, also, Police Court.] 1. Where a town is divided, a justice of the peace whose authority is co-extensive with the judicial district and who lives in the new town may issue warrants as before the division. Comm. V. Brennan, 150 63. 3. A trial justice cannot continue a criminal case nisi, even though the defendant consents. By assuming to do so he loses jurisdiction. Comm. V. Maloney, 145 205 78 KIN— LANDLOED AND TENANT, I, H, in, IV. K. Kin, next of. [See Descent AND Distbibution; Devise and Bequust; Bxecxttob and Administeatoii.] Laches. [See, also, Collatebaij Securitt ; Guardian AND Ward, 4; Specific Performance.] 1. The right to assert, in equity, a trust in land bought with the money of one in the name of another may be lost by twenty years silence. McGivney «. McGivney, 142 156. 2. For facts negativing the imputation of laches in invoking equitable remedies against a bank which had taken trust funds, knowing them to be such, for the debt of the trustee, see Blake b. Traders' Nat. Bank, 145 13. Lading, bill of. [See Bill of Lading.] Lake. [See Fish; Ice; Pond.] Land. [See Adverse Possession; Boundary Line; Deed; Devise and Bequest ; Easement; J'ixture; Highway ; Landlord and Tenant ; Land Owner; Negligence; Nuisance; Bailboad; Town and City; Watek Course.] Land damages. [See Eminent Domain; Highway ; RArLKOAD Town and City.] Landlord and tenant; lease. I. The Eelation; How Ckbated. II. DiFEEKBNT KiNDS OF TENANCY. III. Notice to quit. IV. Rights, Duties, and Liabilities Pbo- ceeding from the belation. V. Lease ; Validity; Effect; DtrEATioN. VI. Lease; Certain Special Stipulations. VII. Landlord's Remedies. [See, also, Agency, 3; Covenant; Equity Jurib- DiCTiON, 7; Fixture, 3; Insolvency, 28.] I. The Relation; How Created. 1. Where land was sold under a mortgage, and the owner of the equity of redemption released to the purchaser and was permitted to remain in possession as a tenant and, there was an open and visible defect in the cover of a coal hole in the sidewalk in front of the premises, one in- jured therefrom was held to have a right of action against the purchaser. Dalay v. Savage, 145 38. 2. If premises are let to A and it turns out that the signature of a guarantor of the rent was forged, the lessor cannot claim rent from the insolvent estate of a firm consisting of A and another person who was not a party to the fraud, the lessor never having treated the firm as his tenants. Brooks «. Allen, 146 201. II. Different Kinds of Tenancy. III. Notice to Quit. 3. A notice to quit served upon one of two tenants in common is notice to both. Grundy ii. IMartin, 143 279. 4. A notice to a tenant at sufferance to quit in three days may be sufficient in point of time. Warden «. Etter, 143 19. IV. Rights, Duties, and Liabilities Pro- ceeding from the Relation. 5. The lessor of a building with a steep and unguarded roof, is not liable to one injured by a snowfall which the defendant might have prevented; nor does it matter that the lessor has reserved the right to enter upon the prem- ises to repair them. Clifford i>. Atlantic Cotton Mills, 146 47. 6. Where the owner of a building keeps the door of an elevator well locked, and a tenant of a part of the building procures a key, un- locks the dnor. and leaves it unlocked, one coming upon the premises at the invitation of the tenant and falling into the well has no right of action against the owner of the building. Handyside «. Powers, 145 123. LANDLOED AND TENANT, IV, Y, VI, VIL 79 7. The owner of a building wlio lets to a tenant the store and cellar, is not liable to an injury to a traveler, caused by the iron frame of a ' ' Hyatt light " set in the sidewalk, and worn so smooth and slippery as to be dangerous, the tenant having covenanted to keep his part of the premises in repair. Boston v. Gray, 14:4 53. 8. A tenant who falls through rotten boards covered with earth into a cesspool on the prem- ises, of which he has no knowledge, has a right to go to the .jury in an action against the land- lord. Cowen v. Sunderland, 145 363. 9. The fact tbat a lessor agrees to repair within a reasonable time does not authorize an action of tort against him by the lessee who sustains a personal injury through a defect within the agreement to repair. Tuttle«. Gilbert Manuf. Co., 145 169. 10. Actual knowledge on the part of the landlord of a defect in a building need not necessarily appear before he can be charged in damages for a personal injury to the tenant. Lindsey v. Leighton, 150 385. 11. A tenant of one of several tenements in a building cannot found a right of action against the landlord on a fall caused by getting a foot caught in a sliver of one of the old rough boards of which a landing used in com- mon by the occupants was made, there being no especial change in the condition of the land- ing since the beginning of the tenancy. Qulnn «. Perham, 151 163. 13. One who has assumed to be the owner of premises the title to which is in his wife, and who, in his relations with the tenant, has acted as the landlord, cannot, when sued by the tenant for a personal injury charged to a defect ia the building, contend that there is no evi- dcnco to authorize the maintenance of the ac- tion against him. Lindley v. Leighton, 150 285. 13. A tenant, under a lease destitute of a cove- nant as to fitness for habitation, who vacates the premises because of their bad sanitary con- dition and recovers in an action of tort against the landlord for false and fraudulent represen- tations ou the subject, cannot maintain an ac- tion of contract to recover back rent paid and expenses growing out of the occupancy; nor can he, irrespeclive of the question of res ad- judicata. Stevens s). Pierce, 151 307. ■ 14. In an action for use and occupation the tenant, though the landlord has broken his con- tract, cannot recoup the expense of moving, such expense being one to which in any event he would have beei subjected at the expira- tion of the term. Eddy v. CotHn, 149 463. 15. Where the owner of land first mortgages and then leases it, and the mortgagee, after entry for breach of condition, brings a writ of entry against the lessee, who pleads nul dis ei- sin, the lessee is not estopped by the lease to contest the title of the demandant, if he has not attorned to him or been compelled to pay rent to him. Holmes v. Turners' Falls Co,, 142 590. 16. A tenant at will, who would dispute the right of his landlord to give the written lease ou which possession is demanded, has the bur- den of proving that the landlord could not con- vey at all or could not convey a title greater than that of the tenant at will. Streeter s. Iisley, 147 141. 17. For a case involving the liability of the occupant of part of a building for injuries sus- tained from an open and unguarded hoistway, see Kent «. Todd, 144 478. V. Lease; Validity; Effect; Duration. 18. A lease of the "first floor" of a building includes the outer wall; so that the lessor can- not claim money received by the lessee from one allowed by the lessee to place a sign there. Lowell V. Strahan, 145 1. 19. A lessee's breach of covenant is not evi- dence of an abandonment of the lease. Comm. V. Eliot, 146 5. 20. A sub-lessee who, after the original lessee has done that which affords ground for a for- feiture by the lessor, pays rent to the original lessee as the lessor's agent, negotiates with the lessor for a new lease, and finally asserts a right to hold without payment of rent to any one, has no cause of action because of an ouster by the lessor, even though the usual notice to quit was not given. Appleton V. Ames, 150 34. VI. Lease; Cektapt Special Stipulations. 21. A lessor, who himself has no lease of the premises from the owner, is liable on the cove- nant of quiet enjoyment in the lease given by him, though his lessee vacates on a demand' from the owner, there being no ground on which he could resist the owner's right, and the lessor, moreover, asking him to vacate. King V. Bird, 148 573. 22. So, where there has been a sale under an outstanding mortgage, and the tenant has been ordered to vacate and threatened with legal process to eject him. Duncklee v. "Webber, 151 408. 23. A tenant, who, for a consideration, allows a sign to be placed on the outer wall of the leased premises, does not underlet, within the covenant of the lease. Lowell 13. Strahan, 145 1. VII. Landloed's Remedies. 24. One sued for use and occupation cannot put in evidence the record of a judgment in a landlord and tenant process by a third person against the plaintiff, no execution having been issued and the tenant having held undisturbed under the plaintiff until the end of the tenancy 80 LANDLORD AND TENANT, VH— LIBEL AND SLANDER witiiout having received notice from such third person or attorned to him. Eddy «. Coffin, 149 463. 25. A deputy sheriff and messenger in insol- vency cannot he charged for use and occupa- tion of the premises on whiclx the goods were, as upon au implied contract, if ii appears that he expressly refused to pay or become respon- sible. Cook«. Medbury, 150 499. 26. A lessor and lessee cannot join in an ac' tion against a tenant at sufEerance for rent. Cofran v. Shepard, 148 582. 27. For a declaration and hill of particulars i;i an actJQn for use and occupation which were held sufficient to support a finding for the plaintiff, see Taylor v. Dexter Engine Co. 146 613. 28. An occupant of land under an oral agree- ment of purchase, who refuses to pay until a warranty deed is given, is not a " lessee " within Pub. St., ch. 175, § 1, against whom summary process will lie at the instance of the owner's lessee. Kiernan ». Linnehan, 151 543. 29. Nor does his oral refusal to quit make him, as matter of law, an occupier unlawfully holding possession of tlie premises by force, within the statute. Kiernan B. Linnehan, 151 543. Land owner. [See, also, Bound aby Like; Covenant; Deed. Easement; Highway; Landlord and Tenant; Negligence; Nuisance; Pabty Wall; Town AND (Jity; Water Course.] ( 1. One who, if not a trespasser, is at best a mere licensee, cannot recover of the owner of the land for injuries sustained from falling into a hole concealed only by the darkness of the night. Reardon v. Thompson, 149 267. 2. The owner of a building with a roof so projecting that snow will fall from it into the street is liable to one injured by the starting of his horse on which a quantity of snow falls. Smethurst «. Barton Square Church. 148 361. 3. The owner and occupant of a building, from the roof of which falls a piece of zinc, is liable to the traveller struck by it, if the con- tractor for the repairs, who was to furnish labor and materials, has finished his work. Khron v. Brock, 144 516. 4. The owner of land on a hillside bordering on a mill pond may cultivate and fertilize his land in the usual manner, though such use causes solid substances to fall into the pond. Middlesex Co. t). McCue, 149 103. 5. For an accident, whereby a person on a sidewalk was pushed into an opening in the wall of a building and down an elevator well by jostling due to a team backing upon the sidewalk, the occupant of the building is not liable, in the absence of a statute. Mclntire v. Roberts, 149 450. 6. A child, -who, while at play, falls down a precipitous place in a vacant lot, has not a right of action against the owner ii it appears merely that his workmen build a fence and gate between the lot and that on which the child lived, and that some of the workmen had a key to the gate and did not drive the chil- dren away when they came there. Galligan «. Metacomet Manuf. Co 143 527. 7. A boy of eleven, who, without invitation or enticement, trespasses on unenclosed land of a railroad company, meddles with a car having a defective door, and is injured by the falling of the door, has no right of action against the company. McEachern «. Boston & Maine Railroad, 150 515. 8. An abutter on a public street, who extends the sidewalk laterally on his own land and per- mits that part on his own land to fall into a dangerous condition, whereby a traveller is in- jured, is liable. Holmes v. Drew, 151 578. 9. And the place not being a way, the pro- visions of Pub. St., ch. 52, § 19, relative to notice, have no application. Holmes ®. Drew, 151 578. Lapse. [See Devtse and Bequest; Laches; Limita- tion OF Action. Larceny. 1. On the trial of an indictment for the lar- ceny of A's sheep it may be shown that certain slieep, stolen at the same time and found in the possession of the defendant, were B's sheep. Comm. 1). Johnson, 160 54. Law and fact, questions of. [See the titles of the various actions and proceefl- ings, and, particularly. Negligence.] Lease. [See Covenant; Landlord and Tenant.] Legacy; Legatee, [See Devise and Bequest.] Legislature. [fee Constitutional Law.] Leyy. [See Execution; Taxation. o Libel and slander. I. In What Casks au Action Does or Dobs not Lib, LIBEL AND SLANDER, I, II, IIL 81 II. Malice; Justification. III. Pkivilkgbd Communications. IV. PLEADINGS; EriDBNCK. I. In "What Cases an Action Dobs ob Does not Lie. 1. To say of a legislator, "Sometimes a change of heart comes from the pocket," is not slander. ' Sillars v. Collier, 151 50. 2. The ancient doctrine of acandalum mag- natum has never been adopted in this Com- monwealth and cannot be invoked to support an action for slander. Sillars ». Collier, 151 50. 8. For a priest to say in the pulpit, of a physician, that his civil marriage following a divorce should debar him from employment by members of the parish and from social in- tercourse under a penalty of a loss, on the part of members disregarding the injunction, of the . ministrations of the church, is actionable per se and will support a verdict. Morasse ®. Brochu, 151 567. 4. To say of a man: "He killed her [his wife] by his bad conduct, and I think he knows more about her being drowned than anybody else. He is to blame for it," does not import a charge of homicide. Thomas ®. Blasdale, 147 438. 5. Otherwise, to say of him: "He knows how she came to her death. He killed her. He is to blame for her death. There was foul play there." Thomas ». Blasdale, 147 438. 6. To publish a caution to the public not to form an opinion of goods of a certain manufac- ture from the advertisement by a certain trades- man that the goods sold by him were of first quality, since they were sold to the tradesman as damaged, is not libelous; there is no impu- tation upon the tradesman's character. Boynton «. Shaw Stocking Co., 146 319. 7. Where a libelous publication is allowed to hang for forty days in a down town ticket office of a railroad company, notwithstand- ing remonstrances to the general passenger agent, there is enough to take to the jury the question of the liability of the compony. To direct a verdict for the company is error. Fogg V. Boston & Lowell Eailroad. 148 513. 8. One making a slanderous statement is not necessarily responsible for its repetition by others, it not appearing that the repetition was privileged or how the statement came to the ears of those who acted on it to the plaintiflE's injury. Elmer a. Fessenden, 151 359. 9. Where, on the trial of an action for slander, in circulating the statement that there was arsenic in material which the plaintiff's workmen were obliged to use.there was evidence tending to show that the defendant spoke to the plaintiff's workmen, it was held that one of YoL. III-U these workmen should have been allowed to testify to the report which caused him to act to the plaintiff's injury, and to state from whom the report was said to have come. Elmer ii. Fessenden, 151 359. 10 To say of A that he tried to make or get B to swear that certain of A's property was B's, so that A, through B, might get pay for it from an insurance company, imputes to A the crime of attempting to induce and incite B to commit perjury, and affords ground for A's action of slander. Avery v. Ward, 150 160. 11. To say of a woman that she had a child, and that a certain other woman took it away and buried it, does not necessarily import that on which an action for slander can be founded by either woman, it not appearing that the first woman was unmarried and it (not appearing otherwise than from the words themselves how a crime was imputed to either woman. Young «. Cook, 144 38. 12. To publish, in relation to a public din- ner, furnished by a caterer, that it was wretch- ed, that it was served in such a way that hungry barbarians might justly object, and that the cigars were vile and the wines not much better, will not support an action of libel by the caterer without proof of special damage. Dooling V. Budget Publishing Co., 144 258. 13. If an association appoints a committee to investigate a bill rendered by a member, and the committee, without authority, makes a libelous report in print, and places copies on the desk of the secretary at a meeting of the association, and members freely take the cop- ies, and vote to adopt the report, there is not such a publication of the libel as gives a right of action against the association. Senancour v. Societe La Prevoyance, 146 616. II. Malice; Justification. 14. Under Pub. St., ch. 167, § 80, providing that evidence of the truth of matter charged as libelous, "shall be deemed a sufficient jus- tification, unless malicious intention is proved," actual malice is meant, and not such malice as may be implied from the fact of publication. Brown «. Massachusetts Title Ins. Co., 151 127. III. ParviLBGED Communications. 15. Whether certain statements made to a legislative committe in reference to contem- plated legislation making tenants at will liable for damages from fire caused by their careless- ness should be deemed privileged, when relied on to support an action of slander by a tenant against the person making the statements, was held a question for the jury, it being doubtful on the evidence whether the defendant did or did not go beyond his privilege. Wright V. Lothrop, 149 385. 82 LIBEL AND SLANDEE, III, IV-LIEN, I, n, (1). 16. A letter to the husband of the writer's debtor, telling him of bad conduct of his wife before marriage, written in order to force pajr- ment of an ante-nuptial debt, is not a privi- leged communication. Beals V. Thompson, 149 405. rV. PLEADraSS; EVIDENCB. 17. If the declaration in an action for slan- der avers that the alleged slanderous words were spoken of the plaintiff, no innuendoes are necessary to apply them. Young ». Cook, 14:4 38. 18. A declaration averring, as special dam- age, that persons, whose names were not given, ceased to employ the plaintiff professionally because of the defendant's slanderous language, was held suflBcient, as against an objection first taken by a request for a ruling after the evi- dence was in, a demurrer not having referred to the omission. Morasse v. Brochu, 151 567. 19. For a declaration, demurrable in not ap- plying the libelous words to the plaintiff or showing in what sense they were used, see McCallum v. Lambie, 145 334. 30. There being no question as to the iden- tity of the person called a thief in the publica- tion in question, it is harmless error, if error, to permit a witness to state that he understood the plaintiff to have been meant. Wilson V. Fall River, etc., Pub. Co., 143 581. 31. In a wife's action for libel by letters written to her husband by her creditor, the defe.dant, charging her with bad conduct be- fore the marriage, other letters written by the defendant to her, on the same subject, and which tend to contradict the defendant's testi- mony and to show malice on his part, are com- petent evidence. Beals «. Thompson, 149 405. 32. Evidence of what the defendant said after the commencement of the action may be competent on the question of malice. Morasse v. Brochu, 151 567. License. [See, also, iNTOxicATrNoLiQTJORS; Land Owner; Negligence; Nuisance.] 1. Where the sole and exclusive right to cut ice on a pond is conferred by a sealed instru- ment in the form of a lease executed by the owner of the pond, the interest of the lessee is such as to confer on him a right to maintain an action of tort against a stranger who cuts there. Richards ii. Gauffret, 145 486. 3. An oral permission that timbers of a building may be inserted in a wall on adjoin- ing land constitutes a mere license, revocable within twenty years. The licensor's successors in title may maintain a suit in equity, within such time, to enforce their rights, without be- ing chargeable with laches: nor can they be re- quired to sell the land under the wall or to grant an easemetit. They are entitled to a de- cree authorizing them to remove the wall and timbers, at their own expense, ' and to an in- junction. Hodgkins «. Farrington, 150 19. 3. If, in an action for gravel sold- and taken trow, land, it appears that the plaintiff originally licensed the taking and afterward made to a member of his family a deed which was merely colorable,the plaintiff is entitled to a ruling that he can maintain the action if he is in fact the owner, notwithstanding the deed. Barry v. Worcester, 143 476. Lien. I. Gbnebal Rules; Common Law Lien. II. Mechanic's Lien. (1.) How created; effect thereof. (3.) Filing the statement; subsequent pro- ceedings to enforce the lien. [See, also, generally, Attachment; Chattel Mortgage; Collateral Security; Bxeoution; Taxation. For particular rulinprs, see Agency, 8; Chattel Mortgage, 7; Estoppel, 1.] I. Gbnebal Rules; Common Law Lien. 1. A stable keeper's lien is waived by refus- ing to deliver the horse upon payment of the amount of the lien and by insisting upon an additional sum for which there is no lien. Hamilton «. McLaughlin, 145 20. II. Mechanic's Lien. (1.) How created; effect thereof. 3. A mechanic's lien is not necessarily re- stricted to the building and the land under it, there being nothing to show that the owner of the lot intended so to divide it. Quimby «. Durgin, 148 104. 3. Though A and B conspire together to in- duce C to build a house on A's land in the be- lief that the land belongs to B, and C is in- duced to take B's notes under seal, and B is ir- responsible, C cannot, on discovering the fraud, claim a mechanic's lien on the land. BUenwood v. Burgess, 144 534. 4. A mechanic's lien cannot be enforced for making slight changes in a building incidental to putting in a machine understood to be per- sonal property and removable. Curnew v. Lee, 143 105. 5. Where a builder, by separate contracts with separate owners of adjoining lots, is to erect two houses, and contracts for the plumbing of both houses for an entire price, the plumber cannot maintain mechanic's lien proceedmgs against each house, and show what the labor on each house was fairly worth. Pub. St., ch. 191, § 3, is inapplicable to such a case. Cahill «. Capen, 147 493. 6. A statement reciting that the labor was performed under a binding contract for the erection of two cellars, " The contract price LIEN, II, (1), (2)-LlMlTATI0N OP ACTION, I, II, III sa being tliree dollars per square for excavation, and two dollars and fifty cents per perch for laying tlie stone, cement to be furnished by me," and which shows the value of the labor performed and the balance due on the contract, witheut more, is insuificient in failing to give the entire contract price. Hurley «. Lally, 151 139. (2.) Filing tbe statement ; 8nl>8eq.nent proceedings to enforce tUe lien, 7. That the statement filed incorrectly, but to the best of the petitioner's knowledge and belief, names the owner is not fatal to the pro- ceeding. McPhee v. Litchfield, 145 565. 8. Where lumber is furnished at so much per thousand feet, though under an entire con- tract, the statement required by Pub. St., ch. 191, § 6, must be filed within thirty days after the furnishing of the last of the lumber actually used, or the lien on the building is lost. Kennebec Framing Co. «. Pickering. 142 80. 9. For a statement of inaccuracy in a descrip- tion of land against which a mechanic's lien was claimed, such as required a submission to the jury and did not require the court to say as matter of law that the lot could not be reason- sonably recognized, see Cleverly b. Mosely, 148 280. 10. The recorded statement may be valid, though the magistrate omits to append the title of his office to his signature to the certificate of the oath. ■ Jackman ». Gloucester, 143 380. 11. It is no objection to the certificate that the magistrate who administered it was also attorney for the petitioner. McDonald v. Willis, 143 453. 13. Where, in a proceeding to enforce a me- chanic's lien, the defence is that a note was taken in payment, a question of fact is raised to be decided upon the evidence, it appearing that credit was not given and there being other facts tending to rebut the inference of payment by the note. Quimby v. Durgin, 148 104. Life estate. [See Dbvtskand Bequest; Trust; Trustee.] Limitation of action. I. GsNEBAii Rules. II. PLKADlNa THE STATUTE. in. Decedent's Estate. IV. What times ake Limited in othbe Cases. V. Running of the Limitation. VI. Suspension of tub Limitation. LSee, also. Adverse Possession; Laches. And see COLLATEBAli SeOuritt, 1; Mobtqaoe, 26 Quieting Title, 3,1 I. General Rules. 1. The equitable right to treat as a trustee one to whom a trustee has pledged trust funds for his own debt is not affected by the statute of limitations. Blake v. Trader's Nat. Bank, 145 13. 3. Where A's counters, without his knowl- edge, were placed by B in his shop, mortgaged by B four years afterward, with the premises, and sold, eight years after this, with the prem- ises, by the mortgagee (who had foreclosed), to D, it was held that A, who, two years later, first learned where the counters were and took them from D, was liable in replevin by D, not- withstanding the six years statute of limitation. [Field, J., dissenting.] Chapin «. Freeland, 142 383. ' 8. An indorsement on a note, reciting a pay ment and that the maker agrees ndt to take any advantage of the statute of limitations, cannot extend the operation of the statute be- yond six years from the time of the indorse- ment. Wherefore, aftertwenty years, an action on the note is barred; and, in a suit to foreclose a mortgage given at the time the note was given and to secure it, there is a presumption of pay- ment. Kellogg 1). Dickinson, 147 432. 4. The statute of limitations is not a bar to an action on a promissory note made by a non- resident residing in the state where the note was made, if, by the statute of that state, the right of action is not barred, although he has removed to a state the statute of which would be a bar. McCann «. Randall, 147 81. 5. Where an assignee in bankruptcy, after his right of action on a debt due to the estate would have been barred, elects to abandon it and authorizes the bankrupt to bring suit upon it, such suit is barred also. Kenyon v. Wrisley, 147 476. II. Pleading the Statute. III. Decedent's Estate. 6. Where one withdraws from a bank and spends money held by him for a public charity an information in equity instituted against his executor by the attorney-general is barred in two years, as would be an action by a creditor, even though the testator could not have In- voked the general statute of limitations, be- cause of the trust. Attorney-General «. Brigham, 142 348. 7. Under Pub. St., ch..l36, § 17, if the ad- ministrator resigns within two years, the time begins to run again within which the adminis- trator de bonis non may be sued. Eddy V. Adams, 145 489. 8. Beneficiaries under a trust, who sue the executors of the trustee, and who claim that the two years statute of limitations cannot be invoked by the executors, because the case falls within Pub. St., ch. 136, § 10, authoriz- ing a judgment, notwithstanding the statute of 84 LIMITATION" OF ACTION, in, IV, V, VI— LOED'S DAY. limitations, if the court is of tlie opinion " That justice and equity require it, and tliat such creditor is not chargeable with culpable neglect in not prosecuting his claim within the time so limited," bring themselves within the excep- tion by showing that an action, brought within the time in their behalf, was ascertained by them afterward to be ineffective for the reason that the plaintiff therein was not a beneficiary, iaving assigned his interest, and their belief that he was a beneficiary being a reasonable belief entertained without negligence. Morey ■». American Loan & Trust Co., 149 253. IV. What times aee limitbd is othbb CASES. 9. An action on a note payable "on demand after date " is barred in six years from the time of the giving of the note. Fenno v. Gay, 146 118. 10. An action on I'ub. St., ch. 100, § 24, for sales of liquor to the plaintiff's minor chil- dren, is an action for a penalty or forfeiture, within ch. 197, § 4, and may not be brought after a year from the time of the sales. O'Connell «. O'Leary, 145 311. V. RtrNNING OF THE LIMITATION. 11. Where dower is never set off to a widow the statute of limitations may run against the heir before the widow's death. Smith 1). Shaw, 150 297. 12. In the case of a promissory note payable on demand the day of the date is excluded in computing the six years within which an ac- tion must be brought. Presbrey «. Williams, 15 Mass., 198, has been virtually overruled and is no longer an authority in this Common- wealth. Seward ». Hayden, 150 158. 13. If an overpayment is made by a bank to A's clerk on A's check, and A keeps the money, directing the clerk to say nothing about it, and the clerk denies to the bank having been over- paid, there is a fraudulent concealment of the cause of action such as will sustain a suit after six years. Manufacturers' Nat. Bank v. Perry, 144 313. 14. An account due to a firm by an indi- vidual and an account due to the individual by a member of the firm after its dissolution by the death of the other member, do not consti- tute a "mutual and open account current," within Pub. St., ch. 197, § 8. Eldridge ». Smith, 144 85. 15. Where a railroad so builds a culvert as to create a nuisance from the waters collected and discharged through it, the nuisance be- comes a continuing one; and the right of action is not barred in six years from the time of the building of the culvert. Wells e. New Haven & N. Railroad, 151 46. "VI. Suspension of the Limitation. 16. The statute of limitations does not run in favor of one who has a domicil and an act- ual residence in another state and who comes into this Commonwealth for a short visit onk. Converse v. Johnson, 146 30. Limitation of estate. [See Dbed ; Devise and BeQitebt; Tbitst.] Liquor. [See Iktoxioatinq Liquors.! Loan and fund association. 1. A co-operative bank, organized under Pub. St., ch. 117, and subsequent statutes, Is chargeable in trustee process as tlie trustee of a member at the withdrawal valne of his shares, although he has given no notice of his desire to withdraw such shares. This follows from the peculiar nature of the membership in these in- stitutions. Atwood «. Dumas, 149 167. See, also, Intoxicatihq Lord's day. LSee Indictment, 86. LiQuOKs; Nuisance.') 1. It cannot be ruled, as matter of law, that the work of shaving an aged and infirm person in his own house on the Lord's day is not a work of necessity. Stone «. Graves, 145 353. 2. A tobacconist may not keep his shop open on Sunday and sell cigars and tobacco, under the power conferred by the statute' to sell "drugs and medicines." And it may not he shown by experts or by medical books that cigars and tobacco are drugs and medicines. Comm. ■». Marzynski, 149 68. 3. One who keeps a shop open for the sale of bread and pastry, not made by him, but bought to sell again, is not a "baker" within St., 1886, ch. 82, though his wife sometimes bakes a few cookies, which he sells. Comm. ®. Crowley, 145 430. 4. That the defendant is a Hebrew who con- scientiously keeps Saturday is no defence. Comm. s. Starr, 144 359. 5. Nor is it a defence that keeps his shop open for the sole purpose of selling meat to Hebrews, even though this be deemed a work of necessity or charity. . Comm. V. Starr, 144 859. 6. Or for the purpose of selling newspapers. Comm. V. Osgood, 144 362; see, also, Comm. v. Dale, 144 363. 7. As Pub. St., ch. 98, § 3, prohibit the keeping open of a shop on the Lord's day for LORD'S DAY— MANDAMUS. 85 the purpose of doing business therein, if this is alleged and proved, the words in the com- plaint, " the same not being works of necessity or charity," may be rejected as surplusage. Comm. V. Dextra, 143 28. 8. The person having charge and control of the shop and who carries on the business may be convicted, though shop and business are owned by another; and the shop is properly described in the complaint as the shop of the former. Comm. V. Dale, 144 363. Lottery. 1. For an examination of evidence and in- structions on the trial of an indictment for set- ting up and promoting a lottery, see Comm. V. SuU.vau, 146 142. 2. For an examination of evidence and in- structions on the trial of an indictment on Pub. St., ch. 209, § 1, for disposing of a horse by way of lottery, see Comm. e. Brockway, 150 322. Lunatic; idiot; person of unsound mind. 1. Where, pending proceedings for the ap- pointment of a guardian for a person, who, though insane, has sufficient mental capacity to change his domicil, the domicil is changed to another state and the change is assented to by the subsequently appointed guardian, the courts of such other state have original jurisdiction of the probate of his will, on his death there. Talbot «. Chamberlain, 149 57. 2. Where a mortgage was executed by a woman whose mind was so impaired by old age and sickness that she had not sufficient mental capacity to execute a deed, the consideration being the postponement of the overdue debt which the mortgage purported to secure, and where the woman died eighteen months after- ward and her devisee brought a suit in equity five months after her death to set aside the mortgage, it was held that the mortgage should be set aside, and that the fact that the plaintiff was present when it was executed did not estop him. Brigham v. Fayerweather, 144 48. M. Machinery. [See FiXTUBi;.! Magistrate. [Sea Justice or the Peace ; Police CotrRT.] Maintenance. [See Champbbtt and Maintenance.] Malice. [See iNDiCTifENT; Libel and Slanbeb; Ma- licious Pbosecution.] Malicious Mischief. [See Street Eailwat.] Malicious prosecution; abuse of process. [See, also, Arrest ; Evidence, 17. ] 1. If a nol. pros, is entered by the procure- ment of the defendant, and a discharge is not ordered by the court, the defendant cannot maintain an action for^ malicious prosecution. Langford v. Boston & Albany Railroad, 144 431. 2. That a conductor caused an arrest before the person arrested attempted to leave the car tends to show that a prosecution for fraudu- lently evading the payment of fare by leaving a car without having paid it was made without probable cause. Krulevitz «. Eastern Eailroad, 143 228. 3. That one had probable cause to institute a prosecution against another for having liquor in his possession for illegal transportation has not necessarily a tendency to show probable cause for the institution of another complaint against the same person for having liquor in his possession with intent to sell. Falvey v. Faxon, 143 284. 4. For evidence justifying the refusal of the judge presiding on the trial of an action for malicious prosecution to rule, as matter of law, that a want of probable cause was not shown, and justifying a submission of the question to the jury, see Donnelly v. Daggett, 145 814. 5. For an examination of evidence on the question of probable cause, see Cheever «. Sweet, 151 186. 6. The plaintiff in an action for malicious prosecution may show his good reputation. Mclntyre ». Levering, 148 546. Mandamus. 1. Under St. 1875, ch. 185, authorizing the taking of land for a park in Boston, and St. 1886, ch. 304, providing that the council may issue bonds, and that, upon its voting to do so, the park commissioners shall at once proceed to construct the park, a writ of mandamus to compel the council to make an appropriation will not issue at the instance of persons whose lands have been assessed for betterments, al- MANDAMUS— MASTEE AND SEEVANT, I, n, (1). though such lands are so situated that access cannot be had to them until the park is com- pleted. Boston Water Power Co. «. Boston, 143 546. Marine insurance. [See INSUBANCE.J Marriage; married woman. ISee Hpsbajsd and Wipe.] Master and servant. I. The Relation. II. Mastbk's Liability for an iNJxrRT to Person ob Property. (1.) To the servant, for a personal injury from the work. (2.) To the servant, for a personal injury from a fellow servant's fault. (3.) To a third person for the servant's fault. (4.) The Employer's Liability Act. [See, also. Evidence, 12 ; Intoxicating Liquors, i; Negligence, 23; Kailroad, 12. For various questions of neglijjenoe and contributory negli- gence, see Negligence.] I. The Relation. 1. A servant's right of action against his master for a breach of the contract to employ until a certain time accrues upon the wrongful discharge before the time. Paige ». Barrett, 151 67. 2. Where it is agreed that A shall work for B for a year, and for a second year at an ad- vanced rate if B continues in the business, B's continuing in the business with a partner en- titles A to be paid for the second year at the advanced rate. CoUett V. Smith, 143 473. 3. For facts justifying a judgment for a de- fendant who having sold his express business, was sued for the dishonesty cf a former em- ployee, it not appearing that plaintiff was mis- led by defendant's conduct or silence, see Rich V. Crandall, 143 117. II. Master's Liability for an Injury to Person or Property. (1.) To tlie serTant, for a pergonal In- jury from the work. 4. A master cannot be charged by his servant with liability for an accident on proof merely that a rope broke. McKinnont). Norcross, 148 533. 5. Where one having a contract for the car- penter work of a building makes a sub-con- tract for the furring of a room, the sub-contrac- tor cannot found a right of action against the contractor on a fall through an opening in an- other room, even though the contractor did not maintain a light. Murphy v. Greeley, 146 196. 6. One who, while thinking of a factory elevator well and stepping fast, in the dark, falls into it, has no cause of action against his employer, who, in disregard of Pub. St., ch. 104, has neglected to protect the well. Taylor v. Carew Manuf. Co., 143 470. 7. Where the master directs a machinist in his employ to adapt a machine to a new use, according to the judgment of the latter, and to take charge of it when done and repair it when necessary, and the new use puts a double strain on a certain rod, which, after two years further use without inspection, breaks, to the injury of an employee, the master is liable. Moynihan «. Hills Co., 146 586. 8. An instruction is erroneous which assumes that it is a universal rule of law that it is an employer's duty to furnish suitable appliances. Robinson «. Blake Manuf. Co., 143 528. 9. In an action against a mining company by laborers injured by the failure of a brake to hold a descending bucket in which the laborers were, evidence showing the design and orig- inal construction of the brake to be insuffi- cient, that there was a loss of initial efficiency, and that there were safer contrivances, may support a verdict against the company. Myers ■». JEudson Iron Co., 150 125. 10. For an application of the rule that, if the master should have known that a machine was out of repair and dangerous, it was his duty to put it in proper repair or to warn those using it of the danger, see Rice «. King Phillip Mills, 144 229. 11. A master who employs a servant to work on a machine which has long been so out of repair as to be dangerous, cannot relieve him- self from liability for an injury sustained by the servant by showing that competent men were directed to keep the machine in order from day to day so that it would do good work. Rogers v. Ludlow Manuf. Co., 144 198. 12. Evidence that an employee in a mill was injured by starch being blown out of the boiler upon him does not, without more, sustain the burden of proof which rests on him in his ac- tion against the mill corporation. TBlanchette v. Border City Manuf. Co., 143 21. 13. For a discussion of evidence and instruc- tions in an action against a railroad company to recover for the death of an .employee while shoveling coal from a vessel to the cars, see Daley v. Boston & Albany Railroad, 147 101. 14. Where a personal injury to a mill hand and for which he sued his employer, occurred MASTER AND SERVANT, II, (1). 87 while he was putting a belt on a pulley, the plaiatiffi should be permitted to show that the belt was frequently off the. pulley, that there was no one specially charged with the duty of putting it on, and that those using the machin- ery operated by the belt had to put it on. Daley v. American Printing Co., 150 77. 15. A machinist and engineer, who under- takes extra worli for extra pay, first examining the place and receiving particular directions, has not a right of action against his employer for an injury from a projecting screw of a kind in common use and the danger from which is apparent. Qoodnow «. Walpole Emery Mills, 146 261. 16. Where a servant complains that ma- chinery on which he works has become dan- gerous and the master promises that it shall be repaired, an injury while awaiting the fulfill- ment of the promise does not, as matter of law, give a right of action against the master. The promise is a circumstance for the jury. Counsell ®. Hall, 145 468. 17. A brakeman assumes the risk incident to coupling cars on tracks known by him to be unblocked. Wood V. Locke, 147 604. 18. A fireman in a mill assumes the danger of the bursting of a valve while letting on steam when water is in the pipes, the danger being known to him. Linch ®. Sagamore Manuf. Co., 143 206. 19. It cannot be said that the risk taken by a new brakeman, who, in climbing up^ a ladder on the side of a moving freight car, is struck by a signal post three and a half feet from the track, was assumed by him as incident to his employment. Scanlon v. Boston & Albany Railroad, 147 481.' 20. An experienced teamster, ordered by his employer to mount a van and drive under a gateway and sign, is not precluded from main- taining an action against his employer for an injury sustained from coming in contact with the sign, if the circumstances and the employ- er's experience were such that the danger might have been apparent to him, and more apparent to him than to the teamster. Haley v. Case, 142 31G. 21. A railroad employee, who, in trying to couple two flat cars, is crushed by projecting timbers, which he could have avoided by stoop- ing beneath or by coupling from the other side of the cars, is guilty of negligence precluding a recovery against the company. Lothrop V. Fitchburgh Railroad. ISO 423; Boyle «. New York & New England Railroad, 151 102. 22. For a servant to put his head under an elevator to see why it does not come down pre- cludes a right of action against his employer for injuries sustained on the coming down of the elevator. Murphy v. Webster, 151 121. 33. An experienced machinist, injured by gearing which, though uncovered, is in plain sight, has not a right ol action against the em- ployer, even though particular instructions were not given to him. Foley V. Pettee Machine Works, 149 294. 24. For an accident to a laborer, on whom fell heavy steps, which, with his co-laborers,_he was trying to move, he has no right of action against his employer if other men at_ hand could and should have been called to assist, the steps being too heavy for those who handled them. Dunlap V. Barney Manuf. Co., 148 51. 25. A boy of fifteen of ordinary intelligence cannot found a right of action on the failure of his master to warn him of the danger of catch- ing his hand in a machine on which he has worked for two days and the danger from which is obvious and could not have been made clearer by instructions. Coullard «. Tecumseh Mills, 151 85. 26. It is not negligence on the part of an em- ployer to fail to instruct a boy of seventeen as to the danger of putting a finger between the roll and the hot cylinder of a simple machine where he has worked for six months on a sub- stantially similar machine. Crowley v. Pacific MUls, 148 328. 27. A boy of twelve, employed in a mill, can- not found a right of action on a failure to in- struct; him with reference to the danger Irom revolving cog-wheels from contact with which he sustained an injury, and the danger from which should have been obvious. Ciriack v. Merchants' Woolen Co. 146 183. 28. But, there being evidence tending to show that the boy had less than average intelli- gence, that the place was dimly lighted, that he had not before worked so near the wheels as to be in danger, and that the order was impera- tive, calling for haste, it is not error to submit the case to the jury. Ciriack B. Merchants' Woolen Co. 151 152. 29. If a boy of nineteen undertakes to work on a dangerous machine, understanding the dmger, and is injured, he cannot found a right of action against his master on the fact that the machine would not have been danger- ous if guards had been used. Gilbert v. Guild, 144 601. 30. For questions held to have been prop- erly excluded on the trial of an action by a boy of nineteen against his employer to recover for injuries sustamed from the use of a dangerous machine, see Gilbert v. Guild, 144 601. 31. Where, in an action by a boy of fifteen, employed in a silk mill, against his employer to recover for personal injuries sustained from getting caught in a gearing, it appears from the boy's own testimony that he had been warned, knew of the danger, was familiar with the spot, and could have avoided the accident, it is proper to direct a verdict against him. Probert v. Phipps, 149 2o8. 33. Where, in an action by a girl of thirteen, employed in a cotton mill, against the owners 88 MASTEE AND SEEVANT, n, (1), (2), (3), (4). of the mill for injuries sustained from catching a finger between a spoke of a wheel on a spin- ning frame and the end of the frame while at- tempting to clean the wheel, there is evidence tending to show that she was not told how to clean the wheel, but tried as she had seen others do, and where on the other hand there is evidence directly to the contrary, the case is for the jury, and a judgment rendered on a verdict in her favor should not be disturbed by the court of review. Glover ». Dwight Manuf. Co., 148 33. 33. For an examination of evidence and in- structions in an action against a cotton mill corporation by an employee, a boy of thirteen, injured by getting his hand in a winder, see Rock «. Indian Orchard Mills, 142 533. 34. Whether a brakeman injured while mounting, a moving engine, by a pile of sleep- ers which he forgot or did not know were near the track, was in the exercise of due care, and whether the company under the circum- stances, was negligent, were held to be ques- tions for the jury. Babcock v. Old Colony Railroad, 150 467. 85. The duty of a master, who sets a servant to work in a place of danger, to give him such notice as his youth, inexperience, or want of capacity reasonably requires is not confined to cases where the servant is " a man of manifest imbecility," and an instruction to this effect is rightly refused. Atkins V. Merrick Thread Co., 142 431. 86. For evidence sufficient to take to the jury tlie question of duo care on the part of the plaintiff and the defendant in an action for personal injuries sustained by the plaintifi while at work on a carding machine in the de- fendant's mill, see White V. Nonantum Worsted Co. , 144 376. 37. In the case of a railroad employee, who, while assisting in moving a car, was crushed between it and the corner of a building in the yard of the company, it was held, in an action against the company, that the case was for the jury, and that it was error to direct a verdict for the defendant Ferrin «. Old Colony EaUroad, 143 197. 38. In the case of an employee of a mill cor- poration who sued for injuries sustained by falling down an elevator well, there being some evidence tending to show that the plaintiff did not know that the hatches guarding the well were not in working order, and thflt the light was poor, it was held that the question of due eare was -for the jury and that it was error to direct a verdict for the corporation. Carey v. Arlington Mills, 148 338. (2.) To the servant, for a personal Injury IVom a fellour servant's fault. 39. A mate of a vessel and a common sea- man a:e fellow servants; for an accident to the seaman due to the mate's negligence, the own- ers of the vessel are not liable. Benson v. Goodwin, 147 237. 40. A workman who, without complaining, works under a foreman whom he knows to bo incompetent, assumes the risk and cannot main- tain an action against the master for an injury due to the carelessness of the foreman. Hatti). Nay, 144 186. 41. A car inspector, who stands between two cars, knowing that one may be pushed against the other, is guilty of negligence precluding a right of action against the company for the resulting accident. Whitmore «. Boston & Maine Railroad, 150 477. 42. And, if the accident is due to the negli- gence of the conductor (a fellow servant) the result is the same. Whitmore «. Boston & Maine Railroad, 150 477. (3.) To a third, person, for the servant's fault. 43. That a conductor pointed out a passenger to local police officers, who arrested him at the conductor's request, justifies a finding that the arrest was made, not by the conductor in his capacity of railroad police officer, but at the request of the conductor in his capacity of con- ductor, and that, therefore, the company is liable for an assault and false imprisonment, the arrest being unlawful. Krulevitz v. Eastern Railroad, 143 338. 44. For a statement of facts not inconsistent with the theory that the driver of an ice-cart was acting within the general scope of his em- ployment when he drove against the carriage of the plaintiff in an action against the em-' ployer, see Young V. South Boston Ice Co., 150 527. (4.) The Employers' li lability Act. 45. A declaration which merely alleges neg- ligence in a fellow-servant in handling or using sufilcient and proper apparatus does not state a case within the Employers' Liability Act (St. 1867, ch. 370, § 1, cl. 1). Ashley ii. Hart, 147 573. 46. A servant who, of his own motion, and outside the line of his regular duty, attempts to repair machinery, the dangers from which are obvious, and is injured, cannot invoke the act in support of an action against his master Mellor ®. Merchants' Manuf. Co. 15U 362. 47. The Employers' Liability Act does not cut down the common law right of action ot an employee who sustains personal injuries from a defect in the employer's machinery. Thougn a statutory notice is not given an action at com- mon law is not cut off. This conclusion fol- lows from a construction of the statute and MASTER AND SERVANT, II, (4)- MORTGAGE. 89 from the rulings of the courts of Great Britain in construing the English act, from which the Massachusetts statute is taken with mere varia- tions of detail. Ryall V. Mechanics' Mills, 150 190; Coughlin ». Boston Tow Boat Co., 161 93; Clark «. Merchants' & M. Transportar tionCo., 151 352. 48. The act does not give a right of action to the administrator of the injured servant to recover compensation for his death in ad- dition to compensation for his suffering and the damages accruing in his lifetime. Ramsdell v. New York & N. E. Rail- road, 161 245. Mechanic's lien. [See Lien.] Meeting-house. [See KELiGiotrs Associatioh.J Mercantile agency. [See Equity Jubisdiction, 4.] Milk. ° [For rulings upon indictments or complaints for selling or keeping for sale adulteratea mUk, see Indictment, 27, 28.] 1. The mode of pioof of adulteration of milk, provided for by Pub. St, ch. 57, is not ex- clusive. Comm. V Spear, 143 172; Comm. u. Holt, 146 38. 2. If it appears that a few drops of carbolic acid were added to the sample reserved by the analyist, the question whether the sample was afEected by the addition is for the jury. Comm. ®. Spear, 143 172. 3. The provision of St., 1884, ch. 310, § 4, for the reservation and sealing of a portion of the sample of milk taken for analysis, is repealed by implication by St., 1886, ch. 318, §§ 1. 3. Comm. 1). Kenneson, 143 418. 4. Placing wax upon the top of the cork in a bottle containing a portion reserved froin a sample of milk taken for analysis, and not ex- tending the wax over the mouth of the bottle and thus rendering the bottle air-tight, is not a sufficient compliance with the requirement of Pub. St., 1884, ch. 310, § 4, that such reserved portion shall be " sealed." Comm. V. Lockhardt, 144 132. 5. The offence defined by St., 1885, ch. 353, § 8, is punishable as provided by Pub. St., ch. 57, § 5. The statute so states; and the same result must follow if § 5 be deemed repealed by implication. Comm. V. Kendall, 144 357. 6. The question of the guilt of one who sells milk not of the standard quality, ia disregard Vou m— 12 of St. 1886, ch. 318, § 2, does not depend on whether the buyer had notice or knowledge that the milk was skimmed milk. Comm. V. Smith, 149 9. 7. One complained of under St. 1886, ch. 318, § 2, for selling milk not of good standard quality cannot defend on the ground that the milk was delivered under a special contract. Comm. 1). Holt, 146 38. 8. For evidence sufficient to take to the Jury the question of intent to sell certain adulterated milk, see Comm. V. Smith, 143 169. 9. For evidence which was held competent and relevant on the trial of an indictment, see Comm. V. SchafEner, 146 512. Mill; mill dam. 1. On an indictment for an attempt to des- troy a dam, the record of the court, which, under St. 1871, ch. 103, acted upon the peti- tion for the dam, affords prima facie evidence that the petition was duly signed by twenty persons. Comm. ». Tolman, 149 229. 2. It is no defense that the accused believed the dam to be a public nuisance which any man had a right to abate, the statute providing a remedy in such case. Comm. «. Tolman, 149, 229. 3. A navigation company, relieved from its obligations as such, by a statute which fixes the height at which it can maintain its dam for manufacturing purposes, and which makes the company for the future subject to all the duties and liabilities of manufacturing companies, cannot maintain its dam at a greater height without incurring a liability for dam- ages, under the mill act, to one injured. Comins ■». Turner's Falls Co., 143 443. 4. For a case involving the construction of a verdict regulating the height of a dam in a proceeding under the mill act, see Atkins «. Witherell, 143 483. Minor, [See Guardian and Ward; Infant; Negli- gence; Parent and Child.] Misdemeanor. [See the titles of the various criminal ofEenses; also Indictment."] Misnomer. Mistake. [See Name.] [See EQurrr Jurisdiction.] Mortgage (of personal property.) [See Chattel Mobtqaqe.1 90 MORTGAGE, I, 11, UI, IV. Mortgage (of real property.) I. Gbnbkal Btjles. II. Pabticulak Kikds op Mortgages. III. DiSCHABGB; ExTrNGUISHMENT. IV. Redemption. V. Mobtgagee's OB Puechasbr's Eemb- DiBS UPON Condition Beokbn. [See, alBo, Covenant, 3, 6; Deed, 11; Insolyent, 6; Landlord and Tenant, 15.J I. Gbnekai Rules. 1. A transaction, ■whereby a creditor, under an agreement with his debtor to hold land as security, gets a title by the levy of an execu- tion on a judgment obtained by corsent a d by the foreclosure of a mortgage, should be treated as a mortgage and a reconveyance by the creditor's devisee compelled. CuUen V. Carey, 146 50. 2. An equitable interest in a mortgage passes to the transferree of one of the notes secured thereby, thoxigh the understanding that this shall be so is oral only or though noth- ing is said. Norton v. Palmer, 143 433. 3. Where a mortgagor in possession of a dwelling house lets it, his misrepresentations as to its sanitary condition do not authorize an action by the tenant against the mortgagee, in the abser:ce of evidence that the mortgagor, in letting the honse, acted as the mortgagee's agent. Tilden v. Greenwood, 149 567. 4. For evidence sufficient to support a find- ing that a recorded mortgage was delivered, and, therefore, was a lien paramount to that of an attachment recorded after the record of the mortgage, see Greene!). Conant, 151 228. 5. A mortgagor's heirs cannot maintain trover against an assignee of the mortgage, in posses- sion for breach of condition, before foreclosure, for cutting and carrying away trees. Place V. Sawtell, 142 477. 6. A consideration is not necessarily essen- tial to the validity of the mortgagor's release to the mortgagee of the right of redemption. Stone J). Jenks, 142 519. 7. An assignment of a mortgage may trans- fer the mortgagee's full legal title, though no words of inheritance are used Barnes v. Boardman, 149 106. II. Particular Kinds op Mortgages. III. Discharge; Extinguishment. 8. A mortgagee, who has not discharged the mortgage, his signature to what purports to be a discharge having been forged, is not con- cluded by the attestation and certificate of a justice of the peace, induced by the forger and not due to fault or negligence on the mortga- gee's part. O'Neil V. Webster, 150 573. 9. A petition, under St., 1882, ch. 237, to have land declared free of the incumbrance of a mortgage more than twenty years old, can- not be maintained where, not only has the mortgage not been paid, but where the con- tingency in view of which it was given and against which it was to afford protection has not occurred and may yet occur. Delano o. Smith, 142 490. 10. Where a mortgagor conveyed part of the mortgaged land, and the deed, af ler the descrip- tion, recited that it was subject to the mort- gage and covenanted to remove all incum- brances except a mortgage for a less sum than that in question, and where afterward various transactions were had between the mortgagor and mortgagee, the effect of which was to release from the operation of the mortgage other land covered by it and to a greater value than the amount of the mortgage, , and where for some time the grantee paid mter- ( est on the smaller amount to which, according to the covenant, the incumbrance on his land had been reduced, it was held that he was not entitled to have the mortgage declared dis- charged, but that he was entitled to redeem. Brown v. South Boston Savings Bank, 148 300. 11. Where, on a bill in equity, changed from a writ of entry, for the recovery of land, it appeared that the plaintiff's rights were found- ed on a construction that the mortgage under which the defendant claimed was discharged in law, though not in fact, but that the defend- ant bought in good faith and in reliance on the record title, and that there were no special equities in the plaintiff's case, and that a prior suit, brought by one under whom the plaintiil claimed, and assailing the title on substantially similar grounds, had been dismissed several years before, it was held that the bill should he dismissed. Hermanns ®. Fanning, 151 1. 12. If the plaintiff, pending his suit to re- deem, becomes the holder of the mortgage as well as of the equity of redemption, he cannot maintain his suit. Tyler i>. Brigham. 143 410. IV. Redemption. 18. Where a mortgagor's grantee seeks, by bill in equity, to redeem, he makes a sufficient ofEer to redeem by praying that he may be allowed to pay such sum as shall be found due on the mortgage. It is not necessary that he shall offer to pay in such distinct terms as to constitute, if accepted, an enforceable contract. Brown b. South Boston Savings Bank, 148 300. 14. In a suit by the holder of a second mort- gage to redeem from the first mortgage the real debt or obligation secured by the first mort- gage may be shown, and, if necessary, by parol. Taft V. Stoddard, 142 545. 15. A mortgagee in possession, ona bill lo redeem, is not necessarily chargeable with the full rental value of the premises, no want of MORTGAGE, IV, V— MUTUAL INSUEANOE. 91 care or diligence in the management of the estate appearing Brown v. South Boston Savings Bank, 148 300. 16. Where a bill in equity for the redemp- tion of land from a mortgage is filed a few days before the time limited, and no subpoena is taken out, it is not error for the court, in its discretion, to dismiss the bill two years after- ward on the defendant's motion; Pub. St., ch. 181, § 28, does not import the contrary. Bancroft v. Sawin, 143 144. 17. Where it was agreed that certain land should be released from the operation of a mortgage, on payment of a certain sum, inter- est not being stipulated for, and the mortgagee insisted on more, and the mortgagor was obliged to bring suit to compel a release and restrain a foreclosure, it was held that the mort- gagee was not entitled to interest from the time of the filing of the bill. Clark V. Fontain, 144 287. 18. For facts bearing upon the question whether, in a suit to redeem from a mortgage, interest should be charged on certain items, see Grossman B. Card, 143 152. 19. For an examination of exceptions to a master's report of the amount due on a mort- gage, see Dooley v. Potter, 146 148. V. Moetgagbb's oh Pukchasbr's Remedies UPON CONBITION BROKEN. 20. That a mortgage is assigned as " collat- eral security " does not preclude the assignee from executing the power of sale as fully as though the assignment were absolute. Holmes «. Turner's Falls Co., 150 535. 21. Several distinct parcels of land included in one mortgage may be sold at one sale to sep- arate purchasers. Holmes «. Turner's Falls Co., 150 535. 33. For an advertisement sufficiently des- cribing the premises to be sold under a power of sale contained in a mortgage, see Streeter v. Ilsley, 151 291. 23. Where, after several adjournments of a sale of land under the power in the mortgage, nobody but the auctioneer and the mortgagee's agent ever being present, and the notices of the adjournments being by oral proclamation only, the land is finally bid oflf to the agent for much less than its market value, a junior mortgagee, who was not notified of the hour of the sale, though he had requested to be notified, is en- titled to redeem. Clark V. Simmons, 150 357. 24. A purchaser at a mortgage sale under the power may hold the land, though the adver- tisement was published in a newspaper of small circulation and not many were present at the sale. Stevenson v. Hano, 148 616. 25. Under Pub. St., ch. 181, § 27, the mort- gagor may suspend the execution of the power of sale by bringing suit and offering to redeem, without a tender. The provision embraces power of sales mortgages as well as other mort- gages. [Devens, J., dissenting.] Way V. Mullett, 143 49; Clark v. GriiBn, 148 540. [But see St. 1888, ch. 483.] 26. Though an action on mortgage notes is barred by the statute of limitations it does not follow that a writ of entry cannot be brought on the mortgage. Norton 1). Palmer, 142 483. 37. The authority of an agent to enter to foreclose a mortgage may be inferred from slight circumstances after many years, — from his possession of the mortgage, for example, and subsequent acts of the mortgagee showing his claim of title under the foreclosure. Barnes ». Boardman, 149 106. 28. Under Pub. St., ch. 18, § 1, and 181, ch. 2, the certificate of an entry for the breach of a condition of a mortgage may be sworn to be- fore a notary public as well as before u, justice of the peace. Murphy v. Murphy, 145 224. 29. For an examination of the provisions of an instrument in the nature of a trust deed or mortgage which were held not to authorize a strict foreclosure, see Shepard v. Bichardson, 146 32. 30. For a declaration which, appearing to count on a liability of the defendant, who had purchased mortgaged realty at a sale under the power and taken an assignment of the mort- gage, was held so obscure and inconsistent as not to state a cause of action on the part of the mortgagor, see Walpole V. Quirk, 143 73. Municipality. [See Town and Citt.] Municipal court of Boston. [See Police Coui.t.] Mutual insurance. [See Insurance Compant.] 92 NAME— NEGLIGENCE, I, IL N. Name; misnomer. [See, also, Benevolent Association, 21; CoB- POKATION, 1.] 1. Whether " Celestia " and "Celeste" are idem soTians may be a question for the jury, determinable from their general knowledge. Comm. 11. Warren, 143 568. 2. So it may be found that "JefEards" and " Jefferds" are idem sonans. Comm. «. Brigham, 147 414. 3. It cannot be said, as matter of law, that Frank A. White and Prank E. White are the same person. If an indictment nanjes one and the proof relates to the other the variance is fatal. Comm. V. Buckley, 145 181. 4. On the question whether the woman with whom the accused is charged with having com- mitted adultery was rightly named in the in- dictment it may be shown that she herself had pleaded to a complaint describing her by the same name. Comm. ■». Brigham, 147 414 National bank. [See BAifK.J NaTlgalble waters. [See Water-course.] Ne exeat. [See Equity Jurisdiction, 6.] Negligence. I. What is or is not Actionable Nbg- LiaBNCB. II. Plaintifp's Conduct, as Affecting HIS Right to Rbcoveb. in. Particular Cases. IV. Pleading and Evidence. [As to an action to recover for an injury from a defective way, see Highway, VI; against a master, whether a corporation or an individual for an in- jurytoa servant, Bee Master and Servant; against a carrier for negUgence in the transportation of goods or for negligence in causing death, see Car- rier; against a land-owner for the negligent man- agement of his property, see Land-Owner. As to a landlord's or tenant's liability for negligence, see Landlord ajsd Tenant. For additional rulings on Questions of negligence, see Action, 3; BridoEi 7; Fire, 1] I. What is or is not Actionable Negli- gence. 1. In the case of a blind man, accustomed to going about alone, who, for a fall into an open trap-door in the sidewalk of a much frequented street, sued the occupant of the premises, it was held that the questions of due care on the plaintiff's part and of negligence on the part of the defendant were for the jury. Smith «. Wildes, 143 556. 3. It is evidence of negligence that the driver of a street-car was looking back when a boy was struck by the car. Collins 9. South Boston Railroad. 142 301. 3. On the trial of an action brought by a boy of eight against builders and founded on per- sonal injuries charged to a want of proper bar- riers between the building and the street, if the evidence as to the existence of barriers is con- flicting, the case is for the jury. Moynihan «. Whidden, 143 287. 4. So as to the question of due care on the boy's part, though he had been ordered away shortly before and stopped to talk for a minute or two. Moynihan v. Whidden, 143 387. 5. In an action to recover for injuries sus- tained from the fall of a hydraulic elevator in which the plaintiff was riding, it was held that the defendant was entitled to an instruction that if he introduced all known safety appliances and had no knowledge or reasonable cause to be- lieve that there was danger from air coming from the street pipe, and an accident happened therefrom, he would not be liable, even if he had knowledge that the water was being shut off. Shattuck «. Rand, 142 88. 6. That a cabman was violating a city ordi- nance by permitting his cab to stand crosswise in the street does not necessarily bar his right of action against one who negligently drives against the cab. Newcomb ». Boston Protective Depart- ment, 146 596. 7. If the husband of the owner of premises let to a tenant, while supervising repairs, di- rects the removal of a plank from a floor ia a passage-way, thus leaving a dangerous and un- guarded hole, he may be liable to one who falls into the hole. Toomey ». Sanborn, 146 28. II. Plaintipf's Conduct, as Affecting his Right to Recover. 8. A customer of a public dining-room who, after having used a certain door for several days, opens another door and falls down a flight of steps which might readily have been seen, is guilty of negligence such as defeats a right of action. Gaffney D.Brown, 150 479. 9. One who, in passing from one car to an- other, while the train is making a momentary NEGLIGENCE, II, III. 93 stop, steps on the buffer, and is injured througli the sudden start of the train, has no right of action against the company. Snowden v. Boston & Maine Railroad, 151 330. 10. A person who, having left a train at a station at a highway crossing, attempts to cross the highway as soon as the train has started and before the gates are raised, and is struck by a train on the other tra^k, is guilty of negli- gence such as makes it proper to direct a ver- dict in favor of the railroad company. AUerton i>, Boston & Maine Bailroad, 146 341. 11. One who attempts to cross a railroad at a highway crossing when the gates are down, and, alter passing in front of a moving freight train, is struck by a train on the other track, is guilty of negligence precluding a right of ac- tion against the railroad company. Granger v. Boston & Albany Railroad, 146 376. 13. One who drives across a railroad track at a point where a gate opens on land owned by one who has posted there a notice of " No admittance," and where those operating trains have no reason to expect travel, and who, moreover, does not look for the train which strikes him, has no right of action against the railroad compairf . Donnelly i). Boston & Maine Railroad, 151 310. 13. The driver of a four-horse team who, knowing that there is neither gat3 nor flagman at a familiar crossing, attempts to cross, imme- diately after passage of a freight train, without looking or listening for a passenger train then due, is guilty of negligence such as to preclude a recovery against the company. Fletcher i>. Fitchburg Railroad, 149 137. \ 14. It is not negligence per se for a blind man to walk unattended on a public street. If he is struck by a team the question of due care on his part is one of fact. NefE V. Wellesley, 148 487. 15. Where a boy of twelve, walking on a street car track by the side of a noisy ice cart, for the purpose of getting ice for which he was sent, was struck by a rapidly moving car, it was held, in the boy's action against the railway company, that the question of due care on the boy's part was for the jury. Howland v. Union Street Railway, 150 86. 16. The question of the negligence of a child of seven, who, while going on an errand, was knocked down by a team driven at a run while the child was attempting to cross two streets diagonally, was held to be a question for the jury- Dealey «. Muller, 149 433. 17. Whether a child of eight who, on its way to school, sits down on the curbstone of the sidewalk of a busy street to sharpen a pen- cil and is struck by a team, is in the exercise of due care, is a question for the jury, in an ac- tion against the owner of the team. O'Shaughnessy v. Suffolk Brewing Co., 145 569. 18. It is not negligence per se for the parents of a boy of four to permit him to go upon the streets of a city attended only by his sister of eleven. And, if the boy is struck by a street- car, the questions of negligence, in his action against the company, are for the jury. Collins V. South Boston Railroad, 142 801. 19. Fn the case of a child of four, who left the house and was kicked by a horse improp- erly in the highway, it was held that the ques- tion of due care on the part of the child and its parents was for the jury. Marsland «. Murray, 148 91. 30. Whether the plaintiff, in an action against the owners of a private railroad to re- cover for injuries sustained at a crossing, was in the exercise of due care, was held, in the circumstances, a question for the jury. Cleaves v. Pigeon Hill Granite Co., 145 541. 31. Whether one struck by a train at a cross- ing was in tlie exercise of due care, was held a question for the jury in a case where it ap- peared that the outlook across the track was cut off by cars and a buUdine, and that no sig- nals were given. Hanks v. Boston & Albany Railroad, 147 495. 23. The question whether a foot passenger struck by a sleigh was in the exercise of due care, was held, in his action against the owner of the sleigh, for the jury. Kendall «. Kendall, 147 483. 23.. Where a night watchman at a railroad station is required to cross the tracks and, be- lieving that the train has passed, and, the sta- tion being filled with smoke and tlie light being bad and the noise great, is struck by the rear part of the train, which has become detached by the spreading of the coupling link, there is not such evidence of the watchman's negli- gence as to take the case from the jury in an action against the company. Grifiin «. Boston & Albany Railroad, 148 143. 24. For evidence justifying the inference that one killed by a train at a highway cross- ing was awake on his team, sufficiently to take the case to the jury, against the contention of the railroad company that there was gross negli- gence, see Doyle V. Boston & Albany Railroad, 145 386. 25. A boy, who knew that he should not use an elevator and who was injured while attempt- ing to use it, was held guilty of contributory negligence such as to preclude a right of action. Patterson v. Hemenway, 148 94. III. Pakticulab Cases. 26. From the fact of the fall of a lamp-shade in a railway car it may be inferred that the fixture was insufficient. White V. Boston & Albany Railroad, 144 404. 94 NEGLIGENCE, HI, IV. 37. Where, through his own fault, one takes the wrong train, and is ordered back to the rear cars and is thrown from the platform by an or- dinary lurch of the train, no cause of action against the company appears. Stewart v. Boston Providence Railroad, 146 605. 28. But if he is on the platform, not for the purpose of riding there, but while looking into a car in search of a seat, he may recover for injuries resulting from a collision due to the negligence of the servants of the company. Dewire v. Boston & Maine Railroad, 148 343. 29. A passenger, who, knowing that the train is about to start, is unnecessarily or im- properly on the platform of a car, cannot re- cover of the company for being thrown down by the starting of the train with no unusual or unnecessary jerk. Torrey «. Boston & Albany Railroad, 147 413. 30. A passenger on a train, who, knowing a collision to be imminent, goes forward to the baggage-car to jump therefrom, instead of back toward the rear of the train, is not chargeable with negligence such as to preclude a sub- mission to the jury of the question of the lia- bility of the railway company for an injury received by him. Cody B. New York & N. E. Railroad, 151 463. 31. One who is pertnitted to board an open street car, and to stand between the seats, and from whom fare is taken, is not precluded from maintaining an action against the company for injuries sustained from being thrown from the car as it goes around a curve. Lapointe i>. Middlesex Railroad, 144 18. 33. Whether one is guilty of such negligence as to defeat his right of action against a street car company, by attempting to board the car after it has "slowed up to a speed of four miles an hour," is a question for the jury. Briggs V. Union Street Railway, 148 73. 33. An accident, resulting from cars running beyond the end of the track on a down grade, striking a telegraph pole, breaking it, and caus- ing the wires to fall upon horses, may justify a verdict against the company on a showing that the accident might have been prevented by a hunter or obstruction at the end of the track Shaw ». New York & Nevf' England Raikoad, 150 183. 34. That the public have been permitted to cross a railroad track at a certain point for a time less than that necessary to confer a pre- scriptive right is not necessarily equivalent to such an invitation to cross as will make the company liable to one struck while crossing under circumstances not showing reckless or wilful misconduct on the part of those operat- ing the train. Wright v. Boston & Albany Railroad, 142 296. 35. For evidence justifying a submission to the jury of the question whether a railroad company had held out inducements to the pub- lic to use the crossing where the plaintiff in the action against the company was struck by a train, see Hanks v. Boston & Albany Railroad 147 495. 36. The right of action against a railroad company for maintaining a defective platform at a station is not lost because the plaintiff, a passenger who had just alighted from a train, might have reached the nearest highway by going another way, or because he intended, after leaving the platform, to cross the tracks where he had no right to cross them. Keefe v. Boston & Albany Railroad 142 251. 37. One who, though warned and with knowl- edge of the danger of walking on the track, is struck, while so doing and while going volun- tarily of an errand for the station agent, by a train which he supposes to be on another track, so contributes to the accident as to preclude a recovery against the railroad company. Barstow v. Old Colony Railroad, 143 585. 38. Where one boards a steamship in port on a day when she is not open to the public, for the purpose of seeing an officer of the ship on private business, and, on inquiring as to the whereabouts of such officer, is directed to pro- ceed in a certain direction and is knocked into a hole by a bag of flour which he might have avoided had he exercised diligence, he has no right of action against the steamship company. Metcalfe ®. Cunard Steamship Co., 147 66. 39. A fireman, who, called so suddenly as to be unable to dress himself completely before starting for a fire on a ladder truck, throws his leg over the side piece for the purpose of hold- ing on while adjusting his belt, is not, as mat- ter of law, negligent in such a sense as to re quire such a ruling in his action for an injury due to a collision with a street car and to his position on the truck. Magee v. West End Street Railway, 151 340. IV. PliBABING AND EVIDENCE. 40. On the trial of an action against a rail- road company, to recover for personal injuries sustained by being struck by an engine at a crossing, it may not be shown that other acci- dents had happened there within a short time. Menard v. Boston & Maine Railroad, 150 B86. 41. That a flagman was stationed at a crossing, after the accident on which the action against the company is founded, is incompetent evi- dence against the company. Menard ». Boston & Maine Railroad, ISO 386. 43. For evidence sufficient to go to the jury on the question of the defendant's negligence in relation to the coal-hole in the sidewalk on his premises, into which the plaintiff fell, see Delory v. Canny, 144 445. 43. For evidence sufficient to support a find- ing that the plaintiff, a child, sustained an in. NEGLIGENCE, IV— NUISANCE, L 95 jury, for whicb he sued, from the kick of the de- fendant's horse as charged, see Marsland «. Murray, 148 91. 44. In an action- against a street railroad company by one thrown to the ground while alighting, the admission of the conductor, made immediately after the accident, that it was his fault, is not competent evidence. Williamson B.Cambridge Railroad, 144 148. 45. That which a foreman said as to how an accident happened cannot be used as an admiss- ion against the employer. McKinnon ■». Norcross, 148 533. New trial. [See, also Exception.] 1 A question of law open at the trial but not raised there cannot be availed of a motion for a new trial. Holdsworth ». Tucker, 147 573. 3. Though, under Pub. St., ch. 170, § 3, a constable is exempt from serving as a juror, if he is drawn and serves, this does not entitle a party to a new trial as of right. Moebs V. Wolffsohn, 143 ISO. 3. Whether a new trial should be granted in a criminal case, for improper remarks made in the hearing of jurors, is discretionary with the court. Comm. ». White, 147 76; Comm. v. White, 148 439. 4. That the court permitted one of the jurors to remain in the jury -room in charge of an officer, while the others went to their supper, does not vitiate the verdict in a criminal case. Comm. V. Gagle, 147 576. 5. It is not necessarily ground for a new trial that, after the jury had agreed upon the verdict and were proceeding to the court-room in charge of an officer, one of them, without the knowledge or consent of any one, went home, he having been sent for and brought back before the verdict was returned and affirmed in the usual form in open court, and it being found, as a fact, that no harm was done. Chemical Electric Light, etc., Co., «. Howard, 150 495. 6. In cases tried by the court without a jury a party cannot, aa matter of right, be heard upon a motion for a new trial on the ground that the finding is against the evidence and the weight of the evidence. O'Grady v. Supple, 148 533. 7. Where dress goods worth not less than sixteen hundred dollars are damaged by salt water and soda ash it cannot be said that a finding that the damage was five hundred dol- lars should not stand, though, beyond common experience, there is no evidence, in the action of the owner of the goods against the carrier, of the amount of damage. Bradford i>. Cunard Steamship Co., 147 55. 8. On a motion for a new trial in a criminal case, evidence of conversations between the jurors outside of the jury-room, whether in court or out of court, is incompetent. Comm. 1). White, 147 76. Next of kin. [.See Descent and Distbibtjtion.] Nolle proseq[ui. [See Practice.] Nolo contendere. [See Conviction and Sbntencb.S.] Non compos mentis. ISee GuAKDiAN and Ward; Lunatic] Notary public. [See, also, Mortgage, 28'] 1. Under the constitution of this Common- wealth, at least in the absence of a statute, a woman cannot be appointed, or, if appointed, act as a notary public. Opinion of the Justices, 150 586. Notice; demand. [See Betting and Gaming, 5.] Nuisance. I. Common Law Ntiisaitcbs. II. Liquor Nuisancbs. [See, also, generally, Board of Heam?h; Fence; Intoxicating Liquors ; and, for particular csises, ia relation to Nuisances, Highwat, 27; Husband AND Wife. 18, 19; Land Owner, 4; Limitation OF Action, 16; Town, 41; Waiekcoubke, 1; Wet- ness, 1.] I. Common Law Nuisances. 1. To display, in front of one's premises, banners requesting workmen to keep away from them, is unlawful and will be enjoined. Sherry «. Perkins, 147 313. 3. That the custodian of a church refuses to stop the ringing of the bell for the usual serv- ices does not give a right of action to one whose illness Is aggravated by the sound. Rogers v. Elliott, 146 349. 3. An information in equity, brought by the attorney general, at the relation of certain in- habitants of a town in behalf of the inhabi- tants, lies to procure a removal, as a public nui- sance, of permanent structures useful in curing and packing fish on a common and public land- ing place; and, the structures being in their nature permanent, the province charter of 1693, which provides that fishermen may build on 96 NUISANCE, I, n. lands " lying waste, and not then possessed by particular proprietors, such wharves, stages, and work-houses," as may be necessary for the curing and packing of fish, cannot be invoked, in support of their maintenance. Attorney-General «. Tarr, 148 309. 4. Neither by a suit in equity nor by an in- formation brought in the name of the attorney general, on the relation of a citizen and for the protection of his private interests, can such citizen have relief against the action of a gas company which is about to obstruct the street in front of his premises for the purpose of lay- ing gas-pipes; nor does it matter whether the permission of the municipal authorities under which the company justifies its action was valid or invalid. The injury is either common to the public at large or, if special, not of so se- rious a character as to call for an injunction. Kenney v. Consumers' Gas Co., 142 417. 5. In tort for a nuisance charged to the noise of running a mill day and night during the six months before the -date of the writ, it was held that evidence of the kind and amount of noise made at various times after the six months was properly admitted, as was evidence tending to show that the noise was not greater than that of other mills of a similar sort, that the machinery used was the ordinary and usual kind, that it was the custom of other mills of the sort to run day and night, and that without so running a mill could not compete with others. Shepard v. Hill, 151 540. 6. For evidence held incompetent on the trial of an action of tort for a nuisance, consisting of a steam-engine, boilers and machinery, see Quinn v. Lowell Electric Light Co., 144 476. II. Liquor Nuisances. 7. A retail druggist, not licensed to sell in- toxicating liquors, who sells pure alcohol for medicinal, mechanical, or chemical purposes, without a certificate of the purchaser stating the use for which the alcohol is wanted, is liable, under St. 1887, ch. 431, for maintaining a common nuisance. Comm. B. Pierce, 147 161; Comm. «. Perry, 148 160. 8. And the burden of showing that the sale was lawful is on the accused. Comm. V. Perry, 148 160. 9. He may show, as tending to explain his possession of liquor seized, that he had applied for a license and that it was granted five days afterward, no sales being proved. Comm. ■». Wellington, 146 566. 10. On atrial of a liquor nuisance case, the court, after having put to the jurors the questions specified in Pub. St., ch. 'l70, § 35, is not required to ask them whether they are members of, or contributors to, any society or association having for its object the enforce- ment of the laws relating to intoxicating liquors. Comm. V. Burroughs, 145 243. 11. On a complaint for maintaining a com- mon liquor nuisance, to wit, a tenement, etc., the fact that one of the rooms of the house was occupied and used as a shop and the other for a living room or kitchen, by the same per- son, does not require the Commonwealth to elect in which of the rooms the tenement was or the court to rule that there were two tene'- ments. Comm. «. Clynes, 150 71. 13. The defendant may not cross-examine for the purpose of eliciting a comparison of the place before the defendant's occupation and now. Comm. v. Wallace. 143 88. 13. An allegation, in an indictment, of the defendant's " control " of a liquor nuisance, is controverted by proof of the possession of a tenant under a lease. Comm. «. Wentworth, 146 36. 14. For evidence sufiScient to warrant a be- lief that a lease was merely colorable and that the accused was the keeper of the nuisance, see Comm. V. Locke, 148 125. 15. The defendant's application for a license is competent evidence as tending to show that he kept, the place. Comm. 11. Andrews, 143 23. 16. Evidence that the accused kept the tene- ment at a time not included in the time alleged in the complaint is competent, as having some tendency to prove that he kept it during the time alleged. Comm. ■». Moore, 14T 528. 17. In a liquor nuisance case, there being evidence tending to prove that the house in which liquors were sold was kept by the de- fendant, the court may charge that, if the de- fendant kept the whole building and used any part of it for the illegal keeping or illegal sale of liquor, they may convict. Comm. B. Rooney, 142 474. 18. A servant or clerk cannot be convicted of keeping a liquor nuisance unless he has charge and control of the place, at least tem- porarily. If he acts under the personal super- vision of his master, the latter only is liable. Comm. «. Galligan, 144 171; Comm. v. Murphy, 145 250; Comm. v. Brady, 147 583. 19. It may be shown that liquor was found in the bar-room on the premises; and the cir- cumstances of the discovery may be shown, as well as the bar keeper's conduct at the time. Comm. V. Locke, 145 401. 20. It may be shown that liquor was found nearby in the house of a relative of the defend- ant, there being evidence tending to show that liquor was carried at different times to that house from the tenement in question. Comm. ■». Vahey, 151 57. 31. Evidence that the wife of one charged with keeping a liquor nuisance was seen to enter the kitchen of the tenement with a pitcher of whiskey which she attempted to throw out of the window tends to show that whiskey was kept on the premises. Comm. V. Downey, 148 14. NUISANCE, 11. 97 23. So of evidence that she broke a bottle of beer over the kitchen stove on the approach of a pplice officer. Comm. «. Gillon, 148 15. 33. It appearing that the defendant and his son were in the defendant's tenement just be- fore it was searched, it may be shown that the son, immediately afterward, threw beer from a window of an adjoining tenement. Comm. ». Nally, 151 63. 34. Evidence of drunkenness near the premi- ses may be competent though a connection is not shown by direct testimony. Comm. V. WaUace, 143 88. 35. Where a witness denies that he has ever been arrested for drunkenness it may be shown, in rebuttal, that he has been seen coming from the tenement in question intoxicated. Comm. V. Meaney, 151 65. 36. The general reputation of the tenement may not be shown. Comm. V. Eagan, 151 45. 37. Where, on the trial of a complaint for keeping a liquor nuisance, the evidence tends to show that the accused sold intoxicating liquors on the Lord's day to persons who went there for the purpose of procuring and drink- ing liquor, there is no occasion to instruct as to the rights of an innholder to sell to bis guests. Comm. ■». Moore, 145 344. 38. The court is not required to instruct that the testimony of a witness hired to obtain evi- dence should be received with the greatest caution and distrust; the weight to be given to his testimony is for the jury. Comm. D. IngeraoU, 145 231. 39. It appearing that liquor was found on the premises, the court may tell the jury that the finding of an article of merchandise in a place of business where merchandise is for sale would have a tendency to show that it was there for sale. Comm. V. Keenau, 148 470. 30. Instructions which, in effect, leave it to the jury to define the meaning of the statutory term "iiitoxicated person," and which recog- nize the possibility of different degrees of in- toxication are not necessarily erroneous. Comm. V. Trimble, 150 89. 31. For an examination of evidence, instruc- tions, and exceptions in a liquor nuisance case, see Comm. V. McNeff, 145 406; Comm. v. Buckley, 147 581. 33. A conviction of keeping a common nui- sance is justified by proof of a plea of guilty of selling liquor unlawfully, supplemented by evidence that the place where such liquor was kept for Bale was the tenement described In the complaint in the second proceeding. Comm. V. Line, 149 65. 33. Frequent illegal sales may justify a con- viction. Comm. V. Brown, 149 35. Vol. Ill— 13 34. From proof of illegal sales on two days it may be inferred that the illegal use of the premises was a continuing use. Comm. 1) McNeif, 145 406. 35. Evidence of a single sale to a minor will not support a conviction of keeping a liquor nuisance. Comm. B. Hayes, 150 506. 36. The government is not required to prove an act of sale or oflEering for sale to justify a conviction on a complaint for keeping and maintaining a liquor nuisance. Comm. V. Boyle, 145 373. 37. A convictii n may be sustained on evi- dence that a considerable quantify of whiskey was found inatenement.adwellinghouse, there being evidence tending to show that persons obtained liquor there. Comm. V. Kane, 150 394. 38. A complaint for keeping a liquor nuis- ance, to wit, a tenement in a certain town, is sup- ported by proof of the maiutainance of such a nuisance in a house consisting of one room partly in the town and partly in another town, the nuisance being kept in the part in the first town. Comm. i). Hersey, 144 297. 39. For evidence sufficient to support a con- viction, see Comm. V. Merriam, 148 435. 40. For evidence sufficient, in a liquor nuis- ance case, to warrant a finding that the ac- cused kept a public bar, see Comm. «. Powderly, 148 457. 41. For evidence sufficient to justify a sub- mission to the jury of the question wliether the accused kept and maintained the tenement charged to be a liquor nuisance, see Comm. ®. Moore, 147 538; Comm. V. Bryan, 148 455. 43. The provisions of St., 1887, ch. 380, con- ferring jurisdiction in equity to restrain or abate by injunction as a common nuisance places resorted to for the illegal keeping and sale of intoxicating liquors, are not an uncon- stitutional infringement of the requirements of the Declaration of Eights that "no subject shall be arrested, imprisoned, despoiled, or de- prived of his property, immunities, or privi- leges * * * but by the judgment of hia peers or the law of the land." [Field, Devens, and W. Allen, JJ., dissenting ] Carlton «. Eugg, 149 550. 43. On a petition, brought under St., 1887, ch. 380, § 1, for the abatement of a liquor nui- sance, if the allegations of the petition are ad- mitted for the purposes of the hearing to be true, the issue of a preliminary injunction is within the discretion of the judge. Carlton ®. Eugg, 149 550. 44. Where a petition for an abatement of a liquor nuisance is signed by "A. M. Allen," it may be shown that Augustin M. Allen, a legil voter, was the signer. Carlton «. Eugg, 149 550. 98 OFFICE AND OFFICER— PARTIE& 0. Office and officer. L As to officers of corporations, see Cobpobation, and the titles of the ditterent Corporations. As to official bonds, see Bond. See, also, Abhest; High- wat: Intoxicating Liquors; Taxation; Town AND City. See, also. Equity Jurispeudence, 21 1. Under St., 1887, ch. 437, giving to per- sons who served during the war the preference for appointment to office in the service of the Commonwealth, application, under St.,' 1884, ch. 320, to the civil service commissioners is es- sential as before. Opinion of the justices, 145 587. 2. The fact that the execution creditor is pres- ent when the officer, in the exercise of his own judgment, decides, notwithstanding a claim of exemption, to sell certain chattels on the exe- cution, does not make the creditor liable over to the officer, no indemnity having been prom- ised or security therefor given or exacted. Russell V. Walker, 150 531. 3. Even though, in such case, the officer pre- vails in his defence when sued, he cannot charge the creditor with costs or expenses of his defence. Russell V. Walker, 150 531. 4. Where, in an action against an officer to recover for the negligent escape of one arrested on a writ, the plaintiff shows a note which, on its face, appears to be barred by the statute of limitations, the burden of proving damages sustained is on him. Slocum «. Riley, 145 370. 5. Where, in an action of tort against a con- stable for accepting insufficient sureties on a replevin bond, the writ with his return and the bond with his acceptance are produced, it is not necessary to prove the signatures of the attes- ting witnesses to the bond, or further to prove its acceptance by the constable. Carter v. Duggan, 144 83. 6. To prove the insufficiency of the bond,, the plaintiff may show that he brought suit upon it and realized nothing; and this he may show by the record of the suit and the ofBcer's return upon the execution. Carter ■». Duggan, 144 33. 7. The officer who served the execution may testify that he could find no property. Carter «. Duggan, 144 33. 8. The amount of a judgment recovered in the action on the bond is admissible in evidence on the question of damages. Carter ■». Duggan, 144 33. Order. [See, also. Assignment; Bill of Exohanqe.] 1. Where one for whom a building is being erected accepts orders from the builder payable when the contract shall have been performed up to a certain point, and the contract never is so performed, because of the drawer's inaLil- ity, and is cancelled, and the acceptor finishes the building at a cost greater than the amount which would have been due the drawer had he finished it, the acceptor is not liable upon the orders. Linnehan v. Matthews, 149 29. 2. An acceptance of an order payable out of a certain payment provided for by the contract does not bind the acceptor if the work is aban- doned so that the payment never conies due. Proctors. Harligan, 143 462; Fuller «. Wilde, 151 413. Ordinance. ISee Town and Cety.I P. Parent and child. [See, also. Bastard; Divobce, 13; Husband and ■Wife; Infant; Negligence.1 1. Where a father sues for the loss of the earnings of an infant son, and the facts show an emancipation, the father may not state that he did not at any time intend an emancipation. McCarthy v. Boston & Lowell Railroad, 141 550. 3. An adopted son, who is also the grandson of the adopting parent, cannot, under Pub. St., ch. 148, § 7, inherit as son and also as grandson. Delano «. Bruerton, 148 619. 3. Under Pub. St., ch. 148, §§ 7, 8, a devise to the ' ' heirs at law " of the testator's wife, in the event of A's death, does not enure to the benefit of a child adopted by the widow after the testator's death, there being nephews and nieces of the testator and his wife. Wyeth V. Stone, 144 441. Park. [See Dedication, 1; Judgment, 8. see, also, Town and City.] Parties. [See, also .Equtiy Pleading and PiiAOnCE;lN- S0i.vENCY,Z2 ; Name.] 1. To a suit between adjoining land owners concerning the right of one of them to carry up PARTIES-PAETNERSHIP. 99 a party wall, mortgagees of his estate may be admitted as parties defendant. Everett v. Edwards, 149 588. 2. A lessor and lessee cannot join in an action against a tenant at sufferance for rent. Cofran v. Sliepard, 148 583. Partition. LSee, also. Joint Tenants;] 1. Before persons not named in a petition for partition are entitled, under Pub. St., cb. 178, §§ 11, 15, to appear and answer after a trial on the merits and a verdict, they must show an estate or interest in the land; and they do not show this by producing a will under which they have only a possibility of a contingent re- mainder, dependent on the approbation of the testator's widow. Fales V. Pales. 148 43. 3. If a tenant in common conveys his inter- est in part only of the estate, partition of such part alone will not be decreed. The whole must be partitioned together. Barnes v. Lynch, 151 510. Partnership. See, also, Former Adottdication, 14; Inpant,S; Insolvent, 21 ; Patent, 6; Trust, 3.] 1. An agreement between three to carry on a business, one to furnish the capital and buy and sell, each to receive a certain compensation, and the net profits, including the compensa- tion, to be divided equally, makes the three partners. Dame v. Kempster, 146 454. 3. On the question whether a partnership be- tween A and B was formed, it appearing that A advanced money to B, and took notes therefor, under an agreement that A might, if he chose, become B's partner, and that the money advanced should be A's contribution, and that B refused to recognize A as a partner, it was held, in an actioQ on the notes, that a finding that no partnership ever was formed was justified. Morrill v. Spurr, 143 357. 3. If assets of a partnership are in the pos- session of one of the partners at his death, and are sold by the executor for less than their value, and the amount received is accounted for as assets of the estate, the surviving part- ners, on a bill in equity against the executor in his capacity as executor, are only entitled to recover their proportion of the amount actually received, with interest. Bradley v. Brigham, 144 181. 4. Where an administrator of a deceased partner sues the surviving partner in equity on a mutual account, the defendant may claim a credit for partnership debts paid by him more than two years after the administrator gave bond. Goldthwait «. Day. 149 185. 5. Pub. St., ch. 137, § 31, which provides that, except in certain cases, no action shall be maintained against an executor or administra- tor after an estate has been represented insol- vent, does not apply to defeat a recovery by the defendant in a suit in equity brought against a surviving partner by the administra- tor of a deceased partner, the case being one on a mutual account and the suit having been brought before the estate was represented in- solvent. Goldthwait v. Day, 149 185. 6. Where a partnership agreement provides that the survivor may take the as ets at a valuation to be fixed by himself and the execu- tors of the deceased, and the survivor is him- self one of the executors, a valuation thus fixed is voidable. Denholm v. McKay, 148 434. 7. There being, however, no fraud, and the assets having passed into the hands of a new firm, and it being difficult, if not impossible, to follow them, thj executors should be charged, on their accounting, witli the full value. Denholm d. McKay, 148 434. 8. For a case where surviving partners, in good faith, paid debts of the deceased partner from partnership assets, and carried on the business with the consent of a majority of the heirs but against the protest of the minority, and for an application of the rules governing tlie division of profits, compensation of the working partners, and interest due to the heirs under the circumstances of the case. See Robinson «. Simmons, 146 167. 9. The bankruptcy of a member of a copart- nership, after its dissolution, is notice to credi- tors of the fact of the dissolution. Eustis V. Bolles, 146 413. 10. On the question of A's notice of B's with- drawal from the firm of B and C, it may be shown that A received from C a letter with the printed heading, " C, under the firm name of B and Company." Swift V. Carr, 145 553. 11. One who sells goods to a new firm, with- out notice of the dissolution of an old firm of the same name with which he has dealt, may recover of the members of the old firm, though notice of the dissolution was publislied in a newspaper, though the firm owed the plaintiff nothing at the time of the dissolution, and though he did not know the names of the members of the old fix-m. Elkinton v. Booth, 143 479. 13. A suit in equity lies to reopen a partner- ship seltlement induced by fraud and to reach partnership properly which has passed into the hands of donees and devisees of the partner perpetrating the fraud. Jaynes i). Goepper, 147 309. 13. For facts showing that it was not the in- tention of jjartners that interest should be charged on capital put in or sums drawn out, see Harris «. Carter, 147 313. 14. A note, given upon a valid consideration by a firm to one of its members, and by him indorsed to a third person to enable an action to be brought, will not support an action, the firm having become insolvent, havina; been dis- solved by agreement, the partnership's affairs not having been settled, and there being noth- ing to divide. Cutting «. Daigneau, 151 397. 100 PAETNERSHIP— PENSIO:N'. 15. "Where a copartnership, consisting of A and B, was dissolved, B agreeing with A to pay the firm debts, and subsequently suit was brought on one of these debts, and A defended on the ground that the plaintiff, who had cold goods after as well as before the dissolution, knew of the agreement, and should have ap- plied money received from B on the old in- debtedness rather than to new debts contracted by B, and it did not appear that in fact A and B had agreed that the first money paid by B should be thus applied, and there was evidence tending to show that the plaintiff had insisted otherwise before he made sales to B, it was held that a recovery was justified by the evidence. Ayer d. Kilner, 148 468. 16. Fcr a case wherein it was held that the court erred in ordering a verdict for the plaint- iff in an action against partners on a note signed by one of them, and in not submitting to the jury the question of notice on the part of the plaintiffs that the signer was using the note for his private purposes, see Central National Bank v. Frye, 148 498. Party wall. 1. A party wall may be carried up by one of the co-owners, to support an addition to his building, irrespective of the wishes of the other owner, so long as no injury is done to the es- tate. Nor does it matter to him that the mu- nicipal building regulations are disregarded. Everett v. Edwards, 149, 588. 2. Where deeds to adjoining owners author ize the placing of a partition wall on the di- vision line and provide that the one building the wall shall be paid by the other, on his using It, one-half its cost, and where the wall erected is insufficient for the higher building contem- plated by the other, the latter may strengthen, widen, a: d carry up the wall and extend it to the rear of the lot on the line of a fence erected by the original builder of the wall; and in such case there is no liability for one-half the cost of the original wall. Matthews ». Dixey, 149 595. 3. Where one using a party wall is to pay the market value as ascertained by appraisal, an action against him before an appraisal or anything done toward it is premature. Thorndike v. Wells Memorial Associa- tion, 146 619. Patent. [See, also, SPEcrFic Perfobmance, 2.] 1. Under a stipulation, in an agreement to assign an English patent, that any expense necessary to accomplish the issue of the patent is to be paid by the assignee, reasonable neces- sary expenses beyond payments to the inventor, to patent solicitors, and for consul fees may be included. Chemical Electric Light, etc., Co. d. Howard, 148 352. 2. As to the meaning of the words " in full force and effect," in an agreement to assign an English patent, see Chemical -Electric Light, etc., Co. v. Howard, 148 353. 3. Semble, that an agreement to apply for a foreign patent and to assign the patent, when obtained, may be made the foundation Af equit- able relief. Adams v. Messenger, 147 185. 4. If A, in consideration of an assignment of certain patents to him, agrees to pay a royalty on each machine manufactured thereunder by him, his agents, successors, or assigns, he is chargeable on machines bought of one ad- judged, in A's suit, to have infringed the patents, A having received payment from the pur- chasers of the machines so bought. Porter v. Standard Measuring Machine Co., 142 191. 5. Where a license, signed only by the licen- sor, stipulates for royalties, and authorizes the • licensee to assign, in consideration of like pay- ments by his assignee, the latter is liable to the original licensor in an action of contract for the royalties. Nor does it matter that the license provided for its revocation in case of non- payment. Paper Stock Disinfecting Co. v. Boston Disinfecting Co., 147 318. 6. A surviving partner who, against the ob- jection of the administrator of the deceased partner, has manuiactured and sold under a patent belonging to the firm, is liable, in equity, for one half of the profits of the manufacture and sale, less costs and expenses incurred by him, and a fair allowance for manufacturer's profits; but not, in addition, to interest, except from the time of filing the bill. Freeman v. Freeman, 142 99. Payment. [See, also, generally, Accokd aud Satisfaction ; Bill oi" Exchange ; Moko^age. And, for particu- lar cases involving questions of payment, see Com- position, 1; Lien, Vi.'\ 1. That one to whom a simple contract debt is due takes a note and mortgage from the debtor in the mistaken belief (shared in by the debtor) that the mortgage covers the fee, when in fact it covers only a life estate, does not take the case out of the rule that, prima facie, the note is taken in payment, if the creditor pro- ceeds with a foreclosure after ascertaining the facts and realizes money thereby. O'Conner v. Hurley, 147 145. 2. An agreement between an administrator and an heir, that notes held by the former against the latter may be deducted from his dis- tributive share of the estate, does not support a plea of payment of the notes, the agreement being still executory. Taylor b. Lewis, 146 222. Pension. 1. The federal statutes (U. S. St., June 30, 1878, and St.. July 4, 1884), limiting the fees charge ible for obtaining pensions, applj; as well to attorneys not known to or recognized by the pension oifice as to those known or recognized there. Oaverly v. Eobbins, 149 16. PEEFORMANCE OP CONTRACT— POLICE COURT. 101 Performance of contract. [See Contract. As to speoiflo performance in equity, see Specufio PEBrORMANOB.] Perjury. 1. An oath taken by the holder of a Are in- surance policy to the truth of a statement in writing, setting forth the particulars of a loss, is an oath "required by law," within Pub. St., ch. 205, § 3, defining perjury. Avery v. Ward, 150 160. Perpetuity; remoteness. [See, also, Charity; Devise and Bequest; Trust.] 1. Where, in the case of a devise in trust for A for life, then for A's children for their respective lives, a distribution is directed among the heirs of each of A's children on the death of each of such children, the fact that, at the time of the tes- tator's death, there is a possibility that A may have other children does not render the devise to the heirs of such of A's children as are living at the testator's death void for remoteness. [Overruling Levering ®. Levering, 129 97.] Dorr V. Levering, 147 530. 2. A devise to two persons, " their heirs and assigns forever, and to the survivor of them and his heirs forever, in trusf, to sell, dispose of, invest, and manage the -same, and appro- priate such part of the principal and interest as they may deem best, for the aid and support of those of my children and their descendants who may be destitute, and, in the opinion of said trustees, need such aid," cannot be upheld as a public charity, and is invalid within the rule against indefinite accumulations. Kent ». Dunham, 142 316. Personal property. [See, also, Attachment; Chattel Mortgage; Executor and Administrator; Fixture; Gitt; Sale ;] Pleading in equity. [ A 3 to pleading in equity cases, see Equity Plead- ing and Practice.] Pleading at law. [Aa to pleas and answers in abatement, see Abate- ment. For a ruling on a question ef pleading, see Landlord and Tenant, 27 ] _ 1. Where the owners of a vessel, in an ac- tion against them, are described by fictitious names, and the vessel is attached, a bond to re- lease the attachment given by the master, an appearance by counsel entered, and an answer filed, the plaintiff, on the trial, is not required to show that the persons named as owners were owners. Baxter v. Doe, 142 55S. 2. For a declaration, in an action of tort for perisonal injuries, which was held sufficiently to disclose a duty on the part of the defendant towards the plaintiff to withstand a general demurrer, see Coughlin 1). Boston Tow-Boat Co., 151 93. 3. Where, in an action to recover for being put off a horse car, one count of the declara- tion, while averring payment of fare and a wrongful expulsion, avers injuries sustained from having been compelled to walk a consid- erable distance, but in such a manner as to show rather indefinitely the connection be- tween the expulsion and the walk, and another count avers that the plaintiff walked because there was no olher way of doing, the declara- tion sets forth, sufficiently to withstand a de- murrer, the cause Of action intended. Spicer «. Lynn & Boston Railroad, 149 207. 4. The declaration on a written memoran- dum given for money lent need not set forth a receipt for collateral, written on the back of the memorandum, in order that the memoran- dum may be put in evidence. Burr B.Joy, 151 295. 5. Where, the owner of two mills keeps sep- arate and distinct accounts, and the commis- sion merchant, to whom the products of each mill are consigned, does the same, and sues for the balance of an account current with one mill, the defendant owner cannot, under a gen- eral denial and plea of payment, show a, bal- ance due to him ■ from the merchant on the account of the other mill. Talcott «. Smith, 142 542. Pledge, [See Collateral Security.] Police court; district court; mu- nicipal court. [See, also. Appeal.] 1. Under St. 1887, ch. 293, g 1, police courts have jurisdiction, concurrently with the su- perior court, of complaints for assault and bat- tery "with a weapon dangerous to life, where there is no intent shown to commit any other offense." Where, therefore, an assault and battery at common law is charged, and there is an allegation, by way of aggravation only, that the accused was armed with a dangerous wea- pon, and the record of the police court shows that the court took final jurisdiction, a case within the final jurisdiction of that court ap- pears. Comm. ». O'Donnell, 151 502. 2. If a special justice of a police court sits, on a criminal trial, in the place of the justice, and the reason is not stated on the record, as required by Pub. St., ch.l54, § 25, a conviction had in the superior court on the appeal cannot stand. And the police court of IJrookline Is within the statute. Comm. ■». Fay, 151 380. 3. Where an action on Pub. St.. ch. 175, § 1, to recover the possession of land, is brought in the police court, but neither part.y reques sa removal to the superior court and no order for 102 POLICE COUET— POOR. removal is made, tlie police court has jurisdic- tion to try the case. Kiernan B. Linnehan, 151 548. 4. Under Pub. St., ch. 154, § 50, providing that the original criminal jurisdiction of the municipal court of the city of Boston "shall include all crimes under the degree of felony, except conspiracies and libels and cases where a prosecution by indictment or information is required by law," that court has jurisdiction of a complaint for keeping intoxicating liquors with intent to sell unlawfully. Comm. V. Murray, 14:4: 170. 5. On the same grounds a district court has jurisdiction of a prosecution for the offense of taking smelts except with hook and line, this offence, under Pub. St., ch. 91, § 58, being punishable by a fine. Comm. V. Prescott, 151, 60 Police officer. [Spe OrFicH AND OpriOER; Town and City, 15 16, 17, 18. See, also. Equity Jubispbudence, 2.] Pond. [See, also, Fish; 2, 3, 4; Ice, 1 ; Nuisance.] 1. Under Pub. St., ch. 91, g 13, requiring the commissioners of inland fisheries, before making a lease of a great pond, to give notice of the hearing "to every city and town within whose limits any part of the pond lies," a no- tice to the town which applies for a lease and within whose limits the "whole of the pond lies is unnecessary. Comm. v. Eliot, 146 5. 3. The legislature, under the Colony ordi- nance of 1647, may authorize a city to draw water from a great pond for domestic purposes, extinguishing fires, and public uses, without providing for compensation to manufacturing corporations which, under previous legislation, have erected a dam, raised the water, and ac- quired flowage rights at great expense, although the use by the city will lessen substantially the body of water. ■ [W. Allen, C. Allen and Knowlton, JJ., dissenting.] Watuppa Resei-voir Co. v. Pall River, 147 548. 3. Commissioners appointed, under Pub. St. , ch. 189, to regulate tlie flowage and drainage of low lands about two great ponds, and who have done thatcontemplated by their appointment have no right, after several years, again to cut a channel from one of the ponds to the ocean; their authority is exhausted. And, there being many land owners wliose righ^ would be affected by the action contemplated, equity, to avoid a multiplicity of actions at law, will take jurisdiction and enjoin the action of the com- missioners. Smith V. Smith, 148 1. 4. A water company authorized by its char- ter to take the waters of it certain pond, and the waters of any spring or wells within a cer- tain town, and the water rights connected therewith, except a certain spring, and also all lands, rights of way, and ea.sements necessary for holding and preserving water, has not the right to take directly or Dy percolation water from a great pond other than the pond men- tioned in the charter, dams and mUls having been maintained and the exclusive control and use of the waters of the pond had for sixty-flve years under St., 1818, ch. 85. The case is one for an injunction. Monatiquot River Proprietors v. Brain- tree Water Supply Co., 149 478. Poor; poor laws; pauper. [See, also, Commonwealth, 3; Essex County, 1.] 1. A town is not liable as upon an implied contract for rtlief furnished by the plaintiff to a pauper. The liability is purely statutory. O'Keefe v. Northampton, 145 115. 2. In an action by one town against another town, for relief furnished a pauper, it may not be shown that the overseers of the poor of the defendant town furnished relief on notice from a third town; the overseers, in such case, act as public officers, not as agents of the town, and their acts are not admissions by the town. South Scituate v. Stoughton, 145 535. 3. An assignment to a town to reimburse the town for supporting the assignor as a pauper and to cover his future support is valid, even on the assumption that the assignor was not bound to pay for either. O'Donnell ®. Smith, 142 505. 4. A married wonaan does not lose her settle- ment by receiving money fer the board of her pauper child, even though her husband is im- prisoned for crime; neither at common law nor under Pub. St., cli. 84, § 6, is she under legal obligation to support the children of herself and her husband while he is living. Gleason v. Boston, 144 35. 5. 0ne who served as part of the quota of a certain town and was honorably discharged, and who re-enlisted in 1864 as part of a quota of another town, and then deserted, was held not to have gained a settlement in the first town, the provisions of St. 1865, ch. 230, ap- plying to such a case. Cambridge «. Paxton, 144 520. 6. Under Pub. St., ch. 83, § 1, cl. 11, the mili- tary settlement acquired in a town or city by enlistment therein during the late war, could be gained by a minor and his wife and children as well as bv an adult. Fall River v. Taunton, 150 106. 7. Where, on the question of the existence of a military settlement, it appears thaf the examin- ing surgeon, on the enlistment in the Veteran Reserve Corps, certified the infirmity to he "age and rupture," and that the certificate on which the discharge was founded certified to disability because of " phthisis pulmonalis, with great emaciation developed since enlistment," there is evidence to warrant a finding that the person in question became disabled from dis- ease contracted while in the service. Newburyport ». Waltham, 150 311; Wallham v. Newburyport, 150 569. 8. And such a finding cannot be controlled by evidence of subsequent declarations of the person in question. Waltham ». Newlnpryport, 150 569. POOR DEBTOR— POWEE. 103 Poor debtor. ISee, also, Insolvent, 30.] 1. The affidavit required by Pub. St., oh. 163, § 17, is tlie foundation of proceedings for arrest on execution; an afiidavit made after the return hour of the citation will not support an arrest or a recognizance. Atwood ». Wheeler, 149 96. 2. The recital in the certificate of a magis- trate authorizing the arrest of a poor debtor, "that after due hearing I am satisfied, upon the evidence, that the charge made in said affi- davit is true," is a sufficient compliance with Pub. St., ch. 162, § 17, requiring the magis- trate to certify " that he is satisfied there is reasonable cause to believe " that the charge contained in the affidavit on which the arrest is asked for is "true." May V. Hammond, 144 151. 3. In an action on a poor debtor's recogni- zance it is not a defense that the creditor's affidavit on which the arrest was founded was willfully false. Everett v. Henderson, 146 89. 4. Under Pub. St., ch. 163, §§ 37, 28, a special justice of a district court is authorized to take a recognizance, from a person arrested on an execution, at a time when the court is not in session. Qibbs V. Taylor, 143 187. 5. Where a trial justice proposed to the at- torney for the creditor to withold his resigna- tion until a pending poor debtor hearing should be disposed of, and the attorney told him not to do it, it was held that there was a waiver by the creditor of his right to holJ the debtor to the strict terms of the recognizance, and an estoppel from setting up as a breach the fail, ure of the debtor to appear before the justice. Vinal V. Tuttle, 144 14. 6. The condition of a recognizance entered into by a poor debtor, under Pub. St., ch. 162, § 28, that, within thirty days from the day of his arrest, he will "deliver himself up for ex- amination before some magistrate authorized to act, giving notice of tiie time and place thereof " as by law provided, does not require him to have the notice served upon "the creditor within the thirty days. Marple «. Burton, 144 79. 7. Under Pub. St , ch. 162, § 18, requiring the notice to a debtor to appear for examina' tion to be served " not less than three days be- fore the time fixed for the examination, and at the rate of one day additional for every twenly- four miles travel," if he lives fifteen miles away he must be served fifteen hours before the beginning of the third day. Lane v. Holman, 145 331. 8. That an original notice, instead of an at- tested copy, of the desire of one arrested on execution to take the poor debtor's oath, is served on the creditor's attorney, is immaterial, though, literally construed. Pub. St., ch. 163, § 33, directs service by copy. Callaghan v. Whitmarsh, 145 340. 9. Though service upon the creditor of not- ice of the debtor's desire to take the poor debt- or's path is insufficient, by reason of the fact that'the officer read the notice to the creditor, instead of giving him a copy, yet, if it appears that the creditor told the officer that he under- stood the notice and would attend the heaiing, the question of waiver of service is for the jury. Goldenberg v. Blake, 145 354. 10. After an adjournment of a poor debtoi-'s hearing to a certuin day, the magistrate cannot, on the day before the adjourned day, fix an- other day. A failure to appear on the day first fixed constitutes a breach of the recogniz ■ ance. , Sanford i>. Quinn, 147 69. 11. Where one seasonably delivers himself up for examination as a poor debtor, a.s re- quired by the recognizance, and the magistrate inadvertently fixes too remote a day for the examination, the sureties on the recognizance are not chargeable Ithaca First Nat. Bank «. Gogin, 148 448. 13. Where, after the commencement of the examination, the magistrate goes away tempo- rarily, and, during his absence, the debtor and creditor agree in writing that the case may be continued for sixty days, and leave the agree- ment on the magistrate's desk and go away, and the magistrate, on his return, enters a con- tinuance accordingly, and the debtor appears on the day fixed and is discharged, there is no breach of the recognizance. Barham ii. Gomez, 149 231. 18. Though magistrates before whom poor debtors are examined are not required to keep records, it is proper for them to do so; and a record so kept may not be contradicted by the oral testimony of the magistrate. May V. Hammond, 146 439. 14. One who, having applied to take the poor debtor's oath and given the statutory rec- ognizance, departs before his examination is ended, may not be arrested two days after- wards and at a place remote from that of the examination, the magistrate having made the certificate refusing the oat.h. The remedy is by action on the recognizance. Morgan i). Curley, 142 107. 15. A debtor's examination is pending up to the time of the announcement of the magis- trate's decision. Until then, though the evi- dence and arguments are closed, and the case stands continued for consideration, the creditor may file charges of fraud. Andrews v. Cassidy, 142 96. 16. The provision of Pub. St., ch. 169. pre- cluding a poor debtor who, since the cause of action accrued, has hazarded money at gaming, from the privilege of the poor debtors' oath, and authorizing his conviction on charges of fraud and imprisonment at hard labor, cannot be Invoked against a non-resident debtor whose gaming has been done in another state. Bradley «. Burton, 161 419. Power. [As to a power of sale In a mortgage, see Chattei, Moktgaqe; Mortgage. See, also, generally. Charity ; ExEOtrrOB and Administbatob ; Trust; Trustee. And see Devise, 25.] 1. A widow who, under her husband's will, has a life estate in land, and power as ' ' execu- 104 POWER— PEOBATE COURT. trix, in her discretion, to sell and convey" the land, can give a good title; nor does it matter that the will provided that, in case she resigned or declined the olHce of executrix, the adminis- trator with the will annexed should exercise the power, with the leave of the probate court. Carroll i). Shea, 149 317. 2. The application of the rule that a general residuary devise will operate as an execution of a power to dispose of property by will, un- less there is something to show a contrary in- tention, is not necessarily varied by the facts that the testator never owned the property which he was empowered to sell, that he did own other property which the residuary devise would cover, and that the residuary devise did not in terms refer to the power, while another clause of the will did. Cumston v. Bartlett, 149 243. 3. Where a vrill empowers the executor to sell " as the proper and convenient settlement of the estate may require," he may not sell for the purpose of making partition and distribution among the devisees. Allen D. Dean, 148 594. . 4. Where a will conferred a power of sale on the executors and a subsequent deed of the tes- tator to trustees conferred the power of sale on them, and then a codicil confirmed the will, and after making the codicil the testator died, and then the trustees conveyed to the executors, it was held that the executors could sell the land and confer a title which the purchaser should be compelled to accept. Chesman v. Cummings, 143 75. Practice. [See, also. Equity Pleadihg and Practice; Trial; and the titles of the various actions, causes, or proceedings. 1. An offer of judgment for a certain sum, "principal and interest due to date and costs," is an offer of the certain sum only. Upton «. Foster, 148 693. 3. Objections to a complaint for formal de- fects, apparent on the fa"^ e thereof, should be taken in the district court, and cannot first be raised by a motion to quash in the superior court. Comm. ». Halla|ian, 143 167. 3. Under Pub. St., ch. 154, § 33, providing that the justice of a district court " may re- ceive complaints and issue warrants, when the court is not in session," if the record shows that the complaint was received by the justice and sworn to before him, and that he issued the warrant, there is no presumption of irregu- larity. Comm. ■». Brusie, 145 117. 4. Where one who has been convicted in the district court, appeals, the district attorney may enter a nolle prosequi in the superior court, before the jury are empannelled without the defendant's consent. Comm. V. McClusky, 151 488. 5. He is then entitled to an order discharg- ing him from the complaint. Comm. V. McClusky, 151 488. Prescription. [See Dedication; Easement; Hiohwav; Mui- sancb; Bailboad; Town, 41.] Presumption. [See Evidence; Payment.] Principal and accessory. [See Accessory and Accomplice] o Principal and agent. [See Agency.] Principal and surety. [See Guaranty; Statute of Fkauds; Surety. Prison. [See State Prison.] Private way. [See Easement; Highway; Baxlboad.] Pririlege. [See LiBEii and SLAmiEB.] Provable cause. [see LrBEL and Slandeb; Malicious Pbosbcu- ticn. Probate court. [See, also, Bxecutob and Administbatoe; GuAEDiAN AND Waed ; Tbustee. As to the pro- bate of a will, see Will. For particular rulings on questions connected with the Probate Court, see Equity Jurisdiction, 24; Execuiok, 4. As to probate appeals, see Appeal ] 1. Under Pub. St., ch. 127, § 84, and ch. 156, §§ 5, 6, the probate court has jurisdiction of an executor's petition for instructions as to the construction of the will ; and an appeal lies to the supreme judicial court. Swasey «. Jacques, 144 135. 3. The probate court has jurisdiction of a petition to revise its decree allowing a will, though, on appeal, the decree has been affiimed by the supreme judicial court. Gale «. Nickerson, 144 415. 3. The probate court has no jurisdiction of the question whether a trustee has the right, as against the assignee of the cestui que trust, to set off an indebtedness from the cestui que trust to the trustee. Abbott V. Foote, 146 333. 4. The probate court is without jurisdiction, under the statute authorizing it to award costs, to entertain a petition by counsel for payment by a guardian for services rendered in behalf PEOBATE COURT— EAILEOAD, L 105 of the infant ward in the probate court and in PuMic improvements. another court; the remedy is by an action against the ward or upon the guardian's bond. Willard v. Lavender, 14:7 IB. Process. [See Writ.] Promissory note. [See Bill of Exohanqb and Pbomissoey Note.] Protective department. [SeeFiBB,!, 2.] Protest. LSee Bill of Exchange; Taxation.I LSee Highway; Town.] Public officer. [See Otficb and Officbb; Town; and titles of the different officers. Public school. [See SoHooi,.] Public way. [See Highway.] Punishment. [See Conviction and Sentence.] Q. Questions of law; questions of fact. [See the titles of the different proceedings and subjects of action.] Quiet enjoyment. [See Covenant; Landlord aud Tenant.] Quieting title. [See, also. Mortgage, 9.] ( 1. A bill in equity will not lie to remove a cloud upon a title to land in the possession of the defendant under the foreclosure of a mort- gage thereon, the remedy by writ of entry being adequate. Russell D. Barstow, 144 130. 3. A petition, under Pub. St., ch. 176, to compel an adverse claimant to bring an action to try title to land, does not lie where the peti- tioner's possession is not exclusive, but mixed. Orthodox Congregational Society ». Greenwich, 145 112. 3. The superior court, under the general equity powers conferred by St. 1883, ch. 323, has jurisdiction of a suit to remove from a title the cloud caused by an invalid tax sale. Smith V. Smith, 150 73. 4. And, the tax sale being invalid, the five years' limitation of Pub. St., ch. 13, § 66, does not apply. Smith «. Smith, 150 73. Juo warranto. [See Equity Jurisdiction, 21.] R Railings. [Liability of town or city for failure to erect rail- injtsln the highway, see Highway.] Railroad; Railroad company. I. Railroad Compahy. 11. Locating thb Railboad; Acquibing THE I/and; Damages. in. Constructing and MArNTAmrNG the Railroad. Vol. Ill— 14 IV. Operating the Railroad. [For horse railroad cases, see Street Railroad. A 8 to negligence causing death, see Carrier. For other cases of negligence, see Master and Ser- vant; Neoligbnoe. For particular cases relating to railroads, see Adverse Possession, 4; Ckrtio- RARi, 2; CoNSTiTtrrioNAL LAW. 3; Corporation, 8. 31. 32; Basement, 8; Land Owner, 7; Limita- tion, 15; Master and Servant, 43 ] I. Railroad Company. 1. Where a domestic railroad corporation. conveys to a foreign corporation, without the 106 EAILROAD, I, II, III, IV. legislative assent, the assent to the exercise of the right ot eminent domain by the foreign corporation may be inferred by implication from subsequeht statutes. Abbott V. New York & New England Eailroad, 145 4oO. 2. Where a lease of a railroad contemplates a purchase or taking of land by the lessor, the erection of improvements thereupon, and that such land and improvements shall . pass under the lease, and where, after land is taken, but before improvements are made or possession taken by the lessee, the land is damaged by a change of grade in an adjoining street, the lessor is the proper party to petition for damages. Norwich & Worcester Railroad v. Wor- cester, 147 518. II. Locating the Railroad; AcQTjntrNG THE Land; Damages. 3. From subsequent statutes, examined in the opinion, the assent of tlie legislature to the taking of land by a Connecticut corporation, of which the New York and New England Bail- road Company was the successor, may be in- ferred. Abbott V. New York & New England Railroad, 145 450. 4. Though Gen. St., ch. 63, § 45, provides that a railroad company which has taken land shall, " before proceeding to construct its road, furnish a plan of the land to the owner," or that its rights shall be suspended, an owner cannot, after the road has been built and used for twenty years, invoke the statute. Abbott V. New York & New England Railroad, 145 450; Brock «. Old Colony Railroad, 146 194. 5. Filing the location of land taken by a railroad is sufficient notice of the taking. Brock V. Old Colony Railroad, 146 194. 6. A location may be valid, though the plan filed with it does not bear the name of an owner, there being enough otherwise to identify the land. Brock «. Old Colony Railroad, 146 194. 7. On the question of damages a report of an officer of the engineer corps to the Secretary of War, transmitted to the United States Senate and printed by its order, is not competent evi- dence to show that the railroad-bed protected remaining land, thus conferring a special benefit. Cushing V. Nantasket Beach Railroad, 143 77. 8. On the question of damages for taking for railroad purposes a strip of land to which a right of way was appurtenant, in the absence of evidence showing that the use of the way was limited to certain purposes, the question of its use is for tire jury. Fitz t. Nantasket Beach Railroad, 148 35. 9. The acquisition by prescription of a pri- vate right of way across the location of a rail- road cannot be founded on. a user by the owner of the land through which the railroad runs, if the corporation has not paid the damages ' or given security therefor, as, until then, the user is not adverse. Smith V. N. Y. & N. E. Railroad. 142 21. ni. consthttctinq amd maintaining the Railkoad. 10. If a railroad company refuses to con- struct its part of a way across its road at grade, under Pub. St., ch. 112, the city will not be enjoined, at the instance of the railroad com- pany, from constructing the whole of the way. Old Colony Railroad v. Fall River 147 455. 11. A jury applied for, under Pub. St., ch. 113, § 133, may revise the apportionment, made by a special commission appointed under § 131, of the cost of altering a railroad corssing, and reapportion it between the railroad company, the city and the county. Boston & Albany Railroad v. New- ton, 148 474. rv. Operating the Railroad. 12. Under Pub. St., ch. 113, | 312, as amend- ed by St. 1883, ch. 243, providing that a "cor- poration operating a railroad " shall be liable for negligence resulting in the death of an em- ployee, a liability may arise out of an accident occurring while freight was being transferred from a vessel to the cars; this is a railroad operation. Daley ». Boston & Albany Railroad, 147 101. 13. The provisions of Pub. St., ch. 113, g 214. th^t a railroad corporation shall be re- sponsible in damages to one whose property is injured by fire communicated by engines of the corporation, do not apply where the property injured was in the custody of the corporation as a warehouseman. Bassett i>. Connecticut River Railroad, 145 29; Blaisdell «. Connecticut River Railroad, 145 132. 14. For facts creating a liability under the statute aforesaid, see Blaisdell «. Connecticut River Railroad, 145 133. 15. Whether a bell was rung or a whistle sounded by an engine on its approach to a high- way crossing is a question for the jury where several witnesses, in a position to hear, testify that they heard nothing. Menard v. Boston & Maine Railroad, 150 386. 16. If the declaration, in an action brought by the owner of a schboner against a railroad company owning a draw-bridge, to recover for injuries to the schooner caused by the refusal of the superintendent of the draw to open it to release the schooner, which was caught under it, fails to show that the request to open the draw was made at a time not within fifteen RAILtlOAD, IV— RELIGIOUS ASSOCIATION. 107 minutes of the schedule tim^ of a train, no cause of action is stated. Jennings v. Fitchburg Railroad, 146 621. 17. One who, finding, on his arrival at a rail- road station, that the last train has gon^ remains there for his own convenience until the lights are put out at the usual time for closing, has no right of action against the company for a per- sonal injury due to the darkness. Heinlein v. Boston & Providence Rail- road, 147 136. 18. A railroad company may confer on one person the exclusive right to come upon its ground, at a station to solicit passenger's bag- gage, and may exclude others who come there for this purpose. Nor is the question affected by Pub. St., ch. 113, § 188, requiring railroads to give to all reasonable and equal terms, facilities, and accommodations in the use of depots, build- ings and grounds. [Morton, C. J., Field, and Devens, JJ., dissenting.] Old Colony Railroad v. Tripp, 147 35. Rape; abuse of female child. 1. One indicted for rape is not entitled to an instruction that if the woman excused or for- gave him he cannot be convicted. Comm. V. Slatterly, 147 433. 2. The offense of assaulting a female child under the age of ten, with intent unlawfully and carnally to know and abuse her is com- plete, though the child consents. Comm. ■». Roosnell, 143 33. Real action. [See, also. Adverse Possession; Boumdart; Deed.] 1. An assignee of a mortgage may maintain a a writ of entry against persons showing no title. Holmes v. Turner's Falls Co., 142 590. 3. That a purchase of mortgaged corporate land by a director at a foreclosure sale may, under the circumstances of the case, be void- able, does not enable a subsequent purchaser at a sale under an execution against the coipor- ation to maintain a writ of entry against the director or his grantees, as the director's pur- chase cames with it the legal title. Saltmarsh «. Spaulding, 147 224. 3. Under a plea of nul disseisin to a writ of entry, the tenant may show title in himself. Croacher v. Oesting, 143 195. Real property. [See Adverse Possession; AttTmoN; BotrND- art; Covenant; Deed; Devise and Bequest; Dower, Basement; Fish; Fixture; Flats; High- way; joint Tenants; Landlord and Tenant; LAND Owner; Mild and Mill Dam; Mortgage; partition; Kailroad; Real Action; Water Course.] Recognizance. [See, also, Appeal; Bail; Bastardy; Poor Debtor ] . 1. Where a complaint in a municipal court charges adultery, and a recognizance to appear before the superiof court is given, and the in- dictment found is for lewd and lascivious co- habitation, and there is no appearance for sen- tence after a plea of guilty, there is a breach of the recognizance. Comm. V. Teevens, 143 210. Record. [See Conviction, 6; Evldenob, 65.J ■0 Redemption. [See Chattel Mortgage; Collateral Se- curity; Mortgage.] Reference; referees. [See Akbitbation.] Reformation of an instrument. [See Equity Jubisdiction.] Release; discharge. [See, also. Evidence, 6; Joint Liability, 4.] 1. Though one whose land was taken for a town way gave a receipt in full of all claims against the town, he may show that he was im- posed ui3on and intended the receipt to apply to the land alone and not to a house on the land. O'Donnell «. Clinton, 145 461. 2. Where a creditor was requested by the debtor to obtain all that he could on certain corporate shares, pay a certain debt, and apply the balance toward the payment of his own claim, and where the creditor sold the shares, and applied the proceeds accordingly, neglect- ing, however, to collect the dividends, and afterward accepted a certain sum from the deb- tor's executor by way of compromise and set- tlement, giving a release under seal " from all claims and demands," it was held that the ex- ecutor, not the creditor, was entitled to the dividends. Ware «. Merchants' ISTat. Bank, 151 445. Religious association; church. [See, also. Taxation.] 1_. Under a by-law of a religious society, which, after specifying certain particular pow- ers and duties of its standing committee, laro- vides that they may generally "manage the business of the society, expending only such sums of money as the society shall place at their disposal," the committee is without au- thority to emplojr counsel on the credit of the society, in a suit in equity brought against it. Child i>. Christian Soc, 144 473. 3. A corporation of proprietors of a meeting house, incorporated under St. 1840, ch. 62 108 EELIGIOUS ASSOCIATION— REPLEVIN". (Pub. St., ch. 38, §§ 27, 41) is not liable to the minister for his salary, wuere the weight of evidence is that he looked to the church instead of the society, and where the question of his employment by the society was not submitted under such a notice as the statute requires. Downs «. Bowdoin Square Baptist See, 149 135. 3. For facts not sufficient to show a church corporation a trustee for the church, as distin- guished from the society, either by force of the statutes or otherwise, see Warner v. Bowdoin Square Baptist Soc, 148 400. Remainder. [See Devise and Beqitest; Trust.] Remoteness. fSee PERPBTUirr.] RemOTal of cause. 1. Where a defendant seasonably filed a peti- tion and bond for the removal of the cause to the federal court, having previously filed an answer wherein he stated that he did not waive a motion to dismiss orapleain abatement filed be- fore that, and then permitted the case to go over to the next term when his plea in abatement and motion to dismiss were heard and overruled, after which nothing was done for several terms, it was held that the right of removal was lost. Amy ». Manning, 144 158. 3. An action, brought by attachment, in a court of the Commonwealth, by a citizen of Pennsylvania against a citizen of New York, who appears, is removable to the federal court. The appearance must be deemed to give the jurisdiction necessary to bring the case within U. S. act, Marches, 1887, as amended by act August 13, 1888. American Finance Co. ■». Bostwick, 151 19. 8. That, under the state statute, a cause is re- moved from the superior court to the supreme judicial court, does not affect the right of re- moval to the federal court. American Finance Co. v. Bostwick, 151 19. 4. Nor does the filing of the affidavit of de- fense required by the state statute affect the right of removal. American Finance Co. ®. Bostwick, 151 19. Rent. [See Landlord and Tenakt.] Replevin. [See. also, Chattel Mobtgagb, 11; Joint Ten- ants, 5.] 1. Where, in replevin, it appears that the plaintiff had delivered the property to the per- son as whose property it was "attached by the defendant, under an arrangement which passed the title and did not provide for a return to the plaintiff, the action is not maintainable. Blanchard v. Fitzpatrick, 146 24. 2. The consignee of goods sent C. 0. D., who refuses to pay without examining the goods, has not such a title or right of possession as to enable him to maintain replevin. Lane v. Chadwick, 146 68. 3. Where an assignment of a chattel mort- gage is not, as between assignor and assignee, intended to have any effect, and the mortgage note is not indorsed to the assignee and the chattel remains in the possession of the assignor, the assignee has not a title on which he can maintain replevin for the chattel. Shrieves «. Morris, 151 810. 4. In replevin the plaintiff does not show title, as against the defendant in possession, by showing a mortgage from a third person, unac- companied by proof of possession of Ihe prop- erty by the mortgagor or by himself. Gibbs V. Childs, 143 103. 5. The fact that the plaintiff, while in pos- session of the property, mortgaged it, tends to show title. Eames v. Snell, 143 165. 6. Replevin for a chattel cannot be main- tained where the plaintiff relies upon the acts of one describing himself as attorney under seal of the owner, but fails to show the exis- tence of a powei: of attorney, or knowledge of, or ratification by the owner, and where, fur- thermore, the plaintiff fails to show the iden- tity of the chattel claimed by him with that taken by him from the defendant, who claims under the owner. Chaffee v. Blaisdell, 143 538. 7. The right to maintain replevin does not depend on the approval of Ihe bond by the de- fendant or by a master in chancery. While, under Pub. St., ch. 184, this "may" be done, its effect is only to relieve the officer of responsi- bility for the sufficiency of the sureties, and is not essential to the maintenance of the action. Stone V. Jenks, 142 519. 8. If the defendant has a lien on the goods, the plaintiff must tender the amount; nor is he excused because it would be useless, in the sense that, if made, the defendant still would have refused to surrender the goods. Fowler v. Parsons, 143 401. 9. Under a general denial, any evidence is competent which tends to show that the title and right of possession were not in the plaintiff. Spooner «. Cummings, 151 313; Spoonem. Handley, 151 316. 10. Evidence, for example, tending to show that the person into whose hands the plaintiff placed the chattel was expected to sell it. Spooner v. Cummings, 151 313; Spooner D. Handley, 161 316. 11. Where the plaintiff restores the property (household furniture) and the defendant neither buys nor has the use of other similar property during the time of the detention, the plaintiff can not demand an instruction that the meas- ure of damages is the interest on the money value during the time of the detention. Boston Loan Co. i). Myers. 143 446. HErOET— EOAD. 109 Report. [See, also. Appeal; Exception; New Tbial,] 1, Where A sues B in equity to have an ex- ecutor's sale adjudged void, and B sues A in another county to have the sale confirmed, and hoth bills are answered, the answer to the sec- ond pleading the pendency of the first, but the second not referring to the first, and the facts in the two cases not appearing from the bills and answers to be identical, the cases may not be reserved together for the consideration of the full court, on the bills and answers, even though the second bill he deemed a cross bill. Tansey v. McDonnell, 142 320. 3. If the report of a justice states the facts found by him, and reserves the case for the consideration of the full court, this Is a reser- vation of the question of law suflBcient to satisfy Pub. St., ch. 150, 8 8. Eaton V. Pacific Nat. Bank, 144 360. Reporter of decisions; reports. 1. The reporter of the decisions of the su" preme judicial court may be required by man" damns to allow copies of the opinions to be taken by persons designing to publish them for profit, notwithstanding the contract made, under St. 1879, ch. 380, between the Common- wealth and a certain publishing house and the contention that the Commonwealth has confer- red on such house, the right to say that the opinions shall not be made public until pub- lished by the house. If the Commonwealth could confer such a power, as to which qwere, it has not done so. Nash V. Lathrop, 142 39. Res gestae. [See Evidence.] o Res adjndicata. [See Former adjudication.] Restraint of trade. [See CoNTKAOT.] Restriction. [Upon the use of land. See Condition: Ease- ment.] Resulting trust. [See Trust.] Reyiew, writ of. [As to review and rehearingin equity, see Equity Pleading and Practice. See, f i :r analogous mat- ters, Appeal; Error; Exception; New Trial. Sec, also, J UDQMENT, 6 ] 1. A proceeding for the assessment of dam- ages, where land is taken for a railroad, is a " civil action," within Pub. St., ch. 187, §§ 16, 33, authorizing writs of review. Nantasket Beach Railroad v. Ransom, 147 340. 3. Where personal service is made and a personal appearance entered, the judgment is not rendered in the " absence " of the defend- ant, within Pub. St., ch. 187, § 22; and a peti- tion for a review cannot be maintained. Riley v. Hale, 146 465. 3. Under Pub. St., ch. 187, §§ 16, 35, the su- perior court, in its discretion, to the exercise of which no exception lies, may grant a review of a judgment rendered by default on scire facias against one charged as trustee in a trustee process. New England Mut. Accident Assoc. ®. Varian, 151 17. 4. A judgment debtor waives his right to a review by mailing a jjart payment and thus ob- taining a postponement of a levy of the ex- ecution. Smith ». O'Brien, 146 394. 5. A petition for a writ of review is not baiTed by the refusal of a justice to order not- ice on a previous petition of which there is no record and which never was filed. Nantasket Beach Railroad v. Ransom, 147 340. 6. The condition of a bond to prosecute a writ of review forthwith is broken by a year's delay. Quinn v. Brennan, 148 563. 7. On a writ of review, evidence which would have been constituted a defense to the original action is properly ruled out as imma- " Hagan -c. SartweU, 146 33. Revocation. [See Aoenct; Will.] Road. [See HiGHWAT.] 110 SALE— SAVINGS BANE. S. Sale (of personal property). [As to sales of land, see Vehdob and Venbee; at auction, see Auction . As to the effect of the stat- ute of frauds on a sale, see statute of Frauds. For cases involving questions of the law of sales, see AGENCY, 6; Assumpsit, 3; Evidence, 3,54; In- TOXICATINO LiQCOKS, 1; REPLEVIN, 8.] 1. An agreement between A, the owner of land, and B, whereunder A agreed to sell, and B agreed to buy, all the bark and timber on the land, B to cut and remove the same within four years and to pay by the quantity after meas- urement, was held to be an executory agree- ment for the sale of chattels. United Society «. Brooks, 145 410. 3. Where a contract of conditional sale pro- vides also for a lien on after-acquired goods, possession of such after-acquired goods, if rightfully taken and retained, may be good as against the assignee in insolvency of the other party. Blanchard «. Cooke, 144 307; Blanchard «. Cooke, 147 315. 3. If a farmer, not a dealer in provisions, kills a hog and sells it, knowing that the pur- chaser intends to eat it, there is no implied war- ranty on the seller's part that the hog is fit for food. Giroux V. Stedman, 146 439. 4. A sale of a certain number of " Bales Ceara scrap rubber, as per samples, * * * of second quality," imports a two-fold war- ranty, of conformity to sample and of quality; aud the warranty is broken by a failure to de- liver rubber of second quality, irrespective of whether it was or was not equal to the Goidd V. Stein, 149 570. 5. For a contract of warranty of sugar, con- strued to refer to the quality upon delivery on board ship and not at the port of destination, Lord ». Edwards, 148 476. 6. If a bill of sale as originally delivered does not contain a warranty which was bar- gained for, the insertion of the warranty after- ward binds the seller as fully as though the insertion had been made in the first place. It cannot be urged that the warranty is without consideration. Spalding v. Conant, 146 393. 7. While a warranty, agreed upon after the property is sold and delivered and the price paid, is without consideration, it is otherwise if agreed upon and given before payment and delivery, a controversy having arisen. McGaugheyi). Kichardson, 148 608. 8. An action to recover the price of a " coun- ter rail," is not supported by evidence of an order for a "pice of counter screen ' The order is unmeaning and unintelligible, presents a case of incurable uncertainty, and cannot be construed by court or jury. Bigelow Wire Works v. Sorrell, 142 443. 9. Where one who has ordered a chattel from the seller's agent countermands the order under a right reserved, the seller cannot main- tain an action for the price. Morris v. Brightman, 143 149. 10. Where an article sold, not being accept-' able to the buyer, is taken back, the freight charges paid, and the money paid refunded, the buyer cannot afterwai-d maintain an action for damages sustained to him by his inabilit ,- to fill his orders; there has been a rescission and a waiver of the right to maintain such an ac- tion. Alden ». Thurber, 149 371. 11. The purchaser cannot rescind merely because the goods (in this case sugar), do not in quality quite_ come up to representations made honestly and not purporting to be founded on knowledge, the contract of sale, while calling for an "eighty-four degrees test," providing for an adjustment of price in accordance with variations therefrom, and the sugar tendered falling only two or three degrees below the test. Schramm -o. Boston Sugar Refining Co,, 146 311. 13. Where a note, taken in the usual course of business, for goods sold, is sold by the payee through a broker, neither seller, buyer, nor broker knowing that the maker of the note had failed two hours before the broker's sale, the buyer cannot hold the seller liable, either on the ground of mistake or of implied warranty. Hecht?). Batcheller, 147 335. Saturday. [Keeping, as the Sabbath, no excuse for violation of Lord's day statutes, see Lord's Day.] Savings bank. [As to taxation of a savings bank, see Taxation, 7, 8, 9, See, also. Waiver, 3.] 1. Where one goes to a savings bank and asks for the funds standing in his name, and is told he has no funds there, the bank wnives its right to the three months' notice required by its by-laws. Townsend v. Webster Pive Cent Savings Bank, 143 147. 3. Where a savings bank, having sustained losses, settles with depositors at a discount, a d( positor cannot, fifty years afterward, claim the balance. Lewis «. Lynn Institution for Savings, 148 335. 3. Where one deposits money in his own name as " trustee " for others, and tells them of it, but retains the entire control of the fund, both principal and interest, and does not in- tend that any title or interest therein shall pass until after his death, there is no perfected gift, the transaction contravenes the statute of wills, SAVINGS BANK— SHIPPING. Ill and, on the death of the depositor, the fund belongs to his administrator, to be divided ac- cording to the statute of distribution. Nutt V. Morse. 142 1. 4. Where one claims a savings bank deposit, on the gi-ound that it was made by the deposi- tor as trustee for the claimant, it may be shown, as tending to disprove the theory of a gift, that there was a deposit of one thousand dollars (the full amount allowed) in the depositor's own name. Parkman ®. Suffolk Savings Bank, 151 318. School. 1. Under Pub. St., eh. 45, § 46, which im- poses on town school committees the duty of keeping the "school houses in good order" and of providing " all things necessary for the comfort of the scholars," a committee may order a tree on a school house lot cut down; and are not liable to persons injured by the fall of a limb through the negligence of the person cutting down the tree. * McKenna «. Kimball, 145 555. 3. The provisions of Pub. St., ch. 48, § 14, requiring county commissioners to establish a truant school on the application of three or more towns, are mandatory. Lynn ». Essex County Comm'rs, 148 148. 3. There is here no unconstitutional delega- tion of legislative power. Lynn ». Essex County Comm'rs, 148 148. 4. As to what constitutes such an applica- tion as to require action on the part of the com- missioners, see Lynn i>. Essex County Comm'rs, 148 o Scire faeias. [See Bail; Pook Debiok; Khcoqnizance; Tbus- TEE Process ] Seashore. [See Fish ; Flats.] Search warrant. [See Intoxicating Liquors, 63, 64, 65.] Seisin; disseisin. [See Adverse Possession.] Selectmen. [See Highway; Town.] Sentence. [See Conviction and Sentence.] Servant. [See Master and Servant.] Service. [See W rit; and the titles of the different writs,] Services. [See Master and Servant.) Servitude. [See Easement and Servitude.] Set off. [See, also. Trustee, 8.] 1. A claim under an instrument reciting the receipt "in trust" of some money "to be ac- counted for" is proper matter of set oS. If there is a trust it is a naked one. Gannon i). Ruffin, 151 304. 3. For evidence sufficient to warrant a find ing of notice to a judgment defendant of the assignment of the judgment, such as precludes a set off against the nominal plaintiff, see Smith «. Brown, 151 338. Settlement. [See Accord and Satisfation, Payment; Poor; Belease and Discharge ] Several liability. [See Joint and Several Liabiltty.] Sepulture. [See Burial.] Sewer. [See Town and City.] Shade tree. [See Tree.] Shipping. [^■ee, also, Insurance; Damages, 8: Master and Servant, 39 ] > 1. Under U. 8. Kev. St., § 4553, the mutual release of wages hj master and seaman before the shipping commissioner need not be made or authenticated under seal; in the absence of fraud or coercion the release is binding. Bosenberg v. Doe, 146 191. 3. But, the facts warranting, the jury maj find that it is not binding. Rosenberg v. Doe, 148 560. 3. The provisions of the British Iffierchant Shipping Acts, in relation to liability for a fail- ure to furnish proper food and anti-scorbutics, do not deprive a seaman of his right of acticKi against the owners for more than three months wages in case of injuries chargeable to such faitae. Baxter ». Doe, 143 558. 112 SHIPPING— STATUTR 4. On the trial of such an action evidence of similar sickness, under similar conditions, of other members of the crew may he shown. Baxter ■b. Doe, 142 558. 5. The limitation of the liahility of the own- ers of vessels created hy U. S. act June 26, 1884 (ch. 1-il, § 18) does not apply to tishing vessels. Simpson v. Story, 145 497. [But see U. S. June 19, 1886 (ch. 431, § 4), extending the provisions of the foregoing act to all sea-going vessels.] Sidewalk. [See Highway; Town and City.] Slander. [See Libel and Slandek.] Snow. [See Highway; Landlobd and Tenant; Land Owner; Neoligbnce.] Soldier. [As to military settlement, see Poor and Poob Laws.] Specific performance. [See, also. Contract, 17 ; Power, 4; Vendor and Vendee, 4-7 1. The right of the manager of a business to purchase it on giving sixty days notice will not be enforced specifically where notice is not given until the last day of the sixty, and where the manager is then unable to pay the price and does not make a tender. Time, in such a case, is of the essence of the contract. Carter*. Phillips, 144 100. 2. An agreement by a patentee to furnish and deliver the patented article may be made the foundation of a decree for specific perform- ance, it not appearing that special or peculiar skill in producing the article is required. Adams t>. Messinger, 147 185. 3. Bemble, that an agreement to apply for a foreign patent and to assign the patent, when obtained, may be made the foundation of equit- able relief. Adams «. Messinger, 147 185. 4. A court of equity will not refuse to com- pel a specific performance of an agreement to purchase land, where the questions involved in the objection to the title are of law only, not of fact, and all the parties are before the court. Chesman v. Cummings, 142 65. 5. A provision in a lease thnt. " if the prem ises are for sale at any time, the lessee shall have the refusal of Ihem," is not a contract such as equity can enforce specifically, Fogg ■». Price, 145 513. 6. An instrument, placed upon the records of deeds, reciting that a previous conveyance was obtained by fraud, does not, at least, after the lapse of six years ■without action taken, consti- tute a cloud on title such as to preclude a de- cree of specific performance against one who has agreed to buy the land. First African Methodist Episcopal Soc. 1). Brown, 147 296. 7. "Where a certain trust created by deed had been terminated i y decree, where the creator of the trust and the trustee had executed re- leases, and where it was apparent beyond a reasonable doubt that there was no outstanding interest, it was held that the title tendered was such as the purchaser should be compelled to take. Batt V. Mallon, 151 477. Spendthrift. [See Guardian, 8.] Spirituous liquors. [See Intoxicating Lkiijobs.] Spring. [See "Water CotrBSE,] Stale demands. [See Laches; Limitation or Action.] Stare decicis. [See Former Adjudication.] State. [See Commonwealth.] State prison. [See, also, Conviction and Sentence; Common wealth, 3.] 1. Under Pub. St., ch. 233, § 20, one re- moved from the state prison to the reformatory, and given a written permit to be at liberty, is deprived of no legal right hy the revocation of the permit by the board of prison commis- sioners or by a rearrest after the revocation of the permit. Conlon's Case, 148 168. Statute. [For questions relating to the constitutionality of statutes, see Constitutional Law, and the titles of the different subjects of particular statutes. For a question as to the construction of a statute, see Fish, 1.] 1. "Where a statute declares tha a statute is amended "to read as follows," and then enacts that which covers the whole subject of the earlier statute, this is equivalent to an inde- pendent enactment. Comm. V. Kenneson, 143 418, STATUTE OP FRAUDS— SUBMISSION OF CONTROVEESY. 113 Statute of frauds and perjuries. 1. An oral representation or assurance made by A, concerning B's ere lit and pecuniary re- sponsibility, in order that B may obtain credit, is within the prohibition of Pub. JBt. , ch. 78, § 4, and may not be sliowu in evidence in an action of trover for the goods the sale of which to B was induced by such representation or assur- ance. Bates «. Youngerman, 142 120. 2. If the contingency on which services are to be paid for may happen within a year, the stat- ute is not a bar to an action to enforce the con- tract for payment. Bartlett ». Mystic River Co., 151 433. 8. One sued on a quantum meruit for serv- ices rendered cannot set up in defense a breach of an oral agreement not to be perfcwmed within a year. Freeman v. Foss, 145 861. 4. The delivery and acceptance of a certifi- cate of unissued stock, the felificate being indorsed in blank by the seller, takes the con- tract of sale out of the statute of frauds, if, in this Commonwealih, such a contract is within the statute. Meehan ». Sharp, 151 565. 5. The memorandum of a contract of guar- anty may show the parties to the contract, sufficiently to satisfy the statute of frauds, by description instead of by name ; and parol evi- dence is admissible to apply the description and identify the person meant. Jones V. Dow, 142 130. 6. A telegram from a principal to his agent as follows: "If- basement included in four thousand secure five years lease," is not a suffi- cient memorandum to satisfy the statute of frauds in an action by a third person against the principal, founded on an acceptance of the proposition inferred from the memorandum. Hastings i>. Weber, 142 232. 7. A memorandum made by a broker of an oral contract for the sale of land from which the terms of sale are omitted is not such a memorandum as to satisfy the statute of frauds. Elliot V. Barrett, 144 256. 8. An agent's memorandum of an agreement to sell an estate on a certain street is insuffi- cient to satisfy the statute if the principal has two estates on the street and has authorized the agent to sell one of them only. And a letter from the principal to the agent cannot supply the defect. ^ Doherty v. Hill, 144 465. Statute of limitations. [See Limitation op Action.1 Steamboat; steamship. LSee Carrier; Negligence; Shippiko.1 YOL. Ill— 15 Steam engine. LSee Ndisance.1 Street. LSee HiOHWAy; Town and City.] Street railway; horse railroad company. Aa to liability for negligence, causing death, see Carrier, 22, 23. For other rulings on the subject of negligence, see Negligence. 1. Under a statute incorporating a street railway company subject to the general laws, and providing that the city might contract with it concerning its ' ' construction, mainte- nance, and operation," upon such terms as might be agreed upon, " any laws now exist- ing to the contrary notwithstanding," it was held that the city could not, by a contract with the corporation, prevent another corporation from using the tracks under the general law. New Bedford & F. Street Railway ■». Acushnet Street Railway, 143 200. 2. A street railway corporation which, with the consent of the legislature, leases its road, may still be liable, under its charter, for a per sonal injury caused by negligence on the part of the lessee's servants in operating the road, though the lessee has agreed to assume the liabilities of the lessor. Braslin «. Somerville Horse Railroad, 145 64. 8. Under Pub. St., ch. 113, § 47, providing that a commutation check issued by a street railway company in Boston should be good on the same day in the car of another company between any two points, but not over the same route "or a route parallel thereto, and between and including two common points," it was held that such a check was not good in a car the route of which was substantially parallel but which made a wide detour between the two common points. Cronin v. Highland Street Railroad, 144 249. 4. A street railroad company cannot escape liability to one who, in using the street, falls over rails projecting beyond a barrier erected for the purpose of laying a new track, by charging the negligence to an independent con- tractor employed by the company to do the work. The company, having caused the ob- struction of the highway, is bound at its peril to see that a nuisance is not created. Woodman ». Metropolitan Railroad, 149 385. 5. Under Pub. St., ch. 112, § 206, it is an offence to throw a missile at a car whether in use or not. Comm. v. Carroll, 145 408. Submission of controversy. LSee Arbitration; Case Stated.] 114 Sunday. SlINDAy— TAXATION, I, H. LSee IiOBD's Dat.] o Superior court. LSee CoMMONWBAjyTH, 1.] Supreme judicial court. [See, also. Appeal ; Equity Jtjbisdiction ; Equity PiiEAdinq and Practice.! 1. The supreme judicial court cannot be re- quired, by a brancli of the legislature, to con- strue an existing statute, with a view to aid the legislature in determining as to the advis- ability of contemplated legislation. Answer of the Justices, 148 633; Answer of the Justices, 150 598. Surety. [See, also, Appeal; Attachment; Baiij; Bill OP Exchange; Bond; Executob and Adminis- trator ; Guaranty ; Guardian ; Poor Dbbtob; Trustee.! 1. A surety on a trustee's bond, who has made good to the trust fund a loss occasioned by the pledge and sale of trust property to a bank which knew the property to belong to the trust estate while taking it for the trustees' debt, is subrogated to the right of action of the cestuis que trust against the bank. Blake v. Trader's Nat. Bank, 145 13. 2. But such right of subrogation does not extend to interest paid to the cestuis que trust by a co-surety on the bond for the purpose of concealing the defalcation of the trustee, such payments being several and not joint and made without the knowledge of the surety who seeks to be subrogated thereto. Blake v. Trader's Nat. Bank, 149 350. o Surface water. [See WATEIt-COUBSE.] Surveyor of highways. [See Highway.] SuryiTal of action. [See Abatement.! Suspension of the power of aliena- tion. [See PERPETttETY.] T. Taxation. I. GbNBBAL CONSTITUTIONAIi ReQUIKB- MBNTS. II. Persons and Pbopeuty Subject to or Exempt prom: Taxation. lU. To Whom and Where Real Property IS Assessable. rv. To Whom and Where Polls and Per- sonal Property are Assessable. V. Taxpayers' Duties and Liabilities UPON Assessment. VI Assessors; Theib Rights, Duties, and Liabilities. VII. Collection op Taxes. VIII. Actions and Suits by Persons Taxed. IX. Taxation op Corporations by the Tax Commissioner. [Ag to municipal assessments, see Town and City. As to school taxes, see School. As to bet- terment taxes, see Highway, See, also. Joint TENANTi 6.] I. General Constitutional Require- ments. 1. Legislation apportioning, for taxation among several towns, a certain fund held for charitable purposes, is constitutional. Northampton d. Hampshire County Comm'rs, 145 108. 11. Persons and Property Subject to or Exempt prom Taxation. ' 3. A water company, which has acquired title to the waters of a pond and to a perma- nent dam and sluiceway connected therewith, and which has taken possession thereof, may be taxed on the dam and sluiceway, irrespec- tive of whether its title to the dam and sluice- way is an easement only. Flax Pond Water Co. ■». Lynn, 147 31. 3 In the case of an Institution organized under Pub. St., ch. 115, for the education of boys, the property of which consisted of a farm on which were farm and school build- ings, and where the price of board and tuition was $100 a year, and the scholars were taught agriculture, and required to work on the farm two or three hours a day, and most of the TAXATION, II, III, IV, V, VI. 115 products of the farm were consumed by the scholars, and the proceeds of the rest applied to the maintenance of the school, it was held that all of the property was exempt from taxa- tion, under Pub. St., oh. 11, 8 5, cl. 3. Mount Hermon Boys School «. Gill, 145 139. 4. An accumulating fund, held in trust for the future benefit of an incorporated educa- tional institution, is exempt from taxation, under Pub. St., ch. 11, § 5, cl. 3, as "prop- erty " of the institution. Williston Seminary ». Hampshire County Comm'rs, 147 427. 5. A parsonage, erected on the meeting-house land is cot exempt, not being within the letter of Pub. St., ch. 11, § 5, cl. 7, exempting " houses of religious worship." Spriagiield Third Soc. ■». Springfield, 147 396. 6. A society " For the Prevention of Cruelty to Animals" may be a "charitable" and "be- nevolent " society, whose realty, used as a free hospital or sheltering home for homeless, neg- lected, diseased, or abused animals, may claim exemption from taxation. Massachusetts Soc, etc., v. Boston, 142 24. 7. Under Mass. Pub. St., ch. 116, § 20, which permits a savings bank to invest a certain part of its deposits " in the purchase of a suitable site and the erection or preparation of a suitable building for the convenient transac- tion of its business," and ch. 13, § 20, which exempts from a state tax ' ' so much of the de- posits as are invested in real estate used for bankingpurposes," abank, which has purchased land for a five-story building and which uses the first floor and part of the basement for banking purposes, letting the rest of the build- ing, may claim an exemption on the whole of the building-. Ee Suffolk Savings Bank, 149 1. 8. The deposits may be deemed represented by the building, though a part of the guaranty fund which must be set aside from profits may be represented thereby ; the word ' ' deposits " is used to signify all the funds which the bank holds for investment. Re Suffolk Savings Bank, 149 1. 9. The guaranty fund and undivided profits are not, under ch. 13, § 30, aforesaid, liable to a state tax as "deposits," that term denoting only the amounts deposited in the bank, to- gether with interest and dividends accruing thereon and payable to depositors. Re Suffolk Savings Bank, 151 103. 10. Land taken by a railroad company, out- side the limits of its road, "for station pur- poses and for tracks and yard room, to be used m connection therewith," was held taxable as land taken "for station purposes," this being the principal purpose and the tracks and yard room only incidental. Norwich & W. Railroad v. Worcester County Comm'rs, 151 69. 11. And the fact that a strip of the land so taken was originally within the location of the road, but had been sold by the company before the taking for station purposes, was held not to affect the right of taxation. Norwich & W. Railroad v. Worcester County Comm'rs, 151 69. III. To Whom AND Where Real Peopbbty IS Assessable. 12. Under Pub. St., ch. 11, § 13, taxes must be assessed to living owners; the words "per- sons" and "owners "can mean nothing else. An assessment to one who is dead is void. Savpyer «. Mackie, 149 269. 13. A tax on land may not be assessed to a widow to whom dower has not been assigned, and who, as agent for the heir, has let the premises to a tenant who is in sole occupation; in such case the widow is not the person " in possession," within Pub. St., ch. 11, § 13. Lynde «. Brown, 143 337. 14. Trustees, in whom is vested the legal title to land, are liable personally for the taxes; a subsequent taking of the land by right of eminent domain does not discharge the liability. Richardson ®. Boston, 148 508. rv. To Whom and Where Polls and Peb- SONAL Property are Assessable. 15. A portable steam saw-mill, temporarily located in a town on the first day of May, is not taxable there as "machinery employed in any branch of manufactures," and " situated or em- ployed" there,, within Pub. St., ch. 11, §30. Ingram v. Cowles, 150 155. 16. Nor is the sawed product of the mill tax- able there, nothing further appearing to show an occupancy of a manufactory, store or shop. Ingram v. Cowles, 150 155. 17. For facts showing that certain personal property was not taxable in a certain town, and that the person to whom it was erroneously assessed there neither hired nor occupied a store or shop there, see Far well B. Hathaway, 151 243. V. Taxpayer's Duties UPON Assessment. AND LlABtUTIEB VI. Assessors; Their Rights, Duties, aot) Liabilities. 1 8. Buildings owned by one person and stand- ing on land belonging to another cannot be taxed as real estate belonging to their owner and apart froir the land. And, if the owner of the buildings sells them, no personal liabil- ity for the tax on them can be enforced against the purchaser. McGee b. Salem, 149 238. 19. The determination of county commis- sioners as to the admissibility of expert testi- mony as to value, in a proceeding to abate a tax on corporate property, will not be revised 116 TAXATION/ VI, Vli, VIII, 12^— TlME. on application for a certiorari, unless error and prejudice clearly appear. Lowell ». Middlesex County Comm'rs, 146 403. 30. Where one lot is divided by the owner, and the valuation gives the quantity and loca- tion of the whole of the land and specifies the buildings on each part, and it is apparent that the owner could not have been misled, th^ assessment is not invalid for want of a more particular description of the land. Bemis «. Caldwell, 143 399. VII. Collection of Taxes. 21. Where, on the question whether a sale for taxes was of three lots together, for an in- tegral sum, and therefore void, and there is no evidence beyond the collector's notice and his deed, and the notice shows nothing either way, and the deed recites but one sum of money and refers three times to the " sale " in the singular number, the weight of evidence is against the validity of the sale. Barnes i). Boardman, 149 106. 22. The failure of a tax deed to state that fourteen days elapsed after the demand before advertising the premises for sale, or that the tax was not paid within fourteen days after the demand, is fatal to the validity of the deed, though it recites that a demand was made and that no person appeared to discharge the tax. Langdon i>. Stewart, 142 576. 23. A tax deed, which describes the land so inaccurately, as to bounds and area, that it cannot be found, is void for uncertainty, and will not support an action of trespass against the owner of the land. Todd V. Lunt, 148 332. 34. A tax collector, chosen by the town as the lowest bidder, who pays over to the town the full amount of the taxes committed to him for collection, is entitled to the interest chargeable, under the statute, on such taxes as remain unpaid after a certain date. Needham i). Morton, 146 476. VIII. Actions and Stjits by Persons Taxed. 25. Where, part only of an assessment is illegal, the remedy is by application for an abatement, under Pub. St., eh. 11, § 69, and not by payment under protest and action to recover back. Richardson «. Boston, 148 508; Norcross v. Milford, 149 337; Schwarz V. Boston, 151 326. 26. Where buildings on land are owned by one person and the land is owned by another, and the buildings are assessed unlawfully to their owner as real estate and then are sold by their owner and a sale for the tax is threatened, the purchaser may pay under protest and sue the city to recover the money back. McGee ». Salem, 149 338. 27. Where there have been successive tax sales of land to different purchasers, a suit to redeem must be brought against the last pur- chaser within five years from the time of the first S3il6 O'Day V. Bowker, 143 59. IX. Taxation op Corporations by the Tax Commissioner. 38. The failure of a corporation to file a sworn list of its estate with the assessors does not affect the right of appeal to the county commissioners, upon the refusal of the assessors to abate the tax, after the tax commissioner has fixed a lower value on the realty and ma- chinery. Lowell «. Middlesex County Comm'rs 146 403. 29. The month, within which, under Pub. St., ch 11, § 71, complaint must be made to the county commissioners, begins to run from the time of the notice given by the assessors of their refusal to abate. Lowell V. Middlesex County Comm'rs, 146 408. 30. The commissioners may permit the com- plaint to be amended so as to limit it to certain parcels of the property. Lowell V. Middlesex County Comm'rs, 146 403. 31. It may not be shown that any of the property has been undervalued by the assess- ors. Lowell V. Middlesex County Comm'rs, 146 403. 33. It is not a ground for the recovery from the Commonwealth, under Pub. St., ch. 64, of an excise tax assessed to and paid "by a corpo- ration, that the shares were overvalued. Boston Manuf. Co. v. Comm'rs, 144 598. Tenant. [See Landlord and Tenant ] Tenant for life. [As to when a gift in a wUl creates a tenancy for life, see Devise and Bequest. See, also, Dowbb; Income; Trust.] Tenants in common. [See Joint Tenants and Tenants in Common.] Tender. Time. [See Contract, 81.1 [See COEPORATION, 8, 9.] TITLE TO PEOPEETY— TOWN AND CITY, I, II, III. 117 Title to property. [See Chattel Mortgage ; Contract; Deed ; Devish and Beqdest ; Mobtoage ; Personal Pbopebty; Sale; SHippma; Vendor and Ven- dee.] Tort. [See Action; Assault; Conspibaot; Damages; Feaud; Highway; Libel and Slander; Mali- cioDS Pboseodtion ; Master and Servant ; Negligence; Nuisance; Town ] Town and city. I. General Rights and Powbks. n. Municipal Legislation; Ordinances. III. Officers; Committees, and Other Municipal Agents. rV. Finances. V. Liabilities. VI. Public Improvements. (1.) Street; road. (See Highway.) (3.) Park. (3.) Sewer. (4.) Water works. (5.) Miscellaneous. [See, also, Boston; Poob and Poor Laws. For additional cases relating to towns and cities, see Cebtiobaei. 3 ; Evidence, 26; Highway, 28, 29, 71 ; Justice of the Peace. 1 ; Mandamus, 1 ; Wit- ness, 16.] ERS. I. General Rights and Powers. 1. Under St. 1889, ch. 380, authorizing the employment of counsel, by "any towi;^ inter- ested iu a petition to the legislature," to repre- sent it at hearings, a town may employ and pay counsel before a legislative committee to oppose its division. Connolly ». Beverly, 151 437. 3. The legislature of this Commonwealth has the constitutional power to authorize cities and towns to manufacture and distribute gas and electricity for the purpose of furnishing light. Opinion of the Justices, 150 593. II. Municipal Lh&islation; Ordinances. 3. Where a warrant for a town meeting contained an article "to see if the town will choose the selectmen surveyors- -of highways," and an article " to choose all necessary town officers," naming those to be chosen, including selectmen and overseers of the poor, and add- ing "all of said votes to be on one ballot " it was held, that the town might vote to choose the selectmen surveyors of highways, and might vote for five selectmen to be also assessors, overseers of the poor, and highway surveyors, and that ballots cast subsequently for separate boards of selectmen, assessors, overseers and surveyors could be rejected, except so far as they contained the names of persons voted for as selectmen. Comm. V. Wentworth, 145 50. 4. Where, under a statute incorporating a water company and providing that the town may vote to purchase the franchise and prop- erty, the town so votes, it may not rescind its vote. Braintree Water Supply Co. v. Brain- tree, 146 483. 5. Not can it attack, afterward, the validity of the organization of the corporation on the ground that the provision of the general stat- utes as to notice before its capital was paid iu or wholly subscribed for was disregarded, the corporation being created by a charter and the town having deaPt with it as a corporation. Braintree Water Supply Co. ». Brain- tree, 146 483. 6. If a city charter provides that its ordi- nances shall take effect at the time limited therein, without the sanction of any court or other authority whatever, the provisions of Pub. St., ch. 27, g 33, and ch. 28, § 2, concern- ing the publication of ordinances have no ap- plication. Comm. V. McCafferty, 145 384. 7. Under Pub. St., ch. 104, § 1, authorizing cities or towns to pass such ordinances, regu- lating the construction and use of buildings, as are reasonable and necessary " for the preven- tion of fire and the preservation of life," a city ordinance which, in effect, gives the aldermen power to prevent the erection of any building, except a dwelling-house, for any reason satis- factory to them, is bioader than the statute, and invalid. ISTewton v. Belger, 143 598. 8. An ordinance against displaying placards on the sidewalk is violated by walking there wearing a piece of oilcloth with an inscription requesting lasters to keep away from a certain place during a strike. Comm. V. McCafferty, 145 384. 9. One prosecuted for playing a cornet in a Boston street without a license from the board of police cannot defend on the ground that what he did was done as a matter of religious worship. Comm. s. Plaisted, 148 375. ni. Officers, Committees, and Other Municipal Agents. 10. Under St., 1885, ch. 336, § 5, providing that boards of the city of Boston " may remove such subordinates for such causes as they may deem sufficient and shall assign in their order for removal," a subordinate of the board of directors of East B' ston ferries may be re- moved without a hearing, upon assigning a cause therefor. An order passed by the board reciting that "a communication from the super- intendent was received that he had discharged " a subordinate " for intoxication while on duty; on motion, the action, of the superintendent was approved," is sufficient to constitute a re- moval. O'Dowd V. Boston, 149 443. 118 TOWN AND CITY, III, IV, V. 11. A committee chosen by a town to erect a building may act by the agreement of the mem- bers separately obtained. It is not a board of public oflBcers which can only act as a body. Shea V. Milford, 145 538. 12. Under the vote of a town to sell land the next year's board of selectmen may not execute a deed. Littlefleld «. Boston & Albany Railroad, 146 268. 13. Under St., 1875, ch. 209, limiting the right of towns to contract debts, a town treas- urer could not, by virtue of his office, bind the town by a new note given in renewal of an old one; nor could his assurances or his custom affect the liability of the town. Abbott ■». North Andover, 145 484. 14. A general power to remove police officers at pleasure authorizes the removal of an officer appointed by the predecessor of the mayor exercising the right of removal, and without cause shown or a hearing. "Williams ». Gloucester, 148 256. 15. On the question whether the record of the mayor and aldermen shows the removal, the fact that the aldermen appeared not to have concurred in the removal is rendered un- important by a subsequent vote confirming another in the place of the first. Williams v. Gloucester, 148 256. 16. The St., 1885, ch. 323, creating a board of police for the city of Boston, to be appointed by the governor and council from the two principal political parties, is not unconstitu- tional on the ground that it abridges the exer- cise of the principle of local self-government. Comm. V. Plaisted, 148 375. 17. Under St. 1>85, ch. 323, the board of police of the city of Boston may not remove an officer without assigning a cause and affording an op- portunity for a hearing. This statute does not, on this point, change the pre-existing law. Uam V. Boston Police Board, 143 90. 18. A police officer, who, though removed unlawfully, without a hearing, yields to the demand made upon him for his badge of office and the property in his possession, and does not afterward attempt to perforni any service, assert his rights by a formal demand, nor de- mand his salary, cannot, after ten years, main- tain an action against the city for his salary for the ten years. Phillips V. Boston, 150 491. rv. Finances. 19. A town, under a statute authorizing the expenditure of a certain sum for a building, and undui a vote accepting the report of a committee that the price should not exceed that sum and a vote to raise that sum by borrowing, is not precluded from incurring an additional liability for extra work ordered by the committee. Shea V. Milford, 145 528. 20. The prohibition of Pub. St., ch. 39, in relation to the incurring cf debts by towns, ex- cept by a two-thirds' vote at a town meeting, etc., does not prohibit a contract for water for three years at a certain rate annually, under the authority of a vote of less than two-thirds. Smith V. Dedham, 144 177. 21. Nor does Pub. St., ch. 27, § 27, relating to the purchase of water by towns, apply to the case of such a contract. Smith V. Dedham, 144 177. 23. The expense of removing a sidewalk and paving the street in place thereof is charge- able to a general appropriation for paving, not- withstanding St. 1885, ch. 266, § 6, providing that no expenditure shall be made for any purpose "beyond the appropriation duly made therefor." Attorney-General v. Boston, 142 200 23. The power conferred by St. 1846, ch. 167, § 11, and St. 1861, ch. 1C5, § 13. upon the city councils of Boston and Charlestowu to ap- propriate the surplus income fi'om water, rates to a sinking fund, which, however, under St. 1875, ch. 80, vested in the Boston Water Board, was not taken away by St. 1875, ch. 209 (Pub. St. ch. 29). An intention to repeal does not appear and the statutes may . well stand to- gether. Minot V. Boston, 143 274. V. Liabilities. 24. A city, which agrees with the owner of a green house to supply him with water for steam to warm his plants, and which so con- structs a sewer as to expose and uncover the supply pipe, so that the water therein is frozen and the supply cut off, is liable in an action of tort. The injuiy to the plants is the natural and probable consequence of the negligence of the city. And it is immaterial that an action on the contract might result in giving the same Stock V. Boston, 149 410. 25. A town may be liable to one injured by the negligence of the driver of a poor farm ' Nefl V. Wellesley, 148 487. 36. Where a water company agrees to fur- nish a town with " a full and ample supply of water" and "guarantees a sufficient supply of water to run eight hydrants at the same time and throw full streams of water over the high- est building," and furnishes water and is paid for several years, it is too late for the town to defeat a recovery of rentals for subsequent years, during which it used water, by showing that at no time was the supply " full and ample " or sufficient to run the eight hydrants and throw the full streams. The evidence goes to the reduction of the damages by way of recoupment. Wiley «. Athol, 150 426. 37. A town, directed by a statute to rebuild a bridge according to plans approved by the board f f harbor and land commissioners, is liable for a personal injury sustained from the fall of a derrick negligently used by the ser- vants of the town in the rebuilding. The fact that the town is engaged in the discharge of a TOWN AND city; VI, (1), (2), (3), (4). 119 public duty imposed on it by statute does not constitute a defence. Doberty «. Braintree, 148 495. VI. Public impbovbments. (1.) street; road. (2.) Park. 28. For evidence held competent on tbe ques- tion of tbe value of land taken by a city for a park, see Sawyer v. Boston, 14:4: 470. (3.) Sewer. 29. Under Pub. St., ch. 50, § 1, the mayor and aldermen may direct that the sewer be built under the supervision of a joint commit- tee of the city council. Collins ». Holyoke, 146 298. 30. One assessed for benefits cannot complain that he was not notified. CoUins ». Holyoke, 146 298. 31. The assessment may be valid though the board called in another person to assist in mak- ing it. Collins v. Holyoke, 146 298. 32. And though the superintendent of sewers disregarded the ordinance requiring him to keep and submit an account of the cost and to report a list of persons benefited. Collins ». Holyoke, 146 298. 33. Under a statute authorizing a town to take or purchase land to improve a stream for sewerage purposes, and providing that the title of all land so taken shall vest in the town, the town acquires a title in fee simple to land taken, and not merely an easement. Page V. O'Toole, 144 803. 34. "Where a city, authorized to take land in two counties for a system of sew erage, removes soil and gravel from land in one county to land in another, the owner's remedy is by an appli- cation for damages under the statute, and not by an action of tort for the conversion. Titus V. Boston, 149 164. 35. A city, authorized by statute to improve, alter, and deepen a certain brook, but not to interfere with the estate owned by a certain company, "or its rights in said brook as to the use and purity of its waters," may be liable where, through its nealigence in doing the work, water is set back upon the estate, but not for damages caused by an occasional scarcity of water caused by the work. Boston Belting Co. ®. Boston, 149 44. 36. Under Pub. St., ch. 50, a city may be liable for the cost of a sewer built by direction of the aldermen without the approval of the mayor. Dorey i>. Boston, 146 336. 37. An order of the aldermen, directing the superintendent of sewers to build a sewer, is not inconsistent with or superseded by a subse- quent order directing him to act during the year under the orders of the committee on sewers. Dorey v. Boston, 146 336. 38. A town may be liable to one whose land is flooded through tbe choking up, from neglect, of the outlet of a drain, though the lease to the town of the land on which are the drain and outlet has expired, and though the drain and outlet were part of a system of drainage established by the town. Bates ». Westborough, 151 174. 39. The requirement of a written permit to connect a private drain with a common sewer may be found to have been waived, it appear- ing that an oral permit was given, and that the fact that the permit was given was recorded. Sheridan v. Salem, 148 196. 40. For instructions on the right of recovery against a city by one on whose land, bordering on a brook, additional water is discharged by reason of a drainage system, see Stanchfield v. Newton, 142 110. 41. Where a sewer, so built by a city as to discharge into a mill pond, does not do appre- ciable harm before the introduction of water into the city, thirty years later, the city cannot claim a prescriptive right to defeat the applica- tion of the owner of the pond for an injunc- tion. Middlesex Co. ». Lowell, 149 509. 42. A town which, in constructing a com- mon sewer, makes dry a well on land not taken, and not adjoining land taken, is liable in dam- Trowbridge . Cambridge Railroad, 151 159. Yendor and Yendee. [See, also. Deed; Ebal Property; Specific Performance; Biatoteof Frauds.] 1. Where a bond for a deed recites that the obligor has " bargained and sold " the premises to the obligee; and that payment is to be made in cash and notes, with the privilege of antici- pating payments on the notes, and conditioned that a " properly executed warranty deed " shall be delivered on demand and on the ful- fillment of all conditions, the payment of the notes is a condition upon which the deed is to be delivered. Linton v. Allen, 147 331. 3. An action for breach of an agreement to purchase land must fail where it appears that there were defects in the plaintiff's title and that, not only did the purchaser not repudiate the contract, but that delay was granted him for a period of time not yet expired. Langley «. Dauray, 145 335. 3. Where the plaintiff, under the bond in suit, was entitled to a conveyance of land to F street, and the conveyance tendered bounded the land on the side line of F street, and it ap- peared that the objection made, before suit brought, was to another matter, it was held that an instruction which, in effect, dealt with these facts as equivalent to a waiver, although it did not appear that the plaintiff's although it attention was called to this point, was erroneous. Holdsworth ». Tucker, 143 869. 4. Where A., after having agreed to convey land to B. , conveys to C. , who knows the facts, and who procures a release of dower from A.'s wife, who did not agree to release to B., a con- veyance from C. to A. may be compelled. And it does not matter that B. thus gets more than he bargained for, C. having promoted A.'s breach of agreement. Mansfield «. Hodgdon, 147 304. Yerdict. Yessel. [See Trial.] , o [See Shipping.] Yested and contingent interests. [See Devise and Bequest ; Trust.] Yictualler, common. [See Intoxicating Liquors.] Yoid and ToidaWe. [See Fraud; Infant; Lunatic] Yoluntary association. [See Benevolent Association; Loan ahdITund Association; Beugious Association.] Yoluntary conreyance. [See Fraud.] Yoteri voting. [See Elections and Electors.] WAGEE— WATER COUESE. 127 W. Wager. [See BHITINO AND Gaminq.] Wages. [See Masteb andSbevant; Trustee Peocess.] Waiver. [See, also, Appeal; Exception; Laches.] 1. After a trial and a verdict for the plaintiff it is too late for the defendant to object to the jurisdiction on the ground that the plaintiff's bond given to prosecute his appeal from the district court to the superior court was filed after the expiration of the twenty-four hours within which, under the statute, it should have been filed. Folsom B. Cornell, 150 115. 2. One whose land is taken under a claim of right by eminent domain does not, by filing a petition for damages under the statute within the time limited therein, waive his right to bring a suit in equity to test the constitution- ality of the statute. Moore i>. Sanford, 151 285. 3. A savings bank, which, on ascertaining that its treasurer, without authority, borrowed money in its name and on the pledge of its shares, at once repudiated the transaction, can- not maintain an action for money had and re- ceived against the pledgee to recover the pro- ceeds of its sale of the shares. Holden d. Metropolitan Nat. Bank, 151 113. Wall. [See Fence; Party WAUi.] Warehouseman. [See Bailment.] Warrant. „ [See Indictment ; Search Warrant.] Intoxicating Liquors '< Warranty. [See Covenant ; Estoppel; Sale.] Waste. [See Joint Tenant, 4.] Water course; surface water. [ A s to grants and reservations of water rights, see UEED. As to public water works and sewers, see lOWN, See, also Alluvion; Fish; Flats; Land Owner; Mill and Mill Dam; Nuisance; Pond. And for particular cases Involving questions of water and water rljrhts, see Deed, 9; Injunction, i; Pond, i; town and City, 40 ] 1. Where A'a use of a navigable river ob- structs B's landing-place, to the loss of business from his public-house and grounds, he sustains special and therefore actionable damages. French «. Connecticut River Lumber Co., 145 261. 3. On a trial of an indictment for running a steamboat without a town license on the Con- necticut river above the dam at Holyoke, the court may take judicial notice that the river at this point is not within the maritime jurisdic- tion of the United States. Comm. V. King, 150 331. 3. Under statutes authorizing a corporation to convey water to a town, to "construct, lay down and maintain any dam 'or dams, pipes, fountains, or reservoirs, whatsoever, upon and over any land whatsoever," and providing a remedy for any person injured "by the taking tlie water aforesaid," no power exists to take land and build a dam upon it. Piokman «. Peabody, 145 480. 4. Under St. 1883, ch. 163, incorporating the Marblehead Water Company, and authorizing the acquisition of land and water sources, ihe company may acquire rights outside the limits of the town of Marblehead, Woodbury «. Marblehead Water Co., 145 509. 5. The provision for compensation in this act is adequate, being substantially the same as provided for by Pub. St., ch. 113, § 97, in tne case of land taken by railroads. Woodbury v. Marblehead Water Co., 145 509. 6. An aqueduct corporation which, in taking land, exceeds its powers, may be liable in an action of tort, though, for acting within its powers, it could be proceeded against under the statute only. Brickett «. Haverhill Aqueduct Co., 142 394. 7. A statute which, while authorizing an aqueduct corporation to take necessary land, provides that damages shall be ascertained, determined, and recovered in the same manner as where land is taken for highways, makes, in connection with existing laws, an adequate provision for compensation, and, therefore, is constitutional. Brickett v. Haverhill Aqueduct Co., 142 394. 8. Where a water company, authorized to take land for its pipes, file 5 so inaccurate a description of the location as to make the tak- ing invalid, an action of tort lies. Warren 0. Spencer Water Co., 143 9. 9. And, if the owner of the land is a married woman, no estoppel can be predicated on the fact that, without her knowledg , a petition for 128 WATEE COUESE— WITNESS, I damages for the taking was filed in her hus- band's name and afterward discontinued. Warren ». Spencer Water Co., 143 9. 10. The description of land taken by a water company may be sufficient where it identifies the land, though it does not set forth the names of the owners. Woodbury «. Marblehead Water Co., 145 509. 11. A recorded plan and declaration, by a water company, of land taken, which does not show the termini of the pipe line or the points where it crosses the boundaries of land taken, and which does not define the width of the line or declare that the waters of any pond, brook, or river have been taken, is not "suffi- ciently accurate for identification," and is invalid. Warren «. Spencer Water Co., 143 9. 12. For an examination of instructions re- fused on the question of damages in the case of water diverled by a water company and held t-o be immaterial, see Warren i>. Spencer Water Co., 143 155. Water works. [See Town aud City.] Way. [See Basement; Highway.] Wharf; dock. 1. For a case where it was held that a cove- nant between wharf -owners to keep open a cer- tain space between the wharves could not be extended to a space between the subsequent extension of the wharves, see Commercial Wharf Co. ■». Wlnsor, 146 559. Widow. Wife. [See Dower.] [See HusBAJSD and Wife.] Will. [For rulings as to the construction of wills, see Devise and Bequest. As to appeals in probate cases, see Appeal. For various rulings connected with wills, see Charity; Descent and Distribu- tion ; Executor and Administrator ; Heirs ; Probate Court; Trust; Trustee. And see, par- ticularly. Contract. i6 ; Exception, 21 ; Savings Bank, 1] 1. It is not necessary to the validity of a will that it should be re&d by or to the person exe- cuting it: it is sufficient if the court is satisfied, by competent evidence, that the contents of the will were known to and approved by the per- son executing it, at the time it was executed as a will. Worthington ». Klemm, 144 167. 3. On the question whether one who made a will sixty years ago was a widow and therefore competent to make a will the fact of her mak- ing it may be considered in connection with other facts. Haddock v. Boston & Maine Railroad, 146 165. 3. A widow's will in favor of her living chil- dren is revoked by her subsequent marriage and the birth of another child, though the wtU was made in contemplation of the marriage and assented to by the man who became the husband and a revocation was not intended. Nutt ». Norton, 142 242. 4. From the facts that one executed and pub lished three wills, each containing a revocatory clause, and said, when he executed the thiid, that he would keep them all until he made up his mind which he wanted to keep, and would then destroy the others, and afterwards de- stroyed the first and third, it may be found that, in cancelling the third will, thee was an inten- tion to revive the second, though there is no further evidence of republication. Williams v. Williams, 142 515. 5. A decree allowing a will should not be reversed where there has been an unexplained delay of sixteen years and where it does not appear that there is any newly-discovered evi- dence. Gale v. Nickerson, 144 415. 6. It cannot be said that the probate court has not, as matter of law, authority to admit a will to probate sixty -three years after the death of the person making it. Haddock ». Boston & ]yiaine Eailroad, 146 155. 7. An attesting witness to a will may state, on its probate, the opinion held by him as to the testator's sanity at the time of his attestation. WiUiams v. Spencer, 150 846. 8. Otherwise, however, as to an opinion formed since. Williams ®. Spencer, 150 346. 9. The refusal of a judge to set aside find- ings of a jury on the question of fraud and undue influence, while setting aside findings on the question of unsound mind, is not necessar- ily erroneous, the evidence not appearing. Dexter «. Codman, 148 421. Witness. I. Witness's Gbneral Rights aud Lia- bilities. II. Geneeal Ritles as to a Witness's Com- petency AND CUBDIBILITY. III. Party to the Record. IV. DlSCREDITDfa AND SUSTAINING A WIT- NESS. [See, also, Deposition; Evidence; Exception ; Indictment ; New Trial ; Trial. And see Au- ditor, 3; Evidence, 26.] I. Witness's Qbnerai, Eights and Lia- bilities. 1. That a city marshal], knowing that a bar- keeper would willingly testify against his em- WITNESS, I, IT, III, IV. 129 plover, summoned him, and that, because of Us appearance in court, the employer pleaded guilty of maintaining a common nuisance, does not tend to show a promise, express or implied, that the bar-keeper should not be prosecuted. Comm V. Plummer, 147 601. II. General Rule as to a WrrNESs's Com- PBTENCT AND CkBDIBILITY. 2 After a witness has been produced in court, the decision of the question of his com- petency may be postponed until he shall hav- been instructed as to the nature and obligation of the oath. Comm. V. Lynes, 143 5-77. 3. On the trial of a complaint against a mar- ried woman for keeping a liquor nuisance she cannot testify to private conversations with her husband, who acted as her agent, for the pur- pose of showing her good faith in giving the instructions. Comm. ®. Hayes, 145 289. III. Party to the Recced. 4. Where one accused of a crime offers him- self as a witness, he may be questioned on cross-examination concerning his identity with one named in a record of conviction. Comm. v. Sullivan, 150 315. 5. Where several are indicted and tried to- gether one who offers himself as a witness may be cross-examined, in the discretion of the court, by counsel for the others as to matters bearing on their defence. Comm. ■». Mullen, 150 394. IV. Discrediting and SusTAiNma a Wit- ness. 6. A witness who admits that she has lived in a certain house, cannot be required to state whether the house was a house of ill-fame. Comm. V. Trider, 143 180. 7. A plaintiff in an action for slander, who testifies that his first visit to a house of ill-fame was made for a proper purpose, may be con- tradicted by the testimony of an inmate that the plaintiff visited the house months before and had improper relations with her. Fitzgerald «. Williams, 148 463. 8. The defendant in a slander suit cannot be asked, on cross-examination, if he had not been sued, two or three years before, for slan- dering another person. SulUvan®. O'Leary, 146 333. 9. Where a witness is called as an expert, a letter, written by him three years before to a third person and in relation to a matter foreign to that of the case on trial and which contains suggestions derogatory to his character, is not competent to impeach his testimony. Comm. V. Schaffner, 146 513. vou ni— 17 10, Where, on the question whether a cor- poration was bound to pay a note, or A, for whose accommodation it was contended the note was indorsed, a director of the corpora- tion testifies that A was to pay it, a letter writ- ten by him to A is comp..teut as tending to contradict him. Poster 1). Worthing, 146 607. 11. Under Pub. St.. ch. 169, § 19, the con- viction of a misdemeanor as well as a felony goes to the credibility of the witness. Comm. D. Ford, 146 131. 13. As Pub. St., ch. 169, § 19, provides that "the conviction of a witness of a crime may be shown, to affect his credibility," his conviction of an assault may be shown for this purpose, the weight of the evidence being for the jury. Quigley v. Turner, 150 108. 13. That witnesses, who, on behalf of the Commonwealth, testify in a liquor nuisance case, are employed by an association to induce sales for the purpose of instituting prosecu- tions, does not require an instruction that the witnesses are not entitled to belief. Comm. «. Moore, 145 244. 14. One charged with keeping a common nuisance and who has testified to his want of interest, may be cross-examined generally as to his relations to the house before the time charged in the complaint. Comm. V. Clark, 145 351. 15. A witness to the value of his own land, adjoining that the value of which is in ques- tion on the issue of damages for laying out a way, may be contradicted, within the discre- tion of the court, by his sworn statement to the assessors of taxes, wherein he placed a diilerent value upon his land. Phillips «. Marblehead, 148 836. 16. Where a town selectman testifies as an expert that land taken for a way was worth less than the amount awarded, the record of the board of selectmen showing the amount awarded cannot be used to contradict him, though he as well as other members of the board has signed it. Phillips 1). Marblehead, 144 336. 17. Where, on an assessment of damages for taking land for a park, the chairman of the board of assessors testifies as to the value of the land, the court, in its discretion, may refuse to allow him to be asked on cross-examination at what price he assessed adjoining land that year and the year before. Thompson ». Boston, 148 387. 18. A witness's answer to a question put to him on cross-examination, and which is collat- eral or immaterial to the issue, cannot be con- tradicted. Alexander v. Kaiser, 149 331. 19. Where, on cross-examination as to col- lateral matters, a witness states that A owns a certain house, it cannot be shown that the wit- ness has said that the deed under which A claims was made for the purpose of defrauding creditors. .. ,. * joo Jordan v. McKinney, 144 4d8. 20. Where, on the trial of a liquor nuisance case a witness testifies that he was at_ the sa- loon a number of times and saw no hquor, it 130 WOMAN— WEIT. cannot be said, as matter of law, that to ask him whether he was not drunk near the saloon during the time, is irrelevant. Comm. ®. Brady, 147 583. Woman. 1. Under the constitution of this Common- wealth, at least, in the absence of a statute, a woman cannot be appointed, or, if appointed, act as a notary public. Opinion of the Justices, 160 586. Work and labor. [See Master ahd Sebvaht ; Trustee Peooess.] Writ. [See, also, Amendment ; and the titles of the dif- ferent proceedings and writs.] 1. A defendant is not entitled to a ruling, on the trial, that the action cannot be carried on without an indorser; the remedy is by an ap- plication under the statute for an indorser. Coulter «. Haynes, 146 458. 2. The requirement of Pub. St., ch. 167, § 63, that "all agreements toucliing a suit or pro- ceeding shall be in writing," does not embrace an oral agreement made in open court and acted upon by the court, such an agi-eement, for ex- ample, as that, if the plaintiff's attorney who has indorsed a writ will allow an indorser for costs to be ordered, the attorney shall be re- lieved when the order is passed. Savage ». Blanchard, 148 348. 3. And where such an order is made with a nonsuit as an alternative, but the attorney is not released of record nor his name stricken from the writ, and a nonsuit is granted, the agreement is a bar to an action against the at- torney as an indorser. Savage «. Blanchard, 148 348. 4. In scire facias against the indorser of a writ it is not a defence that the plaintiff in the scire facias, in taxing his costs in the original action, in which he was defendant, fraudulently procured the allowance by the clerk of various sums to which he was not lawfully entitled, no collusion being charged. The judgment in the original action is conclusive while unreversed. Sherbourne «. Shepard, 142 141. 5. Where it is material to show at what hour a writ was served the officer may testify, his return stating merely that service was made on the day. Warden v. Etter, 143 19. TABLE OF CASES CITED. [The small Roman numerals denote tbat the case la cited more than once on the same page.] PAGE Abbott V. Cottage City, 143 531 33 V. Foote, 146 333 104, 134 V. Hapgood, 150 348 32, 54 (Hoar v.) 146 290 45 (Morgan®.) 148 507 69 V. New York & New England Rail- road, 145 450 106 iii V. North Andover, 145 484 118 V. Shepard, 142 17 69 ii Abrams, (Comm. v.) 150 393 73 Acushnet Street Railway, (New Bedford / &F. Street Railways.) 143 300 113 Adams B. Chicopee, 147 440 49, 60 (Eddy «.) 145 489 83 V. Messenger, 147 185. . . . 100, 113 ii V. Morgan, 150 143 47 ii Addison v. New England C. T. Assoc, 144 591 13 Ahem, (Blaisdell «.) 144 393 30 Alden, (Comm. «.) 143 113 16, 66 ii «. Thurber, 149 371 110 Aldrich v. Aldrich, 143 45 4 «. Mercantile Mutual Accident As- soc. 149 457 70 D. Parnell, 147 409 76 Alexander ». Kaiser, 149 331 129 (Kaiser v.) 144 71 47, 48 ii Alger V. North End Savings Bank, 146 418 56 Allard, (Eastman «.) 149 154 133 Allen (Brooks v.) 146 301 78 (Carpenter «.) 150 281 53 «. Dean, 148 594 .. 104 a. Gardner, 147 453 59, 63 (Linton «.) 147 231 136 (Pearson o.) 151 79 40 V. South Boston Railroad, 150 200 28ii Allendorf v. Gaugengigl, 146 548 33 Allerton «. Boston & Maine Railroad, 146 241, 93 Alley, (SnowB.) 144 546 27 (Snow •».) 151 14 47 Allin V. Connecticut River Lumber Co., 150 560 5, 125 Alvard, (JefEards e.) 151 94 3 American Carpet Lining Co. v. Chipman 158 385 67. 68 Finance Co. «. Bostwick, 151 19, 108 iii Legion of Honor, (Marsh ■d.) 149 513 13 ii PAGE American Loan & Trust Co., (Moray v.) 149 353 84 Order ». Merril, 151 558 14 Printing Co., (Daley v.) 150 77. . . 87 Ajnerige «. Hussey, 151 300 31 Ames, (Andersons.) 151 11 63 (Appleton ».) 150 34 79 i>. Brooks, l43 344 133 Amherst, (Squires «.) 145 193 47, 131 Ammidowu o. Kinsey, 144 587 43 Amory, (Goddard c.) 147 71 34 Amy «. Manning, 144 153 108 V. Manning, 149 487 41 Anderson ■«. Ames, 151 11 63 Andrews «. Cassidy, 142 96 103 (Comm. B.) 143 33 48, 96 Answer of the Justices, 148 633 114 150 598 114 Anthony «. Travis, 148 53 49, 50 Appleton ». Ames, 150 34 79 (Crowley«.), 148 98 50 Apthorp (Wellington ». ) 145 69 36 Arey v. Newton, 148 598 60 Arlington, (Keni sou v.) 144 456 130 Mills, (Carey «.) 148 338 88 Arms, (Seward «.) 145 195 135 Armstead, (Gurley «.) 148 367 19 Ashcroft B. Simmons, 151 497 9 ii Ashley ». Hart, 147 573 88 (McKenzie v.) 145 577 38 Atchison, Topeka & Santa Fe Railroad, (Jones ®.) 150 304 51 Athol, (Wiley «.) 150 426 45, 118 Atkins ». Merrick Thread Co., 142 431. 88 V. Witherell, 142 483 89 Atkinson, (Staigg v.) 144 564 39 Atlantic Cotton Mills, (Clifford ».) 146 47 78 V. Indian Orchard Mills, 147 368. 29 Atlantic Telegraph Co., (Tufts, «.) 151 369.. 36, 33 Atlas Nat. Bank, (Cotton v.) 145 43. . . . 33 Attleborough Nat. Bank, (Richards «.) 148 187 11 Atttorney-General v. Ayer, 148 584 33 D.Boston, 142 200 60, 118 ■V. Brigham, 142 348 83 «. Fitchburg Railroad, 142 40 30 V. Northampton, 143 589 30 V. Tarr, 148 309 96 Atwood, (Crocker v.) 144 588 31 132 TABT^E OF CASES CITED. Atwood V. Dumas, 149 167 84 B.Wheeler, 149 96 103 Austin, (Lewis «.) 144 383 4 Avery v. Ward, 150 160 81, 101 Ayer, (Attorney-General v.) 148 584 33 Avery v. Bell Manufact'g Co., 147 463, 47 (Blanchard ».) 148 174 62 (Quptill «.) 149 49 125 «. Kilner, 148 468 100 V. Somerville, 143 585 119 B. Babbitt, (Marvel «.) 143 226 51 Babcock «. Old Colony Railroad, 150 467 88 Bacon, (Goodyear Dental Vulcanite Co. «.) 148 543 17 (Goodyear Dental Vulcanite Co. v.) 151460 17 Bailey, (Bennett «.) 150 257 21 «. Hemenway, 147 836 122 Baird, (Verran o.) 150 141 44 Baker v. Brown, 146 369 43 (MinotD.) 147 348 21 ». Tompson, 151 380 55 Balch ». Stone, 149 39 33 Bancroft «. Swain, 143 144 91 Bangs, (Kimball ».) 144 331 55 Banister i). Banister, 150 280 38 Bank of America v. Sliaw, 142 290 15 Barber v. Parsons, 145 203 30 Barbara v. Gomez, 149 221 103 Barker, (Briggs o.) 145 287 5 (Coram. «.) 143 560 53 (Faruham «.) 148 204 37 Barnard, (Dalton «.) 150 473 10 Barnes «. Boardraan, 149 106. . . 36, 90, 91 116 (Copeland v.) 147 388 69 B. Lynch, 151 510 99 Barney Manuf. Co., (Dunlap v.) 148 51. 87 Barney Myroleum Co., (Bernard ®.) 147 356 30 Barrett, (Elliott «.) 144 256 113 (Paiges.) 151 67 86 Barrie «. Bade, 143 1 26 Barrows «. Sweet, 143 316 6 Barry v. Capen, 151 99 25 (Hogan».) 143 538 39 ii V. Worcester, 143 476 83 Barstow i>. Old Colony Railroad, 143 535 94 (Russeli V. j 144' iso'.'.'.'.'.'.'.'.'.'.'.'.'.'. 105 Bartlett, (Cumston v.) 149 343 104 V. Houdlett, 147 25 35, 37 ii «. Mystic River Co., 151 433. 28, 113 «. Stanchfleld, 148 394 27 Barton v. RadclifEe, 149 275 77 «. White, 144 381 68 Ii Barton Square Church, (Smethurst v.) 148 361 80 Bascom ®. Dempsey, 143 409 120 Bassett v. Connecticut River Rrilroad, 145 29 106 ». Connecticut River Railroad, 150 178 54 Batcbelder, (Corcoran v.) 147 541 . .11, 33, 48 Batcheller d. Commercial Union Assur- ance Co., 143 495 71 (Hecht V.) 147 835 110 (Phoenix Nat. Bank B.) 151589.. 28 69 Bates, (French s.) 149 73 '. 57 Bates ?). Old Colony Railroad, 147 355.. 19 ■B. Westborough, 151 174 119 ». Youngerman, 142 130 113 Bath D. Metcalf, 145 374 7 Batt V. Mallon, 151 477 112 Baxter v. Doe, 142 558 101, 111, 112 (SaHivan ».) 150 261 54 Bejls V. Thompson, 149 405 82 ii Bean, (Coram, v.) 148 172 18 «. Hyde Park, 143 245 60 Bearce, (Comm. «.) 150 389 73 Beard ». Boston, 15196 28 (0'Rourke«.) 151 9 122 Beckwith ii. Cheshire Railroad, 143 68. I'J ii Belchertown, (Cummington v.) 149 333, 23 Belger, (Newton ».) 143 598 117 Belli). Pierce, 146 58 17 Bell Manufacturing Co., (Ayer v.) 147 46 3, 47 Bemis «. Caldwell, 143 299 116 Bennett «. Bailey, 150 257 21 (HoltB.) 146 487 29 Benson v. Goodwin, 147 237 88 (Morse «.) 151 440 39 Bent «. Erie Telegraph & T. Co., 144 165 6 Benton v. Brookline, 151 250 59 iil Berkley, (C arr ®.) 145 539 58 ii Bernard «. Barney Myroleum Co., 147 356 80 Besse, (Coram. ■».) 143 80 77 Beverly, (Connolly v.) 151 437 117 (Kennison d.) 146 467 59 (Liffin «.) 145 549 61 Bigelow, (Brooks b.) 142 6 15 ®. Capen, 145 270 9 ii (Marstont).) 150 45 16, 45 Bigelow Wire Works v. Sorrell, 142 442 110 Bill, (Shattuck v.) 142 56 10 Binney v. GlobeNat. Bank, 150 574. ... 68 67, iiil Bird, (King®.) 148 572 79 Birch «. Hutchings, 144 661 25 Bisch, (Comm. v.) 145 375 6 Bishop V. Palmer, 146 469 25 Blackston, (Kelley ®.) 147 448 61 Blaisdell v. Ahem, 144 898 20 (Chaffee v.) 142 538 108 «. Connecticut River Railroad, 145 132 106 ii Blake, (Goldenberg «.) 145 354 103 V. Lowell, 143 296 61 ii V. Trader's Nat. Bank, 145 13 . . . 78 83, 114 ^.Trader's Nat. Bank, 149 350 . . 114 Blake Manufacturing Co., (Robinson v.) 143 538 86 Blanchard ». Ayer, 148 174 63 V. Cooke, 144 207 43 110 D. Cooke, 147 215 43, 110 V. Fitzpatrick, 146 24 108 TABLE OP OASES CITED. 133 Blanohard, (Savage v.) 148 348 130 ii Blanchette ii. Border City Manuf. Co., 143 31 86 Blasdale, (Thomas «.) 147 488 81 ii Bleaudry (Dube v.) l50 448 66 Bliss, (Gary Library i>.) 15 1 364 21, 34 «. South Hadley, 145 91 60 Boardman, (Barnes ®.) 149 106. . . 86, 90, 91, 116 V. Boston Marine Ins. Co., 146 443 73 (Hood «.) 148 330 37 (International Trust Co., «.) 149 158 68, 71 BoUes (Eustis v.) 146 413 68, 99 Bolton, (Leonard d. ) 148 66 12 Bond V. Endicott, 149 282 132 Bonino v. Caledonio, 144 399 8 Booth (Elkinton «.) 143 479 99 Border City Manuf. Co., (Blanchette «.) 14321 86 Boston, (Attorney-General v.) 142 200 60, 118 (Beard ».) 151 96 23 (Boston Belting Co. e.) 149 44. . . . 119 (Boston Water Power Co. v.) 143 546 86 (Butterfield «.) 148 544 18 (Curran«.) 151 505 17 (Cushinge.) 144 817 59 (Damon «.) 149 147 60 (Doreyt).) 146 336 119 ii (GleasonO 144 35 103 S.Gray, 144 53.. 79 (Higgins«.) 148 484 60 (LaddB.) 151585 41 (Lincoln «.) 148 578 17 (McGafflgan v.) 149 289 60 (Massachusetts Soc, etc., «.) 143 34 115 (May ».) 150 517 61 (Minot«.) 142 374 118 (O'Dowdii.) 149 443 117 (Patch B.) 146 53 17, 130 iii (Phillips V.) 150 491. 118 (Prince ».) 148 385 41 (Qulncy ».) 148 389 130 (Richardson v.) 148 508 115, 116 134 (Roberts «.) 149 346 48 iii, 49 (Sawyer D.) 144 470 77, 119 (SchwarzB.) 151 226 116 D.Simmons, 150 461 34 (Stock*.) 149 410 118 (Suffolk Savings Bank®.) 149 364, 17 (Thompsons.) 148 887 139 (Titus V.) 149 164 119 (Willards.) 149 176 59 Boston & Albany RaUroad, (Comm. v.) 142 146 38 (Comm. •».) 150 174 59 (Daley s.) 147 101 4, 86, 106 (Doyles.) 145 386 93 (Filest).) 149 204 19 (Granger v.) 146 376 93 (Qrifflni,.) 148 143 93 (Hanks s.) 147 495 93^ 94 (Keefev.) 142 351 94 (Langford »,) 144 481 7, 85 Oiittlefield «.) 146 368 3, 118 (Marshall „.) 145 164 19, 45 V. Newton, 148 474 106 (Scanlon v.) 147 484 87 (Torrey ®.) 147 413 94 (While B.) 144 404 93 Boston & Albany Railroad, (Wright v ) 142 296 94 Boston & Bangor Steamship Co., (Dodee «.) 148 307 .....^ I9ii Boston & Lowell Railroad, (Fogg v.) 148 513 ...:.. 81 (McCarthy v.) 141 550 98 Boston & Maine Railroad, (Allerton v.) 146 241 93 V. Chipmau, 146 107 19 (Devire 11.) 148 343 94 (Donnelly®.) 151 310 93 (Pox«.) 148 320 18 (Haddocks.) 146 155 138 ii (McEachern ».), 150 615 80 (Menard s.) 150 386 94 ii, 106 (Quimby ®.) 150 365 19 (Snowden v.) 151 320 93 ®. Trafton, 151239 19 (Whitmore v.) 150 477. 88 ii Boston & Providence Railroad, (Heinlein V.) 147 136 107 Boston & Providence Railroad, (Stewart s.) 146 605 94 Boston Belting Co. u. Boston, 149 44 119 Bost ,u Blower Co. v. Brown, 149 421. . .54 ii Boston Catholic Cemetery, (Donnelly v.) 146 163 18 Boston Co-operative Building Co. (Nute s)]49 465 60 Boston Disinfecting Co. (Paper Stock Dis- infecting Co. s.) 147 818 100 (Train v.) 144 258 16 Boston, Halifax, etc., Steamship Line, (Purcell V.) 151 158 50 ii Boston, Hoosac Tunnel, etc.. Railroad (Hill ».) 144 284 16 Boston Loan Co. s. Myers, 143 446 108 Boston Manufacturing Co. s. Comm'rs, 144598 116 Boston Marine Ins. Co., (Boardman v.) 146 442 73 Boston Police Board (Ham 11.) 142 90. . . 118 Boston Police Relief Assoc. (Burbank ».) 144484 13 Boston Protective Department, (Newcomb V.) 146 596 53, 93 (Newcomb ®.) 151 315 53 Boston Rubber Co., (Boster Rubber Shoe Co. s.) 149 436 38 Boston Rubber Shoe Co. s. Boston Rub- ber Co., 149 436 38 Boston Safe Co. ®. Mixter, 146 100 123 134 ii Boston Safe Deposit and Trust Co. s. Plum- mer, 142 257 34 ii Boston Storage Warehouse, (Clegg v.) 149 454 11 Boston Sugar Refining Co., (Schramm «.) 146 311 110 Boston Tow Boat Co., (Coughlin v.) 151 93 89, 101 Boston Water Power Co. «. Boston, 143 546 86 (Sewall & Day Cordage Co. v.) 147 61 4, 53 Bostwick, (American Finance Co. v.) 151 19 108 iii Bourneuf, (Flynn s.) 143 377 47 Bouve s. Cottie, 143 310 9 Boutelle s. Dean, 148 89 48 Bowditch «. Raymond, 146 109 69 Bowdoin Square Baptist Soc, (Downs v.) 149 135 108 (Warner s.) 148 400 108 134 TABLE OF CASES CITED. Bowers o. Wood, 143 182 12 Bowker ». Bowker, 148 198 37 (O'Day®.) 143 59 116 Boyd, (Wood «.) 145 176 33 Boyle, (Comm. ».) 145 873 97 v. New York & New England Rail- road, 164 102 87 Boyntoni). Shaw Stocking Co., 146 219, 81 Brackenridge v. Fitchburg, 145 160 60 Bradford v. Brinley, 145 81 37 «. Cunard Steamship Co., 147 55, 44 95 (Nealleyu.) 145 560 59 Bradley ». Brigham, 144 181 99 «. Brigham, 149 141 55 «. Burton, 151419 103 Bradshaw v. Crosby, 151 287 31 ii Brady, (Comm. v.) 147 583 96 130 Braintree, (Braintree Water Supply Co. v.) 146 483 117 ii (Doherty v.) 148 495 119 Braintree Water Supply Oct. v. Braintee, 146 482 117 ii (Monatiquot River Proprietors ».) 149 478 102 Braslin i>. Somervi.le Horse Railroad, 154 64 113 Breunan, (Comm. ■».) 150 63 77 (Quinn «.) 148 562 109 Briant, (Comm. v.) 142 468 72 Brickett «. Haverhill Aqueduct Co., 142 394 127 il Bridge v. Bridge, 146 378 86 Briggs B. Barker, 145 287 5 V. Union Street Railway, 148 72 94 Brigham, (Attorney-General b.) 142 248, 83 (Bradley ».) 144 181 99 (Bradley «.) 149 141 55 «. Brigham, 147 159 39, 48 (Comm.!).) 147 414 46, 92 ii V. Elwell, 145 520 51 V. Fayerweather, 144 48 85 «. Holden, 146 259 15 (Tyler v.) 143 410 90 «. Worcester County, 147 446 58 Brightman, (Morris «.) 143 149 110 Brinley, (Bradford v.) 145 81 37 Brochu, (Morasse «.) 151 567 81, 82 ii Brock, (Khron v.) 144 516 80 1). Old Colony Railroad, 146 194. 106 iii Brockton, (Keith v.) 147 618 60 Brockton Street Railway, (Comm. «.) 143 501 20, 66 Brockway, (Comm. «.) 1 50 322 85 Broker, (Comm. ».) 155 8fi5 66 Brookline, (Benton ®.) 151 250 59 iii (Trowbridge v.) 144 139 119 Brooks B. Allen, 146 201 78 (Ames ».) 143 344 122 Brooks ». Bigelow, 142 6 15 «. Brooks, 145 574 38 V. Duggan, 149 304 46 (United Society v.) 145 410 110 ®. Whitmore, 142 399 123 Brown, (Baker ».) 146 369 42 (Boston Blower Co. ■».) 149 421 . . 54 ii (Comm. ■».) 147 585 56 ii, 65 (Comm. V.) 149 35 97 (Comm. ■».) 150 330 47, 49, 77 ®. Cunard Steamship Co., 147 58, 32 V. Doolittle, 151 594 51 (First African Methodist Episcopal Soc. i>.) 147 396 112 (Gaffneyii.) 150 479 93 (Hunt «.) 146 253 55 V. Ladd, 144 310 15 (Lynde«.) 143 337 115 V. Massachusetts Title Ins. Co., 151 127 81 (Smith D.) 151 338 45, 111 «. South Boston Savings Bank, 148 800 90 ii, 91 (Traders & Mechanics' Ins. Co. ■».) 142 403 73 Brownell. (Comm. •».) 145 310 121 Bruerton, (Delano r.) 148 619 34, 98 Brusie, (Comm. v ) 145 117. . . .6, 64, 65, 104 Bryan, (Comm. v.) 148 455 97 Buckley, (Comm. v.) 145 181 93 (Comm. «.) 147 ^81 97 (Comm. r.) 148 27 53 Budget Publishing Co., (Dooling i).) 144 358 81 Bufflnton, (Hart ji.) 1 50 75 08 BufEum ». Jones, 144 39 44, 69 Bullard c. Chandler, 149 532 31, 36, 43 (Wood «.) 151 824 35, 43 Burbank «. Boston Police Relief Assoc., 144 484 13 Burden v. Massnchusetts Safety Fund Assoc. 147 360 14 Burgess v. Dobble, 149 256 6 (Ellenwood «.) 144 534 83 Burke «. Colbert, 144 ICO 34 Burnham v. Nevins, 144 88 40 Burr B.Joy, 151 295 101 (Vanuxen«.) 151 386 55 Burrill, (Kingsbury ®.) 151 199 8 Burroughs, (Comm. ».) 146 242 96 Burton, (Bradley ».) 151 419 103 (Marple«.) 144 79 103 Bury, (Tomlinson «.) 145 346 34 ii Buswell Trimmer ( o. v. Case, 144 350. . 47 Butler (Cunningham v.) 142 47 34, 68 (Gilbert & Baker Manuf. Co. v.) 146 82 26 (Goriey ».) 147 8 68 ii Butman «. Howell, 144 66 45 Butterfleld v. Baston, 148 544 18 Bryant). Traders' Insurance Co., 145 389. 70 c. Cabot v. Shaw, 148 459 3 ii Caduc, (Goodyear Dental "Vulcanic Co. v.) 14485 28 Cafirey v. Drugan. 144 294 7 Cahill «. Capen, 146 493 83 Callaghan «!. Whitmarsh, 145 340 103 Callahan (Massachusetts Catholic Order v.) 146 391 13 Caldwell, (Bemis v.) 143 299 116 Caledonio, (Bonino «.) 144 399 8 TABLE OF CASES CITED. 135 Cambridge, (Mount Auburn Cemetery «.) 16013 119 9. Paxton, 144 520 102 (Pickering v.) 144 244. 46 Cambridge Railroad, (McDonnell v.) 151 159 126ii (■Williamson «.) 144 148 46, 95 Canny, (Delory «.) 144 445 94 Capen, (Barry «,) 161 99 35 (Bigelow «.) 146 270 9 ii (Oahill V.) 147 493 83 Carbin, (Comm. v.) 143 134 131 Card, (Grossman «.) 143 152 91 Carew Manufacturing Co., (Taylor ii.) 143 4TO 86 Carey v. Arlington Mills, 148 338 88 (Cullen «.) 146 50 90 (Warreni).) 146 78 47 Carll «. Emery, 148 83 , 124 Carlton v. Rugg, 149 550 97 iii Games, (Loring «.) 148 223 37 Carpenter «. Allen, 160 381 63 (Freeman v.) 147 33. , 67 ®. Page, 144 315 15 Carr J). Berkley, 145 589 58 ii (Comm. V.) 143 84 60 ii (Swift V.) 145 552 99 Carroll, (Comm. v.) 145 403 113 «. Shea, 149 817 104 (Taylor «.) 145 95 73 ii Carmtli ®. Oarruth, 148 431 123 Carson v. Dunham, 149 52 24 Carstens, (Oberlander «.) 151 18 49 Carter v. Duggan, 144 83 98 iiii (Harris «.) 147 313 99 J). Phillips, 144 100 113 Gary Library «. Bliss 151 364 31, 34 Case, (Buswell Trimmer Co v.) 144 350, 47 (Haley v.) 142 316 87 Cassidy, (Andrews ».) 142 96 103 «. Charlestown Five-cent Savings 149 335 33 Cauley, (Comm. ■».) 160 373 73 Cavanaugh, (Jones v.) 149 134 14 ii Caverly v. Eastman, 142 4 51 ». RobWns, 149 16 100 Cecconi v. Rodden, 147 164 30, 81, 48 Central National Bank v. Frye, 148 498 100 Central Shade Roller Co. v. Cushman, 143 353 35 Chadwick, (Comm. ■».) 142 595 65, 74 «. Oovell, 151 190 130 S.Davis, 143 7 18 (Lane «.) 146 68 108 (Little V.) 151 109 134 Chaffee v. Blaisdell, 142 538 108 «. Middlesex Railroad, 146 384 . . 38 ii Chamberlain, (Morse ».) 144 406 15 (Talbot «.) 149 57 85 Chandler, (Bullard ».) 149 533. . . 31, 36, 43 Chaney, (Comm. ».) 148 6 48, 74 (Hoxieu.) 143 593 8, 130 Chapin v. Freeland, 142 383 83 Charlestown Five-cent Savings Bank, (Cassidyc.) 149 335 33 Chase, (Comm. v.) 147 597 1 (Giles Lithographic & Liberty Print- ing Co. ■».) 149 459 36 (Hill 9.) 143 139 23 ■e. Horton, 143 118 46, 56 1). Lowell, 149 85 63 B.Lowell, 161 433 61, 63 (Morley D.) 143 896 7, ,49 «. Perley, 148 389 184 ii Chatham Furnace Co. ■». MofEatt, 147 403 49, 55 Cheever v. Sweet, 151 186 85 Chemical Electric Light, etc., Co. v. How- ard, 148 353 100 ii 1). Howard, 150 495 47, 95, 121 Cheshire Railroad, (Beckwith «.) ... 143 68 lyii (Holland «.) 151 331 28 Chesmani). Cummings, 142 75 104, 113 Chicopee, (Adams -d.) 147 440 49, 60 Child V. Christian Soc , 144 473 107 Childs, (Gibbs «.) 143 103 108 Chipman, (American Carpet Lining Co. v.) 14G 385 67, 68 (Boston & Maine Railroad v.) 146 107 19 Choate, (Sears v.) 146 395 133 Christian Soc, (Child ».) 144 473 107 Christie, (Comm. «.) 146 232 121 Church ®. Fowle, 142 12 4 (Kites ».) 142 586 76 ii Ciriack ». Merchants' Woolen Co. 146 182 87 V. Merchants' Woolen Co. 161 158 87 Citizens' Nat. Bank «. Oldham, 142 379. 31 ClaflinB. Claflin, 149 19 123 Clapp D. Massachusetts Benefit Assoc., 146 519 14 Clark, (Comm. v.) 145 351 66, 121, 139 «.Dean, 143 292 121 u. Easton, 146 43 63 V. Fontain, 144, 287 91 «. Griffin, 148 540 91 V. Holbrook, 146 330 58 V. Merchant's & M. Transportation ». Simmons, 140 357 91 Co., 151 352 b9 (Peck v.) 142 486 33, 46 «. Sawyer, 15164 68 Clarksburgb, (Hourigan v.) 150 218 60 Clary (Whitney ti.) 145 156 15, 16 Cleaves, (Maynard v.) 149 307 36 «. Pifjeon Hill Granite Co., 145 541 93 Clegg V. Boston Storage Warehouse, 149 455 11 Cleverly v. Mosely, 148 280 83 Clifford V. Atlantic Cotton Mills, 146 47. 78 (Comm. «.) 145 97 3 Clinton (O'Donnell v.) 146 461 107 (Pcndergast v.) 147 402 61 Clynes (Comm. v.) 150 71 96 Cobb, (Ward v.) 148 518 3 Coburn v. Middlesex Co. , 142 264 38 ■0. Travelers' Ins. Co., 145 336... 70 Cochrane ». Rich, 142 15 21 Codman (Dexter v.) 149 431 5, 138 Cody ■». New York & N. E. Railroad, 151 463 94 Coe V. Washington Mills, 149 543 31 Coffin (Eddy «.) 149 463 79, 80 ■B. Lawrence, ,143 110 23 Cofran v. Shepard, 148 582 80, 99 Cohen (Doran «.) 147 343 4 Colbert (Burke ii.) 144 160 34 Collamore o. Gillis, 149 578 53 CoUett 1). Smith, 143 473 86 Collier, (Tillars ».) 161 50 81 u Collins v. Holyoke, 146 398 ... . 30, 119, uu V. South Boston Railroad, 142 92, 93 ■v. Waltham, 161 196 59 Commercial Wharf Co. ■». Winsor, 146 558 ^. 53, 138 136 TABLE OF CASES CITED. Commercial Union Assurance Co., (Batch eller v.) 143 495 71 (Eliot Savings Bank «.) 142 142, 70 i 71 iii (Kyte «.) 144 43 70 ii (Kyte «.) 149 116 70 Comins v. Turner's Falls Co., 143 443. . 89 Comm'rs, (Boston, Manuf. Co., i>.) 144 598 116 Comm. V. Abrams, 150 393 72 V. Alden, 143 113 16 ii, 66 B.Andrews, 143 23 48, 96 V. Barker, 143 560 53 V. Bean, 148 172 18 B. Bearce, 158 389 73 ®. Basse, 143 80 77 1). Bisch, 145 375 6 «. Boston & Albany Railroad, 142 146 28 ®. Boston & Albany Railroad, 150 174 59 V. Boyle, 145 373 97 V. Brady, 147 583 96, 130 V. Brennan, 150 63 77 D. Briant, 142 463 72 V. Brigham, 147 414 46, 93 ii ». Brockton Street Railway, 143 501...; SO, 66 i>, Brockway, 150 322 85 V. Broker, 155 355 66 «. Browu, 147 585 56 ii, 65 V. Brown, 149 35 97 ». Brown, 150 330 47, 49, 77 ®. Brownell, 145 319 121 11. Brusie, 145 117 6, 64, 65, 104 «. Bryan, 148 455 97 «. Buckley, 145 181 93 ■B. Buckley, 147 581 97 «. Buckley, 148 27 52 «. Burroughs, 145 243 96 i>. Carbin, 143 124 121 «. Carr, 143 P4 60 ii 11. Carroll, 145 403 113 «. Cauley, 150 373 73 V. Chadwick, 142 595 65, 74 «. Chancy, 148 6 48, 74 «. Chase, 147 597 1 i>. Christie, 145 333 121 «. Clark, 145 351 66, 121, 129 ®. Clifford, 145 97 3 V. Clynes, 150 71 96 «. Crowley, 145 430 84 «. Curry, 150 509 5 «. Dale, 144 363 84, 85 V. Daley, 148 11 63 B.Daly, 148 428 74 1). Delehan, 147 354 65, 131 «. Dextra, 143 28 85 «. Donahue, 147 539 8 ®. Downey, 145 377 75 «. Downey, 148 14 96 B. Downing, 150 197 54 ®. Drury, 149 64 8 «. Dunster, 145 101 54 v. Eagan, 151 45 97 D.Eliot, 1465 79, 102 V. Ewig, 145 119 74 D. Fay, 151 380 101 ». Ferry, 146 303 14, 65 ii V. Pinnerty, 148 163 75 ii, 131 V. Ford, 146 131 129 ■0. Fowler, 145 398 74 ii ®. Freelove, 150 66 64 V. Funal, 146 570 74 ». Gagle, 147 576 \ 95 Comm. V. Gallagher, 145 104 65 V. Galligan, 144 171 96 «. Galvin, 143 134 7 «. Gavin, 148 449 27, 48 V. Geary, 146 139 . . 74 V. Gillon, 148 15 65, 97 V. Gove, 151 892 11 ii «. Gray, 150 327 18, 65 V. Hall, 142 454 27 V. Hallahan, 143 167 104 ®. Ham «. 150 122 49, 75 V. Harper, 145 100 74 ®. Hart, 149 7 54 «. Hayden. 150 332 7 B. Hayts, 145 289 73, 139 ®. Hayes, 149 83 73 «) Hayes, 150 506 97 i>. Hersey, 144 397 97 V. Hill, 145 305 49, 63 V. Hinds, 145 183 75 V. Holt, 146 38 89 ii ®. Houle, 147 880 49 V. Housatonic Railroad, 103 364. . 24 ®. Howe, 144 144 40 v. IngersoU, 145 331 37, 97 ». Intoxicating Lic[uors, 142 470 . 64, 74 V. Intoxicating Liquors, 146 509. . 75 ii e. Intoxicating Liquors, 148 134. . 75 V. Intoxicating Liquors, 150 164.. 75 ii «. Jaodine, 143 567 46 ®. Johnson, 150 54 80 B.Jones, 142 673 73 ii V. Julius, 143 132 73 B.Kane, 143 93 73 B. Kane, 150 294 97 B. Keefe, 143 467 66 ®. Keenaji, 148 470 97 B. Kendall, 144 357 89 B. Kendrick, 147 444 74 B. Kenneson, 143 418 89, 113 «. Kern, 147 595 75 1). Kiley, 150 325 27 B. King, 150 221 45, 47, 137 B. Lafayette, 148 130 74 B. Lane B. 151 856 47 B. Le Clair, 147 589 77 ii B. Lee, 143 100 44 B.Lee, 148 8 66 B.Lee, 149.179 53 B. Line, 149 65 97 B. Locke, 145 401 96 B. Locke, 148 135 96 B. Lockhardt, 144 133 89 B. Lord, 147 399 65 B. Lowery, 149 67 27 B. Luddy, 143 563 66, 74 B. Lynch, 151 358 75 B. Lynes, 142 577 ... . 44, 64, 131, 129 B. McCafferty, 145 384 117 ii B. McCarthy, 145 575 66 B. McClusky, 15 1 488 104 ii B. McCormick, 1 50 370 73 B. McDonald, 147 527 1 B. McDonough, 150 504 73 B. McParland, 148 127 24 B. McGurty, 145 357 40 iiii B.McHugh, 147 401 74ii B. McNeff, 145 406 97 ii B. McParland, 145 378 77 B. McPherson, 147 578 6 B. Maloney, 142 305 77 B. Mandeville, 142 469 75 B. Marzynski, 149 68 84 . «. Meaney, 15155 97 B. Merriaih, 148 435 97 TABr.E OF CASES CITED. 137 Comm. (MUford ®.) 1*4 64 23 v. Miller, 150 09 121 V. Molter, 143 533 72 V. Moody, 143 177 65 V. Moore, 143 136 77 «. Mqore, 145 344 73, 97, 139 «. Moore, 147 528 96, 97 V. Moran, 148 453 73 9. Morgaa, 149 314 74 V. Mullen, 150 394. ... 1, 65, 121, 129 1). Murphy, 145 250 90 V. Murphy, 147 524 75, 74 S.Murray, 144 170 102 «. Nally, 151 63 97 Oakes, 151 59 74, 77 iii 75 101 72 84 74 . . . . 96 ii 96 117, 118 129 97 O'Donnell, 143 173 O'Donnell, 151 503 O'Leary, 143 95... Osgood, 144 363. . . Patten, 151 536 ... Perry, 148 160 ... . Pierce, 147 161 .. . Plaisted, 148-375 .. Plummer, 147 601., Powderly, 148 457 , Pratt, 145 248 74 Prescott, 151 60 65, 103 Purdy, 146 188 94 Purdy, 147 29 65, 74 Quinn, 150 401 7, 49 Reed, 150 67 131 Rhodes, 148 123 66 Richardson, 142 71. . 53 iii 63 72 96 Rebinson, 146 571 Roolss, 150 59 Rooney, 142 474 Roosuell, 143 33 107 66 77 ii 75 139 66 65 64 66 74 Rowell, 146 128- Russell, 147 545. Savery, 145 212 Sawtelle, 150 320 73 Sawyer, 142 530 Schaffner, 146 513 66, 89, Shaunihau, 145 99 Shaw, 145 349 Shea, 150 314 Sheehan, 143 468 Shurn, 145 150 46, Slatterly, 146 423 107, 131 Smith, 143 169 89 Smith, 149 9 89 Smith, 151 491 7, 34 46 Snee, 145 351 45 Spear, 143 173 89 ii Starr, 144 359 84 ii Stevens, 142 457 6 Stevenson, 142 466 43, 72 Stratton, 150 188 73 Sullivan, 146 143 ' Sullivan, 150 315 54, Tay, 146 146 85 139 65 Teevens, 143 210 107 Tenney, 148 453 74 Tolman, 149 329 65, 89 ii Tridler, 143 180... 129 Trimble, 150 89 97 Turner, 145 396 5 Uhrig, 146 183 74 Vahey, 151 57 96 Wall, 145 316 73 Wallace, 143 88 96, 97 Warren, 143 568 92 Welch, 142 473 46 Welch, 144 356 73 Welch, 147 374 ... ; 73 Comm. V. Welch, 148 296. -„ ,,. — 65 V. Wellmgton, 140 566 96 V. Wentworth, 145 50 117 ■V. Wentworth, 146 30 96 ». (Wesson i>.) 144 60 23 1). Whalen, 147 376 6 49 V. White, 145 293 50 '54 ii V. White, 147 76 95 ii ». White, 148 429 95 «. Wood, 142 459 52 iii 90 110 120 112 125 127 106 Conant, (Greene «.) 151 223 (Spalding v.) 146 293 Concord, (Smith ».) 143 353 Conlon's Case. 148 168 .'.'.'.'.'.' Connecticut River Lumber Co., (Ailing.) 150 560 5 (French ».) 145 361 39, ' Connecticut River Railroad, (Bassett v.) 145 29 (Bassett v.) 150' 178. '. '. *. '. '. ". '. '. '. ". '. ". '. '54 (Blaisdell 11.) 145 132 106 ii (Deerfield v.) 144 335 40 ii, 48 Connelly, (Puller u.) 142 327 51 «. Beverly, 151 437 117 Constantinides «. Walsh, 146 381 63 Consumers' Gas Co. (Kenney v.) 142 417 41, 96 Continental Bank (Manufacturers' Nat. Bank v.) 148 553 11 Converse v. Hood, 149 471 39 ». Johnson, 146 30 51, 84 (Whall «.) 146 345 35 Conway ®. Russell, 151 581 17 Cook «. Cook, 144 163 38 ». Holbrook, 146 66 56 «. Medbury, 160 499 80 (Moffat «.) 150 539 36 (Young ».) 144 38 81, 82 Cooke, (Blanchard «.) 144 307 43, 110 (Blanchard «.) 147 315 43, 110 Coon, (Newmarket .Manuf . Co. ».) 150 566 9 Cooper V. Cooper, 147 370 25 1). Johnson, 143 109 53 Copeland v. Barnes, 147 388 69 Corcoran v. Batchelder, 147 541 11 38, 48 B. Snow Cattle Co., 151 11 74 D.White, 146329 76 Cordis, (Shaw v.) 143 443, 122 Corey, (Hewitt v.) 150 445 45 (Lockwood «.) 150 83 63 Cornell, Folsom v.) ISO 115 4, 137 Cottage City, (Abbott ». ) 143 531 33 Cotting, (Dexter «.) 149 93. . : 123 u Cottle, (Bouve ».) 143 310. . . 9 Cotton V. Atlas Nat. Bank, 145 43 23 Coughlan, (i erkias «.) 148 30 41 Couture, (Pelletier «.) 148 269 66 Couffhlin «. Boston Tow Boat Co., 161 93 89, 101 Coullard «. Tecumseh Mills, 15185.... 87 Coulter ». Haynes, 146 458 8, 180 Counsell v. Hall, 146 468 87 Covell, (Chadwlck «.) 151 190 120 Coveny v. McLaughlin, 148 576 34 Cowell, (Thompson «,) 148 553 77 Cowen V. Sunderland, 145 3i53 79 Cowles, (Ingram v.) 150 155 115 ii Cox V. Maxwell, 151 336 26 Craft ». South Boston Railroad, 150 207 2S Crafts, (Northampton Nat. BanK v.) 145 444 .. :. 43, 68 Crandall, (Rich ».) 142 117 86 Vol. ni— 18 138 TABLE OF CASES CITED. Creedon, Newburyport «.) 146 134, 43 (Newburyport >.) 148 158 43f Croacher v. Oesting, 143 195 50 ii, 107 Crocker ». Atwood, 144 588 31 Cronia v. Highland Street Railroad, 144 249 113 Crooker, (Wilson «.) 145 571 9 Crosby, (Bradshaw v.) 151 231 31 ii Crossman v. Card, 143 153. . : 91 V. Massachusetts Benefit Assoc, 143 435 14 ii V. New York & N. E. Railroad, 149 196 19 Crowley v. Appleton, 148 98 50 (Comm. «.) 145 430 84 «. Pacific Mills, 148 238 87 CuUen V. Carey, 146 50 90 Cummings, (Chesman v.) 142 75. . . 104, 112 V. Cummings, 143 340 63 «. Cummings, 146 501 35, K6 ®. Hodgdon, 147 31 506 ■ (Hodgdon «.) 151 293 5 (Spooner ®.) 151 313 108 u Cummings v. Watson, 149 363 51 Cummington v. Belchertown, 149 233... 33 Cumnock v. Newburyport Savings Inst., 142343 22 Cumston ». Bartlett, 149 348 104 Cunard Steamship Co. (Bradford ®.) 147 55 44, 95 (Brown «.) 147 58 83 (Metcalf «.) 147 66 94 CunnifE «. Parker, 149 153 56 Cunningham i>. Butler, 142 47 24, 68 Curley, (Morgan «.) 142 107 32, 103 Curnews. Lee, 143 105 83 Curran®. Boston, 151 505 17 Currier, (Short «.) 150 373 43 Curry, (Comm. ®.) 150 509 5 Cushing 1). Boston, 144 317 59 v. Nantasket Beach Railroad, 143 77 44, 106 Cushman, (Central Shade Roller Co. «.) 143 853 35 Cutter V. Hamlen, 147 471 1, 55 Cutting V. Daigneau, 15 1 397 99 D. Daggett ®. Daggett, 143 516 33 (Donnelly v.) 145 314 85 Daigneau, (Cutting ®.) 151 397 99 Dalay «. Savage, 145 38 78 Dale, (Comm. ■».) 144 363 84, 85 Daley v. American Printing Co., 150 77, 87 ®. Boston & Albany Railroad, 147 101 4, 86, 106 (Comm. V.) 148 11 63 (Francis «.) 150 381 51 Dallinger «. Davis, 149 63 51 Dalton V. Barnard, 150 473 10 Daly, (Comm. ■».) 148 428 74 Dame v. Kempster, 146 454 99 Damon ®. Boston, 149 147 60 Dana 0. Taylor, 150 25! 3 Daniels v. Pratt, 143 216 13 iiii Danvers Nat. Bank «. Salem Nat. Bank, 151 380 16 Darling, Deming «.) 148 504 55 (Savage®.), 151 5 123 Dauray, (Langley ».) 145 325 126 Davenport, (People's Ice Co. ».) 149 322, 64 Davis, (Chadwick v.) 143 7 18 (Dallinger u) 149 63 51 V. Ferguson, 148 603 30 i>. McEnany, 150 451 13 V. New York & N. E. Railroad, 143 301 24 Dawe «. Morris, 149 188 65 Dawson, (Wright v.) 147 384 10 Day, (Goldthwaith v.) 149 185 99 ii ». Jones, 150 231 35 1). Worcester, Nashua, etc.. Rail- road, 151 303 30 Dealey v. MuUer, 149 432 93 Dean, (Allen «.) 148 594 104 (Boutelle v.) 148 89 48 (Clark «.) 143 292 120 Dearborn, (North ®.) 146 17 51 Dedham, (Smith «.) 144 177 118 ii Deerfleld ■». Connecticut River Railroad, 144325 40ii, 48 Delano v. Bruerton, 148 619 34, 98 B.Smith, 142490 90 (Towle «.) 144 95 36, 133 Delehan, (Comm. v.) 148 254 65, 131 Delory •». Caimy, 144 445 94 Deming v. Darflng, 148 504 55 Dempsey, (Bascom ».) 143 409. 130 Denholm «. McKay, 148 435 57, 99 ii Dennett, (Reeve ®. ) 146 23 45, 55 Deshon «. Wood, 148 132 69 Desmond, (Lenahen i>.) 160 293 12 Deutsch •». Pratt, 149 415 31 Devine, (Short®.) 146 119 40 Dewire v. Boston & Maine Railroad, 148 343 94 Dexter v. Codman. 148 421 5, 138 V. Cotting, 149 93 123 ii D. Inches, 147 324 35 Dexter Engine Co., (Taylor ®.) 146 613. 80 Dextra, (Comm. v.) 143 28 85 Dickinson, (Kellogg ®.) 1 47 432 83 Dixey, (Matthews v.) 149 595 100 Doble, (Burgess ®.) 149 356 6 Dockray, (Logan ®.) 140 396 36 Dodd V. Winship, 144 461 134 Dodge V. Boston & Bangor Steamship Co. , 148 207 19 ii Doe, (Baxter v.) 142 558 101, 111, 112 (Rosenberg ®.) 146 191 Ill (Rosenberg ®.) 148 560 Ill Dofner, (Rawson ».) 143 76 6 Doggett, (Rowell ®.) 143 483 39, 46 Doherty v. Braintree, 148 495 119 ®. Dohertv, 148 367 6 (Doherty®.) 148 367 6 ®. Hill, 144 465 113 Dole®. Keyes, 143 237 35 ®. Wooldredge, 142 161. . . 33, 43, 44 Donahue, (Comm. ®.) 148 29 8 Donnelly ®. Boston Catholic Cemetery, 146163 18 ®. Boston & Maine Railroad, 151 810 93 TABLE OF CASES CITED. 13& Donnelly ®. Dageett, 135 314 85 Donovan, (Tate ®.) 143 590 73 Doole a Doole, 144 378 63 ii (Doole V.) 144 378 63 ii Dooley v. Potter, 146 148 91 Dooling D. Budget Publishing Co., 144 258 81 Doolittle, (Brown v.) 151 594 51 Doran v. Cohen, 147 843 4 Doran Wright Co. (Greeley ».) 148 116. . 50 Dorey v. Boston, 146 336 119 ii Dorr V. Levering, 147 SSO 101 Douglass, (Price «.) 150 96 37 Dover Stamping Co. v. Noyes, 151 343. . 57 Dow, (Jones v.) 142 130 15, 113 «. Whitney, 147 1 33 Downer, (Hunting «.) 15 1 375 16, 49 V. Whittier, 144 448 32 Downes, (Segee v.) 143 340 8, 135 Downey, (Comm. v.) 145 377 75 (Comm. ».) 148 14 96 Downing, (Comm. «.) 1 50 197 54 (Herring®.) 146 .50 68 Downs V. Bowdoin Square Baptist Soc., 149135 108 V. Flanders, 150 93 9, 50 Doyle V. Boston & Albany Railroad, 145 386 93 Drew, (Holmes «.) 151 578 80 ii Drugan, (CafErey ».) 144 394 7 Drury, (Comm. ■«.) 149 64 8 Dube ». Bleaudry, 150 448 66 Duchemin v. Kenddall, 149 171 25 36 Duff 1). Leary, 14 6533 2 Duggan, (Brooke v.) 149 304 46 (Carter «.) 144 33 98 iiii Dumas, (Atwood «.) 149 167 84 Duncklee v. Webber, 151 408 8, 79 Dunham, (Carson «.) 149 5 i 34 (Kent v.) 142 316 101 Dunlap V. Barney Manuf. Co., 148 51.. . 87 Dunn, (Plympton «,) 148 523 70 Dunphy i>. Traveller Newspaper Associa- tion, 146 495 ... .' 30 Dunster, (Comm. v.) 145 101 54 Dupee V. Lentine. 147 580 8 Durgin, (Quimby v.) 148 104 83, 83 Dwelley d. Dwelley, 143 509 17 (Dwelleys.) 143 509 17 Dwight Manuf. Co., (Glover v.) 148 22 88 Dwyer«. Fuller, 144 430 49 E. Eagan, (Comm. ».) 151 45 97 Eames v. Snell, 143 165 108 Earle, (Barrie ».) 143 1 36 Easdale v. Reynolds, 143 136 13 ii Eastern Railroad, (Gould v.) 142 85 17 (Krulevitz i>.) 143 228 85, Sg (Wentworth ».) 143 348 4t Easthampton, (Fortin ».) 142 486 61 (Fortin ».) 145 196 63 Eastman v. Allard, 149 154 132 (Caverly -e.) 142 4 51 Easton, (Clark v.) 146 43 62 Eaton V. Littlefield, 147 132 3 V. Pacific Nat. Bank, 144 360 11 1!. Tuson, 145 218 31 1!. Pacific Nat. Bank, 144 260 ... . 109 Eddy v. Adams, 145 489 83 e. Coffin, 149 463 79, 80 (Piske?).) 147 151 36 Edgerly, (Lamkin v.) 15 1 348 15 Edwards, (Everett «.) 149 588 99, 100 (Lords.) 148 476 110 Egan, (Lavery v.) 143 389 35, 37 Eldridge v. Smith, 144 35 84 Eliot, (Comm. «.) 146 5 79, 102 v. McCormick, 144 10 76 Eliot Savings Bank ®, Commercial Union Assurance Co., 142 143... 70, 71 iii Elkmton «. Booth, 143 479 99 EUenwood v. Burgess, 144 534 83 Elliot ®. Barrett, 144 356 113 Elliott, (Rogers v.) 146 349 95 Ellsworth, )Webster v.) 147 603 37 Elmer i). Fessenden, 151 359 81 ii Elsey v. Odd Fellows' M. R. Ass'n, 142 334 13 Elwell, (Brigham v.) 145 530 51 Emery, (Carll ».) 148 33 134 ®. Seavey, 144 403 5 «. Seavey, 248 566 23 Endicott, (Bond ».; 149 282 123 English (Nickerson «.) 142 367 35 Equitable Life Assurance Co., (Pierce s.) 145 56 39, 78 iii Equitable Marine Ins. Co., (Whorf v.) 14468 71 ErieTelegraph&T.Co.. (Bents.) 144 165, 6 Essex County, (Voss v.) 145 500 75 Essex County Comm'rs, (Lynn «.) 148 148 Ill iii Etter (Warden v.) 143 19 78, 180 Eustis D. Belles, 146 413 68, 99 Everett «. Edwards, 149 588 99, 100 V. Henderson, 146 89 108 V. Henderson, 150 411 69 Ewig, (Comm. v.) 145 119 74 & parte, Batchelder, 147 465. . . .34, 35, 43 Chapin, 148 588 133 Hampshire County Comm'rs, 143 424 130 Parsons, 150 343 69 Stockbridge, 145 517 45 140 Table of cases cited. p. t'airbanks «. Snow, 145 153 16, 39, 62 Fairbrother, (Wachusett Nat. Bank v.) 148181 15 Fales e. Fales, 148 42 99 FaU River (Old Colony RaUroad v.) 147 455 20, 106 Sullivan i>.) 144 579 60 «. Taunton 150 106 102 (Watuppa Reservoir Co. «.) 147 548 102 Fall River, etc.. Pub. Co., ("Wilson v.) 143 581 82 Falvey «. Faxon, 143 284 85 Fanning, (Hermanns v.) 151 1 90 Fargo «. Miller, 150 225 35 Farnham v. Barker, 148 204 ". 37 Farnsworth, (Pope «.) 146 339 37 Farnum v. Pitcher, 151 470 14, 121 Farrington, (Hodgklns «.) 150 19 82 «. South Boston Railroad, 150 406 28 Farwell v. Hathaway, 151 243 115 Faulkner ®. Hyman, 142 53 9, 23 Faxon, (Falvey «.) 143 284 85 Fay, (Comm. v.) 151 380 101 Fayerweather, (Brigham «.) 144 48 85 Fearing ■». Jones, 149 12 56 Felker «. Standard Yarn Co., 148 226. . 39 ii V. Standard Tarn Co. , 1 49 264 39 Fennessy v. SpofEord, 144 33 46 Fenno «. Gay, 146 118 84 Ferguson, (Davis ®.) 148 603 30 Ferrin v. Old Colony Railroad, 143 197. 88 Ferry, (Comm. ».) 146 303 14, 65 ii Fessen(len, (Elmer «.) 151 359 81 ii Files V. Boston & Albany Railroad, 149 304 19 Finnerty, (Comm. ■».) 148 163 75 ii, 131 Finney, (Hoxie v.) 147 616 87 First Airican Methodist Episcopal Soc. ». Brown, 147 396 113 Firth ». Haskell, 148 501 50 Fisher, (Stevens v.) 144 114 133 Fiske ». Eddy, 147 151 36 Fitch, (Granite Nat. Bank v.) 145 567. . . 15 Fitchburg, (Brackenridge «.) 145 160 .. . 60 (Wheeler v.) 150 350 59 Fitchburg Mut. Fire Ins. Co., (Putnam Tool Co. ».-) 145 365 70 (Rankin v.) 150 55 73 Fitchburg Railroad, (Attorney-General •o.) 14240 30 (Fletcher «.) 149 137 93 V. Frost, 147 118 40 (Jennings «.) 146 631 107 (Littlejohn ».) 148 478 20 (Leonard v.) 143 307 18, 48 I (Lothrop «.) 150 433 87 (Maguire d.) 146 379 20 (Massachusetts Loan & Trust Co., v.) 143 318 32 (Turner v.) 145 438 40 Fitz V. Nantasket Beach Railroad, 148 35 . 196 Fitzgerald v. Libby, ' 142 ' 235 ! ! '. ! ! '. ". '. '. . '. 33 «. Williams, 148 463 45, 139 Fitzpatrick, (Blanchard v.) 146 24 108 Flagg V. Hudson, 142 380 60 (Yarter ®.) 143 280 1 Flanders, (Downs v.) 150 92 9, 50 Flax Pond Water Co. v. Lynn, 147 31. . 114 Fletcher v. Fitchburg Railroad, 149 127. 93 (Putney®.) 148 247 ;.... 43 Floyd i>. Storrs, 144 56 36 Plynn v. Bourneuf , 143 277 47 Fogg ®. Boston & Lowell Railroad, 148 513 81 V. Price, 145 513 43, 112 (Security Bank v.) 148 2,3 3, ii Foley t). Haverhill, 144 352 59 ii ■v. Pettee Machine Works, 149 294 87 Folsom V. Cornell, 150 115 4, 127 Fontain, (Clark «.) 144 287 91 Foote, (Abbott ».) 146 333 104, 124 Forbes, (Montgomery «.) 148 249 9 (Paul s.) 148 528 8 Ford, (Comm. ■».) 146 131 129 «. Ford, 143 577 38 V. Linehan, 146 383 3 V. United States Mutual Accident Relief Co., 148 153 70 ii Fortin v. Easthampton, 143 486 61 ®. Easthampton, 145 196 62 Foss, (Freeman v.) 145 361 113 Foster, (Upton, «.) 148 592 104 v. Worthing, 146 607 129 Fowle, Church v.) 142 12 4 (Morville v.) 144 109 31 ii, 184 Fowler, (Comm. e.) 145 398 74 ii V. Parsons, 143 401 41, 108 Fox V. Boston & Maine Railroad, 148 330 18 Foxboroiigh, (White v.) 151 28. . 58 iiii, 59 Francis B. Daley, 150 381 51 «. Rosa, 151 532 12 ii, 48 Frank «. Sleeper, 150 583 120 Preeland, (Chapin «.) 142 383 83 Freelove, (Comm. «.) 150 66 64 Freeman ». Carpenter, 147 23 67 ». Foss, 145 361 113 v. Freeman, 142 99 100 V. Travelers' Ins. Co., 144 573 70 Freeman's Nat. Bank i). National Tube Works Co., 151 413 11 French®. Bates, 149 73 57 «. Connecticut River Lumber Co., 145 361 39, 137 (Manning v.) 149 891 80 (Windram«.)151 547 55 Frissell, (Phcenix Ins. Co. ■».) 142 513. . 70 iii, 135 Frost, (Fitchburg Railroad v.) 147 118. . 40 «. Sumner, 149 98 44 Frye, (Central National Bank v.) 148 498 : 100 Fuller ®. Connelly, 142 337 51 (Dwyer ®.) 144 420 49 B. Pease, 144 390 12 (Walker v.) 147 489 5 11. Wilde, 15l'412.. 98 Funal, (Comm. ■».) 146 570 74 TABLE OF CASES CITED. 141 G. QafEney % Brown, 150 479 93 Gage, (Martin v.) 147 204 5, 51 Qagle, (Comm. v.) 147 576 95 Gale V. Niokerson, 144 415 104, 128 V. Nickerson, 151 438 41 Gallaglier, (Comm. v.) 145 104 65 Qalligan, (Comm. ».) 144 171 96 V. Metacomet Manuf. Co., 143 537 80 GaUoupe, (Murphy ».) 143 133 31 Gannon v. Ruffln, 151 304 3, 111 Gardner, (AUen v.) 147 453 59, 63 (Noyes !).) 147 505 60, 61 V. Peaslee, 143 883 49 Garvey «. Garvey, 150 185 133, 134 Gaufflret, (Richards v.) 145 486 83 Gaugengigl, (AllendorfE «.) 146 543 S3 Gavin, (Comm v.) 143 134 7 (Comm. V.) 148 449 37, 48 Gay, (Fenno v.) 146 118 84 «. Rooke, 151 115 15 Gaylord v. King, 143 495 18, 130 Geary, (Comm. ■».) 146 139 74 George Woods Co. v. Storer, 144 399. . . 39 Gibbs V. Childs, 143 103 108 V. Taylor, 143 187 51, 103 Gibsons. Manufacturers' Fire & Marine Ins. Co., 144 81 39 Gilbert i). Guild, 144 601 87 ii Gilbert & Barker Manuf. Co. i). Butler, 146 83 36 Gilbert Manuf. Co., (TuttloB.) 145169.. 79 Giles Lithographic & Liberty Printing Co. V. Chase, 149 459 36 Gilfillan v. Mawhinney 149 264 49 GUI, (Mount Hermon Boys' School v.) 145 139 115 Gillespie s. Rogers, 146 510, 33 Gillis, (Collamore v.) 149 578 53 Gillon, (Comm. a.) 148 15 65, 97 Giroux s. Stedmau, 145 439 110 GleasoQ v. Boston, 144 35 103 Globe Nat. Bank, (Binney v.) 150 574 . . 63 67 iiii Gloucester, (Jackman v.) 143 380 83 (Williams v.) 148 356 118 ii Glover v. Dwight Manuf. Co., 148 33, 88 Goddard v. Amory, 147 71 34 (Moors v.) 147 W7.. ..'.'..'.'.'.'.'.'.'.'. 135 Goepper, (Jaynes v.) 147 309 99 Gogin, (Ithaca First Nat. Bank v.) 148 448 103 Goldenberg v. Blake, 145 354 103 Goldthwait ®. Day, 149 185 99 ii Gomez, (Barham v.) 149 331 103 Goodell, (Plimpton «.) 143 365 55, 56 Goodnow v. Walpole Emery Mills, 146 361 87 Goodwillie, (Jones «.), 143 381 123 Goodwin, (Benson v.) 147 337 88 Goodyear Dental Vulcanite Co. ■». Bacon, 148 542 17 V. Bacon, 15 1 460 17 «. Caduc, 144 85 , 38 Gordon, (Mansfield «.) 144 168 68 Goreley v. Butler, 147 8 68 ii Gould V. Eastern Railroad, 142 85 17 (Pierces.) 143 234 5 V. Slater Woolen Co., 147 315 2 1). Stein, 149 570 110 Gove, (Comm. -!>.) 151 393 11 ii Graffam s. Pierce, 143 386 47 Graham, (Hawkins d.) 149 384 36 Granger ». Boston & Albany Railroad, 146 376 93 «. Parker, 142 186 6 Granite Nat. Bank v. Fitch, 145 567 15 Graves, (Stone v.) 145 353 84 (Hood ».) 144 365 7, 46 Gray, (Bostons.) 144 53 79 (Comm. s.) 150 337 18, 65 i>. Gray, 150 56 5 (McMahon s.) 150 289 9, 41 Greeley ». Doran Wright Co., 148 116. . 50 (Murphy s.) 146 196 86 Green «. Sanborn, 150 454 76 Greene «. Conant, 151 223 99 Merchants' Nat. Bank ».) 150 317. 30 Greenleaf, (Ogdeu «.) 143 349 48, 49 Greenwich, (Orthodox Congregational So- ciety «.) 145 113 105 Greenwood, (Tilden v.) 149 567 90 Griffin v. Boston & Albany Railroad, 148 143 93 (Clark s.) 148 540 91 Groat. (Hosmer v.) 143 16 46 Grundy v. Martin, 143 379 76, 78 Guild, (Gilbert ''.(144 601 87 ii 1). Shedd, 150 355 58 Gulline ®. Lowell, 144 491 18 Guptil ». Ayer, 149 49 135 Gurley v. Armstead, 148 367 19 Gurney, (McKeown «.) 147 193 67 (Wehrle s.) 146 331 11 H. Habich, (Hyland s.) 150 113 57 Haddock v. Boston & Maine Railroad, „^, 146155 138ii Uadley, (Perry?).) 48 49 69 9. Watson. 143 37 48 Uagans. Sartwell, 146 33 109 aagerjJSpring ».) 145 186 67 Hair, (Pickert v.) 146 1 10, 45 Hair, (Plaisted «.) 1 50 375 9, 63 Hale, (Perrys.) 143 540 28 (Riley s.) 146 465 109 5. Spaulding, 145 482 76 Haley ». Case, 142 316 87 Hall, (Comm. s.) 142 454 37 (Counsell ».) 145 468 87 s. Hartwell, 142 447 135 142 TABLE OP CASES CITED. Hallahan, (Comm. «.) 143 167 104 Ham ®. Boston Police Board, 142 90 118 (Comm. V.) 150 122 49, 75 t>. Kerwin, 146 378 4, 49 Hamilton v. McLaughlin, 145 20 82 Hamlen, (Cutter «.j 147 471 1, 55 «. Werner, 144 396 23 Hamlin «. New Bedford, 143 192 59 Hammond, (May v.) 144 151 103 (May V.) 146 439 7, 103 «. Pinkham, 149 356 9 ("Washburn ».) 151 132 55 Hampshire County Comm'rs, (Northamp- ton V.) 145 108 114 (Wiiliston Seminary «.) 147 427 . . 115 Handforth «. Jackson, 150 149 25, 27 Handley, (Spooner «.) 151 316 108 ii Handy, (Tibbetts v.) 145 537 5 «. Tracy, 150 524 23 Handyside v. Powers, 145 123 78 Hanks ®. Boston & Albany Railroad, 147 495 93 94 Hano, (Stevenson «.') 148 616.".'.".". .'.". . . .' 91 Hapgood, (Abbott v.) 150 248 33, 64 Harding b. Littlehale, 150 100 13 Harmon v. Osgood, 151 501 125 Harper, (Comm. v.) 145 100. 74 Harris v. Carter, 147 313 99 Hart, (Ashley «.) 147 573 88 «. Bufflnton, 150 75 63 (Comm. «.) 149 7 54 Hartigan, (Proctor v.) 143 462 47 98 Hartwell, (Hall «.) 142 447 125 Harvard Unitarian Soc. «. Tufts, 151 76, 34 Harvey «. Merrill, 150 1 25 Haskell, (Firth ».) 148 501 50 Hastings, (Leach v.) 147 515 39 V. Weber, 142 232 113 Hathaway, (Parwell v.) 151 242 115 (Milliken ii.) 148 69 10, 69 v. Tinkham, 148 85 4, 50 Hatt V. Nay, 144 186 88 Havender, (Lancy «.) 146 615 20 Haverhill, (Foley v.) 144 353 59 ii (Waldron v.) 143 58i 63 Haverhill Aqueduct Co., (Brickett ®.) 142 394 127 ii Hawkins v. Graham, 149 284 26 Hayden, (Comm. «.) 150 332 7 B. Hayden, 1 42 448 135 (Seward «.) 150 158 84 Hayes, (Comm. v.) 145 289 72, 129 (Comm. ■».) 149 33 73 (Comm. ■».) 150 506 97 «. Philadelphia & B. Coal Co., 150 457 2 Haynes, (Coulter v.) 146 458 ... . 8, 130 Healey, (New Hampshire Fire Ins. Co. «.) 151 537 49, 56 Heard «. Sturgis, 146 545 12 Hecht V. Batcheller, 147 335 110 HefEernan, (Huzzey «.) 143 232 81 Heinlein v. Boston & Providence Railroad, 147 136 107 Hemenway, (Bailey v.) 147 326 122 (Patterson v.) 148 94 93 Henderson, (Everett «.) 146 89 103 (Everett v.) 150 411 69 Henry v. Newburyport, 149 582. 53 Hermanns «. Fanning, 1611 90 Herring v. Downing, 146 10 68 Hersey, (Comm. «.) 144 297 97 Hewitt v. Corey, 150 445 45 Hibbard, (McKim v.) 142 423 124 Higgins ». Boston, 148 484 60 Higgins, (Page v.) 150 27 42 Highland Street Railroad, (Cronin «.) 144249 118 HiU B. Boston, Hoosac Tunnel, etc.. Rail- road, 144 284 16 B. Chase, 143 129 23 (Comm. D.) 145 305 49. 63 (Doherty «.) 144 465 113 (Shepardc.) 151 640 96 (Tompkins «.) 145 379 2 (White «.) 148 396 9 Hills Co. , (Moynihan «.) 146 586 86 Hinckley d. Somerset, 145 326. . . 48, 60, 61 i Hinds, (Comm. ■».) 145 183 75 Hoar D. Abbott, 146 390 45 Hobbs V. Strain, 149 812 15 ii Hobson (Weeks ».) 150 377 21 Hodgdon v. Cummings, 151 293 56 (Cummings d.) 147 21 50 (Mansfield i>.) 147 304 126 Hodgkins v. Farrington, 150 19 82 Hogan i>. Barry, 143 538 39 ii Holbrook (Clark «.) 146 366 68 (CookD.) 146 66 56 ?). Payne, 151 383 8 Holden, (Brigham v.) 146 359 15 «. Metropolitan Nat. Bank, 151 113 137 (Rogers v.) 142 196 3 Holdsworth v. Tucker, 143 369 ! . . 126 ». Tucker, 147 572 5, 95 Holland v. Cheshire Railroad, 151 331 38 V. Lynn & Boston Railroad, 144 435 20 Holliston Mills, (Nonantum Worsted Co. «.)149 359 9 Holloran «. Holloran, 149 398 2 Holman, (Lane v.) 145 321 103 Holmes v. Drew, 151 578 80 ii «. Turner's Falls Co., 142 590 18 79, 107 V. Turner's Falls Co., 150 535 3 ii 10 ii, 46, 91 ii Holt «. Bennett, 146 437 29 Comm ».) 146 38 89 ii Holyoke, (Collins v.) 146 298 30, 119 iiii Hood V. Boardman, 148 330 37 (Converse v.) 149 471 29 Hopewell Mills «. 'Taunton Savings Bank, 150519 53 Hopkins, (Oliver v.) 144 175 14 Horrigan «. Clarksburg, 150 218 60 Horton, (Chase «.) 143 118 46, 66 Hosmer e. Groat, 143 16 46 Houdlett, (Bartlett ®.) 147 25 35, 87 ii Houle, (Comm. ■».) 147 380 49 Housatonic Railroad, (Comm. v.) 143 264 24 Howard, (Chemical Electric Light, etc., Co. ■».) 148 362 100 ii (Chemical Electric Light, etc., Co. V.) 150 495 47, 96, 121 Howe, (Comm. v.) 144 144 40 V. Salisbury, 145 279 67 ■V. Weymouth, 148 605 120 Howell, (Butman «.) 144 66 45 Howes B. Newcomb, 146 76 21 Howland. (Rice b.) 147 407 16 1). Union Street Railway, 160 86. . 93 Hoxie V. Chaney, 143 593 8, 120 V. Finney, 147 616 37 Hudson, (Flagg ».) 142 380 60 (Tylers.) 147 609 119 Hudson tron Co., (Myers v.) 150 125 86 TABLE OF CASKS 01'1'KD. 143 Hunt V. Brown, 146 253 65 Hunting*. Downer, 151 275 16, 49 Hurlbut, (Slater ®.) 146 808 123 Hurler «. Hurley, 148 444 76 V LaJly, 151 129 83 (O'Conner d.) 147 145 35, 100 (Sullivan «.) 147 387 12 Y, (Amerige «.) 151 300 31 Hutchings, (Bircli «. ) 144 561 35 Huzzey ®. Heflfernan, 143 232 31 Hyatt V. Nay, 144 186 44 Hyde v. Mechanical Rofriijeratine Co.. 144 432 . .......; 11 Hyde Park (Bean b.) 143 245 60 Hyland ti. liabich, 150 112 57 Hyman, (Faulkner v.) 142 53 9, 33 lasigi V. Shea, 148 538 122 Ilsley, (Streeter «.) 147 141 79 (&treeter«.) 151 291 91 Importers' and Traders' Nat'l Bank v. Shaw, 144 421 15 Inches, (Dexter v.) 147 334 35 Indian Orchard Mills, (Atlantic Cotton Mills B.) 147 268 29 (Rock ».) 142 522 88 IngaUs V. Ingalls, 150 57 50 (Ingfllls ®.) 150 57 50 Ingersoll, (Oomm. v.) 145 381 37, 97 Ingram v. Cowles, 150 155 115 ii Isherwood, (Snailham ».) 151 317 134 Ithaca First Nat. Bank «. Gogin, 148 448 103 International Trust Co.' ». Boardmiin, 149 158 68, 71 (Union Cattle Co. «.) 149 492 ... . 33 Intoxicating Liquors, (Comm. «.) 142 470 64, 74 (Comm V.) 146 509 75 ii (Comm. 1).) 148 134 75 (Comm. «.) 150 164 75 u J. Jackman v. Gloucester, 143 380 83 J). Nelson, 147 800 13 Jackson, (Handforth v.) 150 149. ... 25, 37 James, (Lee ii.) 150 475 10 «. Newton, 142 366 8 Jaques. (Swasey «.) 144 135 33, 104 JardinB. (Comm. v.) 143 567 46 Jaynes v. Goepper, 147 809 99 Jefeerds v. Alvard, 151 94 8 Jefts, (Trecy «.) 149 211 9 Jenkins J). Wood, 144 238 51 ». Wood, 145 494 76 Jenks, (Stone v.) 142 519 90, 108 Jennings v. Fitchburg Railroad, 146 631 107 V. Metropolitan Life Ins. Co., 148 61 71 Jepson ?;. Killian, 151 593 76 Jewell, (Lewis v.) 151 345 55 John Hancock Mut. Life Ins. Co. i). Wor- cester, Nashua, etc., Railroad, 149 214 30 Johnson, (Comm. ».) 150 54 80 (Converse v.) 146 20 51, 84 (Cooper «.) 143 109 53 ®. Knapp, 146 70 31 ». Knapp, 150 267 31 t). Russell, 144 409 46 Jones V. Atchison, Topeka & Santa Fe Railroad, 150 304 51 (Buffum V.) 144 29 44, 69 V. Cavanaugh, 149 124 14 ii (Comm. V.) 142 573 73 ii (Days.) 150 331 25 V. Dow, 142 130 15, 113 (Fearing b.) 149 12 56 «. Goodwillie, 143 281 123 (Tobin V.) 143 448 10 (Townsend Nat. Bank«.) 151 454, 4ii Jordan u. McKinney, 144 438 139 Joslin V. Rhoades, 150 801 36 Joj'. (Burr v.) 151 395 101 Joyce?). Parkhurst, 150 343 7 ii Julius, (Comm. «.) 143 132 73 E. Kaiser «. Alexander, 144 71 47, 48 ii (Alexander «.) 149 321 129 Kane, (Comm. v. 143 92 73 (Comm. V.) 150 294 97 Kavanaugh ®. Kavanaugh, 146 40 57 Eeefe v. Boston & Albany Railroad, 142 351 94 (Comm, V.) 143 467 66 Keenan, (Comm. v.) 148 470 97 (Knowltona.) 146 86 26, 55 Keith v. Brockton, 147 618 60 V. Keith, 143 362 42 ». McCafEray, 145 18 12 (Stiff «.) 143 234 66 Kelley v. Blackstone, 147 448 61 D. Saltmarsh, 146 585 40 144 TABLE OF CASES CITED. Kellogg «. Dickinson, 147 433 83 4). Kimball, 142 134 4 V. Tompson, 142 76 33 ii, 33 Kempster, (Dame «.) 146 454 99 Kendall, (Comm. «.) 144 357 89 (Ducliemin «.) 149 171 35, 36 «. Kendall, 147 483 93 Kendrick, (Comm. v.) 147 444 74 Ken son v. Arlington, 144 456 130 Kennard, (Quincy ».) 151 563 17 Kennebec Framing Co. v. Pickering, 142 80 83 Kennedy v. Saunders, 142 9 73 ii Kenneson, (Comm. v.) 143 418 89, 113 Kenney a. Consumers' Gas Co., 142 417 41, 96 Kennison ®. Beverly, 146 467 59 Kent V. Dunham, 142 216 101 «. Todd, 144 478 79 Kenyon «. Wrieley, 147 476 83 Kern, (Comm. «.) 147 595 75 Kerwin, (Ham v.) 146 378 4, 49 Keyes, (Dole ».) 143 337 35 Khron «. Brock, 144 516 80 Kiernan v. Linnehan, 151 543 80 ii, 103 Kilburn v. Rice, 161 443 34 Kiley, (Comm. «.) 150 835 37 Killian, (Jepson ».) 151 593 76 Kilner, (Ayer v.) 148 468 100 Kimball v. Bangs, 144 331 55 (Kellogg V.) 142 134 4 (JMcKennaii.) 145 555....' Ill King V. Bird. 148 573 79 (Comm. «.) 150 331 45, 47, 137 (Gaylord v.) 142 495 18, 120 King Phil ip Mills, (Rice v.) 144 339. ... 86 Kingsbury v. Burrill, 15 1 199 8 Kinneen «. Wells, 144 497 40 Kinsey, (Ammidown v.) 144 587 48 Kites ». Church, 142 686 76 ii Kittredge, (Martin v.) 144 13 7(> Klemm, (Worthington «.) 144 167 128 Knapp, (Johnson, e.) 146 70 31 (Johnson ».) 150 367 31 Knowlton v. Keenan, 146 86 26, 55 V. New York & New England Rail- ■ road, 147 606 54 Knox, (Rideout a.) 148 368 53 Krulevitz v. Eastern RaUroad, 143 338 85, 88 .Kyte V. Commercial Union Assurance Co., 144 43 70 ii «. Commercial Union Assurance Co., 149 116 70 Ladd«. Boston, 151 585 41 (Brown ».) 144 310 15 Lafayette, (Comm. ■».) 148 130 74 Laird, (Wheeler v.) 147 431 3 Lally, (Hurley f.) 151 129 83 Lamb, (Slater v.) 150 239 50 (Slater Woolen Co. ■».) 143 430, ... 29 Lambie, (McCallum v.) 145 234 48, 82 Lamkin ». Edgerly, 15 1 , 348 15 Lamprey?) Mason, 148 331 16 Lanahan i). Porter, 148 596 4 Lancy ». Havender, 146 615 20 Lane v. Chadwick, 146 68 108 (Comm. D.) 151 356 47 ■V. Holman, 145 331 103 (Middlesex Co. i).) 149 101 3 V. Moore, 151 87 46 Langdon v. Stewart, 142 576 116 Langford «. Boston & Albany Railroad, 144 431 7, 85 Langley ». Dauray, 145 335 136 Lannan v. Walter, 149 14 135 Lapointe -b. Middlesex Railroad, 144 18. 94 Lathrop, (Nash «.) 142 39 109 Lavender, (Wi lard ».) 147 15 105 Larvery v. Egan, 143 389 85, 87 Lawrence, (Coffin v.) 143 110 23 V. Pullman's Palace Car Co., 144 1 19 Lazarus® Swan, 147 330 8 Leach B. Hastings, 147 515 39 Leary, (Dufl v.) 146 533 2 LeClalr, (Comm. «.) 147 539 77 ii Lee, (Comm. v.) 143 100 44 (Comm. ■!).) 148 8 66 (Comm. ®.) 149 179 52 (Curnew «.) 143 105 82 B. James, 150 475 10 (Murphy ®.) 144 371 89 Lee ®, Whitney, 149 447 15 Leeson, (Tibbetts v.) 148 103 '. . . . 31 ii Leighton, (Lindsey ®.) 150 385 79 ii Leland, (Sears «.) 145 377 31 Lenahen v. Desmond, 150 393 13 Lentine, (Dupee i>.) 147 580 8 Lenz ». Prescott, 144 505 87, 42 Leonard ®. Bolton, 148 66 12 «. Fitchburg Railroad, 143 307... 18 48 ®. Leonard, 151 151 38 Le Page, (Russia Cement Co. v.) 147 306 120 Levering, (Mclntire ®.) 148 546 45, 85 Lewis V. Austin, 144 383 4 V. Jewell, 151 345 55 1). Lynn Institution for Savings, 148 335 110 V. New York Sleeping Car Co., 143 267 19 (Taylor v.) 146 333 100 Libby, (Fitzgerald v.) 142 335 83 11. Norris, 142 346 134 Liffin V. Beverly, 145 549 61 Linch V. Sagamore Manuf. Co., 143 206, 87 Lincoln v. Boston, 148 578 17 ®. Perry, 149 368 35, 49 (Tracy t).) 145 357 43 ®. Warren, 150 309 59 Linden Spring Co., (New Haven Horse Nail Co. ■».) 142 349 23 Lindsey v. Leighton, 150 385 79 ii «. Parker, 142 583 17 Line, (Comm. «.) 149 65 97 Linehan, (Ford v.) 1 46 288 3 (Tarbell ®.) 151 448 26 Linnehan, (Kiernan®.) 151 543... 80 ii, 102 V. Matthews, 149 29 98 Linton d. Allen, 147 381 136 Litchfield, (McPhee v.) 145 565 85 Little V. Chadwick, 151 109 134 TABLE OP CASES CITED. 145 Littlefleld v. Boston & Albany Railroad, 146 368 3, 118 (Eaton ».) 147 122 3 (Stone «.) 151 485 36, 64 Littlehale, (Harding «,) 150 100 18 Littleiohn v. Pitchburg Railroad, 148 478 20 Lively ®. Rice, 150 171 31 Locke, (Comm. i>.) 145 401 96 (Comm. «.) 148 125 96 (Wood*.; 147 604 87 Lockhardt, (Comm. v.) 144 132 89 Lookwood V. Corey, 150 82 63 V. Twitohell, 146 633 16 Logan V. Dockray, 146 396 26 Lombard v. Willis, 147 13 37 Lord, (Comm. ».) 147 399 65 v. Edwards, 148 476 110 Loring v. Carnes, 148 223 37 Lothrop «. Pitchburg Railroad, 150 433 87 (Wright i>.) 149 385 37, 81 LoTsring, (Dorr v.) 147 530 101 Lowell, (Blake v.) 143 396 61 ii (Chase ».) 149 85 63 (Chase II.) 151432 61,63 (GuUine ».) 144 491 18 Lowell, (Middlesex Co. n.) 149 509 119 11. Middlesex County Ciomm'rs'. 146 403 116 V V. Strahan, 145 1 79 ii (Webster v.) 142 324 51 59 (Whitney ii.) 151 312 60 ii Lowell Electric Light Co., (Quinn ii ) 144 476 '. 96 Lowery, (Comm. «.) 149 67 37 Luddy, (Comm. v.) 143 563 66, 74 Ludlow Manuf. Co., (Rogers v.) 144 198 .... 86 Lunt, (Todd «.) 148 332 116 Lynch, (Barnes v.) 151 510 99 (Comm. ».) 151 358 75 Lynde v. Brown, 143 337 115 Lynes, (Comm. «.) 142 577. .44, 64, 131, 139 Lynn v. Essex County Comm'rs, 148 148 llliii (Flax Pond Water Co. v.) 147 31 114 (Prince ?).) 149 193 63 Lynn & Boston Railroad, (Holland v.) 144 425 30 (Spicer v.) 149 307 101 Lynn Institution for Savings, (Lewis v.) 148 235 110 M. McCafEerty, (Comm. v.) 145 384 117 ii McCrafflray, (Keith ».) 145 18 13 McCallum v. Lambie, 145 334 48, 82 McCann v. Randall, 147 81 42, 43, 83 McCart D.Squire, 150 484 48 McCarthy v. Boston & Lowell Railroad, 141 550 98 (Comm. D.) 145 575 66 (Parkman v.) 149 502 34 V. Swan, 145 471 6 McClusky, (i omm. v.) 151 488 104 ii McCormick, (Comm. «.) 150 370 73 (Eliot «.) 144 10 : 76 McOue, (Middlesex Co ®.) 149 103 80 McDonald v. Willis, 143 453 83 (Comm. «.) 147 537 1 McDonnell v. Cambridge Railroad, 151 159 136 ii (Tansey v.) 142 330 109 McDonough, (Comm. v.) 150 504 73 McEchern -o. Boston & Maine Railroad, 150 515 80 McEnany, (Davis «.) 150 451 13 McFadden v. Murphy, 149 341 14 McPavland, (Comm. ii.) 148 127 34 McGafflgan ii. Boston, 149 389 60 McGann, (Osgood «.) 147 196 131 McGaughey*. Richardson, 148 608. 44, 110 McGee D. Salem, 149 238 115, 116 MoGivney v. McGivney, 142 156 78 McGurty, (Comm. «.) 145 257 40 iiii McHugh, (Comm. ».) 147 401 74 ii Jllclntire v. Levering, 148 546 45, 85 s. Roberts, 149, 450 80 McKay, (Denholm v.) 148 435 57, 99 ii McKean v. Salem, 148 109 61 McKenna «. Kimball, 145 555 Ill McKenzie*. Ashley, 145 577 38 McKeown e. Garney, 147 193 67 Jtlackie, (Sawyer v.) 149 269 115 i Vol. ni— 19 McKim V. Hibbard 142 433 134 McKinnev, (Jordan «.) 144 438 129 McKinnon b. Norcross, 148 533 86, 95 McLaren, (White c.) 16 1 553 36 McLaughlin, (Coveny «.) 148 576 34 (Hamilton?).) 145 20 83 McMahon «. Gray, 150 289 9, 41 McNeff, (Comm. v.) 145 406 97 ii McNuIty, (Murphy «.) 145 464 72 MoParland, (Comm. ii.) 145 378 77 McPhee «. Litchfield, 145 565 83 McPherson, (Comm. v.) 147 578 6 Mactier ». Osborn, 146 399 41 Magee b. West End Street Railway, 151 240 94 Maguire v. Pitchburgh Railroad, 146 379 30 Mahoney v. Middlesex County Com'rs, 144451) 10 Mallon, (Batt«.) 151 477 113 Maloney, (Comm. ®.) 145 3u5 77 Mandeville, (Comm. «,) 142 469 75 Mann v. Williams, 143 394 46 Manning, (Amy v.) 144 153 108 (Amy «.) 149 487 41 «. French, 149 391 30 V. Osgood, 151 148 51 (Soper?).) 147 126 41 ». Sprague, 148 371 20 (Tuck «.) 150 211 41 Mansfield v. Gordon, 144 168 68 V. Hodgdon, 147 304 126 Manufacturers' Pire & Marine Ins. Co. (Gibson «.) 144 81 39 «. Western Asssurance Co., 145 419 71 Manufacturers' Nat. Bank «. Continental Bank, 148 553 11 V. Perry, 144 313 72, 84 Marble o. Mellen, 145 343 63 146 TABLE OP CASES CITED. Marblehead, (Phillips «.) 144 386 129 (Phillips V.) 148 336 139 Marblehead Water Co., (Woodbury v.) 145 509 137 ii, 128 Marple i). Burton, 144 79 103 Marsh ®. American Legion of Honor, 149 512 13ii Marshall v. Boston & Albany Railroad, 145 164 19, 45 Marsland «. Murray, 148 91 98, 95 Marston v. Bigelow, 150 45 16, 45 Martina Gage, 147 304 5, 51 (Grundy ».) 143 379 76, 78 V. Kittredge, 144 13 76 ■D. Martin, 146 517 63 Martin-Wilson Automatic, etc., Co., (Wilson «.1 149 491 43 (Wilson B.) 161 515 43 ii Marvel v. Babbitt, 143 326 51 Marzynsld, (Comm. ®.) 149 68 84 Mason, (Lamprey i).) 148 231 16 «. Pomeroy, 151 164 134 ii (Southbridge Savings Bank ».) 147 500 53 Massachusetts Benefit Assoc, (Clapp v.) 146519 14 (Grossman «.) 143 435 14 ii (Skillings v.) 146 317 13 (Skilllngs «.) 151 821 76 Massachusetts Catholic Order «. Callahan, 146 391 13 Massachusetts Loan & Trust Co. ■». Fitch- burg Railroad, 143 318 33 Massachusetts Safety Fund Assoc, (Bur- den «.) 147 360 14 Massachusetts Soc, etc., «. Boston, 142 34 115 Massachusetts Title Ins. Co., (Brown «.) 151 137 81 Matthews ». Dixey, 149 595 100 (Linnehan «.) 149 39 98 Mawhinney, (Gilfillan «.) 149 364 49 Maxwell, (Cox v.) 151 836 26 May «. Boston, 150 517 61 V. Hammond, 144 151 103 ». Hammond, 146 439 7, 103 V. Skinner, 149 375 53, 57 Mayer, (Rogers D.) 151 379 6 Maynard «. Cleaves, 149 307 36 Mayo V. Moritz, 151 481 41, 123, 124 (Walker v.) 143 43 23 Meaney, (Comm. v.) 151 55 97 Mechanical Refrigerating Co., (Hyde v.) 144 432 11 Mechanics' Mills, (Ryall v.) 150 190. ... 89 Mechanics' Savings Bank «. Waite, 150 234 125 Medbury, (Cooks.), 150 499 eO Meehan v. Sharp, 151 565 113 Mellen, (Marble b.) 145 342 63 Mellor -0. Merchants' Manuf. Co., 150 362 88 Menard «. Boston & Maine Railroad, 150 386.^ 94 ii, 106 Mercantile Mutual Accident Assoc, (Aldrich ».) 149 457 70 Mercer, (Simpson v.) 144 413 75. '77 Merchants' & Manuf. Co. (Mellor b.) 150 362 88 Merchants' & M. Trans. Co., (Clark «.) 151 352 89 (North ».) 146 315 19 Merchants' Nat. Banks. Greene, 150 317. 30 «. Moulton, 143 543 5, 43 (Ware «i.) 151 445 107 Merchants' Woolen Co., (Ciriack «.) 146 ^go ^ ^ gg (Ciriack V.) 151 ' 152.'.'.'.'.'.'.'.'.'.'.'.'.'. 86 Merriam, (Comm. v.) 148 425 97 Merrick Thread Co. (Atkins d.) 142 4B1. 88 Merrill, (American Order ■».) 151 658. ... 14 (Harvey t).) 150 1 25 t'. Peaslee, 147 460 63 (Potters.) 143 189 86 (Ricketson ».) 148 76 42 Messenger, (Adams «.) 147 185... 100, 113 ii Metacomet Manuf. Co., (Galligan v.) 143 537 80 Metcalf 1). Williams, 144 452 8 (Baths.) 155 374 7 Metcalfe s. Cunard Steanship Co., 147 66 94 Metropolitan Life Ins. Co., (Jennings «.) 148 61 71 Metropolitan Nat. Bank, (Holden s.) 151 113 127 Metropolitan Railroad, (Woodman «.) 149 835 113 Middlesex Co. (Coburn s.) 142 264 33 s. Lane, 149 101 2 s. Lowell, 149 509 119 s. McCue, 149 103 : 80 Middlesex County Comm'rs, (LoweU s.) 146 403 116 V (Mahoney «.) 144 459 10 Middlesex Railroad, (Chaffee v.) 146 224,28 ii Lapointe «.) 144 18 94 Miles, (Stevens s.) 1 42 671 . . .' 46 ii Milford «. Comm., 144 64 33 (Norcross s.) 149 237 110 (Shea s.) 145 538 118 ii, 133 Miller, (Comm. s.) 150 69 131 (Fargo V.) 150 325 35 s. Miller, 150 111 38 s. Morgan, 143 25 121 s. Roach, 150 140 15 s. Shay, 143 598 44, 45 1). Shay, 145 163 47 ii s. Shea, 150 283 6 Milliken s. Hathaway, 148 69 10, 69 Minot s. Baker, 147 348 ■ 31 s. Boston, 142 274 118 V. Norcross, 143 326 52 Mixter, (Boston Safe, etc., Co. ■».) 146 ^ 100 133. 124 ii ■B. Woodcock, 147 613 35 Moebs V. Wolffsohn, 143 130 95 Moffat s. Cook, 150 529 36 MofEatt, (Chatham Furnace Co. v.) 147 403 ^9, 95 Molter, (Comm. v.) 143 533 73 Monahan t. WorcestcT, 150 439 44 Mouatiquot River Proprietors s. Braintree Water Supply Co., 149 478.... 103 Montgomery s. Forbes, 148 S49 9 Moody, (Comm. s.) 143 177 65 Moore, (Comm. s.) 143 186 77 (Comm. i>.) 145 344 73, 97, 129 (Comm. s. 147 528 96, 97 (Lanes.) 151 87 46 s. Sanford, 151 286 34, 41, 127 s. Spiegel, 143 413 1, 8 s. Stinson, 144 594 123 s. Valda, 151 363 41 Moorehouse, (Rice s.) 150 482 53 Moors u Goddard, 147 287 125 s. Washburn, 147 344 23 ii ». Wyman, 146 60 22 Moran, (Comm. s.) 148 453. 73 Morasse v. Brochu, 151 567 81, 82 ii TABLE OF CASES CITED. Ut V, American Loan & Trust Co., 149 253 84 Morsan «. Abbott, 148 507 69 (Adams®.) 150 143 47 ii (Comm. V.) 149 314 74 v. Curley, 142 107 32, 103 (Miller «.) 143 35 121 Moritz, (Mayo b.) 161 481 41, 132, 134 Morley®. Cliase, 143 396 7, 49 (WrightD.) 150513 10 MorriU n. Phillips, 142 340 35 ii V. Spurr, 143 357 99 Morris V. Brightman, 143 149 110 (Dawe «.) 149 188 55 (Shrieves v.) 151 310 108 Morrison «. Morrison, 142 361 38 Morsel). Benson, 151 440 , 39 ji. Chamberlain, 144 406 15 (Nutt V.) 142 1 Ill (Smith V.) 148 407 52 ii (Warner v.) 149 400 37, 134 Morton, (Needham v.) 146 476 116 Morville t. Fowle, 144 109 31 ii, 134 Mosely, (Cleverly v.) 148 380 83 Moulton, (Merchants' Nat. Bank d.) 143 543 5, 43 Mount Auburn Cemetery v. Cambridge, 15013 119 Mount Hermon Boys' School v. Gill, 145 139 115 Moynihan «. Hills Co. , 146 586 86 V. Whidden, 143 387 93 ii Mulchahey «. Washburn Car Wheel Co 145 381 ; 1 Mullen, (Comm. ».) 150 394. . 1, 65, 131 129 (Starratt i).) 148 570 45 Muller, (Dealey ®.) 149 433 -. . . 93 (Ulsch V.) 143 379 16 Mullett, (Way b.) 143 49 91 Murphy, (Comm. v.) 145 350 96 (Comm. ■!).) 147 577 74, 75 «. Galloupe, 143 123 31 D.Greeley, 146 196. 86 t). Lee, 1 44 371 39 (McPadden v.) 149 341 14 V. McNulty, 146 464 72 «. Murphy, 145 334 91 B.Rogers, 151118 14 V. Webster, 151 131 87 (Witherell v.) 147 417 3 Murray, (Comm. e.) 144 170 103 (Marsland v.) 148 91 93, 95 v. Nelson Lumber Co., 143 350. . 28 «. Norfolk County, 149 338 : ... . 58 ii V. Roberts, 150 353 68 V. Wood, 144 195 57 Myer v. Tighe, 151 354 57 Myers, (Boston Loan Co. v.) 143 446 .. . 108 V. Hudson Iron Co., 160 135 86 Mystic River Co., (BartlettB.) 151 433. .38, 113 K Nally, (Comm. «.) 151 63 97 Nantasket Beach Railroad, (Gushing ®.) 143 77 44, 106 (FitzD.) 148 35 106 z. Ransom, 147 340 109 ii Nash V. Lathrop, 142 29 109 V. South Hadley, 145 105 61 (Steele v.) 145 198 26 National Exchange Bank «. Sutton, 147 131 9 National Life Insur. Co., (Pinerey v.) 144 374 ....... 71 National Tube Works Co., (Freeman's Nat. Bank v.) 161 418 11 Nay, (Halt «.) 144 186 88 (Hyatt v.) 144 186 44 Nealleyu Bradford, 145 560 59 Needham v. Morton, 146 '476 116 v. Thayer, 147 536 76, Neff V. Wellesley, 148 487 93, 118 Nelson, (.Tackman «.) 147 300 13 Nelson Lumber Co., (Murray ».) 143 250 38 Nevins, (Burnham «.) 144 88 40 New Bedford, (Hamlin v.) 143 192 59 New Bedford & F. Street Railway v. Acushnet Street Railway, 143 ^, , 200 .•'. 113 Newburyport v. Creedon, 146 134 43 «. Creedon, 148 158 43 (Henry «.) 149 583 53 «. Waltham, 150 311 102 (Waltham v.) 160 569 103 ii Newburyport Savings Inst., (Cumnock c. 142 343 33 Newcomb v. Boston Protective Depart- ment, 146 596 53, 93 Newcomb v. Boston Protective Department, 151 315 53 (Howes «.) 146 76 31 Newell B. Peaslee, 151601 61 «. West, 149 520 58 New England C. P. Assoc, (Addison v.) 144 591 13 New England Dredging Co. v. Rockport Granite Co. , 149 381 25 New England Mut. Accident Assoc, v. Varian, 151 17 49, 109 New England Mutual Aid Assoc, (Rice V.) 146 348 14 (Rindge -o.) 146 386 13, 14 New Hampshire Fire Ins. Co. v. Healey, 161 537 49, 56 New Haven Horse Nail Co. v. Linden Spring Co., 142 349 33 New Haven & N. Railroad, (Wells v.) 16146 84 Newmarket Manuf. Co. ii. Coon, 150 566 9 Newmarket Savings Bank d." Royal Ins. Co., 160 374 71 Newton, (Ar y v.) 148 598 60 1). Belger, 143 598 117 (Boston & Albany Railroad «.) 148 474 106 (James ».) 142 366 8 (Stanchfield i) ) 142 110 119 New York & New England Railroad, (Ab- bott ».) 145 450 106 iii (Boyle D.) 161 102 87 (Codys.) 151 463 94 (Grossman ti.) 149 196 19 (Davis«.)143 301 34 (Knowlton ®.) 147 606 54 148 TABLE OF CASES CITED. New Tork & New England Railroad, (Ramsdell «.) 151 345 89 (Shaw V.) 150 182 94 (Smith ».) 142 21 40, 106 New York Sleeping Car Co., (Lewis Vi) 143 267 19 Nichols V. Smith, 143 455 68 Nickersen ». English, 142 267 25 (Gale «.) 144 415 104, 128 (Galea.) 151428..... 41 D. Thacher, 146 609 120 Nonantum Worsted Co. v. HoUiston Mills, 149 359 9 (White 11.) 144 276 88 Norcross, (McKinnon ».) 148 533.. . . 86, 95 «. Mllford, 149 237 116 (Minot ».) 143 326 52 Norfolk County, (Murray v.) 149 328. . 58 ii (Parker v.) 150 489 58 Norris, (Libby v.) 142 246 124 North ». Dearborn, 146 17 50 V. Merchants' etc., Transp. Co., 146 315 19 (Sartwell v.) 144 188 69 (SartweU«.) 151 142 69 Northampton, (Attorney-CJeneral v.) 143 589. 20 Northampton v. Hampshire County Com- missioners, 145 108 114 (O'Keefe v.) 145 115 102 Northampton Nat. Bank v. Crafts, 145 444 43, 68 North Andover, (Abbott v.) 145 484 ... . 118 Northborough v. Wood, 142 551 16 North End Savings Bank, (Alger «.) 146 418 56 Norton, (Nutt «.) 142 242 128 V. Palmer, 142 438 90, 91 Norwich & Worcester Railroad v. Worces- ter, 147 518. 106 v. Worcester County Comm'rs, 151 69 115 ii Nott v. Sampson Manuf. Co., 142 479 57 ii NouTse, (Spaulding v.) 143 490 58 Noyes, (Dover Stamping Co. «.) 151 342 57 v. Gardner, 147 505 60, 61 V. Pritchard, 148 140 35 (Tracey ».) 143 449 12 ii Nute V. Boslon Cooperative Building Co., 149465 60 Nutt V. Morse, 142 1 Ill B.Norton, 142 243 138 o. Oakes, (Comm. v.) 151 59 74, 77 iii Oberlander v. Carstens, 151 18 49 O'Brien, (Smith v.) 146 294 109 O'Connell b. O'Leary, 145 311 73, 84 11. O'Leary, 151 83 121 (Wilson 11.) 147 17 36 O'ConnerB. Hurley, 147 145 25, 100 O'Day v. Bowker, 143 59 ; . 116 Odd Fellows' Mut. Relief Assoc, (Elsey ?).)142 224 13 (Tyler ».) 145 134 13, 43 Odewald v. Woodsum, 142 613 12 O'Donnell v. Clinton, 145 461 107 (Comm. «.) 143 178 75 (Comm. ■».) 151 502 101 11. Smith, 142 505 33,57, 102 O'Dowd 11. Boston, 149 443 117 Oesting, (Croacher v.) 143 195 50 ii, 107 Ogden v. Greenleaf . 143 349 48, 49 «. Pattee, 149 82 34, 38 O'Grady v. Supple, 148 523 95 O'Keefe v. Northampton, 145 115 103 Old Colony Railroad, (Babcock v.) 150 467 88 (Barstow v.) 143 535 94 (Bates'!).) 147 255 19 (Brock V.) 146 194 106 iii n. Pall River, 147 455 30, 106 (Ferrin «.) 143 197 88 ». Slavens, 148 363 76 Old Colony Railroad, (Sullivan e.) 148 119 19 D.Tripp, 147 35 107 Oldham, (Citizen's Nat. Bank «.) 142 379 21 O'Leary, (Comm. «.) 143 95 72 (O'Connell ii.) 145 311 73, 84 (O'Connell «.) 151 83 121 (Sullivan «.) 146 322 129 Oliver ii. Hopkins, 144 175 14 V. Oliver, 151 349 39 Olson V. Worcester, 142 536 61 O'Neil V. Webster, 150 572 90 Opinion of the justices, 142 601 24 ii Opinion of the justices, 145 587 98 Opinion of the justices, 150 586 95, 117, 130 O'Rourke v. Beard, 151 9 122 Orthodox Congregational Society «. Green- wich, 145 112 105 Osbom, (Mactier v.) 146 399 41 (Smith ».) 143 185 33 Osgood, (Comm. ■».) 144 363 .... 84 (Harmon v.) 151 501 135 «. McGann, 147 196 121 (Manning ».) 151 148 51 («. Stevenson,) 1 43 399 4 O'Shaughnessy v. Suffolk Brewing Co., 145 569 93 O'Toole, (Page ».) 144 303 119 Pacific Mills, (Crowley v.) 148 338 87 1 Packard n. Ryder, 144 440 53 PaciflcNat. Bank, (Eaton b.) 148 360. .11, 109 | Page, (Carpenter v.) 144 315.. 15 TABLE OF CASES CITED. 149 Page V. Higgins, 150 37 43 ®. OT^'oole, 144 303 119 (Russell II.) 147 283 , 7 Paige «. Barrett, 151 67 86 Paine, (Sturgis «.) 146 354 133 ii Palmer, (Bishop v.) 148 469 35 (Norton v.) 142 433 , 90, 91 Paper Stock Disinfecting Co. v. Boston Disinfecting Co., 147 318 100 Park 9. Whitney, 148 a78 36 Parker, (CunnifC ».) 149 153 56 (Granger v.) 142 186 6 / (Lindsey ®.) 142 583. 17 «. Norfolk County, 150 489 58 D.Parker, 146 330 33 ii 0. Snow, 143 423 5 V. Springfield, 147 391 48 ii Parkhurst, (Joyce «.) 150 343 7 ii Parkraan «. McCarthy, 149 503 34 v. Suffolk Savings Bank, 151 218. Ill Parnell, (Aldrich ».) 147 409 76 Parsons, (Barber v.) 145 303 30 (Fowler v.) 143 401 43, 108 Patch V. Boston, 146 53 17, 130 ill Patte, (Ogden ».) 149 83 84, 38 Patten, (Comm. D.) 15 1 536 74 Patterson v. Hemenway, 148 94 93 Patton v. Taft, 143 140 35, 57 Paul V. Forbes, 148 538 3 Paxton, (Cambridge v.) 144 530. 103 Payne, (Holbrook v.) 151 883 8 Peabody, (Pickman v.) 145 480 137 Pearson d. AUen, 15 1 79 40 Pease, (Fuller v.) 144 390 13 Peaslee, (Gardner «.) 143 883 49 (Merrill «.) 146 460 63 (Newell ■D.) 151 601 51 v. Peaslee, 147 171 38, 63 «. Ross, 143 375 10 Peck s. Clark, 142 436 33, 46 Pelletier v. Couture, 148 369 66 Pendergast v. Clinton, 147 403 61 People's Ice Co. v. Davenport, 149 333. . 64 Perham, (Qulnn «.) 151 163 79 Perking v. Coughlan, 148 30 41 (Sherry ji.) 147 313 95 Parley, (Chase v.) 148 389 134 ii 9. Perley, 144 104 16 Peny, (Comm. «.) 148 160 96 il B. Hadley, 148 48 69 «i. Hale, 143 540. 38 (Lincoln v.) 149 368 35, 47 (Manufacturers' Nat. Bank ».) 144 313 73, 84 Peterson v. Waltham, 150 564. . . 59 Pettee Machine Works, (Foley v.) 149 394 87 Pettibone v. Toledo, Cincinnati & St. Louis Railroad, 148 411 39 Pew, (Wonson ».) 148 299 68 Phelps v. Phelps, 145 416 30 «. Phelps, 143 570 133 ii Philedelphia & R. Coal Co., (Hayes ®.) 150 457 3 Phillips «. Boston, 150 491 118 (Carter v.) 144 100 113 V. Marblehead, 144 326 139 V. Marblehead, 148 336 139 „, . (Morrill «.) 142 340 85 ii Phipps, (Probert ».) 149 358 87 Phoenix Assurance Co., (Ring o.) 145 436 70 Ph(BnixIns.Co.ii.FrisseD, 142 513.70ill, 135 Phojnix Nat. Bank v. Batcheller, 151 589 33, 69 Physio-Medical College, (Stratton d.) 149 505 21, 35 Pickering v. Cambridge, 144 344 46 (Kennebec Framing Co. v.) 142 80 83 Pickert v. Hair, 146 1 10, 45 Pickman ». Peabody, 146 480 127 Pierce, (Bell d.) 146 58 17 (Comm. «.) 147 161 96 V. Equitable Life Assurance Soc, 145 56 .. 39, 72111 «. Gould, 143 334 5 (Graffam ».) 143 886 47 (Stevens?).) 147 510 69 ii (Stevens?).) 151307 79 Pigeon Hill Granite Co., (Cleaves «.) 145 541 93 Pinkham, (Hammond b.) 149 356 9 Pingrey «. National Life Insur. Co., 144 374 71 Pitcher, (Farnum v.) 151 470 14, 131 Place V. Sawtell, 142 477 90 (Comm. «,) 148 375 117, 118 11. Hair, 150 275 9, 63 (Rawson«.) 151 71 56 Plimpton V. Goodell, 143 365. 55, 56 Plummer, (Boston Safe Deposit & Trust Co. V.) 142 257 34 ii (Comm. «.) 147 601 139 Plympton v. Dunn, 148 533 70 Pomeroy, (Mason «.) 151 164 124 ii Pool, (Union Savings Bank v.) 143 203 63 Pope v. Farnsworth, 146 339 37 Porter, (Lanaban «.) 148 596 4 «. Standard Measuring Machine Co., 142191 100 11. Wakefield, 146 35 63 Post V. Toledo, Cincinnati, etc.. Railroad, 144341 30 Potter, (Dooley ii.) 146 148 91 V. Merrill, 143 189 36 Powderly, (Comm. v.) 148 457 97 Powers, (Handyside B.) 145 133 78 Pratt, (Comm. v.) 145 348 74 (Daniels «.) 143 216 13 iiii (Deutsch 11.) 149 415 31 11. Weymouth, 147 345 60, 63 Pray v. Wasdell, 146 334 6 Prescott, (Comm. d.) 151 60 65, 102 (Lenz «.) 144 505 37, 43 Price V. Douglass, 150 96 37 (Fogg 11.) 145 513 43, 113 Prince v. Boston, 148 385 41 «. Lynn 149 193 63 Pritchard, (Noyes v.) 148 140 85 Probert v. Phipps, 149 358 87 Procter v. Hartigan, 143 463 47, 98 Providence & Stonington S. S. Co., (Young u) 160 150 1, 5 Pullman's Palace Car Ci., (Lawrence ».) 144 1 19 (Whitney ii.) 143 343 19 Furcell ». Boston, Halifax, etc., Steamship Line, 151 158 50 ii Purdy, (Comm. v.) 146 138. 74 (Comm. «.) 147 39 65, 74 Putnam Tool Co. ■». Fitchburg Mutual Fire Insurance Co., 145 265 70 Putney v. Fletcher, 148 347 43 Pyne v. Wood, 145 558. 66 u 150 a?ABLE OF CASES CITED. Q. Quigley v. Turner, 150 108 8, 139 Quimby v. Boston & Maine Railroad, 150 365 19 v. Durgin, 148 104 83, 83 Quincy n. Boston, 148 389 130 V. Kennard, 151 568 17 Quinn v. Brennan, 148 562 109 (Comm. ■».) 150 401 7, 49 D. Lowell Elec. Light Co., 144 476, 96 «. Perham, 151 163 79 (Sanfordc.) 147 69 103 Quirk, (Walpole v.) 143 73. 91 R Radoliffe, (Barton v.) 149 375 77 Ramsdell ». New "Sork & N. E. Railroad, 151 345 89 Rand, (Shattuck ».) 142 83 93 Randall, (McCann».) 147 81 43, 43, '83 Rankin v. Fitchburg Mut. Fire Ins. £!o., 150 55 73 Ransom, (Nfantasket Beach Railroad •».) 147 340 109 ii Rawson ». Dofner 143 76 6 «. Plaisted, 151 71 56 Raymond, (Bowditch «.) 146 109 69 ». Russell, 143 395 41 (Weil ».) 142 306 43 Reardon v. Thompson, 149 367 80 Reed, (Comm. v.) 150 67 131 Reeve v. Dennett, 145 33 45, 55 Remick, (Wood ».) 143 453 4 Re Suffolk Savings Bank, 149 1 115 ii SuflEolk Savings Bank, 151 103. . . 115 Reynolds, (Easdale v.) 143 136 13 ii Rhoades, (Jo.-lin ».) 150 301 36 Rhodes, (Comm. ■».) 148 133 66 Rice V. Howland, 147 407 16 (Kilburn 11.) 151443 34 «. King Phillip Mills, 144 339. . . 86 (Lively v.) 150 171 81 V Moorehouse 150 482 53 ®. New England Mutual Aid See, 146 348 14 Rich, (Cochrane v ) 142 15 31 «. Crandall 142 117 86 (Willett B.) 142 356 11 Richards d. Attleborough Nat. Bank, 148 187 11 ■B. Gauflret, 145 486 83 Richardson d. Boston, 148 508. 115, 116, 134 (Comm B.) 142 71 53 iii (McGaughey v.) 148 608 ... . 44, 110 (Shepard «.) 145 33 91 Richmond Iron Works ». Wadhams, 142 569 2 Rlcketsbn ®. Merrill, 148 76 43 Rideout B Knox, 148 868 53 RUey B. Hale, 146 465 109 (Slocmn 'B.) 145 370 98 Rindge ®. New England Mut. Aid See, 146 386 13, 14 Ring ®. Phoenix Assurance Co., 145 426. 70 Roach, (Miller «.) 150 140 15 Robbins, (Caverly v.) 149 16 100 Roberts v. Boston, 149 346 48 iii, 49 (Mclntire «.) 149 450 80 (Murray v.) 150 353 68 v. White, 146 356 31 Robinson ®. Blake Manuf. Co., 143 538 86 (Comm. V.) 146571 63 (Saunders «.) 144 306 13 «. Simmons, 146 167 99 Rock V. Indian Orchard Mills, 142 523. . 88 Rockport Granite Co., (New England Dredging Co. ».) 149 381 35 Rodden, (Cecconi v.) 147 164 .. . 30, 31, 48 Rogers ii. Elliott, 146 349 95 (Gillespie ».) 146 610 33 «. Holden, 142 196 3 «. Ludlow Manuf. Co., 144 198.. . 86 «. Mayer, 151 279 6 (Murphy «.) 151 118 14 V. Sibley, 150 180 69 Rooke, (GayD.)151 115 15 Rooks, (Comm. «.) 150 59 73 Rooney, (Comm. «.) 142 474 96 Koosnell, (Comm. v.) 143 33 107 Rosa, (Francis a.) 151 533 12 ii, 48 Rosenberg «. Doe, 146 191 Ill V. Doe, 148 560 Ill Ross, (Peaslee ii.) 143 275 10 (Tateum «.) 150 440 71. 124 Rowell, (Comm. v.) 146 138 66 V. Doggett, 143 483 39, 46 Royal Ins. Co., (Newmarket Savings Bank e.)150374 71 RufBn, (Gannon«.) 151 204 3, 111 Rugg, (Carlton «.) 149 550 97 iii Russell v. Barstow, 144 130 105 (Comm. V.) 147 545 77 ii (Conway «.) 151 581 17 (Johnsons.) 144 409 46 ?). Page, 147 383 7 (Raymond !).) 143 395 41 7). Walker, 150 531 98 ii Russia Cement Co. v. Le Page, 147 306 . 130 Ryall v. Mechanics' Mills, 150 190 fc,9 Ryder, (Packard «.) 144 440 53 TABLE OF OASES CITED. 151 S. Safford e. Weare, 142 231 76 li Saffamore Manuf. Co., (Linch «.) 143 206 87 Salem, (McGee v.) 149 338 115, 116 (McKean «.) 148 109 61 iSheridan v.) 148 196 119 (Stanton D.) 145 476 61 Salem Nat. Bank, (Danvers Nat. Bank ».) 151280 16 Salisbury, (Howe ®.) 145 279 67 Saltmarsh, (Kelly v.) 146 585 40 V. Spaulding, 147 224 29, 107 Sampson Manuf. Co., (Nott v.) 143 479.. 57 ii Sanborn, (Green v.) 150 454 76 (Toomey «.) 146 28 93 Sanford, (Moore v.) 151 286 24, 41, 137 «. Quinn, 147 69 103 (Winn V.) 145 303 17 (Winns.) 148 39 63 Sartwell, (Hagan v. ) 146 33 109 «. North, 144 188 69 ». North, 151 142 69 Saunders, (Kennedy i>.) 142 9 73 ii S.Robinson, 144 306 13 '. V. Blanchard, 148 348 130 ii ' (Dalay e.) 145 38 78 V. Darling, 151 5 122 Savey, (Comm. v.) 145 313 75 Sawin, (Bancroft «.) 143 144 91 Sawtell, (Place n.) 142 477 90 Sawtelle, (Comm. v.) 150 330 73 Sawyer v Boston, 144 470 77, 119 (Clark u) 151 64 68 (Comm. ».) 142 530 8 «. Mackie, 149 269 115 (Todd J).) 147 570 37 (Wainright v.) 150 168 8, 37 Scanlon v. Boston & Albany Railroad, 147 484 87 Schaffner, (Comm. v.) 146 512. . . 66, 89, 129 Schramm v. Boston Sugar Refining Co., 146 211 110 Schwarz v. Bos'.on, 151 226 116 Sears D. Choate, 146 395 133 V. Leland, 145 277 31 Seavey, (Emery ».) 144 403 5 (Emery «.) 148 5«6 22 Security Bank v. Fogg, 148 273 3 ii Segee v. Downes, 143 a40 8. 125 Senancour «. Societe La Prevovance, 146 616 81 Sennott's Case, 146 489 57 Seward v. Arms, 145 195 125 ». Hayden, 150 158 84 Sewall & Day Cordage Co. v. Boston Water Power Co., 147 61... 4, 53 Sliannihan, (Comm. v.) 145 99 66 Shapinea. Shaw, 150 362 40 Sharp, (Meehan «.) 151 565 113 Shattuckfl. Bill, 142 56 10 ». Rand, 142 88 93 Shaw, (Bank of America «.) 142 290 15 (Cabot e.) 148 459 3 ii (Comm. e.) 145 349 65 «. Cordis, 143 443 133 (Importers' & Traders' Nat. Bank ».) 144431 15 Shaw », New York & New England Rail- road, 150 183 94 (Shapine d.) 150 363 40 ». Silloway, 145 503 32 (Smith v.) 150 397 84 u Smith, 150 196 .... . 14 Shaw Stocking Co., (Boynton ».) 146 319 80 Shay, (Miller v.) 142 598 44, 45 (Miller «.) 145 163 47 ii Shea, (Carroll r.) 149 317 104 (Comm. J).) 150 314 64 (Iasigi«.) 148 538 122 B. Milford, 145 538 118 ii, 133 (Millers.) 150383 6 Shedd, (Guild ».) 150 255 58 Sheehan, (Comm. u ) 143 468 66 Shepard, (Abbott s.) 142 17 69 ii (Cofran «.) 148 582 80, 99 V. Hill, 151 540 96 ■n. Richardson, 145 32 91 Sherburne v. Shepard, 142 141 130 Sherburne v. Sisoho, 143 439 36 Sheridan v. Salem, 148 196 119 Sherry v. Perkins, 147 313 95 Shoe & Leather Nat. Bank u. Wood, 142 563 16 ii, 23, 34 Short V. Currier, 150 373 43 s. Devine, 146 119 40 «. Symmes, 150 398 7 Shrieves v. Morris, 161 310 108 Shurn, (Comm. v ) 145 150 46, 74 Sibley, (Rogers s.) 150 180. . . .■ 69 Sillars ■». Collier, 151 50 81 ii Silloway, (Shaw i).) 145 503 , 22 Simanovich v. Wood, 145 180 47 Simmons, (Ashcroft «.) 151 497 9 ii (Boston s.) ISO 461 24 (Clark B.) 150 359 91 (Robinson «,) 146 167 99 ». Woods, 144 385 10 Simpson ». Mercer, 144 413 75, 77 «. Story, 145 497 112 Sischo, (Sherburne ».) 143 439 36 Skillings ®. Massachusetts Benefit Assoc. , 146 317 13 1). Massachusetts Benefit Assoc, 151331 76 Skinner, (.May «.) 1 49 375 52, 57 Sinter i). Hur'lbut. 146 308 123 V. Lamb, 150 239 50 Slater Woolen Co., (Gould v.) 147 315. . 2 V. Lamb, 143 420 29 Slatterly, (Comm. s.) 147 433 107, 121 Slattery «. Wason, 151366 43 Slavens, (Old Colony Railroad v.) 148 363 76 Sleeper, (Frank ■».) 150 583 120 Slocum 1). Riley, 145 370 ■ ■ ■ 98 Smethurst «. Barton Square Church, 148 361 80 Smith V. Brown, 151 338 45, 111 (Colletts.) 143 473 86 (Comm. ».) 143 169 89 (Comm. v.) 149 9 ■ • 89 (Comm. ».) 151 491 7, 24. 46 V. Concord, 143 253 •120 9. Dedtam, 144 177 118 u 152 TABLE OF CASES CITED. Smith, (Delano v.) 142 490 90 (Eldridgej).) 144 35 84 z>. Morse, 148 407 t53 ii n. N. Y. & N. E. Railroad, 143 21 40, 106 (Nicholse.) 143 455., 6iS i>. O'Brien, 146 394 109 (O'Donnell ».) 142 505,... 33, 57, 102 V. Osborn, 143 185 32 B. Shaw, 150 297 84 (Shaw V.) 150 196 14 «. Smith, 148 1 102 V. Smith, 150 73 105 ii (Talcott «.) 142 542 101 «. Whitney, 147 479 53 t). Wildes, 143 556 93 Smythe v. Sprague, 149 310 68 Snailham B. Isherwood, 151 317 124 Snee, (Comm. ».) 145 351 45 Snell, (Eame,s v.) 143 165 108 Snow «. Alley, 144 546 27 «. Alley, 151 14 47 (Fairbanks v.) 145 153 16, 39, 62 (Parker B.) 143 433 5 Snow Cattle Co., (Corcoran ®.) 151 74. . . 11 Snowden v. Boston & Maine Railroad, 151320 93 Societe La Prevoyance, (Senancour v.) 146616 81 Somerset, (Hinckley ».) 145 326.. 48, 60, 61 ii Somerville, (Ayer «.) 143 585 119 Somerville Horse Railroad (Braslin «.) 145 64 113 Sopfer V. Manning, 147 136 41 Sorrell, (Bigelow Wire Works d.) 142 443. 110 South Boston Ice Co., (Young v.) 150 537 88 South Boston Raihoad (Aliens.) 150 300. 28 ii (Collins V.) 142 301 92, 93 (Craft 4>.) 150 307 28 (Farrington v.) 150 400 28 South Boston Savings Bank, (Brown ii.) 148 300 90 ii, 91 Southbridge Savings Bank v. Mason, 147 500 53 South Hadley, (Bliss «.1 145 91 60 (Nashu) 145 105 61 South Scituale v. Stoughton, 145 535 .. . 103 Spalding v. Conant, 146 393 110 Spaulding, (Hale v.) 145 482 76 «. Nourse, 143 490 58 (Saltmarsh«.) 147 334 39, 107 Spear, (Comm. v.) 143 173 89 ii Spencer, (Williams ».) 150 346 128 ii Spencer Water Co., (Warren «.) 143 9 . . 127 128'iii Spicer «. Lynn & Boston Railroad, 149 207 101 Spiegel (Moore ».) 143 41 3 1, 8 SpofEord, (Fennessy v.) 144 23 46 Spooner «. Cumming,'!, 151 313 108 ii «. Handley, 151 316 108 ii Sprague, (Manning v.) 148 371 20 (Smythe v.) 149 310 68 Spring V. Hager, 145 186 67 Springfield, (Parker 7;.) 147 392 48 ii (8pringfieldThirdSoc.,».) 147 396, 115 Springfield Fire, etc., Ins. Co,, (Towne r.) 145 583 7liiii Springfield Third,Soc. v. Springfield, 147 396 115 Spurr, (Morrill «).) 143 357 99 Squire, (McCartB.) 150 484 48 Squires v. Amherst, 145 193 47, 121 Staigg V. Atkinson, 144 564 39 Stanchfleld, (Bartlett «.) 148 394 37 ■». Newton, 142 110 119 Standard Measuring Machine Co., (Porter «.) 142 191 100 Standard Yarn Co., (Felker «.) 148 336, 39 ii (Felker v.) 149 364 39 Stanfield, (White ») 146 434 35 Stanton «. Salem, 145 476 61 Starr, (Coram, d.) 144 B59 84 ii Starratt v. MuUeu, 148 570 45 Stead V. Worcester, 150 341 44 Stedman, (Giroux «.) 145 439 110 Steele v. Nash, 145 198 36 Stein, (Gould v.) 149 570 110 Stetson, (Taunton Nat. Bank i>.) 145 366. 67 iiii Stevens, (Comm. v.) 142 457 6 V. Fisher, 144 114 133 V. Miles, 142 471 , 46 ii «. Stevens, 150 557 32 «. Pierce, 147 510 69 ii «. Pierce, 151 207 79 Stevenson, (Comm v.) 143 466 44, 72 ■». Hano, 481 616 91 (Osgood D ) 143 399 4 Stewart «. Boston & Providence Railroad, 146 605 94 (Langdon v.) 142 576 116 StifE v. Keith, 143 224 66 Stinson, (Moore ?>.) 144 594 133 Stock V. Boston, 149 410. , 118 Stoddard, (Taft v.) 142 545 90 Stone, (Balch v.) 149 39 33 «. Graves, 145 353 84 V. Jenks, 142 519 90, 108 V. Littlefleld, 151 485 36, 64 ». Wainwright, 147 301 76 (Wyeth «.) 144 441 98 Storer, (George Woods Co. ■».) 144 399 . . 29 Storrs, (Floyd «.) 144 56 26 Story, (Simpson v.) 145 497 113 Stoughton, (South Scituate ®.) 145 535.. 103 Strahan, (Lowell «.) 145 1 7i) ii Sirain, (Hobbs «.) 149 212 15 ii Stratton, (tiomm «.) 150 188 73 «. Physio-Medical College, 149 505 31, 35 Streeter v. Ilsley, 147 141 79 ■0. Ilslev, 151 291 91 Sturgis, (Heard «.) 146 545 13 V. Paine, 146 354 122 ii Suffolk Brewing Co., (O'Shaughnessy v.) 145 569 93 Suffolk Savings Bank v. Boston, 149 364. 17 (Parkmans.) 151 318 Ill Sullivan v. Baxter, 150 361 54 (Comm. ■».) 146 143 85 (Comm. V.) 150 315 54, 129 v. Fall River, 144 579 60 ».. Hurley, 147 387 13 D. Old Colony Railroad, 148 119. . 19 V. O'Leary, 146 323 129 Sumner. (Frost « ) 149 98 44 Sunderland, (Cowen v.) 145 863 79 Supple, (O'Grady «.) 148 523 95 Sutton, (National Exchange Bank ®.) 147 131 9 Swan, (Lazarus v.) 147 330 8 (McCarthy D.) 145 471 6 Swasey d. Jaques, 144 135 33, 104 Sweet, (Barrows ■».) 143 31 6 6 (Cheever v.) 151 186 85 Swett ». Thompson, 149 302 21 Swift «. Carr, 145 553 ' 99 Symmes, (Short v.) 150 298 ......!!... , 7 TABLE 01^' CASES CITED. 153 T. Taft, (Patton ».) 143 140 25, 57 ®. Stoddard, 143 545 90 Talbot J). Chamberlain, 149 57 85 Talcott B. Smith, 142 543 101 Tansey «. McDonnell, 142 220 109 Tarbell «). Linehan, 151 448 26 Tarr, lAttorney-General v.) 148 309 96 Tate 1). Donovan, 143 590 73 Tateiim v. Ross, 150 440 71, 124 Taunton, (Fall River v.) 150 106 103 Taunton Nat. Bank s. Stetson, 145 366. 67 iv Taunton Savings Bank, (Hopewell Mills ■D.) 150 519 53 Tay, (Coram. ».) 146 146 65 Taylor v. Carew Manuf. Co., 143 470 . , 86 t). Carroll, 145 95 73 ii (Dana ».) 150 25 2 V. Dexter Engine Co. 146 80 (Gibbs V.) 143 187 51, 103 ti. Lewis, 146 222 100 v. Taylor, 145 239 38 Tecumseh Mills, (Coullard v.) 151 85 87 Teeveus, (Comm. v.) 143 210 107 Tenney, (Comm. v.) 148 452 74 Thacher, (Nickerson «.) 146 609 120 Thayer, (Needham ». ) 147 536 76 Thomas v. Blasdale, 147 438 81 ii Thompson (Beals v.) 149 405 83 ii V. Boston, 148 387 129 «. Cowell, 148 553 77 (Reardonii.) 149 367 80 (Swetti).) 149 30J 31 Thorndike v. Wells Memorial Association, 146619 100 Thurber, (Alden «.) 149 271 110 Tibbetts v. Handy, 145 537 5 V. Leeson, 148 103 31 ii Tighe, (Myer!).)151354 57 Tilden v. Greenwood, 149 567 90 Tinkham, (Hathaway d.) 148 85 4, 50 Tisdale, (Washburn v.) 143 376 68 Titus n. Boston, 149 164 119 Tobin V. Jones, 143 448 10 Todd, (Kent ».) 144 478 79 «. Lunt, 148 322 110 «. Sawyer, 147 570 87 Toledo, Cincinnati & St. Louis Railroad, (Pettibone «.) 158 411 29 (Posts.) 144 341 30 Tolman, (Comm. s.) 149 329 65, 89 ii Tomliiison v. Bury, 145 346 34 ii Tompkins «. Hill, 145 379 3 Tompson, (Baker ».) 151 380 55 (Kellogg «.) 142 76 ....32ii, 32 loomey V. Sanborn, 146 28 93 Torrey v. Boston & Albany Railroad, 147 413 94 Towle J). Delano, 144 95 36, 12a Towne v. Sjiringfield Fire, etc., Ins. Co.i 145 582 71iiii Townsend v. Webster Five Cent Savings Bank, 143 147 110 Townsend Nat. Banks. .Tones, 151 454.. 4 ii Tracy s. Noyes, 143 449 12 ii Tracy, (Handy s.) 150 521 22 ij. Lincoln, 145 357 43 Traders ifc Mechanics' Ins. Co. i>. Brown, 142 4U3 72 Traders' lusurance Co., (Byran v.) 145 389 70 Traders' Nat. Bank, (Blake v.) 145 13. . 78 83, 114 (Blake «.) 149 250 114 Trafton, (Boston & M. Railroad v.) 151 229 19 Train i>. Boston Disinfecting Co., 144 253 16 Travelers' Ins. Co,, (Coburn v.) 145 226, 70 (Freeman «.) 144 572 70 Traveller Newspaper Association, (Dun- phys.) 146 495 80 Travis, (Anthony s.) 148 53 49, 50 Trecyi). Jefts, 149 211 9 Trider, (Comm. a.) 143 180 129 Trimble, (Comm, s.) 150 89 97 (Wheaton e.) 145 345 3 Tripp, (Old Colony Railroad «.) 147 35 . 107 Trowbridge «. Brookline, 144 139 119 TnimbuU ». Trumbull, 149 200 36 Tuck V. Manning, 150 211 41 Tucker, (Hoklswhorth ».) 143 869 136 (Hol.l.sworlb n.) 147 57:i 5, 95 Tutts V. Atlantic Telegraph Co., 151 209 26, 32 (Harviird Unitarian Soc, ».) 151 76. 84 Turner v. Filchburg Railroad, 145 433. . 40 (Comm. D.) 145 296 5 (Quigley a) 150 108 8, 129 Turner'.s Falls Co., (Comins ».) 143 443. 89 (Holmes v.) 142 590 18, 79, 107 (Holmes v.) 150 535. ... 2 ii, 10 ii, 46 91 ii Tuson, (Eaton v.) 145 218 21 Tutlle V. Gilbert Manuf. Co., 145 169. . . 79 (Vinalf.) 144 14 103 Twitchell, ((.ockwood ».) 146 623 16 Tyler ». Brigham 143 410 90 V. Hudson, 1 47 609 119 V. Odd Fellows' M. R. Assoc., 145 134 13, 43 U. U irig, (Comm. ■».) 146 133 74 Ulsch V. MuUer, 143 379 16 Union Cattle Co. «. International Trust „ Co., 149 492 23 Umon Savings Bank ». Pool, 143 203 00 YOL. III~20 Union Street Railway, (Briggs v.) 148 72. 94 (Howland p.) 1 50 86 93 United Society ®. Brooks, 145 410. . .. . ■ 110 United States Mutual Accident Relief Co., _ (Ford r.) 148 158 70 n Upton V. Foster, 148 592 W* 154 TABLE OF CASES CITED. V. Vahey, (Comm. «.) 151 57 96 Valda, (Moore v.) 151 863 41 Vanuxen v. Burr, 151 386 55 Varian, (New Bngland Mut. Accident Assoc. B.) 151 17 49,109 Vinal V. Tiittle, 144 14 103 Verran i). Baird, 150 141 44 Vose v. Essex County, 145 500 75 w. Wacbusett Nat. Bank®. Fairbrotlier, 148 181 * 15 Wadhams, (Richmond Iron Worlis v.) 142 569 2 "Wainright v. Sawyer, ISO 168 8, 37 Wainwright, (Stones.) 147 aOl 76 Waite, (Mechanics' Savings Bank?).) 150 334 125 Wakefield, (Porter v.) 146 25 63 Waldron v. Haverhill, 143 582 63 WalkerB. Fuller, 147 489 5 D.Mayo, 14342 28 (Russell «.) 150 531 98ii "Wall, (Comm. v.) 145 216 73 Wallace, (Comm. «.) 143 88 96, 97 Walpole V. Quirk, 143 72 91 Walpole Emery Mills, (Goodnow «.) 146 261 Walsh, (Constantinides ®.) 146 281 . , Walter, (Lannan «.) 149 14 Waltham, (Collins ®.) 151 196 « Newburyport, 150 569 102 ii (Newburyport v.) 150 811 102 (Peterson D.) 150 564 59 (Wormwood v.) 144 184 61 Ward, (Avery v.) 150 160 81, 101 «. Cobb, 148 518 3 Warden v. Etter, 143 19 78, Ware v. Merchants' Nat. Bank, 151 445 Warner ». Bowdoin Square Baptist Soc, 148400 108 1). Morse, 149 400 37, 124 Warren v. Carey, 145 78 47 (Comm. ».) 143 568 92 (Lincoln v.) 150 309 59 D. Spencer Water Co., 143 9 127 128 iii Wasdell, (Pray «.) 146 834 6 Washburn v. Hammond, 151 132 55 (Moors «.) 147 344 32 ii V. Tisdale, 143 376 68 Washburn Car Wheel Co., (Mulchahey v.) 145281 ■:... 1 Washington Mills, fCoe «.) 149 543 21 Wasson, (Slattery v.) 151 266 43 Watson, (Cummings v.) 149 263 51 (Hadley v.) 143 87 48 V. Watson, 150 84 83 Watuppa Reservoir Co. v. Fall River, 147 548 1112 Way?). MuUett, 143 49 91 Weare, (SafEord «.) 142 331 76 ii Webber, (Duncklee b.) 151 408 3, 79 Weber, (Hastings v.) 142 332 113 Webster v, Ellsworth, 147 602 37 87 62 125 59 130 107 Webster v. Lowell, 142 324 51, 59 (Murphy «.) 151 121 87 (O'NeilB.) 150 572 90 Webster Five Cent Savings Bank, (Town- send «.) 143 147 110 Weeks v. Hobson, 150 377 yi Wehrle v. Gurney, 146 331 11 Weil V. Raymond, 142 206 42 Welch, (Comm. «.) 142 473 46 ,5,3 73 65 118 20 96 40 93, 84 69 100 36 (Comm. ■!).) 144 356 (Comm. V.) 147 374. . (Comm. V.) 148 296. . . Wellesley, (Neff?).) 148 487 Wellington ■». Apthorp, 145 69 (Comm. V.) 146 566 Wells, (Kinnear v.) 144 497 .1). New Haven & N. Railroad, 151 46 ®. White, 142 518 Wells Memorial Assoc., (Thorndike «.) 146 619 Welsh V. Woodbury, 144 542 Wentworlh, (Comm. v.) 145 50 117 (Comm, ■».) 146 36 96 11. Bas ern Railroad, 143 248 44 Werner, (Hamlen «.) 144 396 23 Wes on «. Comm., 144 60 33 Wes', (Newell v.) 149 530 52 Westborough, (Bates « ) 151 174 119 West End Street Railway, (MSgee v.) 151 240 Western Assurance Co., (Manufacturers' Fire & Marine Ins. Co. v.) 145 419 Weston V. Weston, 143 274 Weymouth, (Howe v.) 1 48 605 120 (Pratt D.) 147 245 60, 62 Whalen, (Comm. v.) 147 376. . WhallB. Converse, 146 345.. Whealon v. Trimble, 145 345 Wheeler, (Atwood «.) 149 96 i>. Fitchburg, 150 350 59 ?). Laird, 147 431 3 V. Young, 143 143 3 Wheeler Cotton Mills, (Whitney?).) 151 396 : 83 Whidden, (Movnihan v.) 1 43 287 93 ii Whippen ?). Whippen, 147 394. .. 38 White, (Barton «.) 144 281 68 ii V. Boston & Albany Railroad 144 404 93 (Comm. V.) 145 393 50 54 ii (Comm. ?).) 147 76 95 H (Coinm. ?).) 148 429 95 (Corcoran v.) 146 339 76 V. Foxborough, 151 38. . . . 58 iiii', 59 94 71 49 35 3 103 TABLE OF CASES CITED. 155 White V. Hill, 148 396 9 ®. McLaren, 151253 26 D.Konatum "Worsted Co., 144 276. 88 (Roberts d.) 146 256 21 «. Stanfield, 146 42J 35 (Wells B.I 142 518 (19 Whitmarsli, (Callaghan v.) 145 3 JO 103 Whitmore v. Boston & Maine Railroad, 150 477 88 ii (Brooks a.) 142 399 123 Wlutneyu Clary, 145 156 15, 16 (Dow«.) 147 1 33 (Lee».) 149 447 15 V. Lowell, 151 212 60 ii (ParkD.) 148 278 26 «. Pullman's Palace Car Co., 143 243 19 (Smith ».) 147 479 63 «. Wheeler Cot, on Mills, 151 396 . 33 Whittier, (Downer «) 144 448 22 Whorf ». Equitable Marine Ins. Co., 144 68 71 Wilde, (TuUer «.) 151 412 98 Wildes, (Smith v.) 143 556 92 Wiley 1). Athbl, 150 426 45, 118 Willard ^.'Boston, 149 176 59 V. Lavender, 147 15 10") Willett ». Rich, 142 356 11 Williams, (Fitzgerald «.) 148 462. ... 45, 129 V. Gloucester, 148 256 118 ii ■ (Mann v.) 143 394 46 (Metcalf D.) 144452 3 V. Spencer, 150 346 128 ii V. Williams, 142 515 128 Williamson v. Cambridge Railroad, 144 148 46, 95 Willis, (Lombard v.) 147 13 37 (McDonald ».) 143 452 83 Wllliston Seminary «. Hampshire County Comm'rs, 147 427 115 Wilson V. Crooker, 145 571 9 V. Fall River, etc., Pub. Co., 143 581 83 «. Martin-Wilson Automatic, etc., Co., 149 491 42 !). Martin- Wilson Fire Alarm Co., 151515 43 ii B. O'Connell, 147 17 36 «. Wilson, 145 490 133 ii «. Winslow. 145 339 12 Windrani«. French, 151 547 55 Winns. Sanford, 145 302 17 !). Sanford, 148 39 63 Winship, (Dndds.) 144 461 134 Winslow, (Wilson u.) 145 339 12 Winsor, (Commercial Wharf Co. v.) 146 559 43 j2g Witherell, (Atkins d.) 142 482. 89 ». Murphy, 147 417 3 Wolft'sohn, (Moebs v.) 14,3 180 95 Wonson d. Pew, 148 299 ' " .' qq Woi d, (Bowers v.) 143 183 12 V. Boyd, 145 176 .', .".".]' 33 ». BuUard, 151 824 35 43 (Comm. i>.) 142 459 53 jji (Deshon v.) 148 132 g9 i>. Graves, 144 365 7 46 (Jenkins v.) 144 338 ' 51 (Jenkins d.) 145 494 '.. 76 ■B. Locke, 147 604 87 (Murray v.) 144 195 .".'.' 57 (Northborough v.) 142 551. 16 (Pyne b.) 145 558 66 ii ». Remick, 143 453 4 (Shoe & Leather Nat. Bank «.) 142 563 16 ii, 23, 24 (Simanovich «. ) 145 180 47 Woodbury v. Marblehead Water Co., 145 509 137 ii, 128 (Welsh V.) 144 542 36 Woodcock, (Mixter s.) 147 613 35 Woodman v. Metropolitan Railroad, 149 335 113 Woods, (Simmons v.) 144 385 10 Woodsum, (Odewald) 142 512 13 Wooldredge, (Dole ^>.) 142 161 . . 33, 43, 44 Worcester, (Barry v.) 143 476 82 (Mi.nahau v.) 150 439 44 (Norwich & Worcester Railroad v.) 147 518 106 (Olson e.) 142 536 61 (Stead r.) 150 241 44 Worcester County, (Brigham v.) 147 446, 58 Worcester Coui ty Comm'rs. (Norwich & W. Railroad »,) 151 69 115 ii Worcester, Nashua, etc., Ra.lroad, (Day V.) 151 302 30 (John Hancock Mut. Life Ins. Co. ».) 149 214 30 Wormwood ». Wallham. 144 184 61 Worthing. (Foster 11.) 146 607 129 Worthington v. Klemm, 144 167 128 Wright ■». Boston & Albany Railroad, 142 298 94 «!. Dawson, 1 47 384 10 41. Lothro-, 149 385 27, 81 4). MorU'y, 150 518 10 Wriisley, (Kenyon v.) 147 476 83 Wyeth «. Stone, 144 441 98 Wyman, (Moors ».) 146 60 22 Y. Yarter v. Flagg, 143 380 1 Young V. Cook, 144 38 81, 83 T. Providence & Btonington S. S. Co,, 150 550 1, 5 Young Ii. South Boston Ice Co., 150 537 88 (Wheeler v.) 143 143 3 Youngerman, (Bates ».) 142 130 113